HomeMy WebLinkAboutRecorded Declarations of Covenants, Conditions and Restrictions Fall River Village 2007-02-21RECEPTION#:20 C’91 31 81,02/21/2007 at408:44:44 AM,‘
1 OF 66.R $331.00
Scott Doyle,Larimer County,CO
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DECLARATION
OF COVENANTS,CONDITIONS,AND RESTRICTIONS OF
FALL RIVER VILLAGE CONDOMINIUMS
PLEASE RETURN TO THE
TOWN OF ESTES PARK;
ATTN:TOWN CLERK’S OFFICE
P.O.BOX 1200
ESTES PARK,CO 80517
C.
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DECLARATION
OF COVENANTS,CONDITIONS AND RESTRICTIONS OF
FALL RIVER VILLAGE CONDOMINIUMS
TABLE OF CONTENTS
ARTICLE 1.DEFINITIONS
1
Section 1.1.Allocated Interests
1Section1.2.Amenity Unit 2Section1.3.Assessment 2Section1.4.Associat)on 2Section1.5.Board of Directors or Board 2Section1.6.CCIOA 2Section1.7.Common Elements 2Section1.8.Community
3Section1.9.Condominium Building 3Section1.10.Condominium Map
3Section1.11.Development Rights 3Section1.12.First Security Interest 4Section1.13.Governing Documents 4Section1.14.Improvements 4Section1.15.Individual Air Space 4Section1.16.LImited Common Elements 5Section1.17.Declarant
5Section1.18.Declaration
isSection1.19.Member
6Section1.20.Owner 6Section1.21.Partial Interest Estate 6Section1.22.Person
6Section1.23.Privately Owned Amenities 6Section1.24.Security Interest 6Section1.25.Security Interest Holde 7Section1.26.Supplemental Declaration 7Section1.27.75%Control Period 7Section1.28.Special Declarant Rights 7Section1.29.Ilnit 7Section1.30.Units that May Be Created 8Section1.31.Vacation Plan 8Section1.32.Vacation Unit
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ARTICLE 2.MEMBERSHIP AND VOTING RIGHTS 8
Section 2.1.Membership
xSection2.2.Voting Rights 9
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ARTICLE 3.ASSOCIATION .9
Section 3.1.Association 9
Section 3.2.Association Powers 9
Section 3.3.Board of Directors II
Section 3.4.Authority of Board of Directors 1
Section 3.5.Election of Pail of the Board of Directors During the 75%Control
Period 11
Section 3.6.Authority of Declarant During 75%Control Period
Section 3.7.Election of Board of Directors upon Termination of 75%Control
Period 12
Section 3.8.Budget and Review or Audit 12
Section 3.9.Association Books and Records 12
Section 3.10.information Regarding Security Interests on Units 13
Section 3.11.Rules and Regulations and Policies and Procedures 13
Section 3.12.Cooperation with Other Community Association(s)andIor any
District(s)13
Section 3.13.Management Agreements and Other Contracts 14
Section 3.14.Merger 14
Section 3.15.Compliance with Maintenance Manuals 14
Section 3.16.Notice of Meetings and Other Matters of the Association 14
ARTICLE 4.ASSESSMENTS 14
Section 3.1.Personal Obligation for Assessments 14
Section 4.2.Purpose of Assessments 15
Section 4.3.Initial Annual Assessment 15
Section 4.4.Rate of Annual and Special Assessments 15
Section 4.5.Date of Commencement of Animal Assessments 16
Section 4.6.Special Assessments 16
Section 4.7.Assessments for Services to Less than All of the Units and Amenity
Units 16
Section 4.8.Vacation Plan Assessments 17
Section 4.9.Partial Interest Estate Assessments 17
Section 4.10.Lien for Assessments 17
Section 4.11.Priority of Association Lien 18
Section 4.12.Certificate of Status of Assessments 18
Section 4.13.Application of Payments to the Association;Effect of Non-Payment
of Assessments;and Remedies of the Association 18
Section 4.14.Surplus Funds 19
Section 4.15.Working CapitaL Fund 19
Section 4.16.Other Charges N
Section 4.17.Charges for Misconduct 20
Section 4.18.Exemption for Units or Amenity Units Owned by Association 20
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ARTICLES.ARCHITECTURAL REVIEW .20
Section 5.1.Changes in Common Elements and Structural Changes 20
Section 5.2.Review by Board for Changes in Limited Common Elements 20
Section 5.3.Additional Approvals of Improvements Required 21
Section 5.4.Procedures 21
Section 5.5.Vote and Appeal 21
Section 5.6,Prosecution of Work After Approval 21
Section 5.7.Notice of Completion 22
Section 5.8.Inspection of Work 22
Section 5.9.Notice of Noncompliance 22
Section 5.10.Correction of Noncompliance 22
Section 5.11.Records 23
Section 5.12.Liability 23
Section 5.13.Variance 23
Section 5.14.Waivers,No Precedent 23
Section 5.15.Architectural Standards/Guidelines 23
Section 5.16.Declarant’s Exemption 24
ARTICLE 6.INSURANCE 24
Section 6.1.Insurance 24
Section 6.2.General Provisions of Insurance Policies 24
Section 6.3.Deductibles 25
Section 6.4.Insurance to be Maintained by Owners 25
ARTICLE 7.DAMAGE OR DESTRUCTION 25
Section 7.1.Damage or Destruction 25
Section 7.2.Use or Distribution of Insurance Proceeds 26
Section 7.3.Damage or Destruction of Units 26
ARTICLES.MAINTENANCE 27
Section 8.1.Management and Maintenance Duties 27
Section 8.2.Maintenance.Repair and Replacement Obligations 28
Section 8.3.Acts or Omissions 28
ARTICLE 9.EASEMENTS 29
Section 9.1.Other Easements 29
Section 9.2.Access Easement 29
Section 9.3.Maintenance,Repair and Replacement Easement 29
Section 9.4.Easement for Encroachments 30
Section 9.5.Drainage Easement 30
Section 9.6.Utilities 30
Section 9.7.Emergency Easement 30
Section 9.8.Easement for Privately Owned Amenities 30
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ARTICLE 10.RESTRICTIONS ..31
Section 10.1.General Plan:Restrictions Imposed 31
Section 10.2.Exterior Changes 31
Section 10.3.Interior Changes 31
Section 10.4.Residential Use 31
Section 10.5.Household Pets 31
Section 10.6.Signs 32
Section 10.7.Antenna and Satellite Dishes 32
Section 10.8.Restrictions on Vehicular Parking.Storage and Repairs 33
Section 10.9.Nuisances 33
Section 10.10.No Hazardous Activities:No Hazardous Materials or Chemicals 34
Section 10.11.No Annoying Light,Sounds or Odors 34
Section 10.12.Restrictions on Trash and Materials 34
Section 10.13.Non-Potable Water 34
Section 10.14.Leases 35
Section 10.15.Subdivision 35
Section 10.16.Parking 36
ARTICLE 11.PROPERTY RIGHTS IN THE COMMON ELEMENTS 36
Section 11.1.Owners Easements 36
Section 11.2.Extent of Owners Easements 36
Section 11.3.Use of Common Elements by Declarant 37
Section 11.4.Delegation of Use 38
Section 11.5.New Additions to Common Elements 38
Section 11.6.Use of Common Elements 38
Section 11.7.DesignationofCommonElements 38
Section 11.8.Payment of Taxes or Insurance by Security Interest Holders 38
Section 11.9.Duty to Accept Property and Facilities Transferred by Declarant 38
Section 11.10.Prohibition on Partition of Common Elements 39
ARTICLE 12.MECHANIC’S LIENS 39
Section 12.1.Mechanic’s Liens 39
Section 12.2.Enforcement by the Association 39
ARTICLE 13.DiSPUTE RESOLUTION 40
Section 13.1.Intent of Article;Applicability of Article;and Applicability of
Statutes of Limitation 40
Section 13.2.Definitions Applicable to this Article 40
Section 13.3.Approval Required for Association Actions 41
Section 13.4.Notice and Quorum for Association Actions 41
Section 13.5.Required Form of Proxy or Ballot 42
Section 13.6.Exclusions from “Claim 42
Section 13.7.Right to Inspect 43
Section 13.8.Mandatory Procedures 43
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Section 13.9.Liability for Failure of Association to Maintain an Action 45
ARTICLE 14.PRIVATELY OWNED AMENITIES 45
Section 14.1.General 45
ARTICLE 15.GENERAL PROVISIONS 45
Section 15.1.Enforcement;Fines 45
Section 15.2.Severability 46
Section 15.3.Conflict of Provisions 46
Section 15.4.Annexation 46
Section 15.5.Declarant’s Use 46
Section 15.6.Designation of other Common Elements 47
Section 15.7.Duration.Revocation,and Amendment 48
Section 15.8.Registration of Mailing Address 48
Section 15.9.No Priority Over Rights of Security Interest Holders of First Security
Interests 49
Section 15.10.Limitation on Liability 49
Section 15.11.No Representations or Warranties 49
Section 15.12.Disclaimer Regarding Safety 49
Section 15.13.Waiver 50
Section 15.14.Headings 50
Section 15.15.Gender 50
Section 15.16.Run with Land;Binding upon Successors 50
Section 15.17.Reservation Regarding Vacation Plan Provisions 50
Section 15.18.Contracts Entered into Prior to Recording of Condominium Map and
Declaration 51
Section 15.19.Contracts Entered into Subsequent to Recording of Condominium
Map and Declaration 51
Section 15.20.Legal Effect of Description 52
Section 15.21.Taxation 52
Section 15.22.Inseparability 52
Exhibit A —Community
Exhibit B —Allocated Interests
Exhibit C —Certain Title Exceptions
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DECLARATION OF COVENANTS,
CONDITIONS AND RESTRICTIONS OF
FALL RIVER VILLAGE CONDOMINIUMS
THIS DECLARATION OF COVENANTS,CONDITIONS AND RESTRICTIONS OF
FALL RIVER VILLAGE CONDOM[NIUMS is made and entered into by FALL RIVER
VILLAGE COMMUNITIES,LLC.a Colorado limited liability company (“Declarant.”as
hereinafter more fully defined).
WITNESSETH:
WHEREAS.the Declarant is the owner of the real property situated in the County of
Larimer.State of Colorado.which is described on Exhibit A,attached hereto and incorporaled
herein by this reference,as supplemented and amended from time to time (the “Community”as
hereinafter more fully defined);and
WHEREAS.the Declarant desires to subject and place upon the Community certain
covenants,conditions,restrictions,easements.reservations.rights-of-way,obligations,liabilities.
charges and other provisions set forth herein for the purpose of furthering a plan for the
improvement,sale and condominium ownership of the Community:and
WHEREAS,a common interest community may be created pursuant to CCIOA (as
hereinafter defined)only by recording a declaration executed in the same manner as a deed.The
declaration must be recorded in every county in which any portion of the common interest
community is located and must be indexed in the grantee’s index in the name of the common
interest community and in the name of the association,and in the grantor’s inde\in the name of
each person executing the declaration.No common interest community is created until the plat or
map for the common interest community is recorded.
NOW..THEREFORE.Declarant hereby declares that all of the real property described on
the attached Exhibit A shall be held,sold.and conveyed subject to the following covenants,
conditions,restrictions,easements.rights-of-way.obligations,liabilities,charges and other
provisions set forth herein.
ARTICLE 1.DEFINITIONS
Section 1.1.Allocated Interests.
“Allocated Interests”means the undivided interest of each Unit or Amenity Unit in the
Common Elements,the common expense liability,and the votes in the Association aLlocated to
each Unit or Amenity Unit,as may be described in more detail in this Declaration,and as set foilh
on Exhibit B attached hereto and incorporated herein by this reference (as the same may be
modified with each Unit or Amenity Unit added to the Community).The Allocated Interest of each
Unit or Amenity Unit shall he a fraction.The numerator of the Allocated Interest for each Unit is
one (1);the numerator of the Allocated Interest for each Amenity Unit is one-fifth (1/5 or .20);and
the denominator for each Allocated Interest is that number which is the sum of the numerators of atI
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of the Units and Amenity Units within the Community from time to time,as the same may be
modified with each Unit or Amenity Unit added to or removed from the Community.
Section 1.2.An,enitv Unit
“Amenity Unit”means (i)any Individual Air Space so designated on the Condominium
Map.or (ii)any defined Elements so depicted and designated on the Condominium map and
adequately demarked by a physical structure (including but not limited to a curb,gutter.sidewalk or
fence)together with all fixtures and Improvements therein contained,and together with the
undivided interest in the Common Elements appurtenant to the Amenity Unit (which shall be the
Allocated Interest of such Amenity Unit)that is within the property described on the attached
Exiubit A.as well as all other amenity units then or thereafter designated lying within any real
property annexed to this Declaration.Each Amenity Unit shall constitute a “unit”under CCIOA.
However,each of the Amenity Units that may hereafter be annexed to this Declaration,shall
become an “Amenity Unit’under this Declaration only at such time as a Condominium Map is
recorded in Larimer County,Colorado,with respect to such Amenity Unit.
Section 1.3.Assessment.
“Assessment”means annual Assessments and special Assessments,which are provided for
in this Declaration.For purposes of Sections 4.1.4.2.4.7 through 4.17,and Section 13.6 of this
Declaration.“Assessment”means annual Assessments,special Assessments.Vacation Plan
Assessments.Partial Interest Estate Assessments.Assessments for services to less than all of the
Units,late charges,fines,fees,interest,costs,expenses,reasonable attorneys’fees associated with
Assessments,and any other charges which are provided for in this Declaration.
Section 1.4.Association.
‘Association”means the Fall River Village Condominium Association.Inc..its successors
and assigns.The Association is a community association as provided in CCIOA.
Section 1.5.Board of Directors or Board.
“Board of Directors”or “Board”means the body,regardless of name,designated in this
Declaration,the Articles of Incorporation and the Bylaws of the Association to act on behalf of the
Association.The Board of Directors may appoint one or more committees as it deems appropriate.
from time to time,in carrying out any of its purposes;provided that each such committee shall be
subordinate to the Board.
Section 1.6.CUOA.
“CCIOA’means the Colorado Common Interest Ownership Act.CR5.Sections 38-33.3-
101.et.seq..as amended.
Section 1.7.Common Elements.
“Common Elements’means all portions of the condominium,including any property
owned or leased by the Association,other than the Units or the Amenity Units.
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Section 1.8.community.
Community means the real property and Improvements described on the attached Exhibit
A.as supplemented and amended from time to time,with respect to which a Person,by virtue of
such Persons ownership of a Unit or Amenity Unit,is obligated to pay for real estate taxes.
insurance premiums.maintenance,or improvement of other real estate described in this
Declaration.The Community is a condominium under CCIOA.The name of the Community is
“Fall River Village Condominiums”.
Section 1.9.condominium Building.
‘Condominium Building’means any building located within the Community and within
which one or more Units are located.including all fixtures and Improvements therein contained
(including,but not by way of limitation,the foundations,columns,girders,beams,supports.
perimeter and supporting walls.flues,hallways,roofs,stairs,stairways,and the mechanical
installations of any Condominium Building consisting of the equipment and materials making up
any services such as power.light,gas.hot and cold water,pipes,vents,ducts,flues,chutes.
conduits.wires,and other similar utility installations used in connection therewith,heating,air
conditioning.exterior security lighting,and any elevators that may be installed)therein or
associated therewith.
Section 1.10.C’ondonzinium Map.
“Condominium Map”means the condominium map(s)of the Community and
Improvements thereon that are subject to this Declaration and that are (I)designated as the
Condominium Map of Fall River Village Condominiums recorded or to be recorded in the office of
the Clerk and Recorder of Larimer County,Colorado;(ii)depicts all or a portion of the Community
in three dimensions;(iii)is executed by a Person who is authorized by CCIOA to execute a
declaration relating to this certificate;and (iv)includes a certification executed by a licensed or
registered engineer,land surveyor,or architect.stating that all Improvements shown on the
Condominium Map have been substantially completed.all structural components of all buildings
that contain or comprise any Units in the Community are substantially completed and stating that
the Condominium Map contains all of the infonnation required by Section 38-33.3-209 of CCIOA.
More than one Condominium Map or amendment,modification or supplement thereto may hc
recorded and,if so,then the term “Condominium Map”collectively means all of such
condominium or survey maps and amendments,modifications and supplements thereto.
Section 1.11.Dec/urani.
“Declarant”means Fall River Village Communities,LLC.a Colorado limited liability
company or any other Person(s)acting In concert to whom the Declarant.by recorded document.
expressly assigns one or more of the Declarant’s rights under this Declaration (which shall be the
extent of the Declarant’s rights to which such assignee succeeds).
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Section 1.12.Declaration.
“Declaration’means this Declaration of Covenants.Conditions and Restrictions of Fall
River Village Condominiums and any other recorded instruments,however denominated,that
create this Community.including any supplements and amendments to those instruments and also
including,but not limited to,the Condominium Map.
Section 1.13.Development Rig/its.
‘Development Rights’means the following rights or combination of rights hereby reserved
by the Declarant.as provided in this Declaration:
U 13.1.add real estate to this Community;
1.13.2.create or construct Units.Amenity Units.Common Elements and/or
Limited Common Elements;
1.13.3.withdraw property from this Community;and
1.13.4.subdivide any Unit or Amenity Unit.
The Declarant may exercise its Development Rights in all or any portion of the Community:
no assurances are made as to the boundaries or order of exercise of any such Development Rights.
The Declarant’s rights to exercise Development Rights shall terminate automatically as provided in
Section 1.32 of this Declaration (Special Declarant Rights).
Notwithstanding the foregoing.the subdivision of any Unit or Amenity Unit is subject to
the restrictions set forth in Section 1.34 (Units That May Be Created).below.
Section 1.14.FF&E
means furniture,fixtures and equipment.
Section 1.15.First Security Interest.
“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 b’statute (such as general ad
valorem tax liens and special Assessments).
Section 1.16.Governing Documents
“Governing Documents”means this Declaration,the Articles of Incorporation of the
Association,the Bylaws of the Association,and any rules and regulations.policies and procedures
or design guidelines adopted by the Board of Directors.
Section 1.17.Guest
“Guest”means any family member,employee,agent,independent contractor,lessee.
customer or invitee of an Owner.
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Section 1.18.Improvements.
“Improvements”means all structures now or hereafier located in the Community,exterior
improvements to any such structures,and any other exterior improvements made to a Unit.
Amenity Unit,or the Common Elements,and any appurtenances thereto or components thereof,of
every type or kind,including all landscaping features.The foregoing shall include,without
limitation.buildings.outbuildings (including storage sheds),painting or other finish materials on
any visible structures.additions and:or expansions.parking facilities.driveways,swimming poois,
tennis courts.stairs.walkways,patios/decks and patio/deck covers,awnings.hot tubs.jacuzzis
and/or saunas.antennas.satellite dishes,exterior light fixtures,poles,athletic equipment (including
basketball backboards and hoops),whether fixed or movable,play yards (including swing sets and
jungle gyms),exterior tanks,solar collectors,fences,screening walls,retaining walls,sprinkler
systems,fountains,ponds,hedges.windbreaks,gardens,trees,shrubs.flowers,vegetables,sod.
other plantings.rock gravel,bark,mulch and other landscaping components.signs,exterior
decorations.mailboxes,and exterior air conditioning,cooling,heating and water sofiening
equipment,flag poles,satellite dish equipment,cable,digital subscriber line and telephone
networks (or any like networks or systems).wireless fidelity access equipment and any like
receiving and transmission equipment.if any.
Section 1.19.Individual Air Space.
“Individual Air Space”means the air space contained within the enclosed rooms occupying
part of a floor or floors in a Condominium Building,and bounded by the unfinished ioterior
surfaces of the perimeter walls (or the adjoining walls,if two or more Individual Air Spaces adjoin
each other).unfinished interior surfaces of floors (or the lowermost floors,if it is an Individual Air
Space containing more than one level),unfinished interior surfaces of ceilings (or the uppermost
ceilings,if it is an Individual Air Space containing more than one level),and the unfinished interior
surfaces of windows and window frames,doors and door frames of a Condominium Building,and
which is separately identified on the Condominium Map,or.if not within a Condominium
Building.that air space bounded or demarked by not less than one horizontal boundary and vertical
hoLindaries which may include but are not limited to fences,curbs.sidewalks,or some like physical
facility or structure that penits at least two dimensions of the air space to be determined;provided
that.if the adjoining wall,ceiling or floor between any two or more Individual Air Spaces is
completely or partially removed so as to provide free access between such Individual Air Spaces.
the Common Elements of each Individual Air Space shall be determined as if such wall,ceiling or
floor were in existence.and each such Individual Air Space shall continue to be a separate Unit or
Amenity Unit for purposes of this Declaration.
Section 1.20.Limited Common Elements.
“Limited Common Elements”means any property owned or leased by the Association other
than a Unit,Amenity Unit,or publicly-dedicated property.Generally.Limited Common Elements
refers to those parts of any Condominium Building which are either limited to and reserved for the
exclusive use of the Owner(s)of a particular Unit or are limited to and reserved for the common use
of the Owners of more than one,but fewer than all,of the Units.Without limiting the foregoing.
the Limited Common Elements shall include the following,if the same now or hereafter exist:
audio,visual or telecommunication lines,cables and appurtenances.if any.associated with or
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providing service to any Unit;porches,balconies,patios and decks,if any,as well as any fence(s)
surrounding the same,if any,attached or appurtenant to any Unit;garages,if any,designated as
Limited Common Elements on the Condominium Map;and other elements or Improvements,if
any.designated as Limited Common Elements on the Condominium Map.The Limited Common
Elements shall be used in connection with the applicable Individual Air Space(s)to the exclusion of
the use thereof by the other Owners,except by invitation.No reference to any Limited Common
Elements need be made in any instrument of conveyance,encumbrance or other instrument.The
Limited Common Elements allocated to Units as provided in this Section may not be reallocated
without the consent of the Owners whose Units are affected and any Security Interest Holders of
such Units.Further,any reallocation of Limited Common Elements between or among Units must
be donc in compliance with CCIOA.
Section 1.21.Maintenance Fees
“Maintenance Fees”means those fees payable by Owners of Fractional Interest Estates for
services and expenses relating to maintenance,management and upkeep costs associated with
Fractional Interest Units.
Section 1.22.Member.
“Member”means all Owners of a Unit,collectively;or all Owners of an Amenity Unit.
collectively:or all Owners of Partial Interest Estates as to any individual Partial Interest Unit.
collectively;or,following tenination of the Community.all former Owners entitled to
distributions of proceeds under CCIOA,or their heirs,personal representatives,successors or
assigns.Membership in the Association shall be appurtenant to,and may not be separated from.
ownership of a Unit,Amenity Unit or Partial Interest Unit.Each Unit,Amenity Unit,or Partial
Interest Unit shall have one (1)membership in the Association associated therewith.
notwithstanding there being multiple Owners of estates in such unit.
Section 1.23,Owner.
“Owner”means each fee simple title holder of a Unit (or alternately,all co-tenants or
fractional interest owners of a Unit),and each fee simple title holder of an Amenity Unit,including
without limitation,the Declarant or other Person who owns a Unit or Amenity Unit in fee simple:
however.‘Owner”does not include a Person having an interest in a Unit or Amenity Unit solely as
security for an obligation.The Deelarant is the owner of any Unit or Amenity Unit created by the
Declaration until that Unit or Amenity Unit is conveyed to another Person who may or may not be a
Declarant under this Article.There may be multiple Owners for a Unit or Amenity Unit.
Section 1.24.Partial Interest Estate.
“Partial Interest Estate’means any interest in a Unit that is less than a Whole Interest Estate
(i.e.,a “fractional interest”or “partial interest”),whether deed-based or leasehold based,including
without limitation fractional ownership estates,vacation club estates,and right-to-use estates.
Within this Condominium,Partial Interest Estates shall consist of not less than an undivided one
eighth (I/8tj interest in a present estate in fee simple in a Unit,together with the exclusive right to
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possession and occupancy of such Unit during the use periods set forth in the conveyance deed
therefor.in accordance with applicable provisions in this Declaration
Section 1.25.Partial Interest Unit.
“Partial Interest Unit’means any unit,the ownership oftich is comprised of one or more
Fractional Interest Estates.
Section 1.26.Person.
‘Person’means any natura’i person.corporation,limited liability company,partnership.
limited partnership.association,trust.or any other entity or association or am’combination thereof.
Section 1.27.Privately Owned Amenities
“Privately Owned Amenities”means those portions of the Community (which may include,
without limitation,the Amenity Units)that are privately owned and used by their respective owners
for commercial or other purposes such as,without limitation,sports or recreational facilities.
private clubs,and laundry facilities.
Section 1.28.Security Interest.
“Security Interest”means an interest in real estate or personal property in the Community,or
any portion thereof’,created by contract or conveyance,which secures payment or performance of
any obligation.The term includes a lien created by a mortgage.dccd of trust.trust deed,security
deed,contract for deed,land sales contract,lease intended as security,assignment of lease or rents
intended as secLirity.pledge of an ownership interest in the Association,and any other consensual
lien or title retention contract intended as security for an obligation.
Section 1.29.Security Interest Holder.
“Security Interest Holder”means any Person named as a mortgagee or beneficiary,or in a
similar capacity,under any Security Interest,or any successor to the interest of any such Person
under such Security Interest.
Section 1.30.Supplemental Declaration.
“Supplemental Declaration’means a written instrument containing covenants,conditions.
restrictions or equitable servitudes.or any combination thereof,which may hereafter be recorded on
any portion of the Community.
Section 1.31.75%Control Period.
‘75%Control Period”means a length of time expiring seven (7)years after initial recording
of this Declaration.However,the 75%Control Period shalt terminate earlier,upon the first of the
following events to occur,if any,if any of the following occur within the time period that is
specified in the first sentence of this Section:sixty (60)days after conveyance of seventy-five
percent (75%)of the Units that May Be Included to Owners other than a Declarant;two (2)years
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after the last conveyance of a Unit by the Declarant in the ordinary course of business;or two (2)
ears aher the right to add new Units to the Declaration was last exercised.
Section 1.32.Special Declarant Rights.
“Special Declarant Rights”means the following rights,which rights are hereby reserved for
the benefit of the Declarant.and which rights may be further described in this Declaration:to build
and complete Improvements in the Community:to exercise any Development Rights:to maintain
sales offices,construction offices,management offices,signs advertising the Community.and
models;to use easements through the Common Elements for the purpose of making Improvements
within the Community or within real estate which may be added to the Community:to make the
Community subject to a Association;to merge or consolidate a Community of the same form of
ownership:or to appoint or remove any officer of the Association or any member of the Board of
Directors during any 75%Control Period.All of the Special Declarant Rights may he exercised by
the Declarant with respect to any portion of the property now or hereafter within the Community.
Declaiant may exercise any or all of these Special Declarant Rights at any time and from time to
time.Such rights shall terminate automatically at such time as Declarant no longer owns any
portion of the property described on the attached Exhibit A.
Section 1.33.Unit
“Unit”means an Individual Air Space created by this Declaration (other than an Individual
Air Space designated as an Amenity Unit)designated for separate ownership having boundaries
that are described in this Declaration or shown on the Condominium Map,together with all fixtures
and Improvements therein contained,and together with (i)the undivided interest in the Common
Elements appurtenant to the Individual Air Space (which shall be the Allocated Interest of such
Unit)that is within the property described on the attached Exhibit A.and (ii)the right to excIusve
or nonexciusive use of the Limited Common Elements appurtenant to that Unit,as well as all other
units then or thereafter created by the Declarant.with the exception of the Amenit Units,the
Common Elements.the Limited Common Elements,and any publicly dedicated property.Each
Unit shall constitute a “unit”under CCIOA.However.each of the Units listed on the attached
Exhibit B shall become a “Unit”under this Declaration only at such time as a Condominium Map is
recorded in Larimer County.Colorado,with respect to such Unit.
Section 1.34.Units that May Be Createit
“Units that May Be Created”means up to 65 Units and up to five (5)Amenity Units the
principal use of which will be for resort business,which shall be the maximum number of Units
and Amenity Units that may be created and be subject to this Declaration.The original Final Fall
River Village P.U.D.was amended to increase the density to allow 65 units.and the office area
identified on such PUD now comprises the sixty-fifth unit in the revised PUD.If a Unit is owned
in co-tenancy or in fractional ownership interests,no individual co-tenancy or fractional ownership
interest shall be deemed to be a separate “Unit”for purposes of the defined term “Units that May Be
Created.”and such ownership interest(s)shall not have the effect of increasing the number of
“Units”identified above.However,the aforesaid number of Units that May Be Created is not a
representation or a guarantee as to the actual number of Units or Amenity Units that will ultimateLy
be included in or constructed as part of the Community.
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Section 1.35.Use Period
“Use Period”means an annually recurring period of exclusive possession and occupancy of
a Unit.
Section 1.36.Vacation Plan
“Vacation Plan”refers to a plan or program for vacation use that is based upon sales of
Partial Interest Estates.
Section 1.37.Vacation Unit
“Vacation Unit”refers to those Units (including but not limited to interval units which may
he the basis for right-to-use interests in a vacation ownership plan or program)so designated.that
are committed to use in a Vacation Plan,and that are subject to terms and provisions regarding any
such Vacation Plan promulgated in or pursuant to any project instruments or deeds.Designation of
all or a portion of the Units as Vacation Units shall be accomplished by recorded instrument or
document (which may include,without limitation,deeds,special amendments and annexations to
this Declaration),as provided below in Section 15.17 of this Declaration (Reservation Regarding
Vacation Plan Provisions).In addition to any terms and provisions set forth in project documents
or deeds.all Vacation Units shall be subject to such additional covenants,conditions and
restrictions set forth in any amendment or annexation to this Declaration.
Section 1.38.Whole Interest Estate
“Whole Interest Estate”means a MI and undivided interest in a present estate in fee simple
in a Unit.together with the exclusive right to possession and occupancy of such Unit.
ARTICLE 2.MEMBERSHIP AND VOTING RIGHTS
Section 2.1.Menthership.
Membership in the Association shall be appurtenant to,and may not be separated from,
ownership of a Unit or an Amenity Unit.Each Unit and Amenity Unit shall have one (1)
membership,the voting rights and allocated interest of which shall be as otherwise set forth in this
Declaration.Where a Unit has been subdivided into Partial Interest Estates.no individual Partial
Interest Estate shall be deemed to be a Member,nor shall the subdivision of any Unit into Partial
Interest Estates have the effect of increasing the number of Members in the Association in excess of
the number of Units.Rather,all Partial Interests Estates based in one Unit shall comprise,
collectively,one Member,and thus,there is only one (1)Member per Unit even when there are
multiple owners of Fractional Interest Estates.
Section 2.2.Voting Rights.
Each Member that is Owner of a Unit shall be entitled to one (1)vote for each Unit owned,
except that no votes allocated to any Unit owned by the Association may be cast.Each Member
that is Owner of an Amenity Unit shall be entitled to one-fifth (115 or .20)vote for each Amenity
Unit owned.The maximum number of votes that may be cast in connection with any matter shall
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be equal to the total number of Units then existing within the Association,combined with the total
number of Amenity Units then existing within the Association multiplied by .20.
ARTICLE 3.ASSOCIATION
Section 3.1.Association.
The Association has been or will be formed as a Colorado non-profit corporation under the
Colorado Revised Nonprofit Corporation Act.The Association shall have the duties,powers and
rights created by law,as well as those set forth in this Declaration and in its Articles of
Incorporation and Bylaws.
Section 3.2.Association Powers.
Subject to the rights,powers and authority reserved by and conferred upon the Declarant
pursuant to this Declaration,the Association will serve as the governing body of Fall River Village
Condominiums and shall have the powers and duties set forth in this Declaration and the Bylaws.
The Association may:
3.2.1.adopt and enforce the Bylaws.and make and enforce the rules and
regulations,consistent with the rights,duties,terms and conditions established by this
Declaration and the Bylaws;
3.2.2.adopt and amend budgets for revenues,expenditures and reserves and
assess and collect any Assessments and any other amounts due from Members or others to
the Association;
3.2.3.hire and terminate managing agents and other employees,agents and
independent contractors:
3.2.4.exercise all of the enforcement powers set forth elsewhere in this
Declaration;
3.2.5.institute,defend or intervene in litigation or administrative proceedinus
in its own name on behalf of itself or two or more Members;
3.2.6.make contracts and incur liabilities in accordance with the current
Association budget;
3.2.7.borrow funds to cover Association expenditures and pledge the
Association assets as security therefor;
3.2.8.regulate the use.maintenance,repair.replacement and modification of
the Common Elements:
3.2.9.cause additional Improvements to be made as a part of the Common
Elements:
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3.2.10.acquire.hold,encumber and convey in its own name any right,title or
interest to real or personal property (including,without limitation,one or more Units or
Amenity Units);
3.2.11.grant easements,leases,licenses,and concessions on.under,across.
through or over the Common Elements;
3.2.12.impose and receive any payments.fees or charges for the use,rental or
operation of the Common Elements and for any services provided to Members:
3.2.13.impose charges for late payment of Assessments,recover reasonable
attorneys’fees and other legal costs for collection of Assessments and other actions
(regardless of whether or not suit was initiated),and levy reasonable fines for violations of
this Declaration,the Bylaws or the rules and regulations;
3.2.14.impose reasonable charges for the preparation and reeordation of
amendments to this Declaration or statements of unpaid Assessments;
3.2.15.provide for the indemnification of its officers and directors as provided
in the Bylaws or the Articles and maintain directors’and officers’liahility insurance;
3.2.16.assign its right to future income,including the right to receive
Assessments;
3.2.17.exercise any other powers expressly confen’ed by this Declaration,the
Bylaws,or reasonably implied from or necessary to effectuate such powers;
3.2.18.except as prohibited by law,exercise all other powers that may be
exercised in the State of Colorado by a nonprofit corporation:
3.2.19.exercise all powers delegated to the Association:and
3.2.20.exercise any other powers necessary or proper for the governance and
operation of the Association.
This Declaration may not and is not intended to impose any limitations on the powers of the
Association to deal with the Deelarant that are more restrictive than the limitations imposed on the
power of the Association to deal with any other Person.
Section 3.3.Board of Directors.
The affairs of the Association shall be managed by a Board of Directors.The number,term
and qualifications of the Board of Directors shall be fixed in the Association’s Articles of
Incorporation and Bylaws.Subject to Section 3.5 of this Declaration (Election of Part of the Board
of Directors During the 75%Control Period),the Board of Directors shall be elected by the
Members.The Board of Directors may,by resolution,delegate portions of its authority’to an
executive committee or to other committees,to officers of the Association or to agents or
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employees of the Association.but such delegation of authority shall not relieve the Board of
Directors of the ultimate responsibility for management of the affairs of the Association.
Section 3.4.Authority of Board of Directors.
Action by or on behalf of the Association may be taken by the Board of Directors or any
duh’authorized executive committee,officer,agent or employee,without a vote of the Members.
except as otherwise specifically provided in this Declaration,the Articles of Incorporation or
Bylaws of the Association,or by law.
Section 3.5.Election of Part of the Board of Directors During the 75%Control
Period.
Not later than sixty (60)days after conveyance of twenty-five percent (25%)of the Units
that May Be Created to Owners other than a Declarant.at least one (I)director and not less than
twenty-five percent (25°/b)of the directors must be elected by Members other than the Declarant.
provided that the Declarant reserves the right to appoint a majority of the Board.Not later than
sixty (60)days after conveyance of fifty percent (50%)of the Units that May Be Created to Owners
other than a Declarant.not less than thirty-three and one-third percent (33 /3%)of the directors
must be elected by Members other than the Declarant,provided that the Declarant reserves the right
to appoint a majority of the Board.
Section 3.6.Authority of Declarant During 75%Control Period.
Except as otherwise provided in this Article,during the 75%Control Period,the Declarant
or Persons appointed by the Deciarant may appoint and remove all officers and members of the
Board of Directors which have bcen appointed by the Declarant.The Declarant may voluntaril\
surrender the right to appoint and remove officers and members of the Board of Directors before
termination of the 75%Control Period;hut,in that event,the Declarant may require,for the
duration of the 75%Control Period,that specified actions of the Association or Board of Directors.
as described in a recorded instrument executed by the Declarant,be approved by the Dec larant
before they become effective.
Section 3.7.Election of Board of Directors upon Termination of 75%Jontrol
Period.
After termination of the 75%Control Period,the Members shall elect the Board of
Directors,at least a majority of whom must be Owners other than the Declarant or designated
representatives of Owners other than the Declarant.The Board of Directors shall elect the officers.
Section 3.8.Budget and Review or Audit
3.8.1.Within ninety (90)days after adoption of any proposed budget for the
Community.the Board of Directors shall mail,by ordinary first-class mail,or otherwise
deliver,a summary of the Association budget to all the Members and shall set a date for a
meeting of the Members to consider the budget.Such meeting shaLl occur within a
reasonable time after mailing or other delivery of the summary.The Board of Directors
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shall give notice to the Owners of the meeting as provided in the Bylaws of the Association.
The budget proposed by the Board of Directors does not require approval from the Owners
and it vill be deemed approved by the Owners in the absence of a veto at the noticed
meeting by eighty percent (80%)of the votes in the Association.whether or not a quorum is
present.In the event that the proposed budget is vetoed,the periodic budget last approved
by the Board of Directors and not vetoed by the Owners must he continued until such time
as a subsequent budget proposed by the Board of Directors is not vetoed by the Owners.
38.2.The Association’s books and records shall be subject to an audit,using
generally accepted auditing standards,or a review,using statements on standards for
accounting and review services,at least once every two years by a person select by the
Board of Directors.Such person need not be a certified public accountant except in the case
of an audit.
3.8.2.1.An audit shall be required only when both of the following
conditions are met:
(i)The Association has annual revenues or expenditures of a
least two hundred fifty thousand dollars:and
cii)An audit is requested by vote of the Owners totaling at least
one-third of the maximum number of votes that may be cast.
3.8.2.2.Copies of an audit or review under this subsection 38.2 shall be
made available upon request to an Owner beginning not later than thirty days after
its completion.
Section 3.9.Association Books and Records.
The Associations books and records shall be subject to an audit or a review as fttrther
provided in this Declaration.Subject to the fourth sentence of this Section,the Association shall
make available for inspection and copying by Owners.Security Interest Flolders.and insurers or
guarantors of any such Security Interest,current copies of this Declaration,and the Articles of
Incorporation.Bylaws,rules and regulations,design guidelines,minutes of the most recent annual
Association’s meeting and of any Board meetings that occurred within the most recent six (6)
months prior to such request.Association’s operating budget for the year in which such request is
made,Association’s annual income and expenditures statement,and Association’s annual balance
sheet.The Person(s)accessing and/or copying such documents shall pay all costs associated
therewith.However,the Board of Directors ma\’,at any time(s).prior or subsequent to a request for
inspection and’or copying.determine that items are confidential and should not be made available.
‘Available”shall mean available for inspection andior copying.upon request,during normal
weekday business hours or under other reasonable circumstances.
Section 3.10.Information Reçarding Security Interests on Units.
Each Owner shall,within twenty (20)days of encumbering such Owner’s Unit with a
Security Interest,and at other times upon request of the Association,provide the Association with
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the name and address of such Security Interest Holder,a copy of the instrument(s)creating the
Security Interest(s),and the loan number(s)(or other identifying number)of such Securit
Interest(s).Within twenty (20)days after any change in the name or address of the Security Interest
Holder on an Owner’s Unit,and at other times upon request of the Association,such Owner shall
provide the aforesaid information to the Association with respect to each Security Interest held by
such Security Interest Holder.
Section 3.11.Rules and Regulations and Policies and Procedures.
Rules and regulations and policies and procedures concerning and governing the Units.
Amenity Units,Common Elements and/or this Community may be adopted.amended and/or
repealed from time to time by the Board of Directors,and the Board of Directors may establish and
enforce penalties for the infraction thereofç including,without limitation,the levying and collecting
of fines for the violation of any of such rules and regulations or policies and procedures.The rules
and regulations and policies and procedures may state procedural requirements,interpretations and
applications of this Declaration and law,including without limitation,blanket requirements.blanket
interpretations,and blanket applications.The Board has the authority to adopt or vary one or more
rules and regulations or polices and procedures that are different for different types of residences.if
any exist.Any rules and regulations or policies and procedures that are adopted shall be in
accordance with,and shall not be inconsistent with or contrary to,this Declaration and all
provisions hereof
Section 3.12.Cooperation with Other Community Association ft.)and/or any
District’s).
The Association shall have the right and authority at any time,from time to time:to enter
into agreements and otherwise cooperate with any other community association(s)and/or any
district(s):to share the costs and/or responsibility for any maintenance,repair.replacement.or other
matters:to perform maintenance,repair or replacement for any Person(s)in consideration of
payment or reimbursement therefor;to utilize the same contractors,subcontractors.managers.or
others who may perform services for the Association,any other community association(s)and/or
any district(s);to collect Assessments,other charges,or other amounts which may be due to such
entity and to permit any such entity to collect Assessments,other charges or other amounts which
may he due to the Association:or to otherwise cooperate with any other community association(s)
and/or any district(s),in order to increase consistency or coordination,reduce costs,or as may
otherwise be deemed appropriate or beneficial by the Board of Directors in its discretion from time
to time.The costs and expenses for all such matters,if any.shall be shared or apportioned between
the Association,any other community association(s)and/or any district(s),as the Board of Directors
may determine in its discretion from time to time.
Section 3.13.ManagenientAgreenients and Other Contracts.
Any agreement for professional management of the Association’s business or other contract
providing for the services of the Declarant shall have a maximum term of three (3)years and any
such agreement shall provide for termination by either party thereto,with or without cause and
without payment of a termination fee,upon not more than ninety (90)days’prior Tiuen notice,
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Section 3.14.Merger.
The Declarant hereby reserves the right to merge the Association with one or more other
community associations without the approval of any Owner or any other Person.This right shall
terminate automatically as provided in Section 1.32 of this Declaration (Special Declarant Rights).
Section 3.15.c’oinpliance with Maintenance Manuals.
Notwithstanding anything to the contrary.the Board of Directors,acting on behalf of the
Association,shall comply with all maintenance manuals,if any,given by the Declarant to the Board
of Directors or the Association.or otherwise obtained by the Board of Directors or the Association.
regarding maintenance,repair andlor replacement of any portion of the CommLtnity or any
Improvements therein.Further,the Board of Directors shall cooperate.at no cost or expense to the
Board of Directors.with all inspections that may be undertaken by or at the request of the
Declarant.on or with respect to the Community and Improvements therein.
Section 3.16.Notice of uIIeetings and Oilier Matters of the Association.
Notices of any meetings,news letters and other correspondence or documents concerning
the Association shall be sent to the Declarant at the same time that such notices,news letters,and
other correspondencc or documents are sent to the Members.However,the foregoing shall expire
fifteen (15)years after initial recording of this Declaration in Larimer County,Colorado.
ARTICLE 4.ASSESSMENTS
Section 4.1.Personal Obligation for Assessments.
Each Owner of a Unit or an Amenity Unit,including Declarant.by acceptance of a deed
therefor.whether or not it shaH be so expressed in such deed.coenants and agrees and shall be
personally obligated to pay to the Association any and all Assessments,special Assessments,and
other amounts.all as provided in this Declaration:with such amounts to be established and
collected as hereinafter provided.The obligation for such payments by each Owner to the
Association is an independent covenant with all amounts due,from time to time,payable in hill
when due without notice or demand (except as otherwise expressly provided in this Declaration).
and without set-off or deduction.All Owners of each Unit or Amenity Unit shall be jointly and
severally liable to the Association for the payment of all Assessments,fees,charges and other
amounts attributable to their Unit during their ownership of such Unit or Amenity Unit.Each
amount shall be the personal obligation of the Person who was the Owner of such Unit or Amenity
Unit at the time when the amount became due.The personal obligation for delinqLtent amounts
shall not pass to such Owner’s successors in title unless expressly assumed by them.
Section 4.2.Purpose of Assessments.
The Assessments levied by the Association shall be used for maintenance,repair and
replacement of the Common Elements,as provided in this Declaration,to promote the recreation,
health.safety and welfare of the Owners or residents of the Units and the Owners of the Amenity
Units,and for all of those purposes and activities which may be required of the Association or
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which the Association may be empowered to pursue pursuant to any of the Governing Documents.
or by law.The foregoing shall include,without limitation,use,maintenance,management.
operation.repair.renovation,insurance and all other matters with respect to the Privately Owned
Amenities as may be owned or leased by the Association from time to time.
Section 4.3.InitialAnnual Assessment.
Until the effective date of an Association budget that is proposed by the Board of Directors
and not vetoed by the Owners,as provided above,the amount of the annual Assessment (i)against
each Unit shaH not exceed Two Hundred Seventy-Five and No/lOU Dollars ($275.00)per Unit per
month.exclusive of any amounts due to any other community association(s),any district(s)andior
any other Person or entity;and (ii)against each Amenity Unit shall not exceed Fifty-five and
No/l00 Dollars ($55.00)per Amenity Unit per month,exclusive of any amounts due to any other
community association(s),any district(s)and/or any other Person or entity.
Section 4.4.Rate ofAnnual and Special Assessments.
4.4.1.Annual and special Assessments shall be sufficient to meet the expected
needs of the Association and shall be apportioned among the Units and Amenity Units in
accordance with their Allocated Interests.The annual Assessments shall include an
adequate reserve find for the maintenance,repair and replacement of those items that must
be maintained,repaired or replaced on a periodic basis.
4.4.2.During the 75%Control Period,the Declarant may in its discretion (but
shall not be requhed to)cover certain costs of the Association.Payment of any sums to.or
on behalf of the Association shall constitute advances from Declarant to the Association.
which advances shall be applicable toward Assessments then or thereafter due from the
Declarant to the Association.As of the date of termination of the 75%Control Period,in
the event Declarant has made advances to the Association which have not repaid or,
alternately,credited by the Association against current or future Assessments due from the
Declarant.then such advances shall become due and payable without interest by the
Association to the Declarant (to the extent that the Association has funds in excess of those
funds needed for its:(i)current operating expenses;(ii)operating expenses for the
remainder of the calendar year;and (iii)the reserve fund needs reasonably anticipated by the
Association for the calendar year in which the 75%Control Period terminates).Thereafter.
until such time as Declarant has conveyed all of the property described on the attached
Exhibits A.any such advances by the Declarant to the Association which are not repaid to
the Declarant shall continue to constitute advances against Assessments (against Declarant)
then or thereafter coming due and payable by Declarant.If the Declarant elects,in its
discretion,to pay or advance any amount as provided in this Section,Declarant shall not
under any circumstances be obligated to continue payment or funding of any amount(s)in
the future.
Section 4.5.Date of Cotninencensent ofAnnual Assessments.
The annual Assessments shall commence at such time as the Board of Directors may
determine in its discretion.After any annual Assessment has been made by the Association,annual
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Assessments shall not exceed the amount set forth in Section 4.3 of this Declaration (Initial Annual
Assessment)until a budget is proposed by the Board of Directors and not vetoed by the Owners as
provided in this Declaration.A budget shall be so proposed by the Board of Directors no less
frequently than annually.The armual Assessments shall he due and payable in advance,on a
schedule determined by the Board of Directors,in its discretion from time to time;provided that the
first annual Assessment shall be adjusted to reflect the time remaining in the first Association fiscal
year Any Owner purchasing a Unit or Amenity Unit between installment due dates shall pay a pro
rata share of the last payment due.
Section 4.6.Special Assessments.
In addition to other Assessments authorized in this Article,the Board of Directors may levy.
in any fiscal ear,a special Assessment applicable to that “ear only,for the purpose of defraying in
whole or in part the cost of any construction.reconstruction.repair or replacement of a capital
Improvement upon the Common Elements or any portion of real property for which the Association
has repair and/or reconstruction obligations,including fixtures and personal property related
thereto,or for repair or replacement of any damaged or destroyed Improvements,or for the funding
of any deficit incurred,or anticipated to be incurred,by the Association.Any such special
Assessment shall be set against each Unit and Amenity Unit in accordance with the Allocated
Interests therefor.
Section 4.7.Assessnents for Services to Less 1/ian Alt of the Units and Amenity
U,itc.
The Association may.at any time from time to time,provide services that benefit less than
all of the Units and Amcnity Units.The Owners of such Units and Amenit\Units that benefit from
such services shall pay the Association for such services as,when and in such manner as may he
determined by the Board of Directors in its discretion from time to time,which amounts shall be
Assessments and shall include overhead expenses of the Association,but shall be in addition to the
annual Assessments and special Assessments.Services which may be provided by the Association
pursuant to this Section include,without Limitation:(a)the construction,care,operation.
management,maintenance,upkeep,repair,replacement and renovation of Improvements or
property that is not provided for in this Declaration to be maintained by the Association;(b)the
provision of any services or functions to or for such Unit(s)and Amenity Unit(s);(c)the
enforcement of the provisions of any document or agreement for,on behalf of and in the name of
the applicable Owners;(d)the payment of taxes or other amounts for Owners with funds provided
by such Owners:and (e)the procurement of insurance for Owners.
Section 4.8.Vacation P!aiz Assessments.
In addition to annual Assessments,special Assessments,and Assessments for services to
less than all of the Units and Amenity Units,if the Declarant has amended or supplemented this
Declaration so as to establish covenants,conditions and restrictions affecting all or any portion of
the Community,as provided by and in accordance with Section 15.17 of this Declaration
(Reservation Regarding Vacation Plan Provisions).Declarant may levy Assessments particular tothoseUnitsdesignatedasVacationUnits(‘Vacation Unit Assessments”)for the construction.
reconstruction.maintenance,repair or replacement of any Limited Common Elements appurtenant
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to the Vacation Units,as well as for services provided to the Vacation Units including,by way of
enumeration but not limitation:on-site management and check-in services;housekeeping service;
linen service;refuse and recycling service;food service:interior cleaning:maintenance and repair
of units and furnishings;refurbishing expenses;utilities;taxes:insurance;and fees and expenses
relative to facilities and amenities (which can include swimming pools.assigned parking.tennis
courts.and spa facilities).
Section 4.9.Partial Interest Estate Assessments.
With respect to any of the Assessments described in this Article 4,in the event of
subdivision of any Unit into Partial Interest Estates.Assessments levied against each resulting
Partial Interest Estate may be increased in excess of such Partial Interest Estate’s fractional
proportion of such Units total Assessment (based upon Assessment of the whole”L!nit as if it
were not subdivided)so as to cover and defray the additional administrative and bookkeeping
expenses associated with levying Assessments against multiple Partial Interest Estates rather than
one ‘whole”Unit.
Section 4.10.Lien forAssessnients.
4.10.1.The Association has a statutory lien on a Unit or Amenity Unit for any
Assessment levied against that Unit or Amenity Unit andlor its Owner(s).The amount of
the lien shall include all those items set forth in this Section from the time such items
become due.If an Assessment is payable in installments,each installment is a lien from the
time it becomes due,including the due date set by any valid Association acceleration of
installment obligations.
4.10.2.Recording of this Declaration constitutes record notice and perfection of
the lien.No further recordation of any claim of lien for Assessments is required.However.
the Board of Directors or managing agent of the Association may prepare.and record in the
county in which the applicable Unit or Amenity Unit is located,a written notice setting
forth the amount of the unpaid indebtedness,the name of the Owner of the Unit or Amenity
Unit,and a description of the Unit or Amenity Unit.If a lien is filed,the costs and expenses
thereof shall be added to the Assessment for the Unit or Amenity Unit against which it is
filed and collected as part and parcel thereof.The Association’s lien may be foreclosed in
like manner as a mortgage on real estate.
Section 4.11.Priority of Association Lien.
4.11.1.A lien under this Article is prior to all other liens and encumbrances on a
Unit except:
4.11.1.1.Liens and encumbrances recorded before this Declaration;
4.11.1.2.A First Security Interest on the Unit or Amenity’Unit which has
priority over all other Security Interests on the Unit or Amenity Unit and which was
recorded or perfected before the date on which the assessment sought to be enforced
became delinquent;and
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4.11.1.3.Liens for real estate taxes and other governmental assessments or
charges against the Unit or Amenity Unit.
4.11.2.A lien under this Section is also prior to the First Security Interests
described in the preceding subsection 4.31.1.2 to the extent,if any,provided in CCIOA.
4.11.3.This Section does not affect the priority of mechanic’s liens or the
priority of liens for other amounts made by the Association.
4.11.4.The Association’s lien on a Unit or Amenity Unit for Assessments and
other amounts 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 Unit or Amenity Unit subject to this
Declaration shall constitute a waiver of the homestead and any other exemption as against
said lien.
Section 4.12.C’ertficate of Status of Assessments.
The Association shall finnish to an Owner or such Owner’s designee or to a Security Interest
Holder or its designee.upon written request delivered personally or by certified mail,first class
postage prepaid,return receipt.to the Association’s registered agent,a written statement setting
forth the amount of unpaid Assessments currently levied against such Owner’s Unit or Amenity
Unit.The statement shall be furnished within a reasonable time after written request and is binding
on the Association,the Board of Directors,and every Owner.The Association shall have the right
to charge a reasonable fee for the issuance of such certificates.
Section 4.13.Application of Payments to the Association;Effect of Non-Payment of
Assessments;and Remedies of the Association.
4.13.1.Application of payments received by the Association from Owners for
payment of amounts due to the Association by such Owners,shall be applied first to the
payment of attorneys fees,fines,late charges and any other amounts (other than
Assessments)due to the Association (in thc order listed),if any;second to the payment of
accrued interest at the tate specified in subsection 4.13.2 below,if any;and third to the
payment of Assessments due to the Association.
4.13.2.Any Assessment not paid within ten (10)days after the due date thereof
shall bear interest from the dtte date at the rate of twenty-one percent (21%)per annum,or
at such lesser rate as may be set from time to time by the Board of Directors,and the Board
of Directors may assess thereon a monthly late charge in such amount as may be set by the
Board of Directors in its discretion from time to time.The Association may bring an action
at law or in equity against the Owner personally obligated to pay the same,or foreclose the
lien against such Owne?s Unit or Amenity Unit.If a judgment or decree is obtained.
including without limitation in a foreclosure action,such judgment or decree shall include
interest and a reasonable attorney’s fees,together with the costs of the action,interest.and
may include late charges.as provided above.No Owner may be exempt from liability for
payment of the Assessments by waiver of the use or enjoyment of any of the Common
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Elements or by abandonment of the Unit or Amenity Unit against which the Assessments
are made or because of its dissatisfaction with the Association or its performance.This
Article does not prohibit actions or suits to reco\er sums for which this Declaration creates
a lien or to prohibit the Association from taking a deed in lieu of foreclosure.
Section 4.14.Surplus Funds.
Any surplus funds of the Association remaining after payment of or provision for
Association expenses and any prepayment of or provision for reserves shall be retained by the
Association as reserves and need not be paid to the Owners or credited to them.
Section 4.15.Working Capital Fund.
The Association shall require the first Owner (other than Declarant)of any Unit or Amenity
Unit who purchases that Unit from Declarant to make a non-refundable contribution to the
Association in an amount equal to six (6)limes the then current monthly installment of the annual
Assessment (regardless of whether or not annual Assessments have commenced as provided in
Section 4.5 (Date of Commencement of Annual Assessments)above)Said contribution shall he
collected and transferred to the Association at the time of closing of the sale by Declarant of each
Unit or Amenity Unit and shall be maintained for the use and benefit of the Association,including.
-without limitation,to meet expenditures or to purchase equipment.property or services.Such
contribution to the working capital fund shall not relieve an Owner of a Unit or Amenity Unit from
making regular payments of Assessments as the same become due,Upon the sale of his or her Unit
or Amenity Unit,an Owner shall be entitled to reimbursement at closing (in the form of a credit on
the closing settlement statement)from the purchaser of such Unit or Amenity Unit,but not from the
association.for the portion of the aforesaid contribution to the working capital fund that has not
been used by the Association at the time of conveyance of the Unit or Amenity Unit by such
Owner
Section 4.16.OIlier Charges.
The Association may levy and assess charges,costs and fees for matters such as,but not
limited to.the following,in such amount(s)as the Board of Directors may determine in its
discretion at any time from time to time,including reimbursement of charges that are made to the
Association by its managing agent or other Person(s):copying of Association or other documents;
return checks:telefaxes:long distance telephone calls;charges or fees upon transfer of ownership
of a Unit;notices and demand letters;and other charges incurred by the Association for or on behalf
of any Owner(s).All such charges.costs and fees shall be in addition to the Assessments levied by
the Association,but shall be subject to all of the Association’s rights with respect to the collection
and enforcement of Assessments.
Section 4.17.Charges for Misconduct
If any Association expense is caused by the misconduct of any Person as determined by the
Board of Directors in its discretion,the Board of Directors may assess that Association expense
exclusively against the Owner who is legally responsible for such Person and against such Owners
Unit or Amenity Unit.
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Section 4.18.Exemption for Units orAmenity Units Owned byAssociation.
Any Unit or Amenity Unit owned by the Association shall be exempt from any Assessment
under this Article 4.it being hereby acknowledged that,pursuant to CR5.§38-33.3-310(4),no
votes allocated to a Unit or Amenity Unit owned by the Association may be cast.
ARTICLE 5.ARCHITECTURAL REVIEW
Section 5.1.changes in common Elements and Structural Changes.
Other than as to the Declarant.the Association (following the termination of the 75%
Control Period)or any Owner (but only as provided in Section 10.7 of this Declaration (Antenna
and Satellite Dishes):no Improvements shall he constructed.erected,placed.altered,planted.
applied or installed on any Common Elements (including Limited Common Elements):nor shall
any structural alteration be made to any Unit,Amenity Unit or Common Elements (including
Limited Common Elements).Nothing contained in this Declaration shall be construed so as to
require approval for non—structural changes to the interior of any Individual Air Space.
Section 5.2.Review by Board for Changes in Limited Common Elements.
Other than as to the Declarant.the Association çfollowing the termination of the 75%
Control Period)or any Owner acting in compliance herewith (but only as provided in Section 10.7
of this Declaration (Antenna and Satellite Dishes)),no Improvements shall be constructed,erected,
placed.altered.planted.applied or installed on any Common Elements (including any Limited
Common Elements)unless complete plans and specifications therefor shall have been first
submitted to and approved in riting by the Board of Directors.Such plans and specification shall
include,without limitation,such information and materials as may be required by the Board in its
discretion from time to time.The Board of Directors shall exercise its reasonable judgment to the
end that all Improvements confonn to and harmonize with the existing surroundings.residences.
landscaping and structures,and do not affect the structural integrity of any Unit or other
Improvements.In its review of such plans,specifications and other materials and information,the
Board may require that the applicant(s)reimburse the Board for the actual expenses incurred by the
Board in the review and approval process.Such amounts,if any,shall be subject to the rights and
remedies in Article 4 of this Declaration (Assessments)that are applicable to Assessments.
Notwithstanding the foregoing and notwithstanding anything to the contrary contained in this
Declaration,however,until automatic termination of the Special Declarant Rights as provided in
Section 1.32 of this Declaration,the Declarant reserves the right to control the architectural
approval process and decisions which might otherwise be made by the Board of Directors regarding
the matters that are provided for in this Article or elsewhere in this Declaration (concerning
architectural approval):hence,during the period from cessation of the Declarant’s appointment of a
majority of the Board of Directors until automatic termination of the Special Declarant Rights as
provided in Section L32 of this Declaration,decisions on requests for architectural approval shall
be made by the Declarant rather than by the Board of Directors (such that the “Declarant”shall be
substituted for the ‘Board”or “Board of Directors,”as applicable).
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Section 5.3.Additional Approvals of Improvements Required.
In addition to the required approvals by the Board of Directors,as provided in this Article.
the construction,erection,addition,deletion,change or installation of any Improvements on any
Limited Common Elements shall also require the applicant to obtain the approval of all
governmental entities with jurisdiction thereover,and issuance of all required permits,licenses and
approvals by all such entities.Without limiting the generality of the preceding sentence,issuance
of building permits by the Town of Estes Park or Larimer County,Colorado (or other appropriate
municipality),if required,shall be a precondition to commencement of any construction of.
alteration of’.addition to or change in any Improvement on a Limited Common Element.
Scction 5.4.Procedures.
The Board of Directors shall decide all requests for approval within forty-five (45)days
after the complete submission of all plans.specifications,and other materials and information
which the Board may require in conjunction therewith.If the Board fails to approve or disapprove
any request within forty-five (45)days after the complete submission of all plans,specifications,
materials and other information with respect thereto,then the application shall be deemed to have
been disapproved.
Section 5.5.Vote and Appeal.
Except as provided in Section 5.16 of this Declaration (Declarant’s Exemption).a majority
vote of the Board is required to decide a request for approval pursuant to this Article,unless the
Board of Directors has appointed a representative to act for it.in which case the decision of such
representative shall control.In the event a representative acting on behalf of the Board decides a
request for architectural approval which is adverse to the applicant,then the applicant shall have the
right to an appeal of such decision to the full Board upon a request therefor submitted to the Board
within thirty (30)days after such decision by the Board’s representative.
Section 5.6.Prosecution of Work After ApprovaL
After approval of an’proposed Improvement by the Board,the proposed Improvement shall
bc accomplished as promptly and diligently as possible and in complete conformity with the
approval.Failure to complete the proposed Improvement within one (1)year after the date of
approval of the application therefor (which length of time may be extended by the Board in its
discretion,in Titing),or to complete the Improvement in accordance with the description and
materials furnished to the Board and the conditions imposed with such approval,shall constitute a
violation of this Article.
Section 5.7.Notice of completion.
Upon completion of the Improvement,the applicant for approval of the same shall give a
written notice of completion to the Board of Directors.Until the date of receipt of such notice of
completion.the Board of Directors shall not be deemed to have notice of completion of any
Improvement on which approval has been sought and granted as provided in this Article.
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Section 5.8.Inspection of Work.
The Board of Directors or its duly authorized representative shall have the right to inspect
any Improvement prior to,during or after completion of the same.in order to determine whether or
not the proposed Improvement is being completed or has been completed in compliance with the
approval granted pursuant to this Article.However,unless the Board expressly states.in a written
document,that an Improvement is being completed or has been completed in conformance with the
approval therefor.no such conformance shall be implied from inspection of the Improvement either
during the work or after completion thereof.The right of inspection shall terminate sixty (60)days
after the Board shall have received a notice of completion from the applicant,
Section 5.9.Notice of Noncompliance.
If.as a result of inspections or otherwise,the Board of Directors finds that any Improvement
has been done without obtaining the approval of the Board,or was not done in substantial
compliance with the approval that was granted pursuant to Section 5.6 of this Declaration
(Prosecution of Work After Approval)the Board shall notify the applicant in writing of the
noncompliance;which notice of noncompliance shall be given,in any event,within sixty (60)days
after the Board receives a notice of completion from the applicant.The notice of noncompliance
shall speci the particulars cf the noncompliance.
Section s.io.correction of Noncompliance.
If the Board of Directors determines that a noncompliance exists,the applicant who sought
the Board’s approval of the same shall remedy or remove (and return the subject property or
structure to its original condition)the same within a period of not more that forty-five (45)days
from the date of receipt of the notice of noncompliance.If the applicant does not comply with the
Board of Directors ruling within such period,the Board may,at its option,record a notice of
noncompliance against the property on which the noncompliance exists.may remove the non
complying Improvement or may otherwise remedy the noncompliance,and the applicant shall
reimburse the Board.upon demand.for all costs and expenses incurred with respect thereto.
Section 5.11.Records.
The Board of Directors shall,for such period of time as may be determined by the Board in
its discretion from time to time.maintain written records of all applications submitted to it and all
actions taken by it thereon,and such records shall be available to Members for inspection at
reasonable hours of the business day.
Section 5.12.Liability.
Neither the Board of Directors,nor any members thereof,nor any representative of the
Board appointed to act on its behalf,shall be liable in damages to any Person submitting requests
for approval or to any Person by reason of any action,failure to act,approval,disapproval,or failure
to approve or disapprove,in regard to any matter within its jurisdiction hereunder.In reviewing any
matter.the Board of Directors shall not be responsible for the safety.whether structural or
othenvise.of the Improvements submitted for review,nor the conformance with applicable building
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codes or other governmental laws or regulations.and any approval of an Improvement by the Board
of Directors shall not be deemed an approval of any such matters.No Member or other Person
shall be a third party beneficiary of any obligation imposed upon,rights accorded to.action taken
h;.or approval granted by the Board of Directors.
Section 5.13.Variance.
The Board of Directors may grant reasonable variances or adjustments from any conditions
or restrictions imposed by this Article or Article 10 hereof (Restrictions),in order to overcome
practical difficulties or prevent unnecessary hardships arising by reason of the application of any
such conditions and restrictions.Such variances or adjustments shall be granted only in case the
granting thereof shall not be materially detrimental or injurious to any other property or
Improvements in the Community and shall not militate against the general intent and purpose
hereof.
Section 5.14.Waivers,No Precedent.
The approval or consent of the Board of Directors,or any representative thereof,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 Board or any representative thereof as to any other
application or other matters whatsoever as to which approval or consent may subsequently or
additionally be required.Nor shall any such approval or consent be deemed to constitute a
precedent as to any other matter.
Section 5.15.Architectural Standards/Guidelines.
The Board of Directors may,at any time,promulgate.modift’,amend,repeal.re-enact and
enforce.architectural standards,guidelines,rules and regulations or other standards for the
Community.to interpret and implement the provisions of this Article.Without limiting the
generality of the foregoing.such provisions may contain guidelines to clari•the types of designs
and materials that may be considered in design approval.may state requirements for submissions in
order to obtain review by the Board.may state procedural requirements.or may specLfy acceptable
Improvement(s)that may be installed without the prior approval of the Board.The guidelines may
contain blanket approvals,interpretations,or restrictions on Improvements.By way of example.
and not by way of limitation,the guidelines may state that a certain type of screen door will be
acceptable and will not require approval.All Improvements proposed to be constructed,and any
guidelines that are adopted,shall be done and used in accordance \vith the provisions of this Article
and shall not be inconsistent therewith.
Section 5.16.Declarant’s Exemption.
Notwithstanding anThing to the contrary contained in this Declaration,the Declarant shall
be exempt from the requirements of this Article,with the exception of those requirements of
Section 5.3 of this Declaration (Additional Approvals of Improvements Required).until such time
as the Special Declarant Rights terminate as provided in Section 1.32 of this Declaration (Special
DeclaranCs Rights).
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ARTICLE 6.INSURANCE
Section 6.1.Insurance.
The Association shall maintain insurance in connection with the Common Elements.The
Association shall maintain insurance as required by applicable law or applicable regulation.
including CCIOA.Such insurance shall include,without limitation,property damage insurance.
commercial general liability insurancc and fidelity coverage.In addition,the Association may
maintain insurance on such other property and/or against such other risks as the Board of Directors
may elect from time to time,including,but not limited to,personal liability insurance to protect
directors and officers of thc Association from personal liability in relation to their duties and
responsibilities in acting as directors or officers on behalf of the Association,workers
compensation insurance,and such other insurance on such other property and/or against such other
risks as the Board of Directors may elect in its discretion from time to time.
Section 6.2.General Provisions of Insurance Policies.
All policies of insurance carried by the Association shall comply with this Section.All
policies of insurance carried by the Association shall be carried in blanket policy form naming theAssociationasinsured,or its designee as trustee and attorney-in-fact for all Owners,and eachOwnershallbeaninsuredpersonundersuchpolicieswithrespecttoliabilityarisingoutofany
Owner’s membership in the Association.‘i’hc policy or policies shall contain a standard non-contributory Security Interest Holder’s clause in favor of each Security interest Holder and aprovisionthatitcannotbecanceledormateriallyalteredbyeithertheinsuredortheinsurance
company until at least thirty (30)days prior written notice thereof is given to the insured and each
Security Interest Holder,insurer or guarantor of a Security Interest on the Unit insured by suchinsurancepolicy.The Association shall furnish a certified copy or duplicate original of such policy
or renewal thereof,with proof of premium payment and a certificate identifying the interest of theOwnerinquestion.to any party in interest,including Security Interest 1-lolders.upon request.AllpoliciesofinsurancecarriedbytheAssociationshallalsocontainwaiversofsubrogationagainst
any Owner or member of such Oier’s household.Further,all policies of insurance carried by theAssociationshallalsocontainwaiversofanydefensebasedoninvalidityarisingfromanyactsorneglectofanOwnerwheresuchOwnerisnotunderthecontroloftheAssociation.
Section 6.3.Deductibles.
The Association may adopt and establish written non-discriminatory rules and regulations
or policies and procedures relating to deductibles Any loss,or any portion thereof,which fallswithinthedeductibleportionofapolicythatiscarriedbytheAssociation,may be borne by thePersonwhoisresponsiblefortherepairandmaintenanceofthepropertywhichisdamagedordestroyed,may be apportioned among the Persons sharing in a joint duty of repair and maintenance.andior may be partly or wholly borne by the Association,at the election of the Board of Directors.Notwithstanding the foregoing,after notice and hearing,the Association ma)determine that a loss.either in the form of a deductible to be paid by the Association or an uninsured loss,resulted from
the act or negligence of one or more Owners.Upon said determination by the Association,anysuchlossorportionthereofmaybeassessedtotheOwner(s)in question in such amount(s)as the
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Board of Directors deems appropriate,and the Association may collect such amount(s)from said
Owner(s)in the same manner as any Assessment.
Section 6.4.insurance to be Maintained by Owners.
An insurance policy issued to the Association does not obviate the need for Owners to
obtain insurance for their own benefit.Insurance coverage on the furnishings and other items of
personal property belonging to an Owner,and public liability insurance coverage on each Individual
Air Space.shall be the responsibility of the Owner of such Individual Air Space,and the
.&ssociation.its Board of Directors and any managing agent shall have no responsibility therefor.
Owners may carry other insurance for their benefit and at their expense,provided that all such
policies shall contain waivers of subrogation,and provided that no liability of the carriers issuing
insurance obtained by the Association shall be affected or diminished by reason of any such
insurance carried by any Owner.
ARTICLE 7.DAMAGE OR DESTRUCTION
Section 7.1.Damage or Destruction.
7.1.1.Any portion of the Community which is covered by a policy of insurance
which is required to be carried by the Association under this Declaration and which is
damaged or destroyed must bc repaired or replaced promptly by the Association unless:
7.1.1.1.The Community is terminated;or
4.
7.1.1.2.Repair or replacement would be illegal under any state or local
statute or ordinance governing health or safety;or
7.1.1.3.Members casting sixty-seven percent (67%)of the Association
votes,in person or by proxy,including every Member whose Unit or Amenit Unit
will not be rebuilt,vote not to rebuild;or
7.1.14.Prior to the conveyance of any Unit or Amenity Unit to a Person
other than the Declarant.the holder of a deed of trust or mortgage on the damaged
portion of the Community rightfully demands all or a substantial part of the
insurance proceeds.
7.1.2.The cost of repair or replacement that is covered by insurance carried by
the Association,but which is in excess of insurance proceeds and reserves,is an
Association expense.If the entire Community is not repaired or replaced,the insurance
proceeds attributable to the damaged Common Elements must be used to restore the
damaged Elements to a condition compatible with the remainder of the Community.and
except to the extent that other Persons will be distributees.the insurance proceeds
attributable to Units or Amenity Units that are not rebuilt must be distributed to the Owners
of those Units or Amenity Unit or to lienholders.as their interests may appear,and the
remainder of the proceeds must be distributed to all the Owners or lienholders.as their
interests may appear.in proportion to the total Allocated Interests of the Units or Amenity
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Unit.If the Members vote not to rebuild any Unit or Amenity Unit,that Unit’s or Amenity
Unit’s Allocated Interests are automatically reallocated upon the vote as if the Unit or
Amenity Unit had been condemned,and the Association promptly shall prepare,execute
and record an amendment to the Declaration reflecting such reallocations.
Section 7.2.Use or Distribution of Insurance Proceeds.
In the event of damage or destruction to all or a portion of the Common Elements,due to
fire or other adversity or disaster,the insurance proceeds,if sufficient to repair or replace the
damaged Common Elements,shall be applied by the Association to such repair andior replacement.
If the insurance proceeds with respect to such damage or destruction are insufficient to repair
andlor replace the damaged or destroyed Elements(s),the Association shall levy a special
Assessment in the aggregate amount of such insufficiency pursuant to 4.6 of this Declaration
(Special Assessments),but without approval of the Members,and shall proceed to make such
repairs or replacements.No distributions of insurance proceeds shall be made unless made jointly
payable to the Owners and any Security Interest Holders of their respective Units or Amenity Units.
The Assessment provided for herein shall be a debt of each Owner and a lien on such Owner’s Unit
or Amenity’Unit and the Improvements thereon,and may be enforced and collected in the same
manner as any Assessment proxided for in this Declaration.
Section 7.3.Damage or Destrucdon of Units.
If due to casualty.or for any other reason,an Individual Air Space shall be destroyed or
damaged.then the Owner thereof shall,within a reasonable time thereafter,not to exceed one
hundred twenty’(120)day’s after repair or replacement of the Common Elements,including without
limitation the walls and roof of the Unit or Amenity Unit (where appropriate),commence and
diligently pursue repair and replacement of the Individual Air Space,using any available personal
insurance proceeds and personal finds of such Owner,unless the Common Elements are not
repaired andlor replaced as hereinabove provided.
ARTICLE 8.MAINTENANCE
Section 8.1.Management and Maintenance Duties.
Subject to the rights of.and obligations,requirements and limitations on Owners as set forth
in this Declaration:
8.1.1.The Association shall be responsible for the management,control,
maintenance,repair,replacement and improvement of the Common Elements (including the
Limited Common Elements except as provided below),and any property owned by the
Association,including facilities,furnishings and equipment related thereto,and the
Association shall keep the same (except Limited Common Elements as provided below)in
good,clean,attractive and sanitary condition,order and repair.Without limiting the
generality of the foregoing,the Association shall:periodically paint the front doors of
residences;maintain,repair and/or replace the roofs and exteriors of the Condominium
Buildings;maintain,repair and replace landscaping and private streets in the Community;
provide for regular trash removal;and provide for snow removal (as and when deemed
27
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appropriate by the Board of Directors in its discretion from time to time)from the
sidewalks,parking spaces or areas and driveways in the Community.The Association shall
not be responsible for the maintenance,repair andior replacement of window glass or other
glass surfaces,window screens,light bulbs,electrical fixtures,and electrical facilities (such
as electric eves).
8.1.2.Except so far as maintained by any utility service company or
organization,as to each Unit or Amenity Unit,Owners shall be responsible for maintenance
or repair of electrical fixtures (including bulb replacement);wiring;facilities;meters:and
conduits.
8.1.3.The Association may contract for regular trash removal service to be
provided,which (if provided)shall be paid by the Owners as part of the Assessments.Any
Owner desiring non-regular or extraordinary trash removal shall make his or her own
arrangements for the same and pay for the same in addition to the Assessments.
8.1.4.Notwithstanding anything to the contrary contained in this Declaration,
none of the responsibilities of the Association for management,control,maintenance.
repair,replacement and improvement of the Common Elements or Improvements thereon
shall give rise to any interest of the Association in any Unit or Amenity Unit or the quality
of any Improvements therein or thereon,nor any right by the Association to pursue any
claims against the Declarant.any member thereof or any other Person.for negligence.
breach of express or implied warranties,or any other matters,with respect to any such
Improvements or the construction thereof
8.1.5.Except as otherwise provided in this Declaration,the Owner of each
Unit or Amenity Unit shall be solely responsible for maintaining,repairing and replacing his
Unit or Amenity Unit and the Improvements therein or appurtenant thereto.Further,each
Owner shall be responsible for exclusive maintenance,repair and replacement of all
fixtures,equipment and utilities installed or located within such Owner’s Individual Air
Space,all windows and other glass surfaces,window screens and doors to the Unit or
Amenity Unit (except painting of exterior doors),all light bulbs,electrical fixtures and
electrical facilities,and all other equipment providing exclusive sen ice thereto or therefor
and any service lines from such equipment to the Unit or Amenity Unit (including,without
limitation,all utility,heating,plumbing.air conditioning and domestic hot water equipment
and appurtenances but not including landscaping irrigation systems),regardless of whether
such fixtures,equipment and utilities are owned by said Owner or are Common Elements.
Each Owner shall also keep the Limited Common Elements,or portions thereof,designated
for use solely in connection with his Unit or Amenity Unit,in a clean,sanitary and attractive
condition and order.
Section 8.2.Maintenance,Repair alit!Replacement Obligations.
8.2.1.Any Improvement which has been changed,altered or modified by,or
for,an Owner or occupant of a Unit or Amenity Unit,shall be maintained,repaired and
replaced by such Owner to the extent of the change,alteration or modification.If the
Improvement is newly constructed,erected,placed.planted,applied or installed by an
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C)C)
Owner or occupant of a Unit or Amenity Unit,then the entirety of such Improvement shall
be maintained,repaired and replaced by,the Owner of such Unit or Amenity Unit.
However,the Board of Directors may at any time,by resolution,elect to have the
Association provide such maintenance,repair or replacement;provided that any such
resolution shall be subject to being repealed,revoked,modified,changed or altered,at any
time,from time to time.b the Board.
8.2.2.In the event any Owner shall fail to perform his maintenance,repair and
replacement obligations in a manner satisfactory to the Board of Directors,the Association
may,if said failure continues for a thirty (30)day period after written notice to said Owners
by the Board of Directors.enter upon said Unit or Amenity Unit subsequent to the
expiration of said thirty (30)day time period to perform any or all of such maintenance,
repair or replacement.Notwithstanding the foregoing,no notice shall be required in
emergency situations.The cost of such maintenance,repair and replacement shall be the
personal obligation of the Owner of the Unit or Amenity Unit on which such work is
performed so that such amounts shall be paid by such Owner,and enforceable by the
Association.as Assessments.
Section 8.3.Acts or Omissions
Notwithstanding anything to the contrary contained in this Declaration,in the event that the
need for maintenance,repair or replacement of the Common Elements or Limited Common
Elements,any other property.a Unit or Amenity Unit,or any Improvements located thereon,is
caused by the willful or negligent act or omission of any Owner.any member of such Owners
family or by a guest or invitee of such Owner,the cost of such repair,maintenance,replacement or
expense to avoid such damage shall be the personal obligation of such Owner to the extent that said
Owner would be liable for the acts of such Persons under the laws of the State of Colorado;and any
costs,expenses and fees inculTed by the Association for such maintenance,repair or replacement
shall be paid by such Owner,and enforceable by the Association,as Assessments.A determination
of the negligence or willful act or omission of any Owner,or any member of an Owne?s family or a
guest.invitee or licensee of any Owner,and the amount of the Owners liability therefor.shall he
dctennined by the Association at a hearing after notice to the Owner.
ARTICLE 9.EASEMENTS
Section 9.1.Other Easements.
In addition to any other easements that may be granted or reserved in elsewhere in this
Declaration,the following Sections in this Article describe easements to which the Community is
or may be subject.
Section 9.2.Access Easement.
Each Unit and Amenity Unit shall be subject to an easement in favor of the Association and
the Owners,including the agents,employees and contractors thereof,for performing maintenance.
repair.replacement and!or reconstruction,or other services as provided in this Declaration.
including without limitation,maintenance,repair.replacement andior reconstruction pursuant to
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Article 8 of this Declaration (Maintenance);and in favor of the Association,its agents and
employees,for and incidental to enforcement of any term or provision of any of the Governing
Documents.If damage is inflicted,or a strong likelihood exists that it will be inflicted,on the
Common Elements.any other property,or any Unit or Amenity Unit,the Owner responsible for the
damage or expense to avoid damage,or the Association if it is responsible,is liable for the cost of
prompt repair or avoidance.Further,the rights and easements granted in this Section may be
exercised only during reasonable hours after reasonable notice to the Owner(s)or occupant(s)of
any affected Unit or Amenity Unit:except that no such notice shall be required in connection with
any exterior,non-intrusive entry:and except that in emergency situations entry upon a Unit or
Amenity Unit may be made at any time provided that the Owner(s)or occupant(s)of each affected
Unit or Amenity Unit shall be notified of impending emergency entry as early as is reasonably
possible.The interior of any residence shall not be subject to the easements provided for in this
Section.
Section 9.3.Maintenance,Repair and Replacement Easement.
Each Owner hereby grants to the Association and the other Owners,and to their agents,
employees and contractors,a right and easement on.over,across and through such Owners Unit or
Amenity Unit for maintenance.rcpair and replacement as provided in this Declaration:provided
that such easement may only be exercised during reasonable hours afier reasonable notice to the
Owners or occupants of any affected Unit or Amenity Unit,except that in emergency situations
entry upon a Unit or Amenity Unit may be made at any time provided that the Owner or occupants
of each affected Unit or Amenity Unit shall be warned of impending emergency entry as early as is
reasonably possible.If damage is inflicted,or a strong likelihood exists that it will be inflicted,on
the Common Elements,any other property.or any Unit or Amenity Unit,the Owner responsible for
the damage or expense to avoid damage.or the Association if it is responsible.is liable for the cost
of prompt repair or avoidance.
Section 9.4.Easement for Encroachments.
To the extent that any Unit.Amenity Unit,Common Element or Limited Common Element.
encroaches on any other Unit.Amenity Unit,Common Element,or Limited Common Element,a
valid easement for the encroachment exists.
Section 9.5.Drainage Easement.
An easement is hereby reserved by the Dedarant and granted to the Association,their
respective directors.officers,agents,employees,successors and assigns,to enter upon,across,over.
in and under the Common Elements for the purpose of changing,correcting or otherwise modifying
the grade or drainage channels of the Community.
Section 9.6.Utilities.
Declarant hereby reserves a blanket easement upon,across,over and under the Common
Elements for utilities and the installation,replacement.repair and maintenance of utilities.
including,but not limited to,water,sewer,gas.telephone.electricity,computer cable,and master
television antenna or cable or satellite television systems,if any.By virtue of this blanket easement
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it shall be express’y permissible to erect and maintain the necessary facilities,equipment and
appurtenances on the Common Elements and to affix.repair.and maintain water and sewer pipes.
gas.electric,telephone,computer and television wires,cables,circuits,conduits and meters.In the
event any utility or quasi-utility company furnishing a service covered by the general easement
created herein requests a specific easement by separate recordable document.Declarant reserves
and is hereby given the right and authority to grant such easement upon,across,over or under any
part or all of the Common Elements without conflicting with the terms hereof;provided,however.
that such right and authority shall automatically terminate at such time as the Special Declarant
Rights terminate as provided in Section 1.32 of this Declaration (Special Declarant Rights).at
which time said reserved right shall vest in the Association.The easement provided for in this
Section shall in no way affect,avoid,extinguish or modify’an>other recorded easement(s)on the
Common Elements.
Section 9.7.Emergency Ease,nent.
A general easement is hereby granted to all police,sheriff,fire protection,ambulance,and
all other similar emergency agencies or persons to enter upon the Common Elements in the proper
performance of their duties.
Section 9.8.Easement for Privately Owned .Amenities
Declarant hereby reserves a blanket access easement upon,across,over and under the
Common Elements for the owners of the Privately Owned Amenities,as well as such any members,
guests.licensees,of such owners,and any and all others permitted to use,or using the Privately
Owned Amenities.
ARTICLE 10.RESTRICTIONS
Section 10.1.General Plait;Restrictions Imposed.
ft is the intention of the Declarant to establish and impose a general plan for the
improvement,development,use and occupancy of the Community.The Community is subject to
the recorded easements.licenses and other matters listed on Exhibit C attached hereto and
incorporated herein by this reference.In addition,the Declarant declares that all of the Units shall
be held and shall henceforth be sold,conveyed,used.improved,occupied.owned,resided upon andhpothecated.subject to the following provisions,conditions,limitations,restrictions,agreements
and covenants,as well as those contained elsewhere in this Declaration.
Section 10.2.Exterior (‘hanges.
Except for those Improvements erected,constructed or installed by Declarant in its
completion of the Community,no exterior additions to,aherations or decoration of any
Condominium Building,Units or Amenity Units shall be commenced,erected,placed or
maintained,except as provided in this Declaration.
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Section 10.3.Interior (‘hanges.
Nothing in this Declaration shall be construed to require any Owner to obtain approvals to
make non-structural changes to the interior of such Owner’s Individual Air Space or to a Amenity
Unit.If two or more Individual Air Spaces are owned by the same Owner.such Owner may
remove all or part of the non-structural interior walls,ceilings or floors separating such Individual
Air Spaces so as to allow free access between such Individual Air Spaces.Notwithstanding the
removal of all or pail of any such interior wall,ceiling or floor which would otherwise separate and
delineate the boundaries of one or more Individual Air Spaces,each Individual Air Space shall
continue to be a separate Unit or Amenity Unit for all purposes of this Declaration.For example.
the total number of Units and Amenity Unit in the Community shall not be affected b’the removal
of such a wall,ceiling or floor,nor shall the Allocated Interests be affected.
Section 10.4.Residential Use.
10.4.1.Subject to Section 15.5 of this Declaration (Declarant’s Use).Units shall
be used for residential use only,including rental,exchange and other uses which are
customarily incident thereto.
Section 10.5.Household Pets.
No animals,livestock,birds,poultry,reptiles or insects of any kind shall be raised,bred.
kept or boarded in or on the Units or Amenity Unit;provided,however,that the Owners of each
Tinit may keep dogs,cats,andlor other domestic animals which are bona fide household pets or
hearing or service animals used by handicapped persons.so long as such pets are not kept for any
commercial purpose and are not kept in such number or in such manner as to be unreasonable or
create a nuisance to any Owner or resident of the Units or any Owner of any Amenity Unit.The
Board of Directors shall have,and is hereby given,in its sole discretion,the right and authority to:
set a size or poundage limit on pets:regulate the type(s)of pets that are permitted to be kept:
determine that any dog(sl.cat(s)or other household pet(s)are being kept for a commercial purpose
or are being kept in such number or in such manner as to he unreasonable or create a nuisance:or
that an Owner or tenant is in violation of the leash laws of the applicable jurisdiction and other
applicable governmental laws,ordinances,or other provisions related to household pets:or
determine that an Owner is otherwise in violation of this Section.If the Board decides any of the
foregoing,then the Board may take such action or actions as it deems appropriate.An Owner’s
right to keep household pets shall be coupled with the responsibility to pay for any damage caused
by such pets,as well as any costs incurred by the Association as a result of such pets,and any such
costs and damages shall be subject to all of the Association’s rights with respect to the collection
and enforcement of Assessments.Notwithstanding the foregoing,nothing in this provision shall be
construed to guaranty Owners the right to raise,breed,keep or board pets in the Units.
Section 10.6.Signs.
No advertising or signs of any character shall be erected,placed,permitted.or maintained
on any Unit or Amenity Unit without the written approval of the Board of Directors,except for the
following:(a)a name plate of the occupant and a street number;(b)subsequent to automatic
termination of the Special Declarant Rights as provided in Section 1.32 of this Declaration (Special
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Declarant Rights),“For Sale,”“Open House,”or “For Rent”sign(s)of not more than a total of five
(5)square feet in the aggregate,in a window(s)of the Unit:(c)two (2)security system signs no
larger than one hundred (100)square inches each in a window(s)of any Unit or Amenity Unit;and
(d)signs expressly permitted by law.Notwithstanding the foregoing,reasonable signs,advertising.
or billboards used by the Declarant in connection with the sale,rental or use of one or more Units,
or otherwise in connection with development of or construction in the Community.shall be
permissible.provided that such use shall not interfere with an Owners’use and enjoyment of their
Unit or with their ingress or egress from a public way to their Unit.
Section 10.7.Antenna and Satellite Dishes.
No exterior radio antenna,television antenna,or other antenna,satellite dish,or audio or
visual reception devise of any type shall be placed,erected or maintained on any Unit or Amenity
Unit.or on Common Elements unless such antenna,satellite dish,or other audio or visual device
has been professionally installed and the installation of such device has been approved by the Board
of Directors;provided,however that any such devices may be erected or installed by the Declarant
during its sales or construction in the Community;and provided farther,however,that the
requirements of this Section shall not apply to those “antenna”(incLuding certain satelLite dishes)
which arc specifically covered b the Telecommunications Act of 1996 and/or regulations
promulgated thereunder.as amended from time to time.As to ‘antenna’(including certain satellite
dishes)which are specifically’covered by the Telecommunications Act of 1996 and/or regulations
promulgated thereunder.as amended,the Association shall be empowered to adopt rules and
regulations or policies and procedures governiLig the types of “antenna”(including certain satellite
dishes)that are permissible hereunder and,to the extent permitted by the Telecommunications Act
of 1996 and/or regulations promulgated thereunder,as amended,establishing reasonable,non
discriminatory restrictions relating to appearance.safety,location and maintenance.
Section 10.8.Restrictions on Vehicular Parking,Storage and Repairs.
10.8.1.No house trailer.catnping trailer,boat trailer,hauling trailer,boat,or
accessories thereto,truck (larger than 1 ton).self-contained motorized recreational vehicle.
or other type of recreational vehicle or equipment,nor any commercial vehicle.may be
parked or stored in the Community,except that any such vehicle may be otherwise parked
as a temporary expedient for loading,delivery,or emergency.This restriction,however.
shall not restrict trucks or other commercial vehicles that are necessary for construction or
for the maintenance of the Units.Amenity Units,Common Elements,other property.or any
Improvements.
10.8.2.Except as hereinabove provided,no abandoned or inoperable
automobiLes or vehicles of any kind shall be stored or parked in the Community.An
“abandoned or inoperable vehicle”shall be defined as any automobile,truck,motorcycle,or
other similar vehicle.which has not been driven under its own propulsion for a period of
one (1)week or longer,or which does not have an operable propulsion system installed
therein,or which does not have a current license plate thereon;provided,however,that
otherwise permitted vehicles parked by Owners while on vacation (for a maximum of two
(2)weeks)or during a period of illness shall not be deemed to be abandoned.
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10.8.3.In the event the Association shall determine that a vehicle is parked or
stored in violation of subsections 10.8.1 and 10.8.2 of this Section.then a written notice
describing said vehicle shall be personally delivered to the owner thereof (if such owner can
be reasonably ascertained)or shall be conspicuously placed upon the vehicle (if the owner
thereof cannot be reasonably ascertained),and if the vehicle is not removed within a
reasonable time thereafter,as determined by the Association in its discretion from time to
time,the Association shall have the right to remove the vehicle at the sole expense of the
owner thereof.
10.8.4.No activity such as.but not limited to,maintenance,repair.rebuilding,
dismantling,repainting or servicing of any kind of vehicles,trailers or boats.may be
performed or conducted in the Community.
10.8.5.Parking or other actions of Owners,residents of the Community or
guests or invitees in violation of the following restrictions and prohibitions may result in
assessment of fines by the Association,towing of the offensive vehicle without notice to the
owner of the vehicle or any Owner or resident of the Community,and such other action by
the Association as may be pemitted by the Declaration.The prohibitions and restrictions
promulgated hereunder,as well as any Rules and Regulations arising herefrom are in
addition to the conditions,restrictions,limitations and prohibitions set forth in any other
Association Governing Documents (including but not limited to the Declaration).
Section 10.9.I%uisances.
No nuisance shall be permitted on any Unit or Amenity Unit.nor any use,activity or
practice which is a source of annoyance or embarrassment to,or which offends or disturbs,the
occupant of any Unit or those using any Amenity Unit or which interferes with the peaceful
enjoyment or possession and proper use of any Unit or Amenity Unit,or any portion thereof,by its
occupants,residents invitees,guests or licensees.As used herein,the term “nuisance”shall not
include any activities of Declarant which are reasonably necessary to the development and
construction of,and sales activities on,the Units or Amenity Units.No noxious or offensive
activity shall be carried on upon any Unit or Amenity Unit nor shall anything be done or placed on
any Unit or Amenity Unit which is or may become a nuisance or cause embarrassment,disturbance
or annoyance to others,and no unsightly conditions,structures,facilities,equipment or objects shall
he so located on any Unit or Amenity Unit as to be visible from a street or from any other Unit.
Further,no immoral,improper,offensive or unlawftil use shall be permitted or made of any Unit or
Amenity Unit,or any portion thereof All valid laws,ordinances and regulations of all
governmental bodies having jurisdiction over the Units,Amenity Units,or any portion thereof.shall
be observed;however,the Association shall have no duty or obligation to enforce such laws,
ordinances and regulations.
Section 10.10.No Hazardous Activities;No Hazardous Materials or Chemicals.
No activities shall be conducted on any Unit or Amenity Unit or in the Community which
are,or might be,unsafe or hazardous to any Person or property.Without limiting the generality of
the foregoing.no firearms shall be discharged and no open fires shall be lighted or permitted except
in a contained barbecue unit while attended and in use for cooking purposes or within an interior
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fireplace.Further.no hazardous materials or chemicals shall at any time be located,kept or stored
in.on or at any Unit or Amenity Unit except such as may be contained in household products
normally kept at homes for use of the residents thereof and in such limited quantities so as to not
constitute a hazard or danger to person or property.
Section 10.11.NoAnnoylugLight,Sounds or Odors.
No light shall be emitted which is unreasonably bright or causes unreasonable glare:no
sound shall be emitted which is unreasonably loud or annoying;and no odor shall be permitted
which is noxious or offensive to others.
Section 10.12.Restrictions on Trash and Materials.
No refuse,garbage,trash,lumber,grass,shrubs or tree clippings,plant waste,metal,bulk
materials,scrap or debris of any kind shall be kept.stored,or allowed to accumulate unless placed
in a suitable container suitably located solely for the purpose of garbage pickup.All equipment for
the storage or disposal of such materials shall be kept in a clean and sanitary condition.No garbage
or trashcans or receptacles shall be maintained in an exposed or unsightly manner.
Section 10.13.Non-Potable Water
Certain water that is or may be in the Community may be non-potable and should not be
used as drinking water or for any use which might result in consumption of the same.Each Owner
is solely responsible for any adverse consequence or reaction from consumption of any non-potable
water by the Owner.a member of the Owner’s family,a tenant,guest.invitee or licensee of such
Owner,or any animal(s)(such as dogs)for which such Owner is responsible.Further,neither the
Declarant nor the Association plan to protect any Person,animal or property from,or to provide anyphysicalbarriersorimpedimentsto,any water in the Community.Neither the Declarant nor the
Association plan to provide signage warning about the possible dangers of consumption of non-
potable water or other matters.The Declarant,Association.Board of Directors,and their officers.
directors,members,partners,agents and employees,hereby disclaim any responsibility for the
safety of any Persons or property with respect to non-potable water.The waiver aid release set out
in Section 15.13 of this Declaration (Waiver)shall apply to this Section.
Section 10.14.Leases.
The term “lease,”as used herein,shall include any agreement for the leasing or rental of a
Unit or Amenity Unit.Improvements thereon,or any portion thereof,and shall specifically include.
without limitation,month-to-month rentals and subleases.Any Owner shall have the right to lease
his Unit or Amenity Unit,or an’portion thereof,under the following conditions:
10.14.1.All leases shall be in writing,including the name of the tenant(s)and the
duration of the lease and shall be delivered to the Board of Directors or the Association’s
managing agent,if any,within thirty (30)days after such lease has been signed by the lessor
and the lessee;and
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10.142.All leases shall provide that the terms of the lease and lessees occupancy
of the leased premises shall be subject in aLl respects to the Governing Documents;and that
any failure by the lessee to comply with any of the aforesaid documents.in any respect.
shall be a default under the lease.
Section 10.15.Subdi vision.
10.15.1.Notwithstanding anything to the contrary.no Unit may be subdivided
prior to three (3)years and one (1)day after the first date of conveyance of such Unit by the
Declarant.and no Unit may be subdivided into deeded fractional interests smaller than a 1/8
interest in the whole Unit.Further,no Unit may be subdivided except by the Owner thereof
or with his or her consent.
10.15.2.Notwithstanding any provision in this Declaration to the contrary,
Declarant reserves the right to subdivide any Units then owned by Declarant.
10.15.3.Any Owner acting to subdivide a Unit must obtain all required approvals
from all applicable governmental authorities and may be required to apply to the Colorado
Real Estate Commission for registration and certification as a subdivision developer.In the
event of any subdivision by an Owner,any costs and expenses incurred by the Association
to include and accommodate such subdivision shall be solely payable by such subdividing
Owner.
10.15.4.In the event of subdivision of any Unit into Partial Interest Estates:
10.15.4.1.For all purposes,and except as othenvise set forth in this
Declaration,each Partial Interest Estate shall be deemed to be a Unit and subject to
all covenants,conditions,restrictions,requirements.obligations and provisions of
this Declaration and all other documents governing the Community.
10.15.4.2.Assessments levied hereunder against each resulting Partial
Interest Estate may be increased in excess of such Partial Interest Estate’s fractional
proportion of such Unit’s total Assessment (based upon assessment of the “vhole”
Unit as if it were not subdivided),so as to cover and defray the additional expenses
(including without limitation,administrative and bookkeeping expenses)associated
with levying Assessments against multiple Partial Interest Estates rather than one
“whole”Unit,in such amounts as may be determined by the Board of Directors,in
its discretion.from time to lime.
10.15.4.3.The multiple estates resulting from such subdivision shall not
have the effect of increasing the number of Units that May Be Created,and,for the
purpose of accounting for the total number of Units that May Be Created,such
multiple Partial Interest Estates arising out of,or relative to any one “whole”Unit
shall be deemed to be,collectively,one Unit.
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10.15,5.Notwithstanding any provision in this Section to the contrary,
subdivision of any unit is subject to the restrictions set forth in Section 1.34 (Units That
May Be Created),above.
Section 10.16.Parking.
10.16.1.Until automatic termination of the Special Declarant Rights as provided
in Section 1.32 of this Declaration (Special Declarant Rights),all matters pertaining to use
of parking spaces within the Community shall be facilitated solely by and subject to control
by the Declarant.Following termination of the Special Declarant Rights as provided in
Section 1.32 of this Declaration,all matters pertaining to use of parking spaces within the
Community,if any,shall be facilitated solely by the Association.
ARTICLE 11.PROPERTY RIGHTS IN THE COMMON ELEMENTS
Section 11.1.Owners’Easements.
Subject to this Article,every Owner shall have a non-exclusive right and easement of
enjoyment in and to the Common Elements,plus a right and easement of ingress and egress over,
across and upon the Common Elements for the purpose of getting to and from his Unit or Amenity
Unit and public ways.for both pedestrian and vehicular travel,and to use the Common Elements
and all other real estate that must become Common Elements.if any,for all other purposes.Such
rights and easements shall be appurtenant to and pass with the transfer of title to every Unit or
Amenity Unit.
Section 11.2.Extent of Owners’Easements.
Subject to the other provisions of this Article,the rights and easements of enjoyment created
hereby are subject to the following:the Common Elements may not be used in any manner which
violates the statutes,rules or regulations of any governmental authority with jurisdiction over the
Common Elements;and no Owner may place any structure on the Common Elements.In addition.
such rights and easements are subject to the following rights of the Association:
11.2.1.The right of the Association to borrow money for the purpose of
improving the Common Elements and to mortgage said property as security for any such
loan;provided,however,that the Association may not subject any portion of the Common
Elements to a Security Interest except in accordance with CCIOA;and
11.2.2.The right of the Association to take such steps as are reasonably
necessary to protect the Common Elements against foreclosure;and
11.2.3.The right of the Association to enact,re-enact,issue,promulgate.amend.
repeal and publish standards,guidelines,rules and regulations or policies and procedures,
with which each Member shall strictly comply,including,but not limited to,the right to
regulate andlor restrict vehicular parking or other uses of Improvements on Common
Elements;and
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11.2.4.The right of the Association to suspend the voting rights of a Member
for any period during which any Assessment against such Owners Unit or Amenity Unit or
any other amounts due from such Member to the Association remains unpaid and,for a
period not to exceed sixty (60)days,for any infraction of the Association Bylaws or the
rules and regulations or policies and procedures of the Association;and
11.2.5.The right of the Association to dedicate or transfer all or any part of the
Common Elements to any public agency,authority,or utility for such purposes and subject
to such conditions as may be agreed to by the Members.Notwithstanding the foregoing,the
granting of permits.licenses and easements for utilities,roads or for other purposes shall not
be deemed a transfer within the meaning of this subsection;and
11.2.6.The right of the Association,through its Board of Directors,to enter
into,make,perform or enforce any contracts,leases,agreements.licenses,easements and
rights-of-way,for the use of real property or Improvements by Owners,other Persons,their
family members,licensees,guests and invitees,for any purpose(s)the Board of Directors
may deem to be useful,beneficial or otherwise appropriate;and
11.2.7.The right of the Association to close or limit the use of the Common
Elements while maintaining,repairing and making replacements in the Common Elements.
Section 11.3.Use of (‘ommon Elements by Declarant.
An easement is hereby granted to the Declarant on,over and through the Common Elements
as may be reasonably necessary for the purpose of discharging any of Declarant’s rights or
obligations or exercising an’Special Declarant Rights.and no Owner shall engage in any activity
which will temporarily or permanently interfere with the Declarant’s easements through the
Common Elements.
Section 11.4.Delegation of Use.
Any Owner may delegate such Owner’s rights of use of and access over the Common
Elements to the members of such Owner’s family,tenants,guests.invitees.or contract purchasers
who reside in or have possession of the Unit or Amenity Unit of such Ow ncr.
Section 11.5.New Additions to (‘ammo,,Elements.
The Declarant and the Association shall have the right to add or construct new additions to
the Common Elements.Ownership of any such additions to the Common Elements shall be
apportioned among all Units in proportion to the respective undivided interest in the Common
Elements appurtenant thereto,subject to the right of Declarant to designate any Common Elements
as Limited Common Elements.The Assessment liability for any such additions to the Common
Elements shall be apportioned among the Units and Amenity Units as provided in Article 4 of this
Declaration (Assessments).The construction of new additions to the Common Elements shall not
affect an Owner by way of modification of his voting power in the Association.
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Section 11.6.Use of Common Elements.
Subject to the rights of Declarant as provided in this Declaration,there shall he no
obstruction of the Common Elements,nor shall anything be kept or stored on any part of the
Common Elements.Other than those Improvements erected or installed by Declarant in its
completion of the Community,nothing shall be altered on,constructed in or removed from the
Common Elements except as provided in this Declaration.
Section 11.7.Designation of Comnon Elements.
Declarant in recording this Declaration has designated certain Elements of land as Common
Elements intended for the common use and enjoyment of Owners for recreation and other related
activities.The Common Elements are not dedicated hereby for use by the general public.
Section 11.8.Payment of Taxes or Insurance by Security Interest Holders.
Security Interest Holders shall have the right,jointly or singly,to pay taxes or other charges
or Assessments which are in default and which may or have become a lien against the Common
Elements and may pay overdue premiums on hazard insurance policies or secure new hazard
insurance coverage on the lapse of a policy for the Common Elements,and any Security Interest
Holders making any such payments shall be owed immediate reimbursement therefor from the
Association.
Section 11.9.Duty to Accept Property and Facilities Transferred by Declarant.
The Association shall accept title to all property,including personal property,equipment.
and easements,if any,transferred to the Association by the Declarant,together with responsibility
to perform all duties and functions of the Association which are set forth in this Declaration or
otherwise assumed by the Association (as long as such does not require the Association to perform
in a manner that is inconsistent with the duties and functions of the Association as provided in this
Declaration or the Articles of Incorporation or Bylaws of the Association).
Section 11.10.Prohibition on Partition of oninzo,i Elements.
The Comnton Elements shall he owned in common by all of the Owners and shall remain
undivided and not subject to partition.such that any purported conveyance,encumbrance,judicial
sale or other voluntary or involuntary transfer of an undivided interest in the Common Elements
made without the Unit or Amenity Unit to which that interest is allocated is void.By the
acceptance of a deed or other instrument of conveyance or assignment,each Owner specificallyaivessuchOwnersrighttoinstituteand/or maintain a partition action or any other action
designed to cause a division of the Common Elements.Furthermore,each Owner agrees that this
Section may be pleaded as a bar to the maintenance of such an action,.ny violation of this Section
shall entitle the Association to collect,jointly and severally,from the parties violating the same,the
actual attomeys’fees,costs,expenses and all damages that the Association incurs in connection
therewith.
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ARTICLE 12.MECHANIC’S LIENS
Section 12.1.Mechanic’s Liens.
No labor performed and/or materials furnished for use and incorporated in any Unit or
Amenity Unit with the consent or at the request of the Owner thereof,such Owner’s agent,
contractor or subcontractor,shall be the basis for the filing of a lien against a Unit or Amenity Unit
of any other Owner not expressly consenting to or requesting the same,or against any interest in the
Common Elements except as to the undivided interest therein appurtenant to the Individual Air
Space of the Owner for whom such labor shall have been performed or such materials furnished.
Each Owner shall indemnify and hold harmless each of the other Owners and the Association from
and against any liability or loss arising from the claim of any mechanic’s lien against the Unit of any
other Owner,the Common Elements,or any pan thereof,for labor perfonned and/or materials
furnished in work on the first Owiie?s Unit.
Section 12.2.Enforcement by the Association.
At its own initiative or upon the written request of any Owner or any Security Interest
Holder,if the Association determines that further action by it is proper and the mechanic’s lien(s)
are not disputed claims with a reasonable basis for such dispute,the Association,after notice and
hearing,shall enforce the indemnity provided by Section 12.1 of this Declaration (Mechanic’s
Liens)by collecting from the Owner of the Unit or the Amenity Unit on which the labor was
performed and/or materials furnished,the amount necessary to discharge any such mechanic’s lien.
including all costs and reasonable attorney’s fees incidental thereto,and obtain a discharge of such
lien.In the event that the Owner of the Unit or Amenity Unit on which the labor was performed
and/or materials furnished refuses or fails to so indemnify within seven (7)days after the
Association shall have given notice to such Owner of the total amount,or any portions thereof,
from time to time,to be indemnified,then the failure to so indemnify shall be a default by such
Owner under the provisions of this Section and such amount to be indemnified shall be and
constitute an additional Assessments for collection by the Association subject to all of the
provisions of Article 4 of this Declaration (Assessments).
ARTICLE 13.DISPUTE RESOLUTION
Section 13.1.Intent of4rtic!e;Applicability of Article;and Applicability of Statutes
of Limitation.
13.1.1.Each Party (as defined below)agrees to encourage the amicable
resolution of disputes,without the emotional and financial costs of litigation.Accordingly,
each Party covenants and agrees to submit all Claims (as defined below)each alleges to
have to the procedures set forth in this Article and not to a court of law.
13.1.2.By acceptance of a deed for a Unit (including without limitation each
Owner or Partial Interest Estate Owner)or an Amenity Unit each Owner agrees to abide by
the terms of this Article
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13.1.3.No claim (as defined below)may be initiated after the date when
institution of legal or equitable proceedings based on such Claim would be barred by the
applicable statute of limitation or statute of repose.
Section 13.2.Definitions Applicable to ii;is Article.
For purposes of this Article only.the following terms have the meanings set forth in this
Section:
13.2.1.“AAA”means the American Arbitration Association.
13.2.2.Claimant means any Party having a Claim.
13.2.3.“Claim”means,except as excluded or exempted by the terms of this
Article,any claim,grievance or dispute bet.veen one Party and another,regardless of how
the same may have arisen or on what it might be based,including without limitation those
arising out of or related to (a)the interpretation,application or enforcement of any of the
Governing Documents or the rights,obligations and duties of any Party under any of the
Governing Documents;(h)the design or construction of Improvements;(c)any statements.
representations,promises.warranties,or other communications made by or on behalf of any
Party.
13.2.4.“Inspecting Party”means a Party causing an inspection of the Subject
Property to be made.
13.2.5.“Party”means each of the following:Declarant.its officers,directors.
partners,members,employees and agents;the Association,its officers,directors and
members;any builder or contractor,and their respective officers,directors,members,
partners.employees and agents,who construct residences or other Improvements in the
Community:all Persons subject to this Declaration;any builder,its officers,directors.
partners,members.employees and agents;any Owner,whether of a “whole”Unit,a Partial
Interest Estate or an Amenity Unit;and any Person not otherwise subject to this Declaration
who agrees to submit to this Article.Notwithstanding the foregoing.“Pans’shall not
include any of the parties identified in this subsection 13.2.5,including but not limited to
Declarant.a builder,and/or any Owner,when such parties have jointly entered into a
separate written agreement providing for dispute resolution applicable to any claim as
between or among such parties;in such circumstance,the dispute resolution mechamsm set
forth in such separate written agreement between such parties shall apply with respect to
such claim unless the parties mutually agree to submit such claim to the provisions of this
Article.
13.2.6.“Respondent”means any Party against whom a Claimant asserts a
Claim.
13.2.7.“Subject Property”means the property being inspected pursuant to the
inspection right provided in Section 13.7 of this Declaration (Right to Inspect).
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13.2.8.“Termination of Mediation”means a period of time expiring forty-five
(45)days after a mediator has been agreed upon by the parties (however,a mediator shall be
selected no later than forty-five (45)days after the Claimant has given notice to the
Respondent of the Claim and if the parties are unable to agree on a mediator,one shall be
chosen by the AAA)and the mailer has been submitted to mediation (or within such other
time as determined by the mediator or agreed to by the Claimant and Respondent)and upon
the expiration of which the Claimant and Respondent have not settled the Claim.
Section 13.3.Approval Rcquiredfor Association Actions.
Except as provided in Section 13.6 of this Declaration (Exclusions from “Claim’),the
approval of eight>’percent (80%)of a quorum (as provided in Section 13.4 of this Declaration
(Notice and Quorum for Association Actions))of the Association votes cast by Members voting in
person or by proxy at a meeting duly called for this purpose.or voting pursuant to written ballot,
must be obtained before the Association shall have the power to institute action on any Claim
pursuant to this Article,or to make any counterclaim or cross-claim in any lawsuit or other action
brought against the Association.Such approval must be obtained in accordance with the
requirements of Section 13.4 of this Declaration (Notice and Quorum for Association Actions).
Section 13.4.Notice and QuornniJ’or Association Actions.
Written notice of any meeting of Members which includes a vote pursuant to Section 13.3
of this Declaration (Approval Required for Association Actions)shall be sent to all Members not
less than thirty (30)days nor more than fifty (50)days in advance of the meeting.Such written
notice,or if the vote is to be by written ballot then such written ballot,shall include the following
information:
13.4.1.A statement regarding the nature of the Claim.Such statement shall
include,without limitation,the name(s)of the proposed Respondent(s).the basis and reason
for the Claim.and any other information necessary to adequately explain the nature of the
proposed Claim;and
13.4.2.A good-faith estimate of the costs and fees,including court costs.the
fees of consultants.expert witnesses and attorneys,reasonably anticipated to be incurred by
or for the Association in prosecuting the Claim,with such estimate prepared by the primary
attorney the Board proposes to have prosecute the Claim on its behalf;and
13.4.3.A statement advising Members that the costs and fees of prosecuting any
Claim may substantially increase the amount of Assessments payable by the Owners to the
Association;and
13.4.4.A good-faith estimate of the manner in which any monies recovered
from the Claim will be distributed or paid to consultants,expert witnesses,the Association,
its attorney(s)and any others,prepared by the primary attorney the Board proposes to have
prosecute the Claim on its behalf;and
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13.4.5.A good faith estimate of the projected time frame for resolution of the
Claim;and
13.4.6.All terms and provisions of the agreement between the Association and
the attorney(s)the Board proposes to have prosecute the Claim.
The presence of Members or of proxies,or if by ballot then receipt by the Association of
written ballots,entitled to cast eighty percent (80%)of all of the Association votes,shall constitute
a quorum at any meeting at which the Members vote on approval of any Claim the Association
wishes to bring.
Section 13.5.Required Form of Proxy or Ballot
Each written proxy,and each ballot,which purports to vote on,or authorize a vote on,
approval of the Association bringing a Claim shall contain the following statement:
With full knowledge and understanding that my annual Assessments
may be significantly increased by the costs and fees associated with
the proposed claim,I/we APPROVE the authority of the Association
to bring such claim.
Section 13.6.Exclusions froni “Claim “.
Unless specifically exempted by this Article,all Claims between any of the Panics shall be
subject to the provisions of this Article.Notwithstanding the foregoing,unless all Panics thereto
otherwise agree.“Claim”does not include the following,whether such are brought by lawsuit.
counterclaim or cross-claim and the same shall not be subject to the provisions of this Article:
13.6.1.An action by the Association to enforce any provision of Article 4 of this
Declaration (Assessments);and
13.6.2.An action by the Association to obtain a temporaty restraining order orinjunction(or equivalent emergency equitable relief)and such other ancillary relief as the
court may deem necessary in order to enforce any of the provisions of Article 10 of thisDeclaration(Restrictions)or of Article 5 of this Declaration (Architectural Review);and
13.6.3.any suit between or among Owners,which does not include Declarant or
the Association as a party,if such suit asserts a Claim which would constitute a cause of
action independent of the Governing Documents;and
13.6.4.any suit in which any indispensable party is not a Party.
Section 13.7.Right to Inspect
Prior to an Party commencing any proceeding to which another Party is a party.including
but not limited to an alleged defect of any Improvement,the Respondent shall have the right to be
heard by the Claimant and.if any Claimant is the Association,by the Members,and to access.
inspect.colTect the condition of,or redesign any portion of any Improvement as to which a defect is
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alleged or otherwise correct the alleged dispute;provided,however,any correction to,or redesign
of an Improvement shall be made upon terms and conditions reasonably acceptable to all affected
Parties.In the exercise of the inspection rights contained herein,the Inspecting Party shah:
13.7.1.Be careM to avoid unreasonable intrusion upon,or harm,damage or
costs to the affected Party including,without limitation,using its best efforts to avoid
causing any damage to,or interference with,any Improvements to the Subject Property;
13.7.2.Minimize any disruption or inconvenience to any Person who occupies
the Subject Property;
13.7,3.Remove daily all debris caused by the inspection and located on the
Subject Property;and
13.7.4.In a reasonable and timely manner,at the sole cost and expense of the
Inspecting Party,promptly remove all equipment and materials from the Subject Property
and repair and replace all damage,and restore the Subject Property to the condition of the
Subject Property as of the date of the inspection unless the Subject Property is to be
immediately repaired.
The Inspecting Party shall not permit any lien,claim or other encumbrance arising from the
exercise of its right to inspect to accrue against or attach to the Subject Property.The Inspecting
Party shall indemnify,defend,and hold harmless the affected Owners and their tenants.guests.
employees and agents.against any and all liability,claims,demands,losses,costs and damages
incurred,including court costs and attorneys’fees.resulting from any breach of this Section by the
Inspecting Party.
Section 13.8.Mandatory Procedures.
13.8.1.Good Faith Negotiations.The Parties shall make every reasonable effort
to meet in person and confer for the purposes of resolving the Claim by good faith
negotiation.Any Party may be represented by attorneys and independent consultants to
assist such Party in negotiations and to attend meetings.
13.8.2.Notice.Prior to proceeding with any claim against a Respondent.each
Claimant shall give a notice to each Respondent,which notice shall state plainly and
concisely:
13.82.1.the nature of the Claim,including all persons involved and
Respondent’s role in the Claim;
13.8.2.2.the legal or contractual basis of the Claim (i.e.,the specific
authority out of which the Claim arises);and
13.8.2.3.the specific relief andlor proposed remedy sought.
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13.8.3.Mediation.
13.8.3.1.If the Parties do not resolve the Claim through negotiations
within thirty days after submission of the Claim to the Respondent(s),Claimant
shall have an additional thirty (30)days to submit the Claim to mediation under the
auspices of the AAA in accordance with the AAA’s Commercial or Construction
Industry Mediation Rules.as appropriate.
138.3.2.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 Respondent shall be released and discharged from an and
all liability to Claimant on account of such Claim;provided,nothing herein shall
release or discharge Respondent from any liability to any Person other than the
Claimant.
13.8.3.3.Any settlement of the Claim through mediation shall be
documented in writing by the mediator and signed by the Parties.If a Termination
of Mediation occurs,the mediator shall issue a notice of Termination of Mediation.
The Termination of Mediation notice shall set forth that the Parties are at an impasse
and the date that mediation was terminated.
13.8.3.4.Each Party shall bear its own costs of the mediation,including
attorneys’fees,and each Party shall share equally all charges rendered by the
mediator.
13.8.3.5.If the Parties agree to a resolution of any Claim through
negotiation or mediation in accordance with subsection 13.8.3 and any Party
thereafter fails to abide by the terms of such agreement.then any other Party may
file suit or initiate arbitration proceedings to enforce such agreement without the
need to again comply with the procedures set forth in this Section 13.8 of this
Declaration (Mandatory Procedures).In such event,the Party taking action to
enforce the agreement shall be entitled to recover from the non-complying Party (or
if more than one non-complying Party.from all such Parties pro rata)all costs
incurred in enforcing such agreement,including without limitation,attorneys fees
and court costs.
13.8.4.Binding Arbitradon.
13.8.4.1.Upon Termination of Mediation,if Claimant desires to pursue
the Claim,Claimant shall thereafter be entitled to initiate final,binding arbitration
of the Claim under the auspices of the AAA in accordance with the AAA’s
Commercial or Construction Industry Arbitration Rules,as appropriate.Any
judgment upon the award rendered by the arbitrator may be entered in and enforced
by any court having jurisdiction over such Claim.Unless otherwise mutually agreed
to by the parties to the Claim,there shall be one arbitrator who,to the extent
feasible,shall have expertise in the Elements(s)of dispute.which may include legal
expertise if legal issues are involved.
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13.8.4.2.Each Party shall bear its own costs and expenses and an equal
share of the arbitrator’s and administrative fees of arbitration.Notwithstanding the
foregoing.if a Party unsuccessfully contests the validity or scope of arbitration in a
court of law,the arbitrator or the court shall award reasonable attorneys’fees and
expenses incurred in defending such contests,including those incurred in trial or on
appeal,to the non-contesting Party.All decisions respecting the ability to arbitrate
any Claim shall be decided by the arbitrator.
13.8.43.The award of the arbitrator shall be accompanied by detailed
\\Titten findings of fact and conclusions of law.Except as may be required by law
or for confinnation of an award,neither a party nor an arbitrator may disclose the
existence,content,or results of any arbitration without the prior written consent of
all Parties to the Claim.
Section 13.9.Liability for Failure of Association to Maintain an Action.
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 are satisfied:(a)the director or officer was acting within the scope of such
director or officer’s duties;(b)the director or officer was not acting in bad faith;and (c)the act or
omission was not wiliflul.wanton or grossly negligent.
ARTICLE 14.UNITS;FRACTIONAL UNIT INTERESTS;PRIVATELY
OWNED AMENITIES
Section 14.1.Units and Fractional Unit Interests.
Declarant hereby initially creates I 65 residential Units within the Condominium,the
boundaries and identifying numbers of which are shown on the Condominium Map.Within each
Unit.Declarant has the right to create one Whole Unit Interest or several Fraction Unit Interests
consisting of the following interests,the sum of which shall total forty-eight (48)weeks:
14.1.1.One-Half (1:2)Interest.A one-half (1/2)interest shall consist of twenty-
four (24)weeks.
14.1.2.One-Quarter (1/4)Interest.A one-quarter (1/4)interest shall consist of
twelve (12)weeks.
14.1.3.One-Eighth (1/8)Interest.A one-eighth (1/8)interest shall consist of six
(6)weeks.
Section 14.2.Use Periods.
In any Fractional Unit Interest,each week of use shall commence and end on those dates
identified in the legal description for such Fractional Unit Interest.
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Section 14.3.Periods Reserved to Declarant.
The period commencing December and ending December 31,and in any leap year.
February 29.are reserved for the exclusive use and occupancy of Declarant and any Guest of
Declarant.
Section 14.4.Use of Units.
Units may be used only as a residence for Owners and Guests.No Owner shall conduct any
business.profession,occupation or trade from its Unit,including,without limitation,the operation
of a “bed and breakfast”or “chalet’overnight accommodation rental business.Notwithstanding the
foregoing.:
14.4.1.Declarant may use any Unit as a management office,residence or
combined management and residence for a resident manager;and
14.4.2.Declarant or any successor Declarant(s)may use any Unit owned by it as
a model or to conduct marketing and sales activities related to any Unit or related to any
direct or indirect ownership interest in any Unit;and
144.3.Declarant or any successor Declarant(s)may use any Unit for the
purpose of conducting a business involving a rental pool,vacation club or program or any
style or type of overnight accommodations programs.
Scctioi 14.5.Use k’Guests.
Declarant or an Owner may grant its right to use any Common Element or Limited
Common Element appurtehant to any Unit to the Declarant’s or Owner’s Guests only during
Declarant’s or such Owner’s Use Period.
Section 14.6.Fractional Interest Estates;Fractional Interest Units.
14.6.1.Obligation for Maintenance Fees.Evei’y Owner Association,or its duly
designated agent shall be obligated to pay to Maintenance Fees associated with such
Fractional Interest Estate.
14.6.2.FF&E.Owners of Fractional Interest Estates are required to purchase
from Declarant FF&E
14.6.3.Management Services.
The Association,or its duly designated agent.shall provide management
services providing billing and collecting charges.fees,nightly rental fees,and other
charges payable by Fractional Interest Estate Owners or Guests,performing such
maintenance,repair,renovation and cleaning as may be necessary and appropriate.
paying tax,utility and service charges incurred,including without limitation,tax
obligations,utilities,including electric,gas,water and sanitary sewer,cable.DSL.
broadband or other high-speed internet access service,telephone,and allocation or
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apportionment of such bills for regular services as among Fractional Interest Estate
co-tenants.
14.64.Fee Schedules.
The Association shall establish all fees and other price schedules and,in
connection with them,policies and procedures for their collection,their
receipt and the giving of receipts for all services or income of any nature
from the operation of the Fractional Interest Units.
14.6.4.1.Books and Records;Direct Pass Through of Costs and Expenses.
The Association,or its duly designated agent,shall maintain records of all costs and
expenses associated with the maintenance and use of a Fractional Interest Estate by
an Owner or Guest and such costs and expenses shall,if appLicable,be pro-rated and
be billed directly to the Owner.
14.6.5.Housekeeping and Maintenance Services
14.6.5.1.The Association,or its duly designated agent,shall maintain
those Units in which the ownership is vested in several Fractional Unit Interests (the
‘Fractional Interest Units’)in good order and repair and shall otherwise manage.
operate.maintain and decorate such Units as it deems necessary and appropriate.
The Association shall determine the color scheme,decor and furnishing of each
Fractional Interest Unit as well as the time for remodeling,reftirbishment and
redecorating of the Fractional Interest Units.
14.6.5.2.Owners of Fractional Interest Estates may not maintain,repair.
redecora1e or modify their Fractional Interest Unit,nor to contract with any Person
other than the Association to provide cleaning,housekeeping or maintenance
services for their Fractional Interest Units,If an Owner takes any action that is in
violation of this section.such Owner shall indemnify the Association for any cost or
expense incurred by the Association to remedy such decoration,modification.
subdivision.improven ent or alteration.
Section 14.7.Privately Owned Amenities.
14.7.1.Portions of the Community are Amenity Units,and may be Privately
Oxned Amenities,Privately Owned Amenities may be leased to the Association.In such
event,the use and enjoyment of Privately Owned Amenities by Owners and their Guests
may be conditioned on the existence of a valid and binding lease for Privately Owned
Amenities between the owner of the Privately Owned Amenities,as lessor,and the
Association,as lessee,and adequate performance thereunder by’the Association.
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ARTICLE 15.GENERAL PROVISIONS
Section 15.1.Enforcement;Fines.
Enforcement of the covenants,conditions,restrictions,easements,reservations,rights-of
vav.liens,charges and other provisions contained in this Declaration,the Articles of Incorporation.
Bylaws or rules and regulations of the Association,as amended.may be by any proceeding at law or
in equity against any Person(s)violating or attempting to violate any such provision.Except as
otherwise provided in this Declaration,the Association and any aggrieved Owner shall have the
right to institute,maintain and prosecute any such proceedings subject to Article 13 of this
Declaration (Dispute Resolution).For each claim,including,but not limited to.counterclaims.
cross claims and third-party claims,in any proceeding to enforce the provisions of CCIOA or any of
the Governing Documents,the prevailing party shall he awarded its reasonable collection costs and
attorney fees and costs incurred in asserting or defending the matter.Failure by the Association or
any Owner to enforce any covenant,restriction or other provision herein contained,or any other
provision of any 01’the aforesaid documents.shall in no event be deemed a waiver of the right to do
so thereafter.
Section 15.2.Severability.
All provisions of this Declaration,the Articles of Incorporation and the Bylaws of the
Association are severable.lnvalidation of any of the provisions of any such documents,by
judgment.court order or otherwise,shall in no way affect or limit any other provisions which shall
remain in full force and effect.
Section 15.3.conflict of Pro visioiis.
In case of any conflict between this Declaration and the Articles of Incorporation or the
Bylaws of the Association.this Declaration shall control.In case of any conflict between the
Articles of Incorporation and the Bylaws of the Association,the Articles of Incorporation shall
control.
Section 15.4.Antiexation.
15.4.1.Additional property may be annexed to this Declaration with the
consent,at the time such annexation is to be effective,of Members casting sixty-seven
percent (67%)of the Association votes and with the consent,at the time such annexation is
to be effective,of the owner of the property to be annexed.
15.4.2.Except as otherwise specifically stated in the document pursuant to
which property is annexed,all provisions of this Declaration,including,but not limited to,
those provisions regarding obligations to pay Assessments to the Association and any right
to cast votes as Members,shall apply to Units or the Amenity Units in the annexed property
immediately upon the effective date of the annexing document (which shall constitute the
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date of recording thereof unless otherwise stated in such document),Each annexation to
this Declaration,if any.shall be deemed to constitute an amendment to this Declaration.
Section 15.5.Declarant’s Use.
15.5.1.Notwithstanding anything to the contrary contained in this Declaration:
Declarant hereby reserves a right arid easement to perform development,construction,
reconstruction.repair and warranty work on the property described on the attached Exhibit
A:it shall be expressly permissible and proper for Declarant and its employees,agents and
contractors,to perform such reasonable activities,and to maintain upon portions of the
Community such facilities,as Declarant deems reasonably necessary or incidental to the
construction and sale of Units or Amenity Units,and development and construction of
Improvements,specifically inchiding.without limiting the generality of the foregoing.
maintaining management offices,signs.model units,construction offices,trailers and sales
offices.in such numbers.of such sizes,and at such locations as Declarant may determine
from time to time.Nothing contained in this Declaration shall limit the right of the
Declarant or require Declarant to obtain approvals:(a)to excavate,cut,nil or grade any
property owned by Declarant or to construct,alter,demolish or replace any Improvements;
(b)to use an)’structure on any property as a construction or management office,model,or
sales or leasing office,in connection with the development,construction or sale of any
property;and/or (c)to require Declarant to seek or obtain the approval of the Board of
Directors or of the Association for any activity or Improvement by Declarant on any
property owned by Declarant.
15.5.2.The Declarant anticipates constructing additional Condominium
Buildings and Amenity Units in the Community.Hence,notwithstanding anything to the
contrary,the Declaration and/or the Condominium Map may be amended in whole or in
part.at any time from time to time.by the Declarant without the consent or approval of any
other Owner,any Security Interest Holder,or any other Person,in order to complete and/or
provide for additional Condominium Buildings,Unit(s),Amenity Unit(s),Common
Elements and/or Limited Common Elements on any of the property described on Exhibit A.
Each such amendment shall be effective upon recording in the office of the Clerk and
Recorder of the City and County of Larimer,Colorado:one or more amendment to the
Condominium Map depicting such additions and changes;and one or more special
amendments to this Declaration in order to amend,supplement or replace Exhibit B to this
Declaration,subject to any further revisions to said Exhibit B by amendments to the
Condominium Map and/or Declaration as provided in this Declaration.
15.53.Subject to obtaining any and all requisite municipal approvals.Declarant
expressly reserves the right to change any Unit to an Amenity Unity,or any Amenity Unit to
a Unit,without the consent or approval of any other Owner,any Security Interest Holder,or
any other Person.
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Section 15.6.Designation of other Common Elements.
For the period of time until automatic termination of the Special Declarant Rights.as
provided in Section 132 of this Declaration (Special Declarant Rights).Declarant reserves the
unilateral right to convert any Common Elements into Limited Common Elements,and to allocate
such Common Elements or Limited Common Elements among one or more Units as Declarant.in
its sole discretion deems appropriate,for the period of time until automatic termination of the
Special Declarant Rights,as provided in Section 1.32 of this Declaration (Special Declarant
Rights).
Section 15.7.Duration,Revocation,and A,nendment.
15.7.1.Each and every provision of this Declaration shall run with and bind the
land perpetually from the date of recording of this Declaration.Except as provided in
Article 13 of this Declaration (Dispute Resolution),or elsewhere in this Section.this
Declaration may be amended by the vote or agreement of Members holding more than
sixty-seven percent (67%)of the Association votes.Notwithstanding anything to the
contrary contained in this Declaration,this Declaration may be amended in whole or in part.
at any time from time to time,by the Declarant without the consent or approval of any other
Owner,any Security Interest Holder,or any other Person,in order to correct clerical.
typographical or technical errors,which right of amendment shall expire and terminate as
provided in Section 1.32 of this Declaration (Special Declarant Rights).
15.7.2.Notwithstanding anything to the contrary contained in this Declaration.
this Declaration may he amended in whole or in part.at any time from time to time,by the
Declarant without the consent or approval of any other Owner,any Security Interest Holder.
or any other Person.in order to comply with the requirement.standards,or guidelines of
recognized secondary mortgage markets,the department of housing and urban development.
the federal housing administration,the veterans administration,the federal home loan
mortgage corporation,the government national mortgage association,or the federal national
niormage association.or any other governmental or quasi-governmental agency or any other
public,quasi-public or private entity which perfonm (or may in the future perform)
functions similar to those currently perfonned by any of the above-referenced entities,
which right of amendment shall expire and terminate as provided in Section 1.32 of this
Declaration (Special Declarant Rights).
15.7.3.Except as to amendments which may be made by the Declarant.
amendments to the Declaration may be prepared,executed,recorded,and certified by any
officer of the Association designated for that purpose or,in the absence of designation.by
the president of the Association.Such certification shall,in the case of an amendment
requiring the approval of Owners andlor Security Interest Holders of First Security Interests.certi that the Association has received the requisite approvals.Amendments to this
Declaration,which may be made by the Declarant pursuant to this Declaration,or as
permitted by CCIOA.may be signed by the Declarant and shall require no other signatory.
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Section 15.8.Registration of Mailing Address.
Each Owner and each Security Interest Holder,insurer or guarantor of a Security Interest.
shall register his mailing address with the Association,and except for annual statements and other
routine notices,all other notices or demands intended to be served upon an Owner,or upon a
Security Interest Holder,insurer or guarantor of a Security Interest,shall be sent by either registered
or certified mail,postage prepaid.addressed in the name of such Person at such registered mailing
address.However,if any Owner fails to notify the Association of a registered address,then an
notice or demand may be delivered or sent.as aforesaid,to such Owner at the address of such
Owners Unit or Amenity Unit.All notices,demands,or other notices intended to be served upon
the Board of Directors or the Association during the 75%Control Period shall be sent by registered
or certified mail,postage prepaid.to p.o.Box 637.Conifer.CO 80433,unless such address is
changed by the Association during the 75%Control Period;subsequent to termination of the 75%
Control Period,the Association shall notify the Owners of a different address for notices.
Section 15.9.No Priority Over Rights of Security Interest Holders of First Securiti’
Interests.
No provision of this Declaration,the Articles of Incorporation,or the Bylaws of the
Association give (or are intended to give)any Owner,or any other party.priority over any rights of
the Security Interest Holder of a First Security Interest,pursuant to its First Security’Interest,in the
case of payment to the Owner of insurance proceeds or condemnation awards for losses to or taking
of Units.Amenity Units andlor Common Elements.
Section 15.10.Limitation oil Liability.
The Association,the Board of Directors,the Declarant.and any officer,director,member.
partner.agent or employee of any of the same,shall not be liable to any Person for any action or for
any failure to act unless the action or failure to act was not in good faith and was done or withheld
with malice.The release and waiver set forth in Section 15.13 of this Declaration (Waiver)shall
apply to this Section.
Section 15.11.No Representations or Warranties.
No representations or warranties of an;kind,express or implied,shall be deemed to have
been given or made by the Association,the Board of Directors,the Declarant,and any officer.
director,member.partner.agent or employee of any of the same,in connection with any portion of
the Community.or any [mprovement,its or their physical condition,zoning,compliance with
applicable laws,fitness for intended use,or in connection with the subdivision,sale,operation.
maintenance,cost of maintenance,taxes or regulation thereof,unless and except as shall be
specifically set forth in writing.The release and waiver set forth in Section 15.13 of this Declaration
(Waiver)shall apply to this Section.
Section 15.12.Disclaimer Regarding Safety.
DECLARANT,THE ASSOCIATION,THE BOARD OF DIRECTORS,AND THEIR
RESPECTIVE OFFICERS,DIRECTORS,MEMBERS,PARTNERS,AGENTS AND
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EMPLOYEES,HEREBY DISCLAIM ANY OBLIGATION REGARDING THE SECURITY OF
ANY PERSONS OR PROPERTY WITHIN THE COMMUNITY.BY ACCEPTING A DEED
TO PROPERTY WITHIN THE COMMUNITY.EACH OWNER ACKflOWLEDGES THAT
DECLARANT.THE ASSOCIATION,THE BOARD OF DIRECTORS,AND THEIR
RESPECTIVE OFFICERS,DIRECTORS.MEMBERS.PARTNERS.AGENTS AND
EMPLOYEES,ARE ONLY OBLIGATED TO DO THOSE ACTS SPECIFICALLY
ENUMERATED HEREIN.OR [N THE ARTICLES OF INCORPORATION.BYLAWS.RULES
AND REGULATIONS.POLICIES AND PROCEDURES OF THE ASSOCIATION.AND ARE
NOT OBLIGATED TO DO ANY OTHER ACTS WITH RESPECT TO THE SAFETY OR
PROTECTION OF PERSONS OR PROPERTY WITHIN THE COMMUNITY.THE RELEASE
AND WAIVER SET FORTH IN SECTION 15.13 OF THIS DECLARATION (WAIVER)
SHALL APPLY TO THIS SECTION.
Section 15.13.Waiver.
By acceptance of a deed to a Unit or Amenity Unit,each Owner hereby releases,waives,
and discharges the Declarant,the Association,the Board of Directors,and their respective officers.
directors.members.partners.agents and employees,heirs,personal representatives,successors and
assigns.from all losses,claims,liabilities,costs,expenses,and damages,arising directly or
indirectly from any hazard.disclosure or risk set forth in this Declaration,including without
limitation,those contained in Sections 15.10 (Limitation on Liability),15.11 (No Representations
or Warranties)and 15.12 (Disclaimer Regarding Safety)of this Declaration,
Section 15.14.Headings.
The Article.Scction and subsection headings in this Declaration are inserted for
convenience of reference only.do not constitute a part of this Declaration,and in no way define,
describe or limit the scope or intent of this Declaration or any of the provisions hereof
Section 15.15.Gender.
Unless the context requires a contrary construction,the singular shall include the plural and
the plural the singular and the use of any gender shall be applicable to all genders.
Section 15.16.Run will,Land;Binding upon Successors.
The benefits.burdens and all other provisions contained in this Declaration shall be
covenants running with and binding upon the Community and all real property and Improvements
which are now or hereafter a part thereof The benefits.burdens and all other provisions contained
in this Declaration shall be binding upon.and inure to the benefit of the Declarant.the Association
and all Owners,and upon and to their respective heirs,personal representatives,successors and
assigns.
Section 15.17.Reservation Regarding Vacation Plan Provisions.
The Declarant may at any time as long as Declarant owns any portion of the property
described on the attached Exhibit A.modify,supplement andior amend the Declaration in whole or
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in part.at any time from time to time without the consent or approval of any Owner,any Security
Interest Holder,or any Person,in order to provide and designate Vacation Units.Further,to
provide that Vacation Units be subject to such additional provisions Declarant.in its discretion,
deems necessary to provide for,implement or establish any of the following:(a)a Vacation Plan:
(b)Limited Common Element(s)appurtenant to Vacation Units;(c)Vacation Plan Assessments:
and (d)any additional covenants,conditions or restrictions determined by Declarant deems
appropriate to institute and facilitate a vacation ownership plan.Each such special amendment or
special annexation shall be effective upon recording thereof in the office of the Clerk and Recorder
of Larimer County,C’olorado.Notwithstanding anything to the contrary contained in this
Declaration,in order to effect a vacation ownership plan,program or scheme relative to the
Vacation Units,it shall be expressly permissible and proper for Declarant to act by special
amendment or special annexation to implement covenants,conditions and restrictions that pertain
only to Vacation Units and that amend.modify or supersede any provisions set forth elsewhere in
this Declaration.
Section 15.18.Contracts Entered into Prior to Recording of Condominium Map and
Declaration.
A contract or other agreement for the sale of a Unit entered into prior to the filing for record
of the Condominium Map andlor this Declaration in the office of the Clerk and Recorder of the
County of Larimer.Colorado.may legally describe stich Unit in the manner set forth in Section
15.19 of this Declaration (Contracts Entered into Subsequent to Recording of Condominium Map
and Declaration)and may indicate that the Condominium Map and/or this Declaration are to be
recorded.Upon recordation of the Condominium Map and this Declaration in the County of
Larimer.Colorado,such description shall be conclusively presumed to describe the corresponding
Unit shown on the Condominium Map and such Unit shall be subject in all respects to this
Declaration.
Section 15.19.Contracts Entered into Subsequent to Recording of condominium
Map and Declaration.
Subsequent to the recording of the Condominium Map and this Declaration,every contract.
deed,lease.mortgage.deed of trust,will and every other instrument affecting title to a Unit ma
legally describe that Unit as follows:
(residential Unit legal description)
Unit Number
_________.
Condominium Building Number
_________
of Fall River Village Condominiums,a common interest
community,according to the Condominium Map thereof,recorded
on
___________,
200 ,at Reception No.
___________,
in
the records of the office of the Clerk and Recorder of the County of
Larimer,Colorado,and as defined and described in the Declaration
of Covenants.Conditions and Restrictions of Fall River Village
Condominiums,recorded on
_________
.200 ,at Reception
No.in said records.
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(Amenity Unit legal description)
Amenity Unit Number_________of Fall River Village
Condominiums,a common interest community,according to the
Condominium Map thereof,recorded on
_________.
200 at
Reception No.
_______________.
in the records of the office of the
Clerk and Recorder of the County of Larimer,Colorado,and as
defined and described in the Declaration of Covenants,Conditions
and Restrictions of Fall River Village Condominiums,recorded on
__________
200 at Reception No.
_____________
in said
records.
Section 15.20.Legal Effect of Description.
Every contract,deed,lease,mortgage.deed of trust,will and every other instrument
affecting title to a Unit which legally describes said Unit substantially in the manner set forth in
Section 15.19 of this Declaration (Contracts Entered into Subsequent to Recording of
Condominium Map and Declaration)shall be good and sufficient for all purposes to sell,convey.
transfer,encumber or otherwise affect the Unit,including the undivided interest in the Common
Elements appurtenant thereto and all other appurtenant properties and property rights,and to
incorporate all of the rights,limitations and burdens incident to ownership of a Unit as described in
this Declaration and the Condominium Map.Each such description shall be construed to include
all of the applicable rights and obligations that are set forth in this Declaration.
Section 15.21.Taxation.
Each Unit shall he assessed separately for all taxes,assessments and other charges of the
State of Colorado,any political subdivision thereof,any special improvement district,and any other
taxing or assessing authority,in accordance with CCIOA.For the purpose of such assessments,the
valuation of the Common Elements shall be apportioned among the Units in proportion to thc
undivided interest in the Common Elements appurtenant to the Unit in question.The Association
shall furnish to the Tax Assessor of the County of Larimer.Colorado,and to all other appropriate
Persons and authorities,all necessary information with respect to such apportionment.No
forfeiture or sale of any Unit for delinquent taxes,assessments or other governmental charges shall
divest or in any way affect the title to any other Unit.
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Section 15.20.Legal Effect of Description.
Every contract.deed,lease,mortgage,deed of trust,will and every’other instrument
affecting title to a Unit which legally describes said Unit substantially in the marmer set forth in
Section 1.2 of this Declaration (Contracts Entered into Subsequent to Recording of Condominium
Map and Declaration)shall be good and sufficient for all purposes to sell,convey,transfer.
encumber or otherwise affect the Unit,including the undivided interest in the Common Elements
appurtenant thereto and all other appurtenant properties and property rights,and to incorporate all
of the rights,limitations and burdens incident to ownership of a Unit as described in this
Declaration and the Condominium Map.Each such description shall be construed to include all of
the applicable rights and obligations that are set forth in this Declaration.
Section 15.21.Taxation.
Each Unit shall be assessed separately for all taxes,assessments and other charges of the
Stale of Colorado.any political subdivision thereof,any special improvement district,and any other
taxing or assessing authority,in accordance with CCIOA.For the purpose of such assessments,the
valuation of the Common Elements shall be apportioned among the Units in proportion to the
undivided interest in the Common Elements appurtenant to the Unit in question.The Association
shall furnish to the Tax Assessor of the County of Larirner,Colorado.and to all other appropriate
Persons and authorities.all necessary information with respect to such apportionment.No
forfeiture or sale of any Unit for delinquent taxes,assessments or other governmental charges shall
divest or in any way affect the title to any other Unit.
Section 15.22.Inseparability.
Each Unit,as well as all other appurtenances,rights and burdens connected therewith
(including without limitation the Common Elements and Limited Common Elements).shall he
inseparable and may be transferred,conveyed,leased,devised,encumbered or otherwise disposed
of only as a Unit.Every conveyance,transfer,devise,lease,encumbrance or other disposition of a
Unit shall be deemed to be a conveyance,transfer,devise,lease,encumbrance or other disposition,
as the case may be,of the entire Unit,together with all appurtenant rights,interests,duties and
obligations created by law or by this Declaration (including without limitation the Common
Elements and Limited Common Elements).
IN WITNESS WHEREOF.the undersigned.beina the Declarant herein,has hereunto set its
hand and seal this
____
day of -4fr7 .2007.
DECLARANT:
FALL RIVER VILLAGE COMMUNITIES,LLC,
a Colorado limited liability company
By:
__
Title:‘øps kE&j—
STATE OP COLORADO
Count;’of \)
The foregoing instrument was acknowledged
2007,by /JaI tsf L jems
COMMUNITIES,LLC,a Colorado limited liability company,on its behalf.
Witness my hand and official seal.
{SEAL}
Mv commission expires:
iriall river village codnmunIli
C C
)ss
•ifr -betore mc this r day of \J t:11
of FALL RIVER VILLAGE
:
Notary Public
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EXHIBIT A
TO
DECLARATION OF COVENANTS.
CONDITIONS AND RESTRICTIONS OF
FALL RIVER VILLAGE CONDOMINIUMS
(Community)
Lot 8 and all easements of record that benefit Lot 8,
Fall River Village Final PUD.
County of Larimer.
State of Colorado
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EXHIBIT B
TO
DECLARATION OF COVENANTS.
CONDITIONS AND RESTRICTIONS OF
FALL RIVER VILLAGE CONDOMINIUMS
(Allocated Interests)
Unit No.or Allocated Interest and Undivided Interest in
Amenity Unit Condominium Building Appurtenant Common Elements
180 1 1/10
181 1 1/10
182 1 1/10
183 1/10
184 1 1/10
185 1 1/10
186 1 1/10
187 1 1/10
188 1/10
189 1 1/10
*The Allocated Interest,and undivided interest in the Common Elements,that are allocated or
appurtenant to each Unit are subject to change as more frilly provided in the Declaration,including
without limitation Section 15.4 of the Declaration (Annexation;Withdrawal).
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EXHIBIT C
TO
DECLARATION OF COVENANTS.
CONDITIONS AND RESTRICTIONS OF
FALL RIVER VILLAGE CONDOMINIUMS
(Certain Title Exceptions)
The following documents.if they are recorded,are recorded in the office of the Clerk and
Recorder of Larirner County,Colorado:
REAL PROPERTY TAXES AND ASSESSMENTS FOR THE YEAR OF
RECORDING OF THE DECLARATION OF COVENANTS,CONDITIONS
AND RESTRICTIONS OF FALL RIVER VILLAGE CONDOMINIUMS AND
SUBSEQUENT YEARS,NOT YET DUE AND PAYABLE.
2.RIGHT OF WAY EASEMENT IN INSTRUMENT RECORDED APRIL 1.1983
IN BOOK 2213 AT PAGE 1124.
3.RIGHT OF WAY FOR UNDERGROUND PIPELINE AS SET FORTH IN
WARRANTY DEED RECORDED JULY 10,1953 IN BOOK 952 AT PAGE 441.
4.TERMS.CONDITIONS AND PROVISIONS OF WARRANTY DEED
RECORDED OCTOBER 17.1962 IN BOOK 1185 AT PAGE 497.
5.TERMS.CONDITIONS AND PROVISIONS OF EASEMENT RECORDED
OCTOBER 25,1968 IN BOOK 1396 AT PAGE 686.
6.EASEMENT GRANTED TO THE ESTES PARK SANITATION’DISTRICT.
FOR SANITARY SEWER PIPELINE,AND INCIDENTAL PURPOSES.BY
INSTRUMENT RECORDED MAY 23.1979.IN BOOK 1859 AT PAGE 849.
7.TERMS.CONDITIONS AND PROVISIONS OF GRANT OF EASEMENT
RECORDED DECEMBER 02,1977 IN BOOK 1818 AT PAGE 156.
8.EASEMENT GRANTED TO THE MOUNTAIN BELL TELEPHONE
COMPANY.FOR UTILITIES,AND INCIDENTAL PURPOSES,BY
INSTRUMENT RECORDED SEPTEMBER 12,1980.IN BOOK 2069 AT PAGE
637.
9.EASEMENTS.CONDITIONS.COVENANTS,RESTRICTIONS.
RESERVATIONS AND NOTES ON THE RECORDED PLAT OF SUNNY
ACRES AND SUI’INY ACRES AMENDED.
10.EASEMENTS,CONDITIONS,COVENANTS,RESTRICTIONS,
RESERVATIONS AND NOTES ON THE RECORDED PLAT OF FALL RIVER
VILLAGE FINAL P.U.D.
11.TERMS.CONDITIONS AND PROVISIONS OF DEVELOPMENT
AGREEMENT RECORDED MAY 25,2004 AT RECEPTION NO.2004-
0050114.
12.EASEMENTS,CONDITIONS.COVENANTS.RESTRICTIONS.
RESERVATIONS AND NOTES ON THE RECORDED DEVELOPMENT
PLANS FOR FALL RIVER VILLAGE COMMUNITIES RECORDED MAY 25.
2004 AT RECEPTION NO.2004-0050115.
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