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THE DECLARATION OF COVENANTS,CONDITIONS,AND RESTRICTIONS
OF
THE SUMMIT AT MOUNTAIN VIEW
THIS DOCUMENT WAS DRAFTED BY,
AND AFTER RECORDING,RETURN TO:
William A.Love,Esq.
Wells,Love&Scoby LLC Copyright 8 2002
225 Canyon Blvd. By William A. Love
Boulder,CO 80302 All Rights Reserved
(303)449 4400 8/20/02
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THE l�
DECLARATION OF COVENANTS,CONDITIONS AND RESTRICTIONS
OF
THE SUMMIT AT MOUNTAIN VIEW
THIS DECLARATION OF COVENANTS,CONDITIONS AND RESTRICTIONS OF THE
SUMMIT AT MOUNTAIN VIEW is made on the date hereinafter set forth, by the DNS
DEVELOPMENT,LLC, a Colorado limited liability company("Declarant").
PREAMBLE
WHEREAS,Declarant is the owner of certain real property located in Boulder,Colorado,as
more particularly described on the attached Exhibits A and B; and
WHEREAS, Declarant intends to create a residential community on the said real property
together with other improvements thereon; and
WHEREAS,Declarant will convey the said real property,subject to the protective covenants,
conditions and restrictions, as hereinafter set forth.
NOW THEREFORE,Declarant hereby submits the real property described on Exhibits A and
B,together with all rights,and appurtenances thereto and improvements thereon to the provisions of
the Colorado Common Interest Ownership Act, as it may be amended from time to time, subject
however to the express limitation stated in the Act that a planned community created in Colorado
after July 1, 1998 that contains no more than twenty units and is not subject to any development
rights,as such are defined in the Act,is subject only to sections 38-33.3-106 and 38-33.3-107 of the
Act. In the event the said Act is repealed,the Act as it exists on the date this Declaration is recorded
shall remain applicable.
Declarant hereby declares that all of the said real property described on said Exhibits A andB
shall be held and conveyed subject to the following covenants,conditions and restrictions,all of which
are declared and agreed to be for the protection of the value of the said real property, and for the
benefit of any persons having any right, title or interest in the said real property. Said covenants,
conditions and restrictions shall be deemed to run with the land and shall be a burden and a benefit to
any persons acquiring such interest,their grantees,heirs,legal representatives,successors and assigns,
and acceptance of such interest by any such persons shall constitute such person=s agreement to be
bound by the same. It is the purpose of these covenants that the present natural beauty and view,the
natural growth and native setting and surrounding of THE SUMMIT AT MOUNTAIN VIEW always
be protected as much as possible in connection with the uses and structures permitted by this
instrument.
Copyright 8 2002
By William A.Love
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ARTICLE ONE: DEFINITIONS c�
As used in this Declaration, unless the context otherwise requires, the terms hereinafter set
forth shall have the following meanings:
1.1 ACT means the Colorado Common Interest Ownership Act,C.R.S. ' 38-33.3-101,g4 .,as it
may be amended from time to time.
1.2 AGENCIES means and collectively refers to the Federal National Mortgage Association
(FNMA),the Federal Home Loan Mortgage Corporation(FHLMC),the Department of Housing and
Urban Development(HUD/FHA),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.
1.3 ALLOCATED INTERESTS means the Common Expense Assessment Liability and the votes in
the Association which are allocated to each of the Lots in the Planned Community. The formulas
used to establish the Allocated Interests are as follows:
(a) Common Expense Assessment Liability. All Common Expenses shall be levied
against Lots on the basis of a fraction, the numerator of which is one and the
denominator of which is the total number of Lots then within the Planned Community.
(b) Votes. Owners shall be entitled to one vote for each Lot owned within the Planned
Community;provided,however, in any election of directors, each Owner shall have
the number of votes equal to the number of directors to be elected,to be cast no more
than one vote per candidate(up to the number of directors to be elected).
1.4 ARTICLES means the Articles of Incorporation of the Association.
1.5 ASSESSMENTS mean the (a) Common Expense Assessments, (b) Special Assessments, (c)
Individual Assessments, and (d)Fines levied pursuant to this Declaration.
1.6 ASSESSMENT LIEN means the statutory lien on a Lot for any Assessment levied against that
Lot together with all Costs of Enforcement as herein defined. All Costs of Enforcement are
enforceable as Assessments.
If an Assessment is payable in installments,the fill amount of the Assessment is a lien from
the time the first installment becomes due.
1.7 ASSOCIATION means THE SUMMIT AT MOUNTAIN VIEW HOMEOWNERS
ASSOCIATION, a Colorado nonprofit corporation, its successors and assigns, the Articles of
Incorporation and Bylaws,of which along with this Declaration,shall govern the administration ofthe
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Planned Community,the Members of which shall be all of the Owners of the Lots within the Planned
Community.
1.8 BOARD OF DIRECTORS or BOARD means the Board of Directors of the Association duly
elected pursuant to the Bylaws of the Association or appointed by Declarant as therein provided. The
Board of Directors is the governing body of the Association and shall act on behalf of the
Association.
The term Board of Directors as used herein is synonymous with the term Executive Board as
the latter term is used in the Act.
1.9 BUDGET means the annual budget of the Association prepared and adopted in accordance with
Paragraph 4.10 hereof
1.10 BYLAWS means the Bylaws which are adopted by the Board of Directors for the regulation and
management of the Association.
1.11 COMMON AREAS means the real property (including all Common Area Improvements
thereon) owned by the Association, all of which is held for the common use and enjoyment of the
Owners, the description of which is more fully described on the attached Exhibit B, including the
Common Open Space Lot _, all buildings, irrigation systems, fences and other improvements
constructed on Common Open Space Lot and the private roads and utility easements within the
Property, and all drainage facilities, detention ponds, and other drainage features installed by
Declarant.
The term Common Areas as used herein is synonymous with the term Common Elements as
the latter term is used in the Act.
1.12 COMMON AREA IMPROVEMENTS means those Improvements located on the Common
Areas, which are owned by the Association for the common use and enjoyment of the Owners and
their Guests.
1.13 COMMON EXPENSE ASSESSMENTS means the funds required to be paid by each Owner in
payment of such Owner's Common Expense Liability as more fully defined in Paragraph 5.2 hereof.
1.14 COMMON EXPENSE ASSESSMENT LIABILITY means the liability for the Common
Expense Assessments allocated to each Lot determined in accordance with that Lot=s allocated
Interests as set forth in Paragraph 1.3(a) hereof.
1.15 COMMON EXPENSES means expenditures made by or liabilities incurred by or on behalf of
the Association, together with allocations to reserves,
1.16 COSTS OF ENFORCEMENT means all fees, late charges, interest and expenses, including
receiver's fees, and reasonable attorneys' fees and costs incurred by the Association in connection
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with the collection of Assessments and Fines, and the enforcement of the terms, conditions and
obligations of the Project Documents.
1.17 COUNTY means Weld County, Colorado.
1.18 DECLARANT means DNS DEVELOPMENT,LLC,a Colorado limited liability company,or its
successors and assigns. A Person shall be deemed a Asuccessor and assign@ of Declarant only if
specifically designated in a duly recorded instrument as a successor or assign of the Declarant under
this Declaration, and shall be deemed a successor and assign of Declarant only as to the particular
rights or interests of the Declarant under this Declaration which are specifically designated in the
written instrument.
1.19 DECLARANT RIGHTS means the development,special declarant and other rights granted to or
reserved by Declarant of the benefit of Declarant as set forth in this Declaration and the Act.
1.20 DECLARATION means this Declaration,the Plat and any supplements and amendments thereto
recorded in the Office of the County Clerk and Recorder.
1.21 DESIGN REVIEW COMMITTEE means the Committee formed pursuant to ARTICLE SIX
hereof to review and approve or disapprove plans for Improvements as defined herein as more fully
provided for by this Declaration.
1.22 DESIGN REVIEW GUIDELINES means the DESIGN REVIEW GUIDELINES FOR THE
SUMMIT AT MOUNTAIN VIEW, as amended and supplemented. These guidelines may be
adopted by the Design Review Committee to implement and interpret the Design
Review/Architectural Approval provisions of ARTICLE SIX of this Declaration.
These guidelines may contain, among other things, guidelines that will clarify the design,
materials,heights, size of structures and the maximum and minium setbacks that will be considered in
Design Approval.
1.23 DWELLING UNIT OR UNIT means the residence constructed on each Lot within the Planned
Community and any replacement thereof. Dwelling Unit shall include the Lot upon which such
Dwelling Unit is constructed.
1.24 ELIGIBLE MORTGAGEE means a holder,insurer or guarantor of a First Security Interest who
has delivered a written request to the Association containing its name,address,the legal description
and the address of the Lot encumbered by its First Security Interest,requesting that the Association
notify them on any proposed action requiring the consent of the specified percentage of Eligible
Mortgagees.
1.25 FINES means those fines described in Paragraph 5.4(c)hereof.
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1.26 FIRST MORTGAGEE means any Person which owns, holds, insures or is a co
or of a
Security Interest as herein defined, which is a First Security Interest encumbering a Lot within the
Planned Community. A First Mortgagee shall also include the holder of executory land sales
contracts wherein the Administrator of Veterans Affairs (Veterans Administration) is the Seller,
whether such contract is recorded or not.
1.27 FIRST SECURITY INTEREST means a Security Interest (as hereinafter defined) that has
priority of record over all other recorded liens except those liens made superior by statute(such as
general ad valorem tax liens and special assessments).
1.28 GUEST means(a)any person who resides with an Owner within the Planned Community;(b)a
guest or invitee of an Owner; (c) an occupant or tenant of a Dwelling Unit within the Planned
Community, and any members of his or her household, invitee or cohabitant of any such person; or
(d) a contract purchaser.
1.29 IMPACTED OWNER means an Owner who would reasonably be affected by any proposed
Improvement, excluding the Owner making the proposal to the Committee. Impacted Owners are
identified by the Design Review Committee and take into account the physical proximity oftheir Lots
to the proposed Improvement and as well as other factors deemed pertinent by the Committee.
1.30 IMPROVEMENTS means:
(a) all exterior improvements, structures, auxiliary structures and any appurtenances
thereto or components thereof of every type or kind;
(b) the grading,excavation,filling or similar disturbance to the surface of the land includ-
ing,without limitation, change of grade, change of ground level, and change of drainage pattern;
(c) all landscaping features,including,but not limited to,buildings,outbuildings,auxiliary
buildings, patios, patio covers, awnings, painting or other finish materials on any visible structure,
additions, walkways, sprinkler systems, garages, private drives, driveways, fences, screening walls,
retaining walls, stairs, decks, landscaping, hedges, windbreaks, plantings, trees, shrubs, flowers,
vegetables,sod,gravel,bark,exterior light fixtures,poles, signs,cooling,heating and water softening
equipment; and
(d)any change, alteration, modification, expansion, or addition to any previously approved
Improvement, including any change of exterior appearance, finish material, color or texture.
1.31 LOT means each platted lot shown upon the Plat of the Planned Community which is subject to
this Declaration,together with all appurtenances and improvements now or hereafter located thereon.
Lot shall include any Dwelling Unit constructed thereon as the term Dwelling Unit is herein defined.
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The term Lot as used herein is synonymous with the term Unit as the latter term is used in the
Act.
1.32 LOTS THAT MAY BE CREATED means seven Lots,or the maximum number ofLots allowed
by any governmental entity having jurisdiction over the Planned Community pursuant to any
development plan, including those Lots made subject to the Declaration. Declarant shall not be
obligated to expand the Planned Community beyond the number of Lots initially submitted to this
Declaration. No Lot shall be re-subdivided nor shall any more than the maximum number ofdwelling
units allowed by State Law or County Ordinance be erected on any one Lot.
In the event that the process of entitlement for Declarant to obtain Building Permits is placed
on Ahold@ (e.g., moratorium, anti-growth legislation, etc.) for reasons beyond the control of
Declarant,the time limitations set forth herein shall be extended until the impediment to entitlement is
removed.
1.33 MANAGING AGENT means any one or more persons employed by the Association who is
engaged to perform any of the duties, powers or functions of the Association.
1.34 MEMBER means each Owner, as defined in Paragraph 1.37 hereof.
1.35 MODIFICATION REVIEW COMMITTEE means the Committee formed pursuant to
ARTICLE SIX hereof to review and approve or disapprove the plans for any modification,addition
or alteration made on or to existing Improvements as defined herein as more fully provided for in this
Declaration.
1.36 NOTICE AND HEARING means a written notice and an opportunity for a hearing before the
Board of Directors in the manner provided in the Bylaws.
1.37 OWNER means the record Owner of the fee simple title to any Lot which is subject to this
Declaration.
1.38 PARTICIPATING BUILDER means and refers to a Person or Persons who acquires a portion
of the Planned Community for purposes of improving such Lots in accordance with any development
plans for resale to third party purchasers, and who is designated by the Declarant as such by an
instrument duly recorded in the Office of the County Clerk and Recorder.
1.39 PERIOD OF DECLARANT CONTROL means that period of time as defined in Paragraph 4.7
hereof.
1.40 PERSON means a natural person, a corporation, a partnership, an association, a trustee, a
limited liability company, a joint venture, or any other entity recognized as being capable of owning
real property under Colorado law.
1.41 PLANNED COMMUNITY means such real property and the improvements located thereon as
more fully described on Exhibits A and B attached hereto. The name of the Planned Community is
THE SUMMIT AT MOUNTAIN VIEW.
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1.42 PLAT means the Final Plat of THE SUMMIT AT MOUNTAIN VIEW,a subdivision recorded
in the records of the County Clerk and Recorder, and any supplements or amendments thereto.
1.43 PROJECT DOCUMENTS means this Declaration, the Plat, the Articles and the Bylaws, the
Design Review Guidelines, as they may be amended or supplemented from time to time.
1.44 RULES means the Rules and Regulations adopted by the Board of Directors for the regulation
and management of the Planned Community as amended from time to time.
1.45 SECURITY INTEREST means an interest in real estate or personal property created by
contract which secures payment of an obligation. The term includes a lien created by a deed of trust,
contract for deed, land or sales contract and UCC-1.
1.46 SPECIAL ASSESSMENTS means those Assessments defined in Paragraph 5.4(d)hereof.
1.47 VA AND/OR FHA APPROVAL means that the Planned Community has been or may be
approved by the Veterans Administration and/or the Federal Housing Administration so that such
agencies will insure or guarantee loans made upon the Lots within the Planned Community.
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ARTICLE TWO: SCOPE OF THE DECLARATION (0 6P 21
2.1 Property Subject to this Declaration. Declarant, as the Owner of fee simple title to the Planned
Community, by recording this Declaration does hereby subject the Planned Community to the
provisions of this Declaration.
2.2 Conveyances Subject to this Declaration. All covenants, conditions and restrictions which are
granted or created by this Declaration shall be deemed to be covenants appurtenant to and running
with the land, and shall at all times inure to the benefit of and be binding on any person having any
interest in the Planned Community, their respective heirs, successors, personal representatives or
assigns.
Any instrument recorded subsequent to this Declaration and purporting to establish and effect
any interest in the Planned Community shall be subject to the provisions of this Declaration despite
any failure to make reference thereto.
2.3 Owner's Rights Subject to this Declaration. Each Owner shall own his or her Lot in fee simple
and shall have full and complete dominion thereof, subject to the provisions of this Declaration.
2.4 Number of Lots. The number of Lots within the Planned Community is seven.
2.5 Identification of Lots. The identification number of each Lot is shown on the Plat of the Planned
Community.
2.6 Lot Boundaries. The boundaries of each Lot are located as shown on the Plat of the Planned
Community.
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ARTICLE THREE: THE COMMON AREAS 6267 _ (D
3.1 Common Areas Dedication. Declarant, in recording the Plat of the Planned Community in the
records of the County Clerk and Recorder,has designated certain areas of the Planned Community as
Common Areas, more fully described on the attached Exhibit B.
The Common Areas are not dedicated for use by the general public,but are dedicated to the
common use and enjoyment of only the Owners of Lots located within the Planned Community and
such Owners= Guests as more fully provided for in this Declaration.
Said Plat is hereby incorporated herein and made a part of this Declaration.
3.2 Title to the Common Argos.Declarant hereby covenants that it will convey to the Association fee
simple title to the Common Areas prior to the conveyance of the first Lot within the Planned
Community to an Owner other than Declarant or Participating Builder.
3.3 Duty to Accept the Common Areas Transferred by Declarant. The Association shall accept title
to said Common Areas and agrees to own and maintain any property, including all Common Area
Improvements located thereon,and personal property relating thereto,transferred to the Association
by Declarant as Common Areas. Any property or interest in property transferred to the Association
by Declarant shall be transferred to the Association free and clear of all liens and monetary
encumbrances (other than the lien of real estate taxes not then due and payable), subject to the
covenants, easements and restrictions of record.
3.4 Duty to Manage and Care for the Common Areas. The Association shall manage,operate,care
for, insure, maintain, repair, reconstruct, modify and improve all of the Common Areas and the
Common Area Improvements located thereon and keep the same in an attractive and desirable
condition for the use and enjoyment of all of the Owners and their Guests.
3.5 Owner's Rights in the Common Areas. Every Owner and such Owner's Guests shall have the
right and easement of use and enjoyment in and to the Common Areas which shall be appurtenant to
and shall pass with the title of the Lot to such Owner, subject to the Special Declarant Rights of
Declarant reserved herein and the following rights of the Board of Directors:
(a) To borrow money to improve the said Common Areas and to mortgage said Common
Areas as security for any such loan; provided, however, that the Association may not subject any
portion of the Common Areas to a security interest unless such is approved by Owners to which at
least five of the votes in the Association are allocated,including five of the votes allocated to Lots not
owned by Declarant as more fully set forth in'38-33.3-312 of the Act.
(b) To convey or dedicate all or any part of the said Common Areas for such purposes and
subject to such conditions as may be agreed to by the Owners to which at least five of the votes in the
Association are allocated, including five of the votes allocated to Lots not owned by Declarant as
more fully set forth in'38-33.3-312 of the Act.
The granting of permits, licenses and easements shall not be deemed a conveyance or
encumbrance within the meaning of this Paragraph as more fully set forth in'38-33.3-312 of the Act.
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(c) To promulgate and adopt Rules and Regulations with which each Owner and their
Guests shall strictly comply.
(d) To suspend the voting tights of an Owner for any period during which any Assessment
remains unpaid and,for a period not to exceed 60 days,for any infraction of the Declaration,Bylaws
or Rules.
(e) To take such steps as are reasonably necessary to protect the Common Areas against
foreclosure.
(f) To enter into, make, perform or enforce any contracts, leases, agreements, licenses,
easements and rights-of-way, for the use of Common Areas by Owners and Guests for any purpose
the Board may deem to be useful, beneficial or otherwise appropriate(also see Paragraph 4.13(b)
hereof).
(g) To close or limit the use of the Common Areas temporarily while maintaining,
repairing and making replacements in the Common Areas,or permanently if approved by Members to
which at least five of the votes in the Association are allocated, including five of the votes allocated to
Lots not owned by Declarant as more fully set forth in'38-33.3-312 of the Act.
(h) To make such use of the Common Areas as may be necessary or appropriate for the
performance of the duties and functions which it is obligated or permitted to perform under this
Declaration.
(i) The rights granted to the Association and Board of Directors in Paragraph 4.13
hereof.
3.6 Delegation of Use. Any Owner may delegate his or her right of enjoyment to the Common Areas
and facilities to their Guests.
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ARTICLE FOUR: THE ASSOCIATION (0 67
4.1 Name. The name of the Association is THE SUMMIT AT MOUNTAIN VIEW
HOMEOWNERS ASSOCIATION, and it is a Planned Community.
4.2 Purposes and Powers. The Association, through its Board of Directors, shall manage, operate,
care for, insure, maintain, repair and reconstruct all of the Common Areas and Common Area
Improvements and keep the same in an attractive and desirable condition for the use and enjoyment
of all of the Owners and their Guests. Any purchaser of a Lot shall be deemed to have assented to,
ratified and approval such designations and management.The Board of Directors shall have all of the
powers, authority and duties permitted pursuant to the Act necessary and proper to manage the
business and affairs of the Association.
4.3 Board of Directors/Managing Agent. The affairs of the Association shall be managed by a Board
of Directors. By resolution the Board of Directors may delegate authority to a Managing Agent for
the Association as more fully provided for in the Bylaws,provided no such delegation shall relieve the
Board of final responsibility.
4.4 Articles and Bylaws. The purposes and powers of the Association and the rights and obligations
with respect to Members set forth in this Declaration may and shall be amplified by provisions of the
Articles and Bylaws, also see Paragraph 16.6 hereof.
4.5 Membership. Members of the Association shall be every record Owner of a Lot subject to this
Declaration. Membership shall be appurtenant to and may not be separated from ownership of any
Lot. Where more than one person holds interest in any Lot, all such persons shall be Members.
The membership of the Association at all times shall consist exclusively of all Lot Owners or,
following termination of the Planned Community, of all former Lot Owners entitled to distributions of
the proceeds under'38-33.3-218 of the Act, or their heirs, personal representatives, successors or
assigns.
4.6 Voting Rights. The Association shall have one class of voting membership. Owners shall be
entitled to one vote for each Lot owned within the Planned Community;provided,however,in any
election of directors, each Owner shall have the number of votes equal to the number of directors to
be elected, to be cast no more than one vote per candidate (up to the number of directors to be
elected).
The vote for such Lot, the ownership of which is held by more than one Owner, may be
exercised by any one of them unless an objection or protest by any other holder of an interest of the
Lot is made prior to the completion of the vote,in which case the vote for such Lot shall be exercised
as the persons holding such interest shall determine between themselves. Should the joint owners of a
Lot be unable, within a reasonable time, to agree upon how they will vote any issue, they shall be
passed over and their right to vote on such issue shall be lost.
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4.7 Peclarant Control of the Association. Subject to provisions of Paragraph 4.8 hereof, there is a
"Period of Declarant Control"during which Period Declarant may appoint and remove any officer of
the Association or any member of the Board of Directors. The Period of Declarant Control is a
length of time expiring seven years after the recording of this Declaration; provided, however, the
Period of Declarant Control in any event terminates no later than either:
(a) 60 days after conveyance of six of the Lots That May Be Created to Owners other
than Declarant or Participating Builder;
(b)two years after the conveyance of the seventh Lot by Declarant in the ordinary course of
business to Owners other than Declarant or Participating Builder; or
(c)two years after any right to add new Lots to the Declaration was last exercised.
In the event that the process of entitlement for Declarant to obtain Building Permits is placed
on Ahold@ (e.g., moratorium, anti-growth legislation, etc.) for reasons beyond the control of
Declarant,the time limitations set forth herein shall be extended until the impediment to entitlement is
removed.
Declarant may voluntarily surrender the right to appoint and remove officers and members of
the Board of Directors before termination of the Period of Declarant Control. In that event,
Declarant may require, for the duration of the Period of Declarant Control,that specified actions of
the Board of Directors,as described in a recorded instrument executed by Declarant,be approved by
Declarant before they become effective.
4.8 Election by Owners:
Not later than 60 days after conveyance of two of the Lots That May Be Created to Owners
other than Declarant or Participating Builder, at least one member of the members of the Board of
Directors must be elected by Owners other than Declarant.
Not later than 60 days after conveyance of four of the Lots That May Be Created to Owners
other than Declarant or Participating Builder, not less than two members of the Board of Directors
must be elected by Owners other than Declarant.
Not later than the termination of the Period of Declarant Control as set forth in Paragraph 4.7
hereof;the Owners shall elect a Board of Directors consisting of three members, at least a majority of
whom must be Owners other than Declarant. The Board of Directors shall elect the officers of the
Association. The Owners' Board of Directors shall take office upon termination of the Period of
Declarant Control upon election.
4.9 Delivery of Documents by Declarant. Within 60 days after the Owners other than Declarant elect
a majority of the members of the Board of Directors, as set forth in Paragraph 4.8 hereof, Declarant
shall deliver without charge to the Board of Directors all property of the Owners and of the Associa-
tion relating to the Planned Community held by or controlled by Declarant, including, without
limitation, the following items:
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(a) The original or a certified copy of the recorded Declaration,with all amendments and
supplements thereto,the Articles,together with a current Certificate of Good Standing issued by the
Colorado Secretary of State,Bylaws,minute books,other books and records,including all income tax
returns filed, and any Rules 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 ended in
accordance with '38-33.3-303(9)(b)of the Act;
(c) The Association funds or control thereof;
(d) An inventory of and all of Declarant=s tangible personal property that has been
represented by Declarant to be the property of the Association or that is necessary for and has been
used exclusively in the operation and enjoyment of the Common Areas;
(1) A copy(for the exclusive use of the Association)of any plans and specifications
in Declarant=s possession used in the construction of any Common Area Improvements in the
Common Areas;
(f) All insurance policies then in force in which the Owners, the Association, or its
directors and officers are named as insured persons;
(g) Copies in Declaram=s possession of(i) any certificates of occupancy issued with
respect to any Common Area Improvements and(ii)any other permits issued by governmental bodies
applicable to the Planned Community and which are currently in force or which were issued within
one year prior to the date on which Owners other than Declarant took control of the Association;
(h) Written warranties of the contractor, subcontractors, suppliers and manufacturers that
are assignable and still effective (to the extent not already assigned);
(i) A roster of Owners and Eligible Mortgagees and their addresses and telephone
numbers, if known, as shown on Declarant's records;
(j) Employment contracts in which the Association is a contracting party;
(k) Any service contract in which the Association is a contracting party or in which the
Association of the Owners have any obligation to pay a fee to the persons performing the services;
and
(12) Recorded deeds conveying the Common Areas to the Association.
4.10 Budget:
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(a) Annual Budget. In accordance with'38-33.3-303 of the Act,the Board of Directors
shall cause to be prepared, at least 60 days prior to the commencement of each calendar year, a
Budget for such calendar year. Within 30 days after the adoption of any Budget by the Board, the
Board shall mail, by ordinary first-class mail,or otherwise deliver,a summary of the Budget to each
Owner and shall set a date for a meeting of the Owners to consider ratification of the Budget not less
than 14 days nor more than 60 days after delivery of the summary.
Unless at that meeting Owners to which at least five of the votes in the Association are
allocated reject the Budget,the Budget shall be deemed ratified whether or not a quorum is present.
In the event the Budget is rejected, the Budget last ratified by the Owners must be continued until
such time as the Owners ratify a subsequent budget adopted by the Board of Directors.
(b) Amended Budget. If the Board of Directors deems it necessary or advisable to amend
a Budget that has been ratified by the Owners pursuant to Paragraph 4.10(a)above,the Board may
adopt a proposed amendment to the Budget, deliver a summary of the proposed amendment to all
Owners and set a date for a meeting of the Owners to consider ratification of the proposed
amendment. The date of such meeting shall not be less than 14 days,nor more than 60 days,after the
delivery of the summary of the proposed amendment.
Unless at that meeting Owners to which at least five of the votes in the Association are
allocated reject the amended Budget,the amended Budget shall be deemed ratified whether or not a
quorum is present.
4.11 Association Agreements. My agreement for professional management of the Planned
Community or any contract providing for services of Declarant,may not exceed one year. Any such
agreement must provide for termination by either party without cause and without payment of a
termination fee or penalty upon 30 days written notice.
The Association shall not be bound either directly or indirectly to contracts or leases
(including management contracts) entered into during the Period of Declarant Control unless the
Association is provided with a right oftemrination of any such contract or lease without cause,which
is exercisable without penalty at any time after such conversion upon not more than 30 days'notice to
the other party thereto.
4.12 Indemnification. Each Officer, Director and committee member of the Association shall be
indemnified by the Association against all expenses and liabilities including attorney fees,reasonably
incurred by or imposed upon him or her in any proceeding to which he or she may be a party, or in
which he or she may become involved, by reason of his or her being or having been an Officer,
Director or committee member of the Association, or any settlements thereof,whether or not he or
she is an Officer, Director or committee member of the Association at the time such expenses are
incurred, to the full extent permitted by Colorado law.
4.13 Certain Rights and Obligations of the Association:
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(a) Attorney-in-Fact: This Declaration does hereby make mandatory the irrevocable
appointment of an attorney-in-fact as herein provided to deal with the Planned Community upon its
damage, destruction, condemnation and/or obsolescence.
The Board of Directors is hereby irrevocably appointed attorney-in-fact for the Owners,and
each of them, to manage,control and deal with the interest of such Owner in the Common Areas so
as to permit the Association to fulfill all of its duties and obligations hereunder and to exercise all of
its rights hereunder, to deal with the Planned Community upon its destruction, condemnation or
obsolescence as hereinafter provided.
Acceptance of any interest in any Lot shall constitute an appointment of the Board of
Directors as attomey-in-fact as provided above and hereinafter. The Board of Directors shall be
granted all of the powers necessary to govern, manage,maintain,repair, administer and regulate the
Planned Community and to perform all of the duties required of it.
(b) Contracts.Easements and Other Agreements: Subject to Paragraph 4.11 above,the Board
of Directors shall have the right to enter into,grant,perform, enforce, cancel and vacate: contracts,
easements, licenses, leases, agreements, and/or rights-of-way, for the use by Owners, their Guests,
and other persons, concerning the Common Areas (see also Paragraph 3.5(f)hereof).
Any of such contracts,licenses,leases,agreements,easements and/or rights-of-way, shall be
upon such terms and conditions as may be agreed to from time to time by the Board of Directors,
without the necessity of the consent thereto, or joinder therein,by the Owners or First Mortgagees.
(c) Other Association Functions: The Association may undertake any activity,function or
service for the benefit of or to further the interests of all, some or any Members on a self-supporting,
Special Assessment or Common Expense Assessment basis.
(d) Implied Rights: The Board of Directors shall have and may exercise any right or
privilege given to it expressly by this Declaration, or reasonably to be implied from the provisions of
this Declaration, or given or implied by law, or which may be necessary or desirable to fulfill its
duties, obligations, rights or privileges.
4.14 Certain Rights and Obligations of Declarant and Participating Builder. So long as there are
unsold Lots within the Planned Community owned by Declarant and/or Participating Builder,
Declarant and Participating Builder shall enjoy the same rights and assumes the same duties as they
relate to each individual unsold Lot.
4.15 Disclaimer Regarding Security. The Association may, but shall not be obligated to, take
measures or maintain or support certain activities within the Planned Community designed to make
the Planned Community more secure than it otherwise might be. Neither the Association nor
Declarant or any representative or agent or either of them,shall in any way be considered insurers or
guarantors of safety or security within the Planned Community,nor shall either of them be held liable
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of any loss or damage by reason of failure to provide adequate security or of the ineffectiveness of
any such security measures taken. No representation or warranty is made that any fire protection
system,burglar alarm system or to the security system cannot be compromised or circumvented,nor
that any such systems or security measure undertaken will prevent loss or provide the detection or
protection for which the system is designed or intended.
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ARTICLE FIVE: ASSESSMENTS lO 6 — / 8
5.1 Obligation. Each Owner, including Declarant, shall be personally obligated to pay to the
Association (a) Common Expense Assessments, (b) Special Assessments, (c)Fines, (d) Individual
Assessments, and (e) Costs of Enforcement, which shall be a continuing lien upon the Lot against
which each such Assessment is levied.
The obligation for such payments by each Owner to the Association is an independent
personal covenant with all amounts due,from time to time,payable in full when due without notice or
demand and without setoff or deduction. All Owners of each Lot shall be jointly and personally liable
to the Association for the payment of all Assessments and Costs of Enforcement attributable to their
Lot.
The personal obligation for delinquent assessments shall not pass to such Owner's successors
in title unless expressly assumed by them.
The omission or failure of the Board of Directors to levy Assessments for any period shall not
be deemed a waiver, modification or a release of the Owners from their obligation to pay.
No Owner may waive or otherwise escape liability for the Common Expense Assessment
provided for herein by the non-use of the Common Areas or the abandonment of such Owners Lot.
5.2 Purpose of the Common Expense Assessments. The Assessments levied by the Association shall
be used exclusively for the purpose of promoting the welfare and interests of the residents of the
Planned Community and the Members of the Association including (a) providing for the
administration and management of the Planned Community, (b) providing for the upkeep,
improvement, repair, maintenance and reconstruction for the Common Areas and Common Area
Improvements,(c)providing blanket hazard insurance for the insurable Common Area Improvements,
(d)providing liability insurance to cover incidents occurring on the Common Areas,(e)performing all
other obligations of the Association hereunder and under the other Project Documents, and (1)
satisfying any other purpose reasonable, necessary or incidental to such purposes.
Assessments shall include the establishment and maintenance of a Reserve Fund for those
items which the Association has an on going duty to repair, maintain or reconstruct on a periodic
basis, provided, however, that such assessments levied during the Period of Declarant Control may
not be used for the purposes of constructing capital improvements.
5.3 Date of Commencement of the Assessments: Declarant=s Right Of Offset. The Common
Expense Assessment shall commence as to all Lots no later than 60 days after the first Lot is
conveyed to an Owner other than Declarant or Participating Builder.
Until the commencement of the collection of the Common Expense Assessment, Declarant
shall pay all of the expenses incurred and paid for by the Association. Declarant may at any time
advance operating funds to the Association. Declarant shall be entitled to offset such amounts so paid
or advanced as a credit against future Common Expense Assessments payable by Declarant.
5.4 Levy of Assessments and Fines:
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(a) Common Expense Assessments: Common Expense Assessments shall be levied on all
Lots based upon a Budget of the Association's cash requirements. The Common Expense
Assessment Liability shall be allocated among the Lots in accordance with that Lot's Common
Expense Assessment Liability as set forth in Paragraph 1.3 hereof and shall commence in accordance
with Paragraph 5.3 hereof.
To the extent that any Common Expenses or a portion thereof benefit fewer than all ofthe Lot
Owners, such expenses may be assessed exclusively against the Lots benefitted as provided in CA S.'
38-33.3-315(3)(b) of the Act.
(b)Individual Assessments: The Board of Directors shall have the right to individually levy
upon any Owner or Owners amounts as provided for by this Declaration,to include but not be limited
to, charges levied under Paragraphs 6.16, 7.5, 7.14, 7.15, 7.17, 9.2,9.6, 10.2, 10.3 11.4 and 11.6
hereof.
No Individual Assessment shall be levied until the Owner or Owners to be charged have been
given a Notice and Hearing as provided for in the Bylaws. Individual Assessments shall be collected
as part of the Costs of Enforcement.
Individual Assessments may be levied at any time as required and are exempt from any voting
requirements by the membership required by other Assessments called for under the Declaration.
(c) Fines: The Board of Directors shall have the right to levy a Fine against an Owner or
Owners for each violation of this Declaration,the Bylaws,the Articles and the Rules.No such Fine
shall be levied until the Owner or Owners to be charged have been given a Notice and Hearing as
provided for in the Bylaws.
Fines may be levied in a reasonable amount as determined from time to time by the Board of
Directors in its discretion and uniformly applied. Fines shall be collected as part of the Costs of
Enforcement. Fines may be levied at any time as required and are exempt from any voting
requirements by the membership required for other Assessments called for under the Declaration.
(d) Special Assessments: In addition to the other Assessments authorized herein,the Board
of Directors, subject to the requirements set forth below, may levy a Special Assessment for the
purpose of defraying,in whole or in part,any unexpected expense to include but not be limited to,the
cost of any construction, reconstruction, improvement, repair or replacement of a capital
improvement upon the Common Areas,including fixtures and personal property relating thereto,or
for the finding of any operating deficit incurred by the Association provided that any such
Assessment shall have the approval of Owners to whom at least five percent of the votes in the
Association are allocated, who are voting in person or by proxy at a meeting duly called for this
purpose.
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Any such Special Assessment shall be levied against each Lot in accordance with that Lot's
Common Expense Liability determined in accordance with Paragraph 1.3 hereof Notwithstanding
the foregoing, Special Assessments levied during the Period of Declarant Control may not be used for
the purpose of constructing capital improvements.
If the Planned Community has been or may be approved by the Federal Housing
Administration and/or Veterans Administration,then until the termination of the Period of Declarant
Control all Special Assessments for capital improvements in addition to the approval ofthe Owners as
required above will require the written consent of the Veterans Administration and/or the Federal
Housing Administration.
5.5 Due Date. Fines and Individual Assessments shall be due and payable as established by the Board
of Directors.
All other Assessments shall be levied on an annual basis and shall be due and payable in
installments,in advance,in such frequency as the Board of Directors determines in its discretion from
time to time,provided that the initial assessments shall be adjusted to reflect the time remaining in the
first Association's fiscal year. Any Owner purchasing a Lot between annual due dates shall pay a
prorated share.
Special Assessments shall be due and payable as established by the Board of Directors but
may be payable on an installment basis as determined by the Board.
Written notice of all Assessments shall be sent to each Owner subject thereto specifying the
type of Assessment,the amount and the date such Assessment is due.
Mortgagees are not required to collect Assessments.
5.6 Remedies for Nonpayment of Assessments. If any Assessment(to include Costs ofEnforcement)
is not fully paid within 15 days after the same becomes due and payable,then interest shall accrue at
the default rate set by the Board of Directors on any amount of the Assessment in default accruing
from the due date until date of payment, and the Board may assess a Late Fee in an amount as
determined in the Board's discretion. In addition the Board may in its sole discretion:
(a) accelerate and declare immediately due and payable all unpaid installments of the
Assessment payable for the balance of the fiscal year during which such default occurred;
(b) bring an action at law against any Owner personally obligated to pay the Assessment
and obtain a judgment for the amounts due; and
(c) proceed to foreclose its lien against the Lot pursuant to the power of sale granted to
the Association by this Declaration in the manner and form provided by Colorado law for foreclosure
of real estate mortgages.
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An action at law or in equity by the Association against an Owner to recover a judgment for
unpaid Assessments may be commenced and pursued by the Association without foreclosing or in any
way waiving the Association's lien for the Assessments.
Failure to pay assessments does not constitute a default under an insured mortgage.
5.7 Assessment Lien. The Association is hereby granted an Assessment Lien against each Lot for any
Assessment levied by the Board of Directors and for Costs of Enforcement levied against such Lot
Owners when the Lot Owner fails to pay as required by the Declaration. All Costs of Enforcement
incurred pursuant to this Declaration are enforceable as Assessments. If an Assessment is payable in
installments, the full amount of the Assessment is a lien from the time the first installment thereof
becomes due.
The Association's lien on a Lot for Assessments shall be superior to all other liens and
encumbrances on a Lot except the following:
(a) liens and encumbrances recorded prior to the recording of this Declaration;
(b) real property ad valorem taxes and special assessment liens duly imposed by Colorado
governmental or political subdivision or special taxing district, or any other liens made superior by
statue; and
(c) the lien of any loan evidenced by a first mortgage or deed of trust and any executory
land sales contract wherein the Administrator of Veterans Affairs(Veterans Administration)is seller,
whether such contract is owned by the Veterans Administration or its assigns, and whether such
contract is recorded or not, except to the extent the Act grants priority for Assessments to the
Association.
The Act does not affect the priority of mechanics'or materialmen's liens.
Recording of the Declaration constitutes record notice and perfection of the lien. No further
recordation of any claim of lien for Assessments under this Article is required. However,the Board
of Directors may prepare,and record in the Office of the County Clerk and Recorder,a written notice
setting forth the amount of the unpaid indebtedness, the name of the Owner of the Lot, and a
description of the Lot. If a lien is filed,the cost thereof shall be considered a Cost of Enforcement.
Sale or transfer of any Lot shall not affect the lien for said Assessments except that sale or
transfer of any Lot pursuant to foreclosure by any First Mortgagee,or any proceeding in lieu thereof
including deed in lieu of foreclosure,or cancellation or forfeiture shall only extinguish the Assessment
Lien only to the extent provided by Colorado law. No such sale, deed in lieu of foreclosure, nor
cancellation or forfeiture shall relieve any Lot Owner from continuing liability for any Assessment
thereafter becoming due, nor from the lien thereof.
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Any First Mortgagee who acquires title to a Lot by virtue of foreclosing a first deed oftrust or
mortgage or by virtue of a deed in lieu of foreclosure will take the Lot free of any claims for unpaid
Assessments and Costs of Enforcement against that Lot which have accrued prior to the time such
First Mortgagee acquires title to the Lot, except to the extent the Act grants lien priority for
Assessments of the Association.
In any action by an Association to collect Assessments and Costs of Enforcement or to
foreclose a lien for unpaid Assessments,the court may appoint a receiver for the Owner to collect all
sums alleged to be due from the 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 and Costs of Enforcement.
The rights of the Association shall be expressly subordinate to the rights of any First Mortgagee of a
Lot under any assignment of rents given in connection with a first deed of trust or mortgage.
The Assessment Lien hereby given shall also be a lien upon all of the rents and profits of the
encumbered Lot;provided,however,the lien shall be subject and subordinate to the rights of any First
Mortgagee of a Lot under any assignment of rents given in connection with a first deed of trust or
mortgage. Without prejudice to any other right or remedy, the Association may exercise its lien
rights to rents and profits by delivering a Notice of Exercise to the occupant or any payor of rents and
profits, and thereafter shall be entitled to collect all such rents and profits to the extent of any
delinquency.
The Association's lien on a Lot for Assessments and Costs of Enforcement shall be superior to
any homestead exemption now or hereafter provided by the laws of the State of Colorado or any
exemption now or hereafter provided by the laws of the United States. The acceptance of a deed to a
Lot subject to this Declaration shall constitute a waiver of the homestead and any other exemption as
against said Assessment Lien.
5.8 Assignment of Assessments. The Board of Directors shall have the unrestricted tight to assign its
right to receive Common Expense Assessments and other future income, either as security for
obligations of the Association or otherwise,on the condition that any such assignment is approved in
writing by Owners to which at least five of the votes in the Association are allocated,including five of
the votes allocated to Lots not owned by Declarant.
5.9 Surplus Funds. My surplus funds of the Association remaining at the close of the Association's
fiscal year after payment of the Association=s expenses and funding the Reserve Fund shall be
retained by the Association as unallocated reserves and need not be credited to the Owners to reduce
their future Assessment Liability.
5.10 Working,Capital Fund. At the closing of the initial sale,and each subsequent resale, of a Lot to
an Owner other than Declarant or Participating Builder,a non-refundable contribution shall be made
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by such Owner or subsequent Owner to the Working Capital Fund of the Association in an amount
equal to two months Common Expense Assessment then in effect. Said contribution shall be
collected and transferred to the Association at the time of closing of the sale of each Lot and shall be
held by the Association for the use and benefit of the Association including meeting unforeseen
expenditures or purchasing additional equipment or services.
Such contribution to the Working Capital Fund shall not relieve an Owner from making
regular payments of Assessments as the same become due. Upon the later sale or transfer of his or
her Lot, an Owner shall NOT BE ENTITLED to a credit from the Association for the aforesaid
contribution.
Declarant is prohibited from using the Working Capital Fund to defray any of its expenses,
reserve contributions or construction costs, or to make up any budget deficits during Declarant
Control Period.
5.11 Certificate of Status of Assessments. The Association shall furnish to an Owner or such Owner's
First Mortgagee upon written request delivered personally or by certified mail, first class postage
prepaid, return receipt requested, to the Association's Registered Agent,a written statement setting
forth the amount of unpaid Assessments currently levied against such Owner's Lot.
The statement shall be furnished within 14 business days after receipt of the request and is
binding upon the Association,the Board of Directors,and every Owner. If no statement is furnished
to the Owner or First Mortgagee,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
priority lien upon the Lot for unpaid Assessments which were due as of the date of the request(See
C.R.S.'38-33.3-316).
5.12 No Offsets. All Assessments shall be payable in the amounts specified in the levy thereof and no
offsets or reduction thereof shall be permitted for any reason including,without limitation,any claim
that the Association or the Board of Directors is not properly exercising its duties and powers under
this Declaration. Declarant is exempt from the requirements of this Paragraph 5.12.
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ARTICLE SIX: ARCHITECTURAL APPROVAL/DESIGN REVIEW
6.1 Generally. Each Improvement as defined in Paragraph 1.30 hereof must be constructed,and may
thereafter only be removed, altered or modified, in accordance with the ADesign Guidelines,@ if
available, and approved in accordance with ARTICLE SIX.
The strict application of the following limitations and restrictions in any specific case may be
modified or waived in whole or in part by the Committee if such strict application would be
unreasonable or unduly harsh under the circumstances. Any such modification or waiver must be in
writing.
6.2 Committee Approval of Improvements Required. The approval by the Design Review Committee
(the ACommittee@) shall be required prior to the commencement of the construction, alteration,
modification, expansion, addition, removal, demolition or destruction of any Improvements on any
portion of the Planned Community,including any change of exterior appearance,finish material,color
or texture,except,in any such case,by Declarant with respect to any original first built Improvements
constructed by Declarant. This approval of the Committee is in addition to the review and approval
by the County.
A purchase of any Lot within the Planned Community does not grant any implied guarantee of
approval of the Improvement to be located thereon by the Committee.
No permission or approval shall be required to rebuild in accordance with originally approved
plans and specifications. Nothing contained herein shall be construed to limit the right of an Owner to
remodel the interior of his or her Dwelling Unit.
6.3 Membership of the Committee. The Committee shall consist of up to three members,the initial
number and the members of which shall be determined by Declarant in its sole discretion. Declarant
shall have the continuing right to appoint and reappoint the members of the Committee,which right
shall terminate at the option of Declarant but in any event shall terminate without further act or deed
upon the completion of construction of the last Dwelling Unit within the Planned Community, the
provisions of Paragraph 12.3 hereof not withstanding. Thereafter, the Committee shall consist of
three members, and the Board of Directors shall have the right to appoint the members of the
Committee. Members of the Committee appointed by the Board of Directors must be Members of
the Association.
Members of the Committee appointed by Declarant may be removed at any time by Declarant
and shall serve until resignation or removal by Declarant. Members of the Committee appointed by
the Board of Directors may be removed at any time by the Board, and shall serve for such term as
may be designated by the Board or until resignation or removal by the Board.
6.4 Address of the Committee. The address of the Committee shall be that of the principal office of
the Association.
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6.5 Submission of Plans/Design Review Fee. Prior to conunencement of work to accomplish any
proposed Improvement,the Person proposing to make such Improvement("Applicant")shall submit
to the Committee, at its offices, or at such other place as the Committee may designate, such
descriptions,surveys,plot plans,drainage plans,elevation drawings,construction plans,specifications
and samples of materials and colors as the Committee shall reasonably request, showing the nature,
kind, shape, height, width, color, materials, and location of the proposed Improvement.
The Committee may,in its guidelines or rules,provide for the payment of a fee to accompany
each request for approval of any proposed Improvement. The Committee may provide that the
amount of such fee shall be uniform for similar types of any proposed Improvements or that the fee
shall be determined in any other manner, such as the estimated cost of the proposed Improvement.
Said fee may be used to compensate any consultant as the Committee deems necessary to assist the
Committee in the performance of its duties. Members of the Committee may be reimbursed for
services rendered and for directly related out-of-pocket expenses.
The Committee may require submission of additional plans,specifications or other information
prior to approving or disapproving the proposed Improvement. Until receipt by the Committee of all
required materials in connection with the proposed Improvement, the Committee may postpone
review of any materials submitted for approval by a particular Applicant.
Except as provided in Paragraph 6.2 hereof, no Improvement of any kind shall be erected,
altered, placed, or maintained within the Planned Community unless and until the final plans,
elevations, and specifications therefor have received written approval by the Committee as herein
provided.
6.6 Delegation/Waiver. The Committee may at its discretion delegate to the Board of Directors or
Modification Review Committee any of its powers granted to it by this Article by written notice to the
Board of Directors indicating what powers and authority are granted to the Board or to the
Modification Review Committee. Such delegation shall be effective from the date such notice is
given.
The approval or consent of the Committee, any representative thereof, or the Board of
Directors,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 Board of Directors, as to any application or other matters whatsoever as to which approval or
consent may subsequently or additionally be required.
The Committee may waive or grant reasonable variances or adjustments to any provision of
this ARTICLE SIX in the event there is a practical difficulty or unnecessary hardship.
6.7 Criteria for Approval. The question of reasonableness and good faith is the standard applicable in
reviewing plans for approval by the Committee. The Committee shall have the right to disapprove
any proposed Improvement which is not in accordance with the Design Guidelines,or is not suitable
or desirable in the Committee's opinion for aesthetic or other reasons.
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In passing upon the Improvement, the Committee shall have the right to take into
consideration the suitability of the proposed Improvement and of the materials of which it is to be
built,the color scheme,the site upon which it is proposed to erect the same,the harmony thereofwith
the surroundings, the topography of the land and the effect of the Improvement as planned on the
outlook from the adjacent or neighboring Lots,and Wit is in accordance with all of the provisions of
this Declaration.
The Committee may disapprove the proposed Improvement if the plans and specifications
submitted are incomplete,or in the event the Committee deems the materials submitted be contrary to
the spirit or intent of the Declaration. The Committee may condition its approval of any proposed
Improvement upon the making of such changes thereon as the Committee may deem appropriate.
6.8 Decision of the Committee. The decision of the Committee shall be made within 30 days after
receipt by the Committee of ALL materials required by the Committee unless such time period is
extended by mutual agreement. The decision shall be in writing and,if the decision is not to approve
a proposed Improvement,the reasons therefor shall be stated.The decision of the Committee shall be
promptly transmitted to the Applicant at the address furnished by the Applicant to the Committee.
A majority vote of the Committee shall constitute the action of the Committee.
The Committee shall report in writing to the Board of Directors all final actions of the
Committee if requested by the Board of Directors.
The Committee shall not be required to keep the materials submitted beyond one year from
date of approval or two years from the date of the completion of the Improvement to be constructed,
which ever shall be the last to occur.
6.9 Aopeal to the Board of Directors. If the Committee disapproves or imposes conditions on the
approval of a proposed Improvement,the Applicant may appeal to the Board of Directors by giving
written notice of such appeal to the Board of Directors and the Committee within 10 days after notice
of such disapproval or conditional approval is given to the Applicant.
The Board of Directors shall hear the appeal with reasonable promptness after reasonable
notice of such hearing to the Applicant and the Committee and shall decide, with reasonable
promptness,whether or not the proposed Improvement or the conditions imposed by the Committee
shall be approved, disapproved or modified.
If the Committee approves a proposed Improvement, any Impacted Owner created by the
Committee=s decision may appeal the approval to the Board of Directors by giving written notice of
such appeal to the Board of Directors, the Committee and the Applicant within 10 days after such
approval.
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The Board of Directors shall hear the appeal with reasonable promptness after reasonable
notice of such hearing to the Applicant, the Impacted Owner and the Committee. The Committee
shall decide with reasonable promptness,whether or not the proposed Improvement=s approval shall
be upheld. The decision of the Board of Directors shall be final and binding on the parties concerned.
6.10 Failure of Committee to Act on Plans. Any request for approval of a proposed Improvement
shall be deemed approved,unless disapproval or a request for additional information or materials is
transmitted to the Applicant by the Committee within 30 days after the date of receipt by the
Committee of ALL necessary materials as determined by the Committee.
6.11 Prosecution of Work After Approval. After approval of any proposed Improvement, the
proposed Improvement shall be accomplished as promptly and diligently as possible and in complete
conformity with the description of the proposed Improvement, any materials submitted to the
Committee in connection with the proposed Improvement and any conditions imposed by the
Committee. Failure to complete any proposed Improvement within one year from the date of the
commencement of construction(commencement of excavation)shall constitute noncompliance with
this Article unless extended by the Committee.
6.12 Notice of Completion. Upon completion of the Improvement, the Applicant shall give written
Notice of Completion to the Committee. Until the date of receipt of a Notice of Completion, the
Committee shall not be deemed to have notice of completion of any Improvement.
6,13 Inspection of Work. The Committee or its duly authorized representative shall have the right to
inspect any Improvement prior to or after completion; provided that the right of inspection shall
terminate 30 days after the Committee receives a Notice of Completion from the Applicant.
6.14 Notice of Noncompliance. If, as a result of inspections or otherwise,the Committee finds that
any Improvement has been done without obtaining the approval of the Committee,or was not done in
substantial compliance with the description and materials furnished to,and any conditions imposed by,
the Committee, or was not completed within 12 months from the date of the commencement of
construction,the Committee shall notify the Applicant in writing of the noncompliance;which notice
shall be given,in any event within 30 days after the Committee has inspected the Improvement,but in
no event no later than 30 days after the Committee's receipt of such Applicant's Notice of
Completion. The Notice shall specify the particulars of the noncompliance and shall require the
Applicant to take such action as may be necessary to remedy the noncompliance.
6.15 Failure of Committee to Act After Completion.If, for any reason other than the Applicant's act
or neglect, the Committee fails to notify the Applicant of any noncompliance within 30 days after
receipt by the Committee of written Notice of Completion from the Applicant,the Improvement shall
be deemed to be in compliance if the Improvement was, in fact,completed as of the date of Notice of
Completion.
6.16 Appeal to the Board of Directors of Finding of Noncompliance. If the Committee gives any
Notice of Noncompliance, the Applicant may appeal to the Board of Directors by giving written
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notice of such appeal to the Board and the Committee within 10 days after receipt by the Applicant of
the Notice of Noncompliance.
I� after a Notice of Noncompliance, the Applicant fails to commence diligently to remedy
such noncompliance, the Committee shall request a finding of noncompliance by the Board of
Directors by giving written notice of such request to the Board of Directors and the Applicant within
30 days after delivery to the Applicant of a Notice of Noncompliance. In either event,the Board of
Directors after Notice and Hearing shall decide,with reasonable promptness,whether or not there has
been such noncompliance and, if so,the nature thereof
6.17 Correction of Noncompliance. If the Board of Directors determines that a noncompliance exists,
the Applicant shall remedy or remove the same within a period of not more than 30 days from the
date of receipt by the Applicant of the ruling of the Board of Directors. If the Applicant does not
comply with the Board's ruling within such period,the Board may, at its option,record a"Notice of
Noncompliance" against the Lot on which the noncompliance exists, or may remove the noncom-
plying Improvement or may otherwise remedy the noncompliance.
The Board may levy an Individual Assessment in accordance with Paragraph 5.4(b)hereof
against the Owner of such Lot for such costs and expenses incurred. The right of the Board of
Directors to remedy or remove any noncompliance shall be in addition to all other rights and remedies
which the Board of Directors may have at law, in equity, or under this Declaration.
6.18 Meetings of the Committee. The Committee shall meet from time to time as necessary to
perform its duties hereunder.
6.19 No Implied Waiver or Estoppel. No action or failure to act by the Committee or by the Board
of Directors shall constitute a waiver or estoppel with respect to future action by the Committee or
the Board of Directors. Specifically,the approval by the Committee of any Improvement shall not be
deemed a waiver of any right or an estoppel to withhold approval or consent for any similar
Improvement or similar proposals, plans, specifications or other materials submitted with respect to
any other Improvement.
6.20 Estoppel Certificates. The Board of Directors shall, upon the reasonable request of any
interested party and after confirming any necessary facts with the Committee,furnish a certificate with
respect to the approval or disapproval of any Improvement or with respect to whether any
Improvement was made in compliance herewith. Any person,without actual notice to the contrary,
shall be entitled to rely on said certificate with respect to all matters set forth therein.
6.21 Architectural Standards/Design Guidelines. The Committee may promulgate rules and
regulations to interpret and implement the provisions of this Article. These rules and regulations shall
be known as the"Design Review Guidelines" and shall contain,among other things,guidelines which
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will clarify the types of designs and materials that will be considered in design approval. The
Applicant shall be responsible to apply for all permits and approvals required by the County. The
Committee may review and revise the said Design Review Guidelines from time to time in its sole
discretion so long as said guidelines are not discriminatory and are uniformly applied.
6.22 Modification Review Committee. The Modification Review Committee shall consist of three
members,all of whom shall be appointed in accordance with Paragraph 6.2 hereof. The Modification
Review Committee shall have jurisdiction over modifications,additions or alterations made on or to
existing Improvements if such jurisdiction is delegated to it in writing by the Committee.
The Modification Review Committee shall promulgate detailed Standards and Procedures
governing its area of responsibility and practice. In addition thereto,the following shall apply: Plans
and specifications showing the nature, kind, shape, color, size, materials and location of such
modifications, additions or alterations shall be submitted to the Modification Review Committee for
approval as to quality of workmanship and design and harmony in relation to the surrounding
structures, topography and finish grade level.
In the event the Modification Review Committee fails to approve or to disapprove such plans
or to request additional information reasonably required within 30 days after submission, the plans
shall be deemed approved.
6.23 No Liability for Committee Action. There shall be no liability imposed on the Design Review
Committee or the Modification Review Committee,any member of said Committees,any authorized
representative of said Committees, the Association, any member of the Board of Directors or
Declarant for any loss,damage or injury arising out of or in any way connected with the performance
of the duties of the Committees, if such party acted in good faith and without malice.
In reviewing any matter, the Committees shall not be responsible for passing on safety,
whether structural or otherwise,or conformance with building codes or other governmental laws or
regulations, nor shall its approval of an Improvement be deemed approval of such matters.
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ARTICLE SEVEN: LAND USE AND OTHER RESTRICTIONS
7.1 Limitations and Restrictions. All Lots and Common.Areas shall be used and enjoyed subject to
the following limitations and restrictions, and subject to the exemptions for Declarant as set forth in
this Declaration.
The strict application of the following limitations and restrictions in any specific case may be
modified or waived in whole or in part by the Committee if such strict application would be unreason-
able or unduly harsh under the circumstances. Any such modification or waiver must be in writing.
7.2 Land Use and Occupancy. Each Owner shall be entitled to the exclusive ownership and
possession of such Owner=s Lot and Dwelling Unit. Subject to Declarant Rights reserved or
described herein and the exemptions for Declarant set forth in Paragraph 7.26 hereof, no Dwelling
Unit within the Planned Community shall be used for any purpose other than single-family residential
purposes as generally defined,provided however,Owners may conduct business activities within their
Dwelling Unit provided that all of the following conditions are satisfied in the sole discretion of the
Board of Directors:
(a) the business conducted is clearly secondary to the residential use of the Dwelling Unit
and is conducted entirely within the Dwelling Unit;
(b) the existence or operation of the business is not detectable from outside of the
Dwelling Unit by sight, sound, smell or otherwise, or by the existence of signs indicating that a
business is being conducted;
(c) the business does not result in an undue volume of traffic or parking within the
Planned Community, which determination shall be made by the Board of Directors in its sole
discretion from time to time;
(d) the business conforms to all zoning requirements and is lawful in nature;
(e) the business conforms to any rules and regulations that may be imposed by the Board
of Directors from time to time on a uniform basis.
Uses described as May care@ or Achild care@ facilities(licensed or unlicenced)are expressly
prohibited except with the prior written permission of the Board of Directors.
7.3 Building Locations. Height Restrictions and Lot Coverage. The Committee shall approve the
location, height and square footage of any Improvement placed on any Lot. No Improvement shall
exceed 35 feet in height or any such more restrictive standard as set forth in the County's Building
Code or approved Development Plan, if any.
Every building, structure or any other improvements to a Lot must be located within the
building envelope as designated in the recorded Plat.
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Such approval must be obtained before commencement of any construction or alteration in
accordance with ARTICLE SIX hereof.
7.4 Temporary Structures. No trailer,tent or other mobile Dwelling Unit(except in accordance with
Paragraph 7.15 hereof)detached garage, shed or outbuilding or other auxiliary structure or building
shall be placed or erected upon part of the Planned Community except with the prior written approval
of the Committee obtained in each instance.
No Dwelling Unit located upon the Planned Community shall be occupied in any manner at
any time prior to its being fully completed in accordance with approved plans nor shall any Dwelling
Unit when completed be in any manner occupied until there is compliance with all requirements,
conditions, covenants, and restrictions herein set forth.
7.5 Restrictions on Garbage and Trash. Each Owner shall keep all of his or her trash, garbage, or
other refuse in a container in his or her garage. Each Owner shall provide for the regular removal of
such Owner=s trash and garbage and agrees to use one trash company as designated by the Board of
Directors if one is so designated. Each Owner shall keep his or her Lot at all times in a neat and clean
condition, and grass and weeds shall be kept mowed.
No trash, litter, garbage, grass, shrub or tree trimmings, scrap refuse or debris of any kind
shall be permitted to remain exposed upon any Lot so it is visible from any neighboring Lot,Common
Areas or from the street except that any container containing such material may be placed outside at
proper times for garbage or trash pickup. No trash,garbage or other refuse shall be burned in outside
containers, barbecue pits or the like.
The Board of Directors shall have the right and duty,through its agents and employees,after
Notice and Hearing,to enter upon any Lot and remove such unsightly objects and materials. The cost
of such removal shall be chargeable to such Owner by Individual Assessment in accordance with
Paragraph 5.4(b).
7.6 Nuisances. No noxious or offensive activity shall be carried on upon the Planned Community or
any part thereof, nor shall anything be done or maintained thereon which may be or become an
annoyance or nuisance to the neighborhood or which is or may cause an unreasonable embarrassment,
disturbance or annoyance to others, or detract from its value as an attractive residential community.
Habitually barking, howling or yelping dogs shall be deemed a nuisance.
7.7 No Annoying Lights. Sounds or Odors. No light shall be emitted from any portion of the Planned
Community which is unreasonably bright or causes unreasonable glare,and no sound or odor shall be
emitted from any portion of the Planned Community which would reasonably be found by others to
be noxious or offensive.
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G 7.8 No Hazardous Activities. No activity shall be conducted on any portion of the Planned
Community which is or might be unsafe or hazardous to any person or property. Without limiting the
generality of the foregoing, no firearms shall be discharged upon any portion of the Planned
Community and no open fires shall be lighted or permitted on any portion of the Planned Community
except in a contained barbecue unit while attended and in use for cooking purposes or within a
fireplace designed to prevent the dispersal of burning embers.
7.9 No Unsightliness. All equipment shall be stored within the Dwelling Unit or garage,including all
bicycles, tractors, snow removal equipment and garden or maintenance equipment, except when
actually in use.
7.10 Utilities. Except as provided in Paragraph 8.2 hereof,all electric,television,radio and telephone
line installations and connections from the Owner's property line to the Dwelling Unit shall be placed
underground and have the prior approval of the Committee. All utility installations shall comply with
the Design Review Guidelines and all state laws and County ordinances.
7.11 Restrictions on Signs and Advertising Devices. No sign,poster,billboard,advertising device or
display of any kind shall be erected or maintained anywhere within the Planned Community except
such signs as may be approved in writing by the Committee which may include signs indicating
protection by Security Systems and Neighborhood Watch Programs. One sign advertising a Lot for
sale or for lease may be placed on such Lot or Dwelling Unit; provided however, that standards
relating to dimensions,color, style and location of such sign shall be determined from time to time by
the Committee and shall comply with the local sign codes and with all other applicable statutes,
ordinances and regulations.
Notwithstanding the foregoing, reasonable signs and advertising used by Declarant in
connection with development of or construction on a Lot, shall be permissible.
7.12 Compliance with Insurance Requirements. Except as may be approved in writing by the Board
of Directors,nothing shall be done or kept on the Planned Community which may result in an increase
in the rates of insurance or would result in the cancellation of any insurance maintained by the
Accnciation.
7.13 Compliance with Laws. No unlawful use shall be permitted or conducted of any Lot. All laws,
ordinances and regulations of all governmental bodies having jurisdiction over the Lots or any portion
thereof shall be observed.
7.14 Pets/Other Animals. No more than five customary household pets(such as dogs or cats)and no
more than three large animals(consisting of any combination of horses,goats, sheep,llamas or cows)
and five small animals(such as rabbits or fowl)shall be kept on any Lot. The offspring of any such
pets or animals shall not be considered in determining the total number of animals on a Lot until such
offspring reach one year of age. No such pets or other animals of any kind shall be raised, bred or
maintained for any commercial purpose and shall not kept in such number or in such manner as to
create a nuisance or inconvenience to any resident of the Planned Community.
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The Board of Directors shall have the right and authority to determine in its sole discretion
that dogs, cats, other household pets or other animals 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 an
Owner is otherwise in violation of the provisions of this Paragraph. The Directors shall take such
action or actions as it deems reasonably necessary to correct the violation to include after Notice and
Hearing, directing permanent removal of the pet or pets from the Planned Community.
Household pets and other animals shall not be allowed to run at large within the Planned
Community, but shall at all times be under the control of its respective Owner.
The Board of Directors is granted the authority to enforce the provisions of this Paragraph by
the levy of Fines against the Owner in accordance with Paragraph 5.4(c)hereof.
Reimbursement for any damages caused by such pets and other animals and costs incurred by
the Association, including attorneys'fees and costs, in the removal of a pet(s)or other animals from
the Planned Community or as incurred by the Association in cleanup after such pets or animals may
be levied against the respective Owner as an Individual Assessment in accordance with Paragraph
5.4(b) hereof.
No dog runs or animal pens of any kind shall be permitted on any Lot except with the prior
written approval of the Committee.
7.15 Vehicular Parking. Storage and Maintenance. No house trailer, camping trailer, horse trailer,
camper,camper shells,boat trailer,hauling trailer,boat or boat accessories,truck larger than 3/4 ton,
recreational vehicle or equipment,mobile home,or similar vehicle may be parked or stored anywhere
within the Planned Community unless it is parked in a garage or other out building,unless otherwise
approved by the Board of Directors, and unless they are being actively loaded or unloaded. This
applies to vehicles referred to above even if they are licensed by the State of Colorado or any other
jurisdiction as"passenger vehicles". No emergency or temporary parking shall continue for more than
one week.
Parking is not allowed on landscaped, lawn areas or fire lanes.
No abandoned, unlicenced, wrecked or inoperable vehicles of any kind shall be stored or
parked within the Planned Community except in garages or except in emergencies. Any Awrecked @
vehicle shall be as determined by the Board of Directors in its sole discretion. Any Aabandoned or
inoperable@ vehicle shall be defined as any of the vehicles listed above or any other kind of passenger
vehicle which has not been driven under its own propulsion for a period of two weeks or longer, or
which does not have installed within it an operable propulsion system; provided however,that any
vehicle belonging to any Owner which is otherwise permitted will not be deemed to be abandoned
while the Owner is ill or out of town so long as the Board has been notified.
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The Board of Directors shall have the right to remove and store a vehicle in violation of this
Paragraph after Notice and Hearing, the expenses of which shall be levied against the Owner of the
vehicle as an Individual Assessment in accordance with Paragraph 5.4(b)hereof.
Each Dwelling Unit within the Planned Community shall include an enclosed garage of a size
sufficient to accommodate a minimum of two full sized automobiles either attached or detached.
Owners are encouraged to keep their garage doors closed except when in use.
It was the intent of Declarant in designing the overall parking plan forth Planned Community
that garages be used in such a manner so that vehicles would be parked within such garages.
7.17 Owner Caused Damages. If,due to the act or neglect of an Owner or such Owner's Guests,loss
or damage shall be caused to any person or property within the Common Areas, such Owner shall be
liable and responsible for the payment of same.
The amount of such loss or damage, together with costs of collection and reasonable
attorney's fees, if necessary, may be collected by the Board of Directors, from such Owner as an
Individual Assessment against such Owner in accordance with Paragraph 5.4(b)hereof.
Determination with respect to whether or not a particular activity or occurrence shall
constitute a violation of this Paragraph 7.17 shall be made by the Committee and shall be final.
7.18 Exterior Equipment Prohibition. No exterior equipment or fixtures,including,but not limited to,
the following shall be permitted without the written consent of the Committee: air conditioning units,
swamp coolers, or other ventilating equipment; and any type or kind of wiring, ducts, or pipes,
excluding holiday wiring.
7.19 Antennas and Satellite Dishes. No conventional television antennae of any kind maybe installed
on the exterior of any Dwelling Unit in the Planned Community. No satellite dishes, antennas, and
similar devices for the transmission or reception of television, radio, satellite, or other signals of any
kind shall be permitted, except that
(a) satellite dishes designed to receive direct broadcast satellite or 2-way data
communication service which are one meter or less in diameter;
(b) satellite dishes designed to receive video programming services via multi-point
distribution services which are one meter or less in diameter or diagonal measurement; or
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(c) antennas designed to receive television broadcast signals(APermitted Devices@)shall
be permitted, provided that any such Permitted Device for a Dwelling Unit is placed in the least
conspicuous location on the Lot at which an acceptable quality signal can be received and is not
visible from the street,Common Areas, or neighboring Dwelling Units,or is screened from the view
from adjacent Dwelling Units in a manner approved by the Committee,and provided further that any
such Permitted Device must be as small and unobtrusive as possible and,in the case of an antenna,
may be installed on the exterior of a Dwelling Unit only if installation in the attic portion of the Unit is
not physically possible or would impair reception.
This Paragraph is intended to comply with the Telecommunications Act of 1996(AAct@)and
the rules and regulations promulgated by the Federal Communications Commission (AFCC@).
Specifically,this Paragraph is not intended to unreasonably delay or prevent installation,maintenance
or use of Permitted Devices; unreasonably increase the cost of installation, maintenance or use of
Permitted Devices; or preclude reception of an acceptable quality signal.
In the event that any portion of this Paragraph is found to violate the Act or any rule or
regulation of the FCC the portion of this Paragraph that is found to be in violation shall be stricken
and the remaining provisions of this Paragraph shall remain in full force and effect.
7.20 Lease of a Dwelling Unit. With the exception of a First Mortgagee who has acquired title to a
Lot by virtue of foreclosing a first mortgage or by virtue of a deed in lieu of foreclosure, an Owner
shall have the right to lease his or her Dwelling Unit upon such terms and conditions as the Owner
may deem advisable, subject to the following:
(a) any such lease or rental agreement must be in compliance with applicable local, state
and federal laws;
(b) no Owner may lease or rent (i) less than his or her entire Dwelling Unit; (ii) for
transient or hotel purposes; or(iii) for a term of less than six months in duration unless it is a lease
extension;
(c) any lease or rental agreement shall be in writing and shall provide that the lease or
rental agreement is subject to the terms of this Declaration, and the Articles and Bylaws, and the
Rules of the Association;
(d) such lease or rental agreement shall state that the failure of the lessee or renter to
comply with the terms of this Declaration, or the Articles or Bylaws or the Rules shall constitute a
default and such default shall be enforceable by either the Board of Directors or the lessor,or by both
of them to include, but not be limited to, eviction of the lessee from the Dwelling Unit; and
(e) the Board of Directors shall be furnished with a copy of the lease or rental agreement
upon its request.
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7.21 Fences and Other Exterior Improvements. Fences shall not be allowed to be constructed
between or anywhere on Lots without the written approval of the Committee. No basketball hoops,
poles or backboards, other playground equipment, clotheslines, wood piles or storage areas or
containers may be installed on any Lot or in the Common Areas unless approved by the Committee
and except as were installed or permitted to be installed by Declarant in its construction of Dwelling
Units on the Lots. No mailboxes, porch and area lighting, property identification, landscaping, or
other exterior improvements shall be constructed,installed, erected or maintained on any Lot unless
approved by the Committee and except as were installed or permitted to be installed by Declarant in
its construction of Dwelling Units on the Lots.
7.22 Rules. Every Owner and his or her Guests shall adhere strictly to the Rules as promulgated by
the Board of Directors, as amended from time to time.
7.23 Exterior Lighting. Any exterior lighting installed on any Dwelling Unit shall be of such
controlled focus and intensity so as to not disturb residents of neighboring Dwelling Units.
7.24 Waiver of Summary Abatement. Declarant and the Association each waive the right to use
summary abatement or similar means to enforce the restrictions herein contained. Judicial
proceedings must be instituted before any items of construction can be altered or demolished.
7.25 Exemptions for Declarant and Participating Builder. So long as Declarant and Participating
Builder own a Lot within the Planned Community, Declarant and Participating Builder shall be
exempt from the provisions of this ARTICLE SEVEN to the extent that it impedes,in Declarant=s
sole discretion, Declarants and/or Participating Builder=s development, construction, marketing,
sales,or leasing activities. Said exemptions to be granted to Participating Builder in Declarant=s sole
discretion.
7.26 Enforcement. The Association, acting through its Board of Directors, shall have the standing
and power to enforce all of the above land use and other restrictions.
ARTICLE EIGHT: EASEMENTS
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8.1 Generally. The Planned Community shall be subject to all easements as shown or created on the
Nat, those of record, those provided in the Act and those set forth in this Article and in other
provisions of this Declaration.
8.2 Utility Easements.There is hereby created and granted a blanket easement on,over,in,under and
through the Planned Community for the installation,replacement,repair,operation and maintenance
of utilities,including but not limited to water, sewer,gas,telephone,electricity and satellite and cable
systems. Said blanket easement includes future utility services not presently available to the Planned
Community that may be reasonably required in the future.
Should any utility company furnishing a service covered by the easement herein created
request a specific easement by separate recordable document, Declarant shall have, and hereby
reserves,the right and authority to grant such easement upon, across,over or under any part or all of
the Planned Community without conflicting with the terms hereof; provided, however, that such
power shall cease upon termination of the Declarant Rights as provided in Paragraph 13.3, at which
time such reserved right shall vest in the Association.
The easements granted in this Paragraph shall in no way affect, avoid, extinguish or modify
any other recorded easement(s)within the Planned Community.
8.3 Easements for the Board of Directors. The Board of Directors (it=s agents, employees, and
contractors) is hereby granted an easement on, over, in, under and through each Lot to perform its
obligations pursuant to this Declaration.
8.4 Emergency Easements. A nonexclusive easement for ingress and egress is hereby granted to all
police, sheriff,fire protection, ambulance, and other similar emergency agencies or persons,now or
hereafter servicing the Planned Community, to enter upon any part of the Planned Community in the
performance of their duties.
8.5 Recording Data Regarding Easements. Pursuant to ' 38-33.3-205(m)of the Act,the recording
data for recorded easements and licenses appurtenant thereto,or included in the Planned Community
or to which any portion of the Planned Community is or may become subject to are identified on the
attached Exhibit D.
8.6 Easements Deemed Appurtenant. The easements and rights herein created for an Owner shall be
deemed appurtenant to the Lots owned by such Owner. All conveyances and instruments affecting
title to a Lot shall be deemed to grant and reserve the easements and rights of way as provided herein,
as though set forth in said document in full,even though no specific reference to such easements or
rights of way appear.
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ARTICLE NINE: INSURANCE/CONDEMNATION
9.1 Authority to Purchase/General Requirements. All insurance policies relating to the Association,
the Common Areas and the Common Area Improvements shall be purchased by the Board of Direc-
tors. The Board of Directors shall promptly furnish to each Owner and/or such Owner's First
Mortgagee requesting same,written notice of the procurement of, subsequent changes in, renewals
of, or termination of insurance coverages obtained on behalf of the Association.
The Board of Directors shall not obtain any policy where under the terms of the insurance
company's charter, bylaws, or policy, contributions or assessments may be made against the
Association, Owner or First Mortgagee, or by the terms of carrier's charter, bylaws or policy, loss
payments are contingent upon action by the carrier's Board of Directors,policyholders or members;or
the policy includes any limiting clauses(other than insurance conditions)which could prevent Owners
or First Mortgagees from collecting insurance proceeds.
Each such policy shall provide that:
(a) The insurer to the extent possible waives any right to claim by way of subrogation against
Declarant, the Association, the Board of Directors, the Managing Agent or the Owners, and their
respective agents,employees,Guests and,in the case of the Owners,the members of their households;
(b) Such policy shall not be canceled, invalidated or suspended due to the conduct of any
Owner or his or her Guests or of any Member, officer or employee of the Board of Directors or the
Managing Agent without a prior demand in writing that the Board or the Managing Agent cure the
defect and neither shall have so cured such defect within 45 days after such demand;
(c) Such policy,including any fidelity insurance of the Association referred to in Paragraph 9.4
hereof may not be canceled, or substantially modified by any party (including cancellation for
nonpayment of premium)without at least 30 days'prior written notice to the Board of Directors, the
Managing Agent and to each First Mortgagee listed as a scheduled holder of a first mortgage in the
policy;
(d) Such policy must provide that no assessment may be made against First Mortgagee, its
successors or assigns and that any assessment made against others shall not become a lien on a Lot or
Dwelling Unit superior to the lien of a First Mortgagee; and
(e) Declarant, so long as Declarant shall own any Lot, shall be protected by all such policies
as an Owner, if such coverage is available.
All policies of insurance shall be written by reputable companies duly authorized and licensed
to do business in the State of Colorado with an A.M. Best's rating of"A" or better if reasonably
available, or, if not reasonably available, the most nearly equivalent rating.
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All insurance policies shall contain the standard mortgagee clause or equivalent endorsement
(without contribution) in which it appropriately names the First Mortgagee in the policy, its
successors and assigns, beneficiary.
9.2 Hazard Insurance. The Board of Directors shall obtain and maintain a blanket, "all-risk" form
policy of hazard insurance with extended coverage, vandalism, malicious mischief, windstorm,
sprinkler leakage(if applicable),debris removal,cost of demolition and water damage endorsements,
insuring any of the insurable improvements located on the Common Areas.
Such insurance shall at all times represent 100%of the current replacement cost based on the
most recent appraisal of all insurable improvements in the Common Areas. The current replacement
cost shall not include values for land,foundation,excavation and other items normally excluded there-
from and shall be without deduction for depreciation and with no provision for co-insurance. If
available,the policy shall be endorsed with a "Guaranteed Replacement Cost Endorsement".
The Board of Directors shall review at least annually all of its insurance policies in order to
insure that the coverages contained in the policies are sufficient. The Board of Directors shall
consistent with good business practices, and at reasonable intervals obtain a written appraisal for
insurance purposes, showing that the insurance represents 100%of the current replacement cost as
defined above for all insurable improvements located on the Common Areas, together with any
personal property owned by the Association.
Such policies shall also provide:
(a) The following endorsements or their equivalent: No Control Endorsement,
Contingent Liability from Operation of Building Laws or Codes Endorsement, Cost of Demolition
Endorsement,Increased Cost of Construction Endorsement)Agreed Amount Endorsement,and Inflation
Guard Endorsement, if available.
(b) That any"no other insurance" clause expressly exclude individual Owners'
policies from its operation so that the property insurance policy purchased by the Board of Directors
shall be deemed primary coverage and any individual Owners' policies shall be deemed excess
coverage, and in no event shall the insurance coverage obtained and maintained by the Board of
Directors hereunder provide for or be brought into contribution with insurance purchased by individual
Owners or their First Mortgagees, unless otherwise required by law.
A certificate,together with proof of payment of premiums,shall be delivered by the insurer to
any Owner and First Mortgagee requesting the same, at least 30 days prior to expiration of then
current policy.
The insurance shall be carried naming the Association as the owner and beneficiary thereof for
the use and benefit of the Association. Any loss covered by the policies carried under this Article shall
be adjusted exclusively by the Board of Directors and provide that all claims are to be settled on a
replacement cost basis.
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The Association shall hold any insurance proceeds received in trust for the Owners and their
First Mortgagees as their interests may appear. The proceeds shall be disbursed first for the repair or
restoration of the damaged Common Areas. Owners and First Mortgagees are not entitled to receive
payment of any portion of the proceeds unless there is a surplus of proceeds after the Common Areas
have been repaired or restored. No Owner or any other party shall be entitled to priority over First
Mortgagees with respect to any distribution of the insurance proceeds..
The deductible, if any, on such insurance policy shall be as the Directors determine to be
consistent with good business practice and which shall be consistent with the requirements of the First
Mortgagees, not to exceed, however, $10,000.00 or one percent of the face amount of the policy
whichever is less. Any loss falling within the deductible portion of a policy shall be paid by the
Association. Funds to cover the deductible amounts shall be included in the Association's Reserve
Funds and be so designated.
The Board shall have the authority to levy,after Notice and Hearing,against Owners causing
such loss for the reimbursement of all deductibles paid by the Association as an Individual Assessment
in accordance with Paragraph 5.4(b)hereof.
93 Liability Insurance. The Board of Directors shall obtain and maintain comprehensive general
liability(including eviction, libel, slander, false arrest and invasion of privacy)and property damage
insurance covering all of the Common Areas,insuring each officer,director,the Managing Agent and
the Association.
Such coverage under this policy shall include, without limitation, the legal liability of the
insureds for property damage, bodily injuries and deaths of persons that result from the operation,
maintenance or use of the Common Areas and the legal liability arising out of lawsuits relating to
employment contracts in which the Association is a party.
Such insurance shall be issued on a comprehensive liability basis. Additional coverages maybe
required to include protection against such other risks as are customarily covered with respect to the
Planned Community similar in construction, location and use, including, but not limited to, Host
Liquor Liability coverage with respect to events sponsored by the Association,Workmen's Compensa-
tion and Employer's Liability Insurance,Comprehensive Automobile Liability Insurance, Severability
of Interest Endorsement.
IN THE EVENT THE ASSOCIATION HOSTS A FUNCTION AND CHARGES FOR
FOOD OR DRINK AND LIQUOR IS SERVED, THERE WILL BE NO HOST LIQUOR
LIABILITY COVERAGE FOR THE ASSOCIATION. IF MONEY IS CHARGED, A LIQUOR
LIABILITY POLICY WOULD BE NEEDED TO GIVE COVERAGE TO THE ASSOCIATION.
The Board of Directors shall review such limits once each year, but in no event shall such
insurance be less than one million dollars covering all claims for bodily injury, including deaths of
persons and property damage arising out of a single occurrence. Reasonable amounts of"umbrella"
liability insurance in excess of the primary limits may also be obtained.
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Absolute liability is not imposed on Owners for damage to Common Areas or Lots within the
Planned Community.
9.4 Fidelity Insurance. The Association shall obtain and maintain,to the extent reasonably available,
fidelity insurance coverage for any Owner or Association employee who either handles or is
responsible for funds held or administered by the Association. The insurance shall name the
Association as insured, and shall contain waivers of any defense based upon the exclusion of persons
who serve without compensation from any definition of"employee" or similar expression.
The fidelity insurance policy should cover the maximum funds(including Reserve Funds)that
will be in the custody of the Association or its management agent at any time while the policy is in
force;provided,however,in any event the aggregate amount of such insurance shall not be less than a
sum equal to three months= aggregate assessments on all Lots, plus Reserve Funds.
The policy must include a provision that calls for 30 days' written notice to the Association
before the policy can be canceled or substantially modified for any reason. The same notice must also
be given to each servicer that services a Fannie Mae-owned or securitized mortgage in the Planned
Community.
A management agent that handles funds for the Association should be covered by its own
fidelity insurance policy which must provide the same coverage required of the Association.
9.5 Additional Insurance. If the Common Areas within the Planned Community are identified by the
Secretary of Housing and Urban Development (HUD) or the Director of the Federal Emergency
Management Agency(FEMA)as a Special Flood Hazard Area,flood insurance for the Common Areas
shall be maintained providing coverage equivalent to that provided under the National Flood Insurance
Program in an amount of the then current replacement cost of the Common Areas and the Common
Area Improvements located thereon as shown on the current FEMA map.
If the Common Areas at the time of the recording of this Declaration are not identified as a
Special Flood Hazard Area but become reclassified at a later date as such,the Board of Directors shall
obtain flood insurance for the Common Areas in accordance with the above. Conversely flood
insurance may be discontinued when the Common Areas are reclassified out of the Special Flood
Hazard Area.
The Association may also maintain coverage for:
(a) Adequate Directors and Officers liability insurance, if reasonably available, and if
deemed consistent with good business practices,for errors and omissions on all Directors and Officers
to be written in an amount which the Board of Directors deems adequate;
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(b) Worker's Compensation and Employer's Liability Insurance and all other similar
insurance with respect to employees of the Association in the amount and in the forms now or
hereafter acquired by law; or
(c) Such other insurance of a similar or dissimilar nature, as the Board of Directors shall
deem appropriate with respect to the Planned Community.
9.6 Payment of Insurance Premiums. The cost of the insurance obtained by the Association in
accordance with this Article shall be paid from Association funds and shall be collected from the
Owners as part of the Common Expense Assessment as provided for in Paragraph 5.4(a)hereof.
In the event there are not sufficient funds generated from the Common Expense Assessment to
cover the cost of the insurance provided for above, then the deficiency shall be chargeable to each
Owner by an Individual Assessment in accordance with Paragraph 5.4(b)hereof and such Assessment
shall be exempt from any special voting requirements of the Membership. Such Assessment shall be
prorated among Owners in accordance with the Owners' Common Expense Liability set forth in
Paragraph 1.3 hereof.
9.7 Separate Insurance. No Owner shall be entitled to exercise his or her right to acquire or maintain
such insurance coverage so as to decrease the amount which the Board of Directors,on behalf of all
Owners, may realize under any insurance policy maintained by the Board or to cause any insurance
coverage maintained by the Board to be brought into contribution with insurance coverage obtained by
an Owner. All such policies shall contain waivers of subrogation. No Owner shall obtain separate
insurance policies except as provided in this Paragraph.
9.8 Damage to Property. Any portion of the Common Areas and Common Area Improvements that is
damaged or destroyed and for which insurance is carried by the Association, shall be repaired or
reconstructed by the Board of Directors in accordance with ARTICLE TEN hereof.
9.9 Condemnation. If a part of the Common Areas are acquired by condemnation,that portion of any
award attributable to the Common Areas taken must be paid to the Association as attorney-in-fact to
be held in trust for the use and benefit of the Association,the Owners and the holders of their Security
Interests as their interests may appear. No Owner or any other party shall be entitled to priority over
First Mortgagees with respect to any distribution of the Condemnation Award.
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ARTICLE TEN: RESTORATION UPON DAMAGE OR DESTRUCTION
10.1 Duty to Restore Common Areas. In the event of damage or destruction to any portion of the
Common Areas and or the Common Area Improvements which is covered by insurance carried by the
Association,the insurance proceeds shall be applied by the Board of Directors to such reconstruction
and repair.
The Common Areas and its Improvements must be repaired and restored in accordance with
either the original plans and specifications,or other plans and specifications which have been approved
by the Board of Directors.
10.2 Use of Insurance Proceeds. If the insurance proceeds with respect to such damage or destruction
are insufficient to repair and reconstruct the damage to the Common Areas, the Board of Directors
shall levy an Individual Assessment in the aggregate amount of such insufficiency pursuant to
Paragraph 5.4(b)hereof and shall proceed to make such repairs or reconstruction. The amount of
each Owner's Individual Assessment shall be such Owner's Common Expense Liability shall be
determined in accordance with Paragraph 1.3 hereof.
If all of the damage to the Common Areas covered by the Association's insurance is not
repaired or reconstructed,the insurance proceeds attributable to the damage shall be used to restore
the damaged portion of the Common Areas to a condition compatible with the remainder of the
Planned Community and the remainder of the proceeds shall be distributed to the Association.
10.3 Duty to Restore Dwelling Units. If due to casualty or for any other reason a Dwelling Unit
located on a Lot is destroyed or so damaged that the Dwelling Unit is no longer habitable, then the
Owner of such Lot 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
Dwelling Unit or demolish the same. All repair and reconstruction shall be in accordance with plans
approved by the Committee in the event the plans and specifications differ from the original approved
plans and specifications.
Demolition of a Dwelling Unit shall include removal of any foundation slab,basement walls and
floors, regrading the Lot to a level condition and the installation of such landscaping as may be
required by the Committee pursuant to a plan submitted to the Committee by the Owner of said Lot.
If an Owner does not either commence repair,reconstruction or demolition activities within a
reasonable time as provided hereinabove and diligently pursue the same in conformance with plans
approved by the Committee,then the Association may,in its reasonable discretion,after providing the
Notice and Hearing, enter upon the Lot for the purpose of demolishing the balance of the Dwelling
Unit and landscape the Lot in conformance with approved plans. The cost related to such demolition
and landscaping shall be levied against the Owner as an Individual Assessment in accordance with
Paragraph 5.4(b) hereof.
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ARTICLE ELEVEN: MAINTENANCE (p O
11.1 Maintenance of the Common Areas and Common Area Improvements. The Association shall
provide for the repair, maintenance and reconstruction of the Common Areas and Common Area
Improvements. Without limiting the generality of the foregoing and by way of illustration, the
Association shall keep the said Common Areas and its Improvements in an attractive,clean,functional
and in good repair and may make necessary or desirable alterations or improvements thereon or
thereto or replacements thereof.
11.2 Maintenance of the Dwelling Units and Lots. All Dwelling Unit and Lot maintenance,repair and
reconstruction shall be the sole responsibility and at the sole expense of the Owner together with the
maintenance of the landscaping thereon and any other structures, buildings or other improvements
thereon.
No landscaping shall be done, and no fences, hedges or walls shall be erected upon any Lot,
except such as are installed in accordance with the initial construction of the Dwelling Unit or as
approved by the Committee.
If such improvements are approved for any Lot,then such improvements must be maintained,
repaired and reconstructed by the Owner of the Dwelling Unit benefitted in a manner acceptable to the
Board of Directors.
11.3 Owners Failure to Maintain.Repair and/or Reconstruct. In the event that a Lot or Dwelling Unit
is not properly maintained and repaired, by the Owner, the Board of Directors, after Notice and
Hearing to the Owner(and after a determination by the Board that the condition of such Lot and/or
Dwelling Unit negatively impacts other Owners or the value of other Lots and Dwelling Units within
the Planned Community) shall have the right to enter upon the Lot to perform such work as is
reasonably required to restore the Lot and/or Dwelling Unit to a condition of good order and repair
and charge the cost thereof to such Owner as an Individual Assessment in accordance with Paragraph
5.4(b) hereof.
Absolute liability is not imposed upon Lot Owners for damage to the Common Area or Lots
within the Planned Community.
11.4 Maintenance of Drainage Pattern. There shall be no interference with the established drainage
pattern initially established by Declarant over any portion of the Planned Community, except as
approved in writing by the Committee. Approval shall not be granted unless provision is made for
adequate alternate drainage.
The"established drainage pattern"shall mean the drainage pattern which exists at the time the
overall grading of any property is completed by Declarant and shall include any established drainage
pattern shown on the plans approved by the Committee. The established drainage pattern may include
the drainage pattern from the Common Areas over any Lots within the Planned Community and from
any Lot within the Planned Community over the Common Areas, or from any Lot over another Lot.
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Any proposed alteration to the drainage pattern must be prepared, signed and stamped by a
qualified Professional Engineer registered in the state of Colorado.
11.5 Association Responsibility. The maintenance obligation on the part of the Association shall apply
to such maintenance required by ordinary wear and tear and shall not apply to maintenance, repair
and/or reconstruction resulting from willful neglect or destruction. In the event such repair,
maintenance and/or reconstruction is resulting from the willful neglect or destruction by an Owner or
such Owner's Guests,the Board of Directors shall have the right, to charge the costs of such repair,
maintenance and/or replacement, to such Owner by an Individual Assessment in accordance with
Paragraph 5.4(b)hereof.
Determination of whether such repair,maintenance and/or reconstruction is the obligation of
the Association and the determination of when,the magnitude and the manner of the above described
maintenance, repair and/or reconstruction shall rest solely with the Board of Directors and shall be
final. The Board of Directors will also have the sole responsibility for determining the kind and type of
materials used in such repair and maintenance.
11.6 Board of Directors Access. Access to all of the Lots within the Planned Community to perform
the said repair,maintenance and/or reconstruction by the Board of Directors,its agents and employees
shall be made pursuant to the maintenance easement granted in accordance with Paragraph 8.3 hereof.
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ARTICLE TWELVE: DECLARANT RIGHTS (c)(o
12.1 Reservation. Declarant reserves the following Declarant Rights which may be exercised,where
applicable, anywhere within the Planned Community:
(a) To complete the improvements as shown on the Plat;
(b) To exercise any Declarant Rights reserved or described herein;
(c) To maintain business/sales offices,parking spaces,management offices, storage areas,
nursery, construction yard, signs, advertising and model Dwelling Units;
(d) To maintain signs and advertising on the Common Areas to advertise the Planned
Community;
(e) To have and use,and to permit others to have and use,easements through the Common
Areas as may be reasonably necessary for construction within the Planned Community and for the
purpose of discharging Declarant=s obligations under the Act and this Declaration;
(f) To amend the Declaration and/or the Plat in connection with the exercise of any
Declarant Rights;and
(g) To merge or consolidate the Planned Community with a common interest
Community of the same form of ownership;
(h) To appoint or remove any officer of the Association or a member of the Board of
Directors during the Period of Declarant Control subject to the provisions of Paragraph 4.7 hereof;
(i) To exercise any other Declarant Right created by any other provisions of this
Declaration.
12.2 Rights Transferable. Declarant Rights created or reserved under this Article for the benefit of
Declarant may be transferred to any Person by an instrument describing the Rights transferred and
recorded in the records of the County Clerk and Recorder. Such instrument shall be executed by the
transferor Declarant and the transferee.
12.3 Limitations. Declarant Rights shall terminate at the option of Declarant, but in any event such
Rights shall terminate without further act or deed seven years after the date of the recording of this
Declaration except as provided for in Paragraph 6.3 hereof regarding the Declarant Right to appoint
and remove members of the Design Review Committee.
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Declarant shall have a right to create no more than seven Lots or the maximum number ofLots
allowed by any governmental entity having jurisdiction over the Planned Community,pursuant to any
development plan for the Planned Community. Declarant shall not be obligated to enlarge the Planned
Community beyond the number of Lots initially submitted to this Declaration.
In the event that the process of entitlement for Declarant to obtain Building Permits is placed
on Ahold@ (e.g., moratorium, anti-growth legislation, etc.) for reasons beyond the control of
Declarant,the time limitations set forth herein shall be extended until the impediment to entitlement is
removed.
12.4 Interference with Declarant Rights. Neither the Association, the Board of Directors nor any
Owner may take any action or adopt any rule that will interfere with or diminish Declarant Rights
without the prior written consent of Declarant.
12.5 Use by Declarant. The exercise of Declarant Rights by Declarant or Participating Builder shall
not unreasonably interfere with the access, enjoyment or use of any Lot by any Owner nor the access,
enjoyment or use of the Common Areas; nor shall any activity be conducted which might be unsafe,
unhealthy, or hazardous to any person. Participating Builder may share the Declarant=s Rights as
granted by Declarant in it=s sole discretion.
12.6 Models. Sales Offices and Management Offices. Declarant and its duly authorized agents,
representatives and employees may maintain any Dwelling Unit or Dwelling Units owned by the
Declarant as a model Dwelling Unit or as a sales,leasing and/or management office(or may located a
sales trailer within the Planned Community for any of such purposes). Declarant reserves the right at
any time and from time to time to relocate its sales offices,management offices, signs advertising the
Project,of any size, on one or more Lots or within the Common Area so long as Declarant continues
to be an Owner of a Lot or the period of Declarant Control has not terminated pursuant to the terms of
the this Declaration.
12.7 Declarant's Easements. Declarant reserves the right to perform warranty work, and repairs and
construction work on Lots, Dwelling Units, Common Areas, and Common Area Improvements to
store materials in secure areas, and to control and have the right of access to work and repair until
completion. MI work shall be performed by Declarant without the consent or approval ofthe Board of
Directors, Owners or First Mortgagees.
Declarant has an easement through the Common Areas as may be reasonably necessary for the
purpose of discharging Declarant=s obligations or exercising of Declarant Rights, whether arising
under the Act or reserved in this Article.
Notwithstanding any other provision of this Declaration,the easements reserved herein shall
remain in effect for the benefit of the Declarant until the termination of all applicable warranty periods
with respect to any particular Lot,Dwelling Unit,Common Areas or Common Area Improvements.
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12.8 Signs and Marketing. Declarant reserves the right to post signs on the Common Areas in order to
promote sales of Lots and Dwelling Units, Declarant also reserves the right to conduct general sales
activities in a manner which will not unreasonably disturb the rights of Owners.
12.9 Other Reserved Rights. The rights reserved in this ARTICLE TWELVE are in addition to all
other rights reserved by or granted to Declarant in this Declaration or by the Act.
12.10 Exercise of Declarant Rights. The exercise of any or all of the Declarant Rights shall be at the
sole option and discretion of Declarant. No assurances are made with respect to the boundaries ofthe
Planned Community or the parcels of real property that may be subject to Declarant Rights nor the
order in which Declarant Rights may be exercised. If Declarant exercises any Declarant Rights, such
rights may, but need not, be exercised as to all or any other portion of the Planned Community.
Notwithstanding anything in this Declaration to the contrary, no consent or agreement of,or
notice to, the Owners or any Eligible Mortgagee shall be required in order to allow Declarant to
exercise any of its Declarant Rights, provided such exercise otherwise complies with the applicable
provisions of this Declaration.
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The following provisions are for the benefit of holders, insurers, or guarantors of holders of
first mortgages recorded against Lots within the Planned Community who qualify as an Eligible
Mortgagee as defined by Paragraph 1.25 hereof. To the extent applicable, necessary, or proper, the
provisions of this ARTICLE THIRTEEN apply to both this Declaration and to the Articles and
Bylaws.
13.1 Notices of Action. An Eligible Mortgagee shall be entitled to timely written notice of:
(a) any material condemnation loss or any casualty loss which affects a material portion of
the Planned Community or any Lot in which there is a first mortgage held,insured,or guaranteed by
such Eligible Mortgagee;
(b) any 60 day delinquency in the payment of Assessments or charges owed by an Owner
of any Lot on which an Eligible Mortgagee holds a Security Interest;
(c) any lapse,cancellation, or material modification of any mandatory insurance policy or
fidelity bond maintained by the Association;
(d) any proposed action which would require the consent of a specified percentage of
Eligible Mortgagees.; and
(e) any material judgment rendered against the Association.
13.2 Amendment to Documents/Special Approvals:
(a) The consent of Owners to which at least five of the votes in the Association are allocated
and the consent of 51%of the Eligible Mortgagees shall be required to add to or amend any material
provisions of this Declaration or the Articles or Bylaws of the Association. A change to any of the
following would be considered material.
(i) voting rights;
(ii) increase the Common Expense Assessment annually by more than 25% over the
previously levied Common Expense Assessment, change the manner of the Assessment
Liens, or the priority of the Assessment Liens;
(iii) reduction in the reserves for maintenance, repair and replacement of the Common
Areas;
(iv) responsibility for maintenance and repairs;
(v) right to use the Common Areas;
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(vi) convertibility of Lots into Common Areas or vice versa; `�V
(vii) hazard or fidelity insurance requirements;
(viii) imposition of any restrictions on the leasing of Lots;
(ix) imposition of any restrictions on a Lot Owner's right to sell or transfer his or her Lot;
(x) restoration or repair of the Planned Community(after damage or partial condemnation)
in a manner other than that specified in the Project Documents;
(xi) any provision that expressly benefits mortgage holders, insurers or guarantors;
(xii) a decision by the Board of Directors to establish self-management if professional
management had been required previously by the Project Documents or by an Eligible
Mortgagee.
(b) The Association may not take any of the following actions without the consent of
Owners to which at least five of the votes in the Association are allocated and the approval of at least
51%of the Eligible Mortgagees.
(i) Reconstruct or repair the Planned Community after damage due to an insurable hazard
or a partial condemnation in a manner other than specified in the Project Documents.
(ii) Merge or consolidate the Planned Community with any other Planned Community or
subject it to a Master Association. Such action shall also require the written approval
from the Federal Housing Administration and/or the Veterans Administration if the
Planned Community has been or may be approved by such agencies.
(iii) Not repair or reconstruct, in the event of substantial destruction, any part of the
Common Areas.
(c) Any action to terminate the legal status of the Planned Community after substantial
destruction or condemnation occurs must be agreed to by Owners to which at least five of the votes in
the Association are allocated, and by 51% of the Eligible Mortgagees.
(d) Any action to terminate the legal status of the Planned Community for reasons other
than substantial destruction or condemnation occurs must be agreed to by Owners to which at least
five of the votes in the Association are allocated, and by 67%of the Eligible Mortgagees.
13.3 Special FHLMC Provisions. Except as provided by statute in the case of a condemnation or a
substantial loss to the Lots and/or Common Areas, unless at least 67%of the Eligible Mortgagees or
five of the Owners(other than Declarant)have given their prior written approval,the Association may
not:
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(a) by act or omission seek to abandon or terminate the Planned Community;
(b) change the pro rata interest or obligations of any Lot in order to levy assessments,
allocate distribution of hazard insurance proceeds or condemnation awards;
(c) seek to abandon, partition, subdivide, encumber, sell or transfer the Common Areas
by act or omission;
(d) the granting of easements for public utilities or other purposes consistent with the
intended use of the Common Areas is not a transfer within the meaning of this Paragraph 13.3(c);and
(e) use hazard insurance proceeds for losses to any planned community property for
other than the repair, replacement or reconstruction of the planned community property).
13.4 Implied Approval. Implied approval by an Eligible Mortgagee shall be assumed when an Eligible
Mortgagee fails to submit a response to any written proposal for an amendment within 30 days after
said Eligible Mortgagee receives proper notice of the proposal,provided this notice was delivered by
certified or registered mail with return receipt requested.
13.5 Books and Records. Owners and their mortgagees shall have the right to examine the books and
records of the Association at the office of the Association in accordance with the procedure set forth in
the Association's Bylaws.
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ARTICLE FOURTEEN: MANDATORY DISPUTE RESOLUTION
14.1 Statement of Clarification. Without modifying or restricting the scope of this Article and as a
statement of clarification only,nothing contained in this Article is intended to prevent the parties from
attempting to resolve any differences between them through the normal course of business and
communications. It is only when the parties are unable to resolve their differences and they wish to
proceed further through the assertion of a AClaim®as defined herein, that the Mandatory Dispute
Resolution provisions contained in this Article are activated.
14.2 Alternative Method for Resolving Disputes. Declarant, the Association, its officers and
directors; all Owners; design professionals; builders, including any of their subcontractors and
suppliers; and any Person not otherwise subject to this Declaration but who agrees to submit to this
Article (each of the foregoing entities being referred to as a AParty@), agree to encourage the
amicable resolution of disputes involving the Planned Community and all of its improvements without
the emotional and financial costs of litigation. Accordingly,each Party covenants and agrees to submit
all Claims each may have to the procedures set forth in this ARTICLE FOURTEEN and not to a court
of law.
14.3 Claims. Except as specifically excluded in Paragraph 14.4, all claims, disputes and other
controversies arising out of or relating to the:
(a) any Agreement for Sale and Purchase between Declarant and any Owner(except as
may be expressly provided otherwise therein);
(b) Property(as defined in any such Agreement)or the Dwelling Unit;
(c) purchase of the Property or the Dwelling Unit;
(d) interpretation, application or enforcement of this Declaration;
(e) the soils of any property that lies within the Planned Community;
(f) land development,design, construction,and/or alteration of the Improvements within
the Planned Community and/or any alleged defect therein;
(g) any rights, obligations and duties of any Party under this Declaration;
(h) any Limited Warranty Agreement between Declarant and any Owner and/or the
Association; or
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(i) any breach of any of the foregoing;
all of which are hereinafter referred to as a AClaim,@ shall be subject to and resolved by submitting
the Claim to mediation and, if not resolved during mediation, shall be resolved by Mandatory Binding
Arbitration all in accordance with this ARTICLE FOURTEEN and not in a court of law.
Notwithstanding the foregoing, no Claim may be asserted or brought unless there is either(i)actual
physical damage to or actual loss of use of tangible real or personal property or(ii)bodily injury or
wrongful death.
14.4 Claims Subject to Approval. Unless Owners to whom at least five of the votes in the Association
are allocated agree to the contrary, the following shall not be Claims and shall not be subject to the
provisions of this ARTICLE FOURTEEN:
(a) any suit by the Association against any Party to enforce the provisions of ARTICLE
FIVE (Assessments);
(b) any suit by the Association or Declarant to obtain a temporary restraining order or
injunction and such other ancillary relief as the court may deem necessary in order for the Association
or Declarant to act under and enforce the provisions of ARTICLE SIX (Architectural Ap-
provalDesign Review), or ARTICLE SEVEN(Land Use and Other Restrictions);
(c) any suit by an Owner to challenge the actions of Declarant,the Association,Declarant
acting as the Design Review Committee, or any other committee with respect to the enactment and
application of standards or rules or the approval or disapproval of plans pursuant to the provisions of
ARTICLE SIX(Architectural Approval/Design Review); and
(d) any suit between or among Owners,that does not include Declarant or the Association.
14.5 Notice of Claim. Any Party alleging a Claim (AClaimant@) against any other Party
(ARespondent@)shall submit all of their Claims by written notification delivered to each Respondent,
stating plainly and concisely:
(a) the nature of the Claim,including a list of any alleged construction defects,the Persons
involved and Respondent's role in the Claim;
(b) the legal or contractual basis of the Claim(i.e.,the specific authority out of which the
Claim arises);
(c) the date on which the Claim first arose;
(d) the name and address of every Person, including without limitation any current or
former employees of Respondent,whom Claimant believes does or may have information relating to
the Claim; and
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(e) the specific relief and/or proposed remedy sought.
14.6 Timely Initiation. All Claims shall be initiated by the Claimant within a reasonable time after the
Claim has arisen, and in any event, regardless of the nature of the Claim,within the time specified in
the applicable Limited Warranty Agreement described in Paragraph 14.3(h)above for warranty Claims
and no later than two years after the Claim arises for all other Claims.
14.7 Right to be Heard. Upon receipt of a Claim and prior to the Association or any Owner asserting
the Claim commencing any mediation or arbitration Respondent shall have the right to make a written
response and be heard by Claimant, affected Owners, and Association in an effort to resolve the Claim.
14.8 Right to Inspect and Repair. If the Claim is based on the land development,design,construction
and/or alteration of any Improvements within the Planned Community then,upon reasonable notice to
any affected Owners(or the Association if the affected area is owned by the Association),Respondent
shall have the right to access the affected area at a reasonable time(s)for purposes of inspecting the
condition complained of including but not be limited to, any investigative or destructive testing.
The Association shall have the same right to inspect for any Claims by Owner against the
Association in accordance with the above.
In the exercise of the inspection rights contained herein,the Party causing the inspection to be
made(Alnspecting Party@) shall:
(a) be careful to avoid any unreasonable intrusion upon, or harm,damage or costs to the
other party including, without limitation, using its best efforts to avoid causing any damage to, or
interference with, any improvements on the property being inspected(AAffected Property@);
(b) minimize any disruption or inconvenience to any person who occupies the Affected
Property;
(c) remove daily all debris caused by the inspection and located on the Affected Property;
and
(d) in a reasonable and timely manner, at the Inspecting Party=s sole cost and expense,
promptly remove all equipment and materials from the Affected Property and repair and replace all
damage, and restore the Affected Property to the condition of the Affected Property as of the date of
the inspection, unless the Affected Property is to be immediately repaired.
The repair, replacement and restoration work shall include, without limitation, the repair or
replacement to any structures,driveways,fences,landscaping,utility lines or other improvements on
the Affected Property that were damaged, removed or destroyed by Inspecting Party.
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In the event the Inspecting Party wishes to make repairs to resolve the subject matter of the
Claim, the Inspecting party shall have the right, at its option, to do so and to enter the Affected
Property at a reasonable time(s) and upon reasonable notice for such purpose.
The Inspecting Party shall not permit any claim, lien or other encumbrance arising from the
exercise of its right to inspect and/or repair to accrue against or attach to the Affected Property. The
Inspecting Party shall indemnify, defend and hold harmless the Affected Owners,or the Association if
the Affected Property is owned by the Association, against any and all liability, claims, demands,
losses, costs and damages incurred, including court costs and reasonable attorney=s fees, resulting
from any breach of this Article by the Inspecting Party.
14.9 Good Faith Negotiations. The Parties shall make every reasonable effort to meet in person and
confer for the purpose of resolving the Claim by good faith negotiation. Any party may be represented
by attorneys and independent consultants(at such Party=s cost)to assist such party in negotiations and
to attend meetings.
14.10 Mediation:
(a) If the Parties do not resolve the Claim through negotiations within 30 days after the
date of submission of the Claim to Respondent(s), as may be extended upon agreement of all affected
Parties,Claimant shall have 30 additional days to submit the Claim to mediation under the auspices of
an independent mediation service reasonably acceptable to all Parties. If Claimant does not submit the
Claim to mediation within such time,or does not appear for the mediation,Claimant shall be deemed
to have waived the Claim, and all Respondent(s) shall be released and discharged from any and all
liability to Claimant on account of such Claim.
(b) Any settlement of the Claim through mediation shall be documented in writing by the
mediator and signed by the Parties.
(c) If the Parties do not settle the Claim within 30 days after submission of the matter to
the mediation, or within such other time as determined by the mediator or agreed to by the Parties,the
mediator shall issue a notice of termination of the mediation proceedings (ATermination of
Mediation@). The Termination of Mediation notice shall set forth that the Parties are at an impasse and
the date that mediation was terminated.
(d) Within 10 days after issuance of a Termination of Mediation, Claimant shall make a
final written Settlement Demand to the Respondent(s), and the Respondent(s) shall make a final
written Settlement Offer to the Claimant. If the Claimant fails to make a Settlement Demand,
Claimant's original Claim shall constitute the Settlement Demand. If the Respondent(s)fail to make a
Settlement Offer,Respondent(s)shall be deemed to have made a Azero@ or Atake nothing@ Settlement
Offer.
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(e) Each Party shall bear its own costs, including attorney=s fees, and each Party shall
share equally all charges rendered by the mediator(s) and all filing fees and costs of conducting the
mediation proceeding.
(f) If the Parties agree to a resolution of any Claim through negotiation or mediation in
accordance with this ARTICLE FOURTEEN and any Party thereafter fails to abide by the terms of
such agreement,then any other affected Party may file suit to enforce such agreement without the need
to again comply with the procedures set forth in this ARTICLE FOURTEEN.In such event,the Party
taking action to enforce the agreement shall be entitled to recover from the non-complying Party all
costs incurred in enforcing such agreement,including,without limitation, reasonable attorney=s fees
and court costs.
14.11 Arbitration:
(a) If the Parties do not reach a settlement of the Claim within fifteen days after issuance of
any Termination of Mediation and reduce the same to writing, the Claimant shall have fifteen
additional days to submit the Claim to binding arbitration in accordance with the Arbitration
Procedures contained in Exhibit E hereof and deliver an Arbitration Notice to all Respondent(s).
(b) The Parties agree that where any Claim,dispute or other controversy existing between
them is submitted to arbitration,and any other Party may have liability with respect thereto,all Parties
including any third Parties agree that the third Parties may be joined as additional Parties in the
arbitration, or if a separate arbitration exists or is separately initiated, to the consolidation of all
arbitrations. It is the intent of the Parties to resolve all rights and obligations of all interested Parties at
one time in one forum rather than in multiple proceedings.
(c) Within 60 days after submission of the Claim,Claimant shall file with the arbitrator and
deliver to Respondent(s)a certified list of construction defects that are the subject of the Claim,which
list shall be signed by the attorney for Claimant,or if Claimant does not have an attorney,by Claimant,
and shall include:
(i) a statement that (a)the attorney for Claimant, or Claimant if Claimant does not
have an attorney, has consulted with a Person not a Party to the Claim with expertise in the area of
each construction defect that is the subject of the Claim(the AConstruction Consultant@)and(b)the
Construction Consultant has inspected the improvements for which the construction defects are
claimed, has reviewed the known facts, including such records, documents and other materials the
Construction Consultant has found to be relevant to the construction defects,and has concluded that
the Claim has substantial justification based on the Construction Consultant=s inspection and review of
the known facts;
(ii) a certification that the Construction Consultant can demonstrate by competent
evidence that, as a result of training, education, knowledge and experience, the Construction
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Consultant is competent to testify as an expert and render an opinion as to the alleged construction
defects;
(iii) a certification signed by the Construction Consultant stating(A) such Person=s
name, address, qualifications and credentials that render him or her competent to express an expert
opinion as to the alleged construction defect, (B)that he or she has inspected each improvement and
reviewed the known facts,including such records,documents and other materials which he or she has
found to be relevant to the construction defects at issue, and(C)as to each improvement for which a
construction defect Claim is asserted, an identification of the owner of the improvement,the location
and date of construction of the improvement,and an identification of each claimed construction defect
and its specific location;
(iv) a computation of the damages alleged for each construction defect;
(v) an identification, with respect to each improvement and construction defect, of
each Party alleged to be responsible for such defect;
(vi) a certification that each Party alleged to be responsible for the alleged
construction defect has been given written notice of the defect and an opportunity to remedy the defect
under the foregoing provisions of this Article and that the defect has not been remedied; and
(vii) a copy of the notice of Claim served by Claimant on each Person that is named as
a Party to the Claim.
(d) If the Claim is not timely submitted to arbitration, if Claimant fails to appear for the
arbitration proceeding,or if Claimant fails to file and deliver the certified list of construction defects as
provided in subparagraph(c)above,the Claim shall be deemed abandoned,and Respondent(s)shall be
released and discharged from any and all liability to Claimant arising out of such Claims.
(e) The award rendered by the Arbitrator shall be final and binding,may be filed with any
court of competent jurisdiction in the County in accordance with applicable law and judgment obtained
thereon, and execution may issue. The Arbitrator shall have authority, in the sound exercise of
discretion, to award the prevailing party such party=s costs and expenses, including reasonable
attomey=s fees.
(0 Claimant shall notify Respondent(s) prior to retaining any Person or entity as an expert
witness for purposes of any arbitration or authorized litigation.
14.12 Consensus for Association Action. Except as provided for in Paragraph 13.4 hereof, the
Association shall not commence any action, mediation or arbitration against Declarant or other Party
for a Claim unless the Owners to which at least five of the votes in the Association are allocated agree
to such proceedings. However, such Owner consent must be obtained by the Association only after
the Board of Directors delivers written notice to all Members of the Association in accordance with
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the procedures set forth in the Bylaws with respect to meetings of Members. Such delivery shall
include:
(a) a description of the nature of the Claim and the relief sought;
(b) a copy of any written response thereto, including any settlement proposal;
(c) a statement advising Owners of their duties to disclose to prospective purchasers and
lenders the Claim that the Association proposes to assert;
(d) a statement that any recovery from the action may not result in receipt of funds to pay
all costs of remedying the Claim as estimated by experts retained by the Association;
(e) an estimate of the expenses and fees to the Association that the Board anticipates will
be incurred in prosecuting the claim;and
(f) a description of the agreement with the attorneys whom the Board of Directors
proposes to retain to prosecute the cause of action.
14.13 Liability for Failure to Maintain an Action Against Declarant. No director or officer of the
Association shall be liable to any Person for failure to institute or maintain or bring to conclusion a
cause of action, mediation or arbitration for a Claim if the following criteria ate satisfied: (a) the
director or officer was acting within the scope of his or her duties; (b) the director or officer was
acting in good faith; and (c)the act or omission was not willful, wanton or grossly negligent.
14.14 Utilization of Funds Resulting from the Cause of Action. In the event the Association receives
funds as a result of any settlement, mediation, arbitration or judgment based upon a cause of action,
after payment of fees and costs incurred in connection with prosecution of such action,the Association
shall: (a) deposit the proceeds in a special,interest-bearing account;and(b)utilise the proceeds only
for the purpose of performing remedial or repair work on the conditions which were the subject of the
Claim or otherwise for purposes of remedying the Claim.
14.15 Exclusive Remedy. The provisions contained in this Article shall be the sole and exclusive
remedy that the Association and other Parties shall have against Declarant for any Claim, and
Declarant,the Association and each Owner expressly waives any right it may have to seek resolution
of any Claim contemplated by this Article in any court of law or equity and any right to trial by jury.
Should any Party commence litigation or any other action against any other Party,in violation
of the terms of this Article, such Party shall reimburse the costs and expenses, including attorneys=
fees, incurred by the other Party seeking dismissal of such litigation or action. If Claim involves
Declarant or the Association,no Party shall record a memorandum or notice of lis perrdens or similar
instrument that would encumber or create a lien on real property owned by either Declarant or the
Association, and any recording of the same shall be null and void and of no force or effect.
14.16 Binding Effect This ARTICLE FOURTEEN and the obligation to arbitrate shall be specifically
enforceable under the applicable arbitration laws of the State of Colorado.The arbitration award shall
be final and binding,and judgment may be entered upon it in any court of competent jurisdiction in the
County to the fullest extent permitted under the laws of the State of Colorado.
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14.17 Amendment. Neither this ARTICLE FOURTEEN nor Exhibit D may be amended unless such
amendment is approved by a majority of the Board of Directors and Owners to whom at least five of
the votes in the Association are allocated. Any amendment made without the requisite Board and
Owners=vote shall be null and void and shall have no effect,and the last paragraph of Paragraph 15.2
hereof shall not apply.
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0
ARTICLE FIFTEEN: DURATION,AMENDMENT AND TERMINATION OF THE DECLARA-
TION
15.1 Duration. The covenants,restrictions and obligations of this Declaration shall run with and bind
the land in perpetuity until this Declaration is terminated in accordance with Paragraph 15.8 herein.
15.2 Amendments by Owners. Except in cases of amendments that may be executed by the Board of
Directors pursuant to Paragraph 9.9 hereof and Paragraph 15.3 and except as restricted by Paragraphs
13.2, 13.3, and 14.17 hereof, this Declaration may be amended by the written agreement by Owners
of Lots to which at least five percent of the votes in the Association are allocated;provided however,
an amendment may not: (a)create or increase Declarant Rights;(b)increase the number of Lots;or
(c)change the Allocated Interests of a Lot without the written agreement of Owners of Lots to which
at least five percent of the votes in the Association are allocated, including five percent of the votes
allocated to Lots not owned by Declarant.
My such amendment shall be effective upon the recording of the amendment together with a
notarized Certificate of an officer of the Association certifying that the requisite number of Owners and
First Mortgagees or Eligible Mortgagees, if required, have given their written consent to the
amendment. Such officer shall further certify that originals of such written consents by Owners and
Mortgagees,as applicable, along with the recorded amendment,are in the records of the Association
and available for inspection.
Each amendment to the Declaration must be recorded in the Office of the County Clerk and
Recorder.
Signatures of Owners on an amendment need not be notarized.
All signatures shall be irrevocable even upon the death of an Owner or the conveyance of the
Lot, except that if an amendment is not recorded within three years of the date of signature,then the
executing Owner or their successor or assigns may revoke their signature by a written and notarized
document delivered to the Secretary of the Association.
Amendments can be executed in counterparts,provided that such recorded document shall also
contain a certification of the Secretary of the Association that all counterparts,as executed,are part of
the whole.
No action shall be commenced or maintained to challenge the validity of any aspect of any
amendment of this Declaration, or the Articles or the Bylaws unless it is commenced within one year
from the effective date of said amendment, unless fraud or willful negligence is asserted and proven
and except as otherwise provided in Paragraph 14.17 hereof.
15.3 Amendments by Declarant. Declarant reserves the right to amend, without the consent of
Owners or Eligible Mortgagees, this Declaration,the Articles and the Bylaws, at any time within
the limitations set forth in Paragraph 12.3hereof as follows:
(a) To make nonmaterial changes, such as the correction of a technical, clerical,
grammatical or typographical error or clarification of a statement.
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(b) To comply with any requirements of any of the Agencies or to induce any of the
Agencies to make, purchase, sell, insure or guarantee First Mortgages.
(c) To comply with any requirements of the Act or governmental agencies.
15.4 Amendment Terminology. As used in this Declaration or any of the Project Documents,the word
Aamend@ or Aamendment@ shall be deemed to also mean alter, vary, change, waiver, delete,
abandon, terminate, supplement, add to or otherwise modify in any manner the language of this
Declaration or the Project Documents.
15.5 Consent of Declarant Required. As long as Declarant has any rights or obligations under or
pursuant to this Declaration or any of the other Project Documents, any proposed amendment of any
provision of this Declaration shall require Declarants written consent to such amendment. Any
amendment made without Declarants written consent as required herein shall be null and void and
shall have no effect and the last paragraph of Paragraph 15.2 hereof shall not apply.
The foregoing requirement for consent of Declarant to any amendment shall terminate at the
option of the Declarant but in any event,shall terminate without further act or deed in accordance with
the limitations set forth in Paragraph 12.3 hereof.
15.6 Consent of Eligible Mortgagees Required. Amendments may be subject to the consent
requirements of Eligible Mortgagees as more fully set forth in ARTICLE THIR11 EN hereof.
15.7 FHA/VA Approval. If the Planned Community has been or may be approved by the Federal
Housing Administration and/or the Veterans Administration,then until the termination ofthe Period of
Declarant Control hereof,the following actions will require the prior approval of the Federal Housing
Administration and/or the Veterans Administration: annexation of additional properties,amendment of
this Declaration and the assessment of a Special Assessment.
15.8 Termination. The Planned Community may be terminated only in accordance with Paragraph
13.2(c)and (d)hereof.
The proceeds of any sale of real estate together with the assets of the Association shall be held
by the Association as trustee for Owners and holders of liens upon the Lots as their interests may
appear, as more fully set forth in ' 38-33.3-218 of the Act.
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ARTICLE SIXTEEN: GENERAL PROVISIONS 0
16.1 Right of Action. Subject to the provisions of ARTICLE FOURTEEN,the Association and any
aggrieved Owner shall have an appropriate right of action against an Owner for such Owner's failure
to comply with this Declaration or the Articles, Bylaws or the Rules and Regulations of the
Association or with decisions of the Board of Directors which are made pursuant thereto. Owners
shall have a similar right of action against the Association.
16.2 Successors and Assigns. This Declaration shall be binding upon and shall inure to the benefit of
Declarant,the Association and each Owner and their heirs,personal representatives, successors and
assigns.
16.3 Severability. If any part of any provision of this Declaration shall be invalid or unenforceable
under applicable law, said part shall be ineffective to the extent such invalidity or unenforce ability
only,without in any way affecting the remaining parts of said provision or the remaining provisions of
this Declaration.
16.4 No Waiver. No provision contained in this Declaration shall be deemed to have been abrogated
or waived by reason of any failure to enforce the same, irrespective of the number of violations or
breaches which may occur.
16.5 Registration by Owner of Mailing Address: Notices. Each Owner shall register his or her
mailing address with the Association.Except for monthly statements and other routine notices,which
shall be personally delivered or sent by regular mail,all notices intended to be served upon an Owner
pursuant to this Declaration,shall be delivered personally or sent by either registered or certified mail,
postage prepaid, addressed in the name of the Owner at such registered mailing address or at the
address of such Owner=s Lot if there is no registered mailing address for such Owner on file at the
Association.
All notices, demands or other notices intended to be served upon the Board of Directors or
the Association shall be sent by certified mail, postage prepaid, to the Registered Agent for the
Association on file in the Office of the Secretary of State, State of Colorado.
16.6 Conflicting Provisions. The Project Documents are intended to comply with the requirements of
the Act and the Colorado Revised Nonprofit Corporation Act(collectively,the AGoverning Acts@).
If there is any conflict between any provision of the Project Documents and any mandatory provision
of either of the Governing Acts, the mandatory provision of the applicable Governing Act shall
control and neither Declarant nor the Association shall have any liability for actions taken in
conformity with such Governing Act. If there is any conflict between any provision of the Project
Documents and any permissive or non-mandatory provision of either of the Governing Acts, the
provision of the Project Documents shall control. In the event of any conflict between this
Declaration and any other Project Documents,this Declaration shall control. In the event either the
Articles or Bylaws conflict with this Declaration, this Declaration shall control. In the event the
Articles conflict with the Bylaws,the Articles shall control.
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16.7 Captions. The captions and headings in this Declaration are for Convenience only,and shall not
be considered in construing any provision of this Declaration.
16.8 Numbers and Genders. Whenever used herein, unless the context shall otherwise provide, the
singular number shall include the plural,plural the singular,and the use of any gender shall include all
genders.
16.9 Mergers. The Planned Community maybe merged or consolidated with another Planned
Community of the same form of ownership by complying with '38-33.3-221 of the Act.
16.10 C•ptions. The captions and headings in this Declaration are for convenience only, and shall
not be considered in construing any provision of this Declaration.
IN WITNESS WHEREO. larant has caused this Declaration to be executed this ,Z 3i2_
day of ,Jt at,t,de a , 2004,3
DNS DEVELOPMENT, LLC
A Colorado Limited Liability Company
By:
r eth J. Saito ten,
STATE OF COLORADO )
) 88.
CO OF BOULDER )
The foregoing instrument was aclmowledged before me this day of '
200,2 by Elizabeth J. Scholten as Manager of DNS DEVELOPMENT, LLC, a Colorado Limited
Liability Company.
My commission expires: '-2111-2005
WITNESS my h:.;„S. : £as ial seal. l, A 'AT4.i 1 liffitk
U Notary Public
yrb `'•.A Qr v
^•V[3 QP.
My L,nmission Expires ziy4 066-
•
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EXHIBIT A
TO THE DECLARATION OF COVENANTS,
CONDITIONS AND RESTRICTIONS
OF
THE SUMMIT AT MOUNTAIN VIEW
LEGAL DESCRIPTION OF THE REAL PROPERTY
SUBMITTED TO THE DECLARATION OF COVENANTS,
CONDITIONS AND RESTRICTIONS OF
THE SUMMIT AT MOUNTAIN VIEW
A tract of land located in the East 'h of Section 5, TIN, R68W, of the 6i° P.M., Weld County,
Colorado, more particularly described as follows:
Lot B of recorded exemption No. 1467-05-1-RE 2196 recorded April 24, 1998 as Reception No.
2608497 being a part of the west one-half of the Northeast quarter of Section 5,TIN,R68W, of the
6i°P.M., Weld County, Colorado,
EXCEPTING THEREFROM any portion of the aforementioned property lying within the Cannacar
Ranchettes Subdivision as recorded June 1, 1970 as Reception No. 1548390 Weld County Records;
ALSO EXCEPTING THEREFROM any portion of the aforementioned property lying within the
Peaks @ Mm View Subdivision as recorded April 19,2000 as Reception No.2762590 Weld County
Records.
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EXHIBIT C -(O
TO THE DECLARATION OF COVENANTS,
CONDMONS AND RESTRICTIONS
OF
THE SUMMIT AT MOUNTAIN VIEW
THE RECORDING DATA FOR RECORDED EASEMENTS,
LICENSES AND OTHER MATTERS OF RECORD
WHICH THE PLANNED COMMUNITY
IS OR MAY BECOME SUBJECT TO:
1. All easements referred to or contained in or granted or created by this Declaration.
2. All easements, conditions, restrictions and reservations as shown on the Plat.
(BALANCE TO BE SUPPLIED)
All recordings are in the records of the Weld County Clerk and Recorders Office, Weld County,
Colorado.
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EXHIBIT D (O Co -66
TO THE DECLARATION OF COVENANTS,
CONDITIONS AND RESTRICTIONS
OF
THE SUMMIT AT MOUNTAIN VIEW
ARBITRATION PROCEDURES
1. All Claims subject to arbitration shall be decided by a single private party arbitrator to
be appointed by the parties.
2. If the parties are unable to agree upon an Arbitrator within 30 days from the date of
the Arbitration Notice, the presiding judge of the District Court in which the Planned Community is
located shall appoint a qualified arbitrator upon application of a party.
3. No person shall serve as the arbitrator where that person has any financial or personal
interest in the result of the arbitration or any family, social or significant professional acquaintance
with any other party to the arbitration. Any person designated as an arbitrator shall immediately
disclose in writing to all Parties any circumstance likely to affect the appearance of impartiality,
including any bias or financial or personal interest in the outcome of the arbitration (AArbitrator
Disclosure@). If any Party objects to the service of any arbitrator within 14 days after receipt of that
Arbitrator's Disclosure, such arbitrator shall be replaced in the same manner in which that arbitrator
was selected.
4. The Arbitrator shall fix the date, time and place for the hearing. The arbitration
proceedings shall be conducted in the County in which the Planned Community is located unless
otherwise agreed by the Parties.
5. Except as modified herein the arbitration shall be conducted pursuant to the then
current Construction Industry Rules of Arbitration of the American Arbitration Association to the
extent applicable, but shall not be conducted or administered by the American Arbitration
Association.
6. No formal discovery shall be conducted in the absence of an order of the Arbitrator or
express written agreement among all the Parties.
7. Unless directed by the Arbitrator, there will be no post-hearing briefs.
8. The Arbitration Award shall address each specific Claim to be resolved in the
arbitration, provide a summary of the reasons therefore and the relief granted, and be rendered
promptly after the close of the hearing and no later than 14 days from the close of the hearing,unless
otherwise agreed by the Parties. The Award shall be in writing and shall be signed by the Arbitrator.
9. The Arbitrator shall have authority, in the sound exercise of discretion,to award the
prevailing party such party=s costs and expenses, including reasonable attorney=s fees.
Page 1 of 1
Oparis
ASSIGNMENT
KNOW ALL MEN BY THESE PRESENTS, that Dave Dalglish hereby assigns, transfers
and conveys to DNS Development, LLC, a Colorado limited liability company, all rights, title
and interest in that certain Subdivision/Multiple Tap Purchase Agreement made and entered into
by and between Dave Dalglish and Left Hand Water District, a title 32 special district, recorded
on April 30, 2003 as Reception No. 3057586 in the records of the Weld County Clerk and
Recorder's Office ("Tap Agreement"). A copy of the Tap Agreement is attached hereto as
Exhibit A.
Left Hand Water District hereby consents to and accepts the assignment, transfer and
conveyance of the above described Tap Agreement.
DATE and EFFECTIVE as of the 314 day of 34,5W S r, 2003. /,
, &tit /if.e+k�C
Dave'Dalglish
DNS DEVELOPMENT, LLC,
a Colorado limited liability company
By: --)GX) /5/71
17
Eliza t J. Scholten, adager
LEFT HAND WATER E DISTRICT
BY:17 (�,7 _ 4Z
Kathy et rson, eneral Manager
STATE OF COLORADO
(� ) ss.
COUNTY OF P)RWOLILI )
Th foregoing instrument was acknowledged before me this � day of
, 2003, by Dave Dalglish.
Witness my hand and official seal.
S f
My commission expires: 7l211/Z� ... A,N.
'v fFl O'G �'
s • I
No a Public i$ ° '
tp
STATE OF COLORADO ) III,y� .�(1gL\� le/
5'-ice - a C// f"L /5 2-6 tiNLarti'ssionExpires AOCQ "
I/ ) ss.
COUNTY OF gout - i— )
The foregoing instrument was acknowledged before me this /2 day of
Au „sr 2003, by Elizabeth J. Scholten as Manager of DNS Development, LLC, a
Colorao limited liability company.
Witness my hand and official seal.
=QJN W�........�
My commission expires: 5 i/S D? /1 / �OQQ‘O.FA .O',t,/
otary Public /I/. al,I, �l
•
STATE OF COLORADO )
ss.
COUNTY OF )
R The foregoing instrument was acknowledged before me this I 34 day of
2003, by Kathy Peterson as General Manager of Left Hand Water District, a
title 32 special district.
Witness my hand and official seal. 4/20/06
My commission expires: pen; hvierctiz___
- \ Notary Public
9Tf OF.CO�-Co,• .
2
Weld County Planning Department
(IREELEY OFFICE
AUG 1 9 2003
it , MEMORANDUM RiEcEiv i).
TO: Chris Gathman, Planner II DATE: August 15, 2003
C IW6
• FROM: Donald Carroll, Engineering Administrator
COLORADO SUBJECT: PF-568, Summit at Mountain View PUD
Construction Update
On August 13, 2002, I met with Fisher Construction on site and verified that the site grading,
street grading, impacted base and street paving, along with culverts and shouldering were
complete. The only other item associated with the transportation portion would be the street
name/stop sign. This has not been installed as of today.
All other non-transportation items associated with Exhibit A of the Improvements Agreement
shall be verified by Planning Services prior to release of collateral.
. pc: Peter Schei, Public Works
PF-568
m:/planning/PF-1.doc
ao03- 35a
P i 59L9
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