HomeMy WebLinkAboutDECLARATION Mountain River Townhomes Covenants, conditions and Restrictions 2014-11-06INDEX
DECARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR
MOUNTAIN RIVER TOWNHOMES
Article I -Definitions
Article II -Property Subject to Declaration; Additions
Article III-Association Structure and Format
Article IV-Duties and Powers of Mountain River Townhomes Association, Inc.
Article V-Covenants for Assessments
Article VI-Use and Other Restrictions
Article VII -Insurance
Article VIII -V arlo us Rights and Easements
Article IX -Architectural Review
Article X-Termination and Amendment of Declaration
Article XI -Condemnation, Damage or Destruction to Common Area
Article XII-Mortgagee's Rights
Article XIII -Rights Reserved by Declarant
Article XIV-Required Allocation of Interests
Article XV-General Provisions
DECARATION OF COVENANTS, CONDffiONS AND RESTRICTIONS FOR
MOUNTAIN RIVER TOWNHOMES
B and L Development, LLC, a Colorado limited liability company, hereinafter referred to as
Declarant, being the owner of the real property situate in the County of Larimer, State of Colorado,
described as follows:
Commencing at a point in the center of the Big Thompson River whence the Southeast
corner of Section 26, Township 5 North, Range 73 West of the 6th P.M. bears South
24 degrees 15 minutes East 531 feet; running thence Southwesterly along the center
of said river 118.4 feet; thence North 36 degrees 09 minutes West 599.2 feet to the
Northerly line of tract heretofore conveyed of record by Freelan 0. Stanley to Joseph
B. Sella and Hattie L. Sella, thence North SO degrees 15 minutes East 62.7 feet; thence
North 63 degrees 37 minutes East 163 feet; thence South 26 degrees 23 minutes East
644 feet to tbe Point of Beginning,
AND
Commencing at a point in the center of Big Thompson River whence the Southeast
corner of Section 26, Township 5 North, Range 73 West of the 6th P.M. bears South
24 degrees 15 minutes East 531 feet; thence North 26 degr.-:es 23 minutes East 644 feet
to the South boundary line of Main road to Estes Park, thence along South boundary
of road North 63 degrees 37 minutes East 409.40 feet; thence South 26 degrees 23
minutes East 506.82 feet to center of river, thence along said center line South 89
degrees 27 minutes West 61.55 feet; thence South 63 degrees 47 minutes West 177.50
feet; thence South 03 degrees 57 minutes West 116 feet; thence South 13 degrees 57
minutes West 87.20 feet; thence South 65 degrees 22 minutes West 61.40 feet to the
Point of Beginning,
County of Larimer, State of Colorado
does hereby submit said property ("Property") to the provisions of the Colorado Common Interest
Ownership Act, Article 33.3 Title 38, Colorado Revised Statutes, for the purpose of creating Mountain
River Townhomes, a planned community; and does hereby declare that the Property above described shall
be held and conveyed subject to the terms, covenants, restrictions, conditions and easements set forth in
this Declaration of Covenants, Conditions and Restrictions for Mountain River Townhomes ("Declaration")
and any amendments hereto.
Declarant, for itself, its successors and assigns, hereby declares that the Property shall be owned,
held, transferred, conveyed, sold, leased, rented, hypothecated, encumbered, used, occupied, maintained,
altered and improved subject to the covenants, conditions, restrictions, limitations, reservations, exceptions
and equitable servitudes and all other provisions set forth in this Declaration and any amendments hereto,
all of which shall run with the title to such Property and be binding upon all parties having any right, title
or interest in said Property or any part or portion thereof and upon their heirs,
devisees, personal representatives, beneficiaries, grantees, successors and assigns.
This Declaration, as may be amended as herein provided, shall be deemed to run with the above
described Property.
The name of this common interest community shall be the Mountain River Townhomes.
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1
I
ARTICLE I
DEFINITIONS
A. "Act" means the Colorado Common Interest Ownership Act, Article 33.3, Title 38,
Colorado Revised Statutes, as may be amended.
B. "Association" or "Corporation" mean Mountain River Townhomes Association, Inc., a
Colorado nonprofit corporation, its successors and assigns. (The Colorado Nonprofit Corporation Act shall
also apply thereto.)
C. "Association Maintenance Area" shall mean any portion of a Residential Lot in the Mountain
River Townhomes which is located outside of the Dwelling Unit constructed on such Residential Lot
excluding however, any driveways, roofs, walks or patios located on the Residential Lot, as set forth in
more detail in Article IV of this Declaration, below.
D. "Assessment" or "Assessments" shall mean any assessment levied, charged or assessed against
an Owner in accordance with the Provisions of this Declaration.
E. ''Assessable Unit" shall mean and refer to any real property within the Property which is subject
to assessments.
F. "Board" or "Board of Directors" or "Directors" shall mean the board of directors of the
Association.
G. "Bylaws" shall mean the duly adopted bylaws of the Association as the same may be amended
from time to time.
H. "Common Area" shall mean all real property and Improvements owned or leased by the
Association which shall include by way of example but without limitation, all common area lighting,
Outlots A, B, and C, Moreau Lane and Bird Circle as shown on the recorded plat map for the Property, any
entryway, all common area lighting, stone benches, trash dumpster locations, all sprinkling or irrigation
systems installed to irrigate any Association Maintenance Area, landscaped areas or other common areas.
Said areas are intended to be devoted to the common use and enjoyment of Owners (subject to the provisions
of this Declaration) and are not dedicated for use by the general public except as otherwise may be indicated
on the plat map for the Property recorded in the real estate records of the Clerk and Recorder of Larimer
County, Colorado. The definition of Common Area shall expressly exclude any public streets or alleys as
shown on the plat map for the Property identified above. The common area shall be owned by the
Association at the time of the conveyance of the first Lot in the Property.
I. "Common expenses" shall include expenses herein declared to be common expenses; and
other expenses determined to be common expenses as herein provided.
J. "Declaration" shall mean the covenants, conditions, and restrictions, and all other provisions
herein set forth in this entire document as may be amended from time to time.
K. "Developer" or "Declarant" shall mean B and L Development, LLC, a Colorado limited liability
company, its successors and assigns; provided, however, that no successor or assignee of the Developer or
Declarant shall have any rights or obligations of the Developer or Declarant hereunder unless such rights
and obligations are specifically set forth in the instrument of succession or assignment or which pass by
operation oflaw.
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L. "Improvements" shall mean to all improvements now or hereafter constructed including, without
limitation, all Association exterior lighting, trash dumpsters, benches and walks within the Property owned
by the Association.
M. "Living Unit" or "Dwelling Unit" shall mean and refer to any structure situated on a Lot within
the Property designated and intended for use and occupancy as a residence by a single family.
N. "Lot" or "Residential Lot" shall mean to any numbered area of land shown as such upon any
recorded plat map for the Property with the exception of Common Area as defmed herein.
0 . "Member" shall mean to the Person designated as such pursuant to Article DI below.
P. "Mortgage" shall mean a mortgage, deed of trust, or other similar security instrument held or
owned by a Mortgagee which encumbers any Lot and/or Living Unit.
Q. "Mortgagee" shall mean a mortgagee under a Mortgage or a beneficiary under a deed of trust or
similar security instrument pursuant to the laws of the State of Colorado. For the purposes of this
Declaration and the Bylaws, no Person shall be deemed a mortgagee until written notice of such interest
has been given to the Association together with the name and address of the mortgagee.
R. "Moreau Lane and Bird Circle" shall mean the shared driveways on the Property as shown on
the recorded plat map.
S. ''Notice" shall mean (i) written notice delivered personally or mailed or electronically mailed or
delivered to the last known address of the intended recipient or (ii) notice through an Association
publication which is delivered to the Living Unit or delivered electronically. ''Notice to Mortgagee" shall
mean only written notice delivered personally or mailed or electronically mailed or delivered to the last
known address of the intended recipient and not notice through an Association publication.
T. "Owner" means any person, persons, corporation, limited liability company, partnership, or
other legal entity, or any combination thereof, who or which owns the record fee simple interest in one or
more Lots and shall include the purchaser under any real estate contract or land sale contract. The term
"Owner" shall include any grantee, transferee, heir, successor, personal representative, executor,
administrator, devisee and assign of any Owner but shall not refer to any Mortgagee as herein defined or
other person or entity having an ownership interest in any Lot merely as security for the performance of an
obligation, unless such Mortgagee or other person has acquired title to such Lot pursuant to foreclosure or
any proceeding in lieu of foreclosure.
U. "Person" shall mean an individual or individuals, corporation, limited liability company,
partnership, association, trust or other legal entity, or any combination thereof.
V. "Property'' shall mean to all real property as legally described on page 1 of this Declaration
which is subject to this Declaration, as amended or supplemented.
W. "Quorum" shall mean the representation by presence or proxy of Members who hold fifty
percent (50%) of the outstanding votes entitled to be cast on any issue. Notwithstanding any provision to
the contrary in this Declaration, Declarant shall retain 51% of the outstanding votes until 75% of the
Dwelling units have been sold.
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X. "Related User'' shall mean any member of the family of an Owner who resides with such Owner;
guests and invitees of an Owner: employees and agents of an Owner; and occupants, tenants and contract
purchasers residing in a Dwelling Unit of an Owner who claim by or through an Owner.
Y. "Rules & Regulations" means those rules and regulations adopted from time to time by
the Board of Directors of the Association, as herein provided.
Z. "Single Family" shall have the same meaning as that term is defined in the zoning ordinance of
the Town of Estes Park, County of Larimer, Colorado as of the date of the recording of this Declaration or
as amended in the future by the governing body of the Town of Estes Park.
AA. "Special Declarant Rights" means certain rights reserved to the Declarant as hereinafter
provided.
ARTICLE II
PROPERTY SUBJECT TO TillS DECLARATION: ADDITIONS
A. The Property as defined and legally described above located in Larimer County, Colorado
shall be held, transferred, sold, conveyed and occupied subject to this Declaration.
B. Declarant reserves the right, but not the obligation, to expand the Property without the
approval of the Owners or First Mortgagees, to include additional property and one or more additional
Dwelling Units. However, the total number of Dwelling Units shall not exceed 26. By accepting a deed to
a Lot, each Owner herby grants to Declarant the right to expand the Property and to modify the Owner's
rights, title and interest in the Common Area accordingly, as set forth in this Article II.
C. Additions to the Property may be made by Declarant by the recordation of one or more
supplemental Association Declaration or other written instrument(s) signed by Declarant. Such
supplemental Association Declaration or other written instrument(s) shall contain legal descriptions of the
additional real property which shall become part of the Property and shall declare that such property shall
be subject to this Declaration. Upon the recordation of such supplemental Association Declaration or other
written instrument(s), the property described therein shall be subject to the terms, covenants, restrictions,
conditions and easements set forth in this Declaration
ARTICLE Ill
ASSOCIATION STRUCTURE AND FORMAT
A. The Association is a nonprofit corporation organized and existing under the laws of
Colorado, charged with the duties and vested with the powers prescribed by law and set forth in the Articles
of Incorporation and Bylaws, as such may be amended from time to time, provided that said Articles of
Incorporation and Bylaws shall not for any reason be amended or otherwise changed or interpreted so as to
be inconsistent with this Declaration.
B . Membership.
( 1) Membership shall be appurtenant to the Lot giving rise to such membership, and shall not
be assigned, transferred, pledged, hypothecated, conveyed or alienated in any way except
as provided in the Declaration, Articles oflncorporation or Bylaws.
(2) Each Member shall have the rights, duties and obligations set forth in this Declaration, the
Articles of Organization or Bylaws.
(3) The Association shall have one class of voting membership and the Owner of a Lot shall
be entitled to one vote for each Lot owned.
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( 4) A membership shall be appurtenant to and may not be separated from record ownership of
a Lot, and such membership shall automatically transfer to the new Owner upon any sale,
transfer, or other disposition of a Lot subject to the provisions of this Declaration and any
amendments thereto. There shall not be more than one Member for any Lot located within
the Property. Upon transfer, sale, or other disposition of all or some ofthe fee interest in a
Lot, then the new Owner shall automatically become the Member with respect to such Lot.
The vote for any Membership which is held by more than one person may only be exercised
by one person, or if the Owner is a corporation or limited liability company, by an officer
or member of such entity. A written notice subscribed to by all of such persons or by such
corporation or limited liability company, as the case may be, designating one of such
persons or an officer or member of such entity as the person entitled to cast the vote with
respect to such Lot shall be delivered to the Secretary of the Association prior to the start
of any annual or special meeting of the Association. Without this written notice, the vote
for the Membership shall not be counted.
C. Board.
(1) The number ofDirectors shall be as provided in the Articles oflncorporation and Bylaws.
(2) The Board shall have all powers for the conduct of the affairs of the Association which
are enabled by law, the Declaration, the Articles of Incorporation and the Bylaws of the
Association which are not specifically reserved to the Members, the Declarant or the
Architectural Review Committee by such documents.
(3) The Board shall exercise its powers in accordance with the Declaration, Articles of
Incorporation and Bylaws.
ARTICLE IV
DUTIES AND POWERS OF THE MOUNTAIN RIVER
TOWNHOMES ASSOCIATION. INC.
A. General Duties and Powers of Association. The Mountain River Townhomes Association,
Inc, has been formed to further the common interests of the Members of the Association. The Association,
acting through its Board or persons to whom the Board has delegated such powers, shall have the duties
and powers hereinafter set forth and, in general, the power to do anything that may be necessary or desirable
to further the common interests of the Members of the Association, to maintain, improve and enhance the
Common Area and to improve and enhance the attractiveness and desirability of the Property and Mountain
River Townhomes community.
B. Duty to Accept and Maintain Property and Improvements Transferred by Declarant. The
Association shall accept title to and maintain any Common Area, including any Improvements thereon and
personal property or equipment transferred to the Association by Declarant, together with the responsibility
to perform any and all of the functions set forth in this Declaration in connection therewith, provided that
such property and functions are not inconsistent with the terms of this Declaration. Real property interests
transferred by Declarant to the Association shall consist of fee simple title to the Common Area. Except as
otherwise specifically approved by resolution of the Board of the Association, no real property transferred
to the Association by Declarant and no personal property transferred to the Association by Declarant shall
impose upon the Association any obligation to make monetary payments to Declarant nor any affiliate of
Declarant, including, but not limited to, any purchase price, rent, charge or other fee. The interest in
property transferred to the Association by Declarant shall not impose any unreasonable or special burden
on the Association other than the duties set forth herein. The Association shall maintain, repair and replace
Moreau Lane and Bird Circle. Except as set forth in Article IV, Section D below regarding snow removal,
an Owner, at such Owner's sole cost and expense, shall be responsible for all maintenance, repair and
replacement of such Owner's private driveway(s).
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C. Duty to Manage and Care for the Association Lighting and Storm Drainage Easements.
Upon commencement of the Common Assessments and following the installation of the Association
lighting and storm drainage easements, the Association shall manage, operate, care for, maintain, repair and
replace the Association lighting and storm drainage easements and keep the such Association lighting and
storm drainage easements in a neat, attractive and desirable condition.
D. Dutv to Remove Snow from Public Sidewalks, Moreau Lane and Bird Circle and Private
Driveways. Upon commencement of Common Assessments, the Association shall remove snow as
reasonably necessary from public sidewalks, Moreau Lane, Bird Circle, and private driveways located on
a Lot within the Property. This duty shall not extend to any private walk leading from a Dwelling Unit to
a driveway or adjacent street and shall also !!Q! extend to any patio/deck area on or adjacent to a Dwelling
Unit. An Owner, at such Owner's sole cost and expense, shall be responsible for all snow removal from
such private walks and from any patio/deck area on a Lot. The Board shall be responsible for determining
the minimum snow depth level which will require snow removal to be performed by the Association. The
Town of Estes Park shall not be responsible for snow removal from Moreau Lane, Bird Circle or other
driveways.
E. Duty to Manage and Care for Association Maintenance Areas. Upon commencement of
Common Assessments and following the installation of landscaping, lighting, or other Improvements by
Declarant in Association Maintenance Areas, the Association shall manage, operate, care for, maintain and
repair common area landscaping or other common area Improvements (other than any private walks,
driveways, and patios/decks) installed in the Association Maintenance Areas by Declarant, including all
irrigation systems therein and common water meters for irrigation water therefor on the Maintenance Areas.
The Association shall keep the Association Maintenance Areas (other than private walks, driveways, roofs,
and patios/decks located in the Association Maintenance Areas) in a safe, attractive and desirable condition
for the use and enjoyment of the Owner of the Lot on which the Association Maintenance Area is located.
As provided hereinafter, the Owner of the Lot shall provide for maintenance, repair and replacement of any
private walks, driveways, roofs and patios/decks in the Association Maintenance Areas of the Lot. If the
Owner of a privately owned Lot desires to change the boundaries of the Association Maintenance Area
located on such Owner's privately owned lot, such Owner shall give written notice to the Association. Any
such change shall be effective only upon the execution of a written agreement by and between such Owner
and the Association setting forth the new boundaries of the Association Maintenance Area located on such
privately owned Lot and containing such other terms and conditions as shall be deemed advisable by the
Association in its sole discretion, which written agreement shall be recorded in the records of the Larimer
County Clerk and Recorder by the Association. The terms and conditions of any such written agreement
between the Association and the Owner of a privately owned Lot shall run with title to such privately
Owned Lot and shall also be binding upon each subsequent Owner of such privately owned Lot. If a change
or alteration to an Association Maintenance Area is approved in accordance with the foregoing and if such
change or alteration results in either an expansion or contraction of that Association Maintenance Area, the
Association's duty to manage and care for the Association Maintenance Area, as provided herein, and the
corresponding obligation ofthe Owner of the privately owned Lot to maintain the remainder of his or her
privately owned Lot, as hereinafter provided, shall either be increased or decreased, as is appropriate;
provided, however, that no such change to an Association Maintenance Area shall alter the amount of the
assessment payable by the Owner thereof. Any such change or alteration to the Association Maintenance
Area shall only be made or done by the Association or its authorized agents, or contractors approved by the
Association.
F. Dutv to Paint/Stain and Refinish Exterior Surfaces. "Exterior Surfaces" shall mean the
exterior surfaces ofDwelling Units on any Lot within the Property including the exterior surfaces of walls,
gutters, decks, deck railings, deck steps, and downspouts. "Exterior Surfaces" shall not include any portion
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or portions of a Dwelling Unit which are stone surfaces, glass, roofs, garage doors, any walks and
driveways, any screens on windows and doors, and the surface of any patio located on a Lot whether
constructed of wood, concrete or other material. The Association shall paint/stain and refinish "Exterior
Surfaces" as defined in this Section. The Association shall see that all such Exterior Surfaces are adequately
painted/stained and refmished so as to present, at all times, a pleasing and attractive appearance. The nature
and type of any painting/staining and refinishing, including the color thereof, shall be within the sole
discretion of the Association. Such painting/staining and refinishing ofExterior Surfaces shall be done at
the expense of the Association except that, if the Association is required to incur costs and expenses due to
the willful ornegligent act or failure to act of an Owner or a Related User of an Owner, the amounts incurred
shall be payable by such Owner to the Association secured by a lien as provided in this Declaration.
The Owner of a Lot shall, at such Owner's sole cost and expense, be responsible for all
maintenance, repair and replacement (excluding painting/staining and refmishing as set forth herein) of
walls, gutters, decks, deck railings, deck steps, and downspouts. The Owner of a Lot shall, at such Owner's
cost and expense, also be responsible for maintenance, repair, replacement and care of all stone surfaces
and glass on the Dwelling Unit, all exterior doors on such Dwelling Unit, garage doors, all screens on doors
and windows of such Dwelling Unit, all roofs (only Owens Coming, Tru Definitions, Duration Series, Teak,
240# shingles shall be used by an Owner for any maintenance, repair, care or replacement of any roof), and
all patios, walks, and driveways located on the Lot, whether constructed of wood, concrete or other
materials.
G . Duty to Provide Common Trash Dumpsters and Trash Collection. Upon commencement
of Common Assessments and following the installation of bear resistant dumpsters by the Declarant, the
Association shall be responsible for providing for trash collection from said bear resistant dumpsters. The
Board shall coordinate the scheduling of such trash collection with a trash collection contractor or other
entity which provides trash collection services.
H. Dutv to Pay Taxes. The Association shall be obligated to pay all taxes levied on any
property or facilities transferred to or acquired and owned by the Association except taxes applicable to the
period prior to transfer of such property or facilities by Declarant which shall be prorated as of the time of
such transfer and paid by Declarant. The Association may contest the validity or applicability of any such
taxes so long as such contest does not jeopardize the title of the Association to any such property or
facilities.
I. Duty to Prepare Budgets. The Association shall prepare budgets for the Association as
provided elsewhere in this Declaration.
J. Duty to Levy and Collect Assessments. The Association shall levy and collect
Assessments as provided elsewhere in this Declaration.
K. AY!lli.,. The Association may provide for an annual audit of the accounts of the Association.
If required by a government mortgage agency, such audit may be an independent audit. Copies of the audit
will be made available to any Member who requests a copy of the same upon payment of such Member of
the reasonable cost of copying the same.
L. Power to Adopt Rules and Regulations . The Association may adopt, amend, repeal and
enforce rules and regulations as may be deemed necessary or desirable with respect to the interpretation
and implementation of this Declaration, the operation of the Association, and the use of the Property. Any
such rules and regulations shall be reasonable and uniformly applied. Such rules and regulations shall be
effective only upon adoption by resolution of the Board of the Association. Notice of the adoption,
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amendment or repeal of any rule or regulation shall be given in writing or electronically to each Member
of the Association at the address for notices to Members as elsewhere provided in this Declaration or the
Bylaws of the Association, and copies of the currently effective rules and regulations will be made available
to each Member electronically or upon request and payment of the reasonable expense of copying the same.
Each Member shall comply with such rules and regulations and see that Related Users comply with such
rules and regulations. Such rules and regulations shall have the same force and effect as if they were set
forth in and were part of this Declaration. In the event of conflict between the rules and regulations and the
provisions of this Declaration, the provisions of this Declaration shall prevail.
M. Power to Enforce Declaration and Rules and Regulations. The Association shall have the
power to enforce the provisions of this Declaration and of its rules and regulations and shall take such action
as the Board of the Association deems necessary or desirable to cause such compliance by each Member of
the Association and each Related User. Without limiting the generality of the foregoing, the Association
shall have the power to enforce the provisions of this Declaration and the rules and regulations of the
Association by any one or more of the following means: (a) by entry upon any property within the
Association without liability to the Owner thereof, for the purpose of enforcement or causing compliance
with this Declaration or the rules and regulations of the Association; (b) by commencing and maintaining
actions and suits to restrain and enjoin any breach or threatened breach of the provisions of this Declaration
or the rules and regulations of the Association by mandatory injunction or otherwise; (c) by commencing
and maintaining actions and suits to recover damages for breach of any of the provisions of this Declaration
or the rules and regulations of the Association; (d) by suspension, after notice and hearing, of the voting
rights of a Member of the Association during and for up to sixty (60) days following any breach by such
Member or a Related User of such Member of this Declaration or such rules and regulations, unless the
breach is a continuing breach, in which case such suspension shall continue for as long as such breach
continues; (e) by levying and collecting, after notice and hearing, a Reimbursement Assessment against any
Member of the Association for breach of this Declaration or such rules and regulations by such Member or
a Related User of such Member; and (f) by levying and collecting, after notice and hearing as defined in
this Declaration, reasonable and uniformly applied fines and penalties, established in advance in the rules
and regulations of the Association, from any Member of the Association for breach of or failure to comply
with this Declaration or such rules and regulations by such Member or a Related User of such member.
N. Power to Provide Special Services for Members. The Association shall have the power to
provide services to a Member or group of Members. Any service or services to a Member or group of
Members shall be provided pursuant to an agreement in writing, or through one or more special service
contract(s), which shall provide for payment to the Association by such Member or group of Members of
the reasonably estimated costs and expenses of the Association of providing such services including a fair
share of the overhead expenses of the Association, and shall contain reasonable provisions assuring that the
obligation to pay for such services shall be binding upon any heirs, personal representatives, successors and
assigns of the Member or group of Members and that the payment for such services shall be secured by a
lien on the property of the Member or group ofMembers.
0 . Power to Employ Managers. The Association shall have the power to retain and pay for
the services of a manager or managers to undertake any of the management or functions for which the
Association has responsibility under this Declaration to the extend deemed advisable by the Association,
and may delegate any of its duties, powers or functions to any such manager. Any contract or agreement
with any such manager shall be terminable by the Association without any termination fee on no more than
thirty (30) days' prior written notice. Any such contract or agreement shall be for a term of no more than
one (1) year but may be subject to renewal for succeeding terms of no more than one (1) year each.
Notwithstanding any delegation to a manager of any duties, powers or functions of the Association, the
Association and its Board shall remain ultimately responsible for the performance and exercise of such
duties, powers and functions.
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P. Power to Engage Employees. Agents and Consultant. The Association shall have the
power to hire and discharge employees and agents and to retain and pay for legal and accounting services
as may be necessary or desirable in connection with the performance of any duties or the exercise of any
powers of the Association under this Declaration.
Q. General Coroorate Powers. The Association shall have all of the ordinary powers and
rights of a Colorado corporation formed under the Colorado Nonprofit Corporation Act, including, without
limitation, entering into partnership and other agreements, subject only to such limitations upon such
powers as may be set forth in this Declaration or in the Articles of Incorporation or Bylaws of the
Association. The Association shall also have the power to do any and all lawful things which may be
authorized, required or permitted to be done under this Declaration or the Articles of Incorporation and
Bylaws of the Association and to do and perform any and all acts which may be necessary or desirable for,
or incidental to, the exercise of any of the express powers or rights of the Association under this Declaration
and the Ankles oflncorporation and Bylaws of the Association.
R. Management of Rental Propertv. The Association shall !!!!! have the power or duty to
manage the rental of any Dwelling Unit located on the Property. Any short term or long term leasing of a
Dwelling Unit shall be subject to all covenants, conditions and restrictions of this Declaration, the zoning
for the Property, the provisions of the Estes Valley Development Code as may be amended from time to
time or any successor code, as well as any rules and regulations adopted by the Board. There shall be no
requirement for a minimum night stay in any rental of a Dwelling Unit located on the Property.
ARTICLEV
COVENANT FOR ASSESSMENTS
A. General. The Association shall have the power to levy Assessments against the Lots and
the Owners thereof, and each Owner, and if more than one (1) Person, all such Persons jointly and severally
by acceptance of the deed to a Lot, whether or not it shall be expressed in any such deed, shall be deemed
to covenant and agree expressly in any such deed to pay all such Assessments in the manner and for the
purposes provided herein. Subject to the provisions hereof, the Board shall have the power and authority
to determine all matters in connection with Assessments, including the power and authority to determine
where, when, and how Assessments shall be paid to the Association, and each Owner shall comply with
such determination.
B. Method of Assessment. All Assessments shall be levied by the Association against Lots
and collected and disbursed by the Association. The Board shall fix the amount of the Assessments as
provided hereinafter and set the date or dates such Assessments shall become due.
C. Relationship of the Association Lien to Mortgages. Except as provided in C.R.S. §38-33.3-
316 as originally enacted or as subsequently amended by the Colorado Legislature, the lien of the
Assessments provided for herein shall be subordinate to the lien of any first mortgage, including any
executory land sales contract. The lien of such assessments shall be superior to any homestead exemption
or other exemption as is now or may hereafter be provided by Colorado or Federal law. The acceptance of
a deed to land subject to this Declaration shall constitute a waiver of the homestead and any other exemption
as against said assessment lien. Sale or transfer of any Lot shall not affect the liens for said assessments or
charges except that sale or transfer of any Lot pursuant to mortgage foreclosure or any proceeding in lieu
thereof, including a deed in lieu of foreclosure or cancellation or forfeiture of an executory land sales
contract shall extinguish the lien or such charges as to payments which became due prior to such sale,
transfer, cancellation or forfeiture of executory land sales contract. No sale, transfer, cancellation or
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forfeiture of executory land sales contract shall relieve such Lot from liability for any such charges
thereafter becoming due or from the lien thereof; provided, however, that in the event of foreclosure of a
first Mortgage or the taking of a deed in lieu thereof, such first Mortgagee shall not be liable for unpaid
assessments or other charges which accrue prior to the acquisition of title to the Lot in question by such
first Mortgagee except to the extent C.R.S. §38-33.3-316 grants a superior priority to liens of the
Association in relationship to a first Mortgage.
D . General Assessments.
(1) Purpose. The general Assessment shall be used exclusively to promote the welfare of the
Members and in particular to improve, maintain and operate the Common Areas and facilities,
including funding of an adequate reserve fund for maintenance, repair, and replacement of those
elements of the Common Area that must be replaced on a periodic basis, and to pay annual
insurance costs necessary to the Association, all tax liabilities assessed by any federal, state or local
tax authority relating to the Common Area, as well as any professional fees incurred by the
Association.
(2) Basis for Assessment. For general assessment purposes, all Lots with Dwelling Units
which are or have been occupied shall be assessed at one hundred percent ( 100%) of the general
Assessment rate.
(3) Method of Assessment. By vote of a majority of the Board, the Board shall fix the general
Assessment at an amount not in excess of the current maximum assessment, provided, however,
that the general Assessment shall be sufficient to meet the obligations imposed by the Declaration.
In the event the Board fails to fix an Assessment for any fiscal year, then each Assessment
established for the prior year shall automatically be continued until such time as the Board acts.
(4) Date of Commencement of Assessments. All Assessments shall only be made on an
improved lot. "Improved Lots" shall be defined to mean any Lot upon which residential
construction has been completed as of the date the Assessment is due. The improved lot assessment
shall commence on the first day of the month following the issuance of a certificate of occupancy
by the Town of Estes Park. Unimproved Lots of any kind shall not be subject to any Assessments.
E. Budget Process. To determine the amount required to be raised by general Assessments
for any fiscal year, the Board shall prepare an annual budget for such fiscal year showing, in reasonable
detail, the various matters proposed to be covered by the budget, the estimated costs and expenses which
will be payable, and the estimated income and the funds which will be available in that fiscal year, and the
estimated total amount of money required to be raised by the general assessment to cover such costs and
expenses and to provide a reasonable reserve. The total amount of money required to be raised by the
general Assessment for such fiscal year shall be the amount as detennined by the Board necessary to satisfy
the costs and expenses of fulfilling such functions and obligations ofthe Association in the coming fiscal
year, including the payment of debts from prior fiscal years, providing reasonable reserves, and providing
a reasonable carry-over reserve for the following fiscal year. Within ninety (90) days after adoption of any
proposed budget for the common interest community, the Board shall mail by ordinary first-class mail, or
otherwise deliver a summary of the budget to all the Lot Owners and shall set a date for a meeting of the
Lot Owners to consider ratification of the budget. Such meeting shall occur within a reasonable time after
mailing or other delivery of the summary. Unless at that meeting a majority of all Lot Owners present at
the meeting, in person or by proxy, rejects the budget, the budget is ratified, whether or not a quorum is
present. In the event the proposed budget is rejected, the periodic budget last ratified by the Lot Owners
must be continued until such time as the Lot Owners ratify a subsequent budget proposed by the Board.
F. Supplementaty Assessments. In the event that the Board shall determine, at any time or
from time to time, that the amount of the general Assessment is not adequate to pay for the costs and
expenses of fulfilling the Association's obligations hereunder, one or more supplementary Assessments
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may be made for the purpose of providing the additional funds required. To determine the amount required
to be raised by each supplementary Assessment, the Board shall revise the annual budget for such fiscal
year provided in Article V, Section E, or prepare a new budget, a copy of which shall be furnished to any
Owner, or on request, to any Mortgagee. Based on such revised or new Budget, the Board may make a
supplementary Assessment for such fiscal year against each Lot, the amount of which shall be determined
by the Board as provided in Section D of this Article.
G. Special Assessments. Special Assessments may be made for the purposes of raising funds
for capital improvements and for any other Association purpose for which general Assessments may not or
have not been made. Whether to make a special Assessment and the amount thereof per Lot shall be
determined by the Board; provided that no special Assessment shall be valid unless approved by a majority
vote of the Members present and voting in person or by proxy at any Annual Meeting of the Members of
the Association or at any Special Meeting thereof called for the purpose of considering such special
Assessment
H. Reimbursement Assessment The Board of the Association may, subject to the provisions
hereof, levy an Assessment against any Member if (a) the willful or negligent failure of the Member or
Related User of the Member to comply with this Declaration, the Articles of Incorporation, the Bylaws of
the Association, rules and regulations adopted by the Association, or guidelines or rules adopted by the
Association Architectural Review Committee have resulted in the expenditure of funds by the Association,
or (b) if a Member or a Related User of the Member shall fail to pay any fines or penalties established in
the rules and regulations of the Association for breach of or failure to comply with this Declaration or such
rules and regulations. Such Assessments shall be known as Reimbursement Assessments. The amount of
the Reimbursement Assessment shall be due and payable to the Association thirty (30) days after notice to
the Member of the decision of the Board of the Association that the Assessment is due and owing.
I. Time for Payments. The general Assessment for each Lot shall be payable, subject to
Section K of this Article V, in twelve equal monthly installments due on the first day of each month and
shall become delinquent if not paid by the tenth (lOth) day of each month. Special and supplementary
Assessments shall be payable as provided in the resolutions authorizing the same. All installments of
general, supplementary, and special Assessments shall be due and payable without notice or demand, and
all Assessments shall be paid without any setoff or diminution of any kind. Any Assessment or installment
thereof or other amount payable pursuant to this Section or under the Articles of Incorporation or Bylaws
which is not paid when due shall bear interest from the delinquent date until paid at the maximum rate
permitted by law for interest as provided in Colorado Revised Statutes §38.33.3-315(2) or any subsequent
amendment thereto, or such lesser rate as the Board shall determine and/or may be subject to a late charge
as may be set and uniformly applied by the Board. All payments on account shall be first applied to interest
and late charges and then to the Assessment payment due.
J. Lien for Assessments and Other Amounts. The Association shall have a lien against each
Lot to secure payment of any Assessment and other amounts due and owing to the Association with respect
to that Lot which shall be created and enforced as provided in Colorado Revised Statutes §38-33.3-316 or
any subsequent amendment thereto.
K. Reserve Capital. The Association or Declarant may require the Owner of any Lot who
purchases that Lot from Declarant to make a contribution to reserve capital equal to two monthly general
Assessments currently being collected by the Association from its members or in other amounts as
determined by the Association or Declarant, which sum shall be held, by the Association as and for reserve
capital. Reserve capital shall not be used for reoccurring expenses in the Association but rather shall be
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used for extraordinary expenses that were not anticipated by the Board. Such deposit shall not relieve an
Owner from making the regular payment of assessments as the same become due. Any amount collected
shall not be refunded to the Owner upon the sale or transfer of a Lot. No owner shall be entitled to interest
on any amount provided as working capital to the Association. The provisions of this Section K shall not
apply to the Declarant or any successor in interest to the Declarant.
L. Estoppel Certificate. Upon payment of a reasonable fee and upon written request of any
Owner, or First Mortgagee., or any person with any right, title or interest in a Lot or intending to acquire
any right, title, or interest in a Lot, the Association shall furnish a written statement providing the amount
of any Assessments, if any, due or accrued and then unpaid with respect to such Lot and the amount of the
Assessments for the current fiscal period of Association payable with respect to the Lot. which statement,
shall, with respect to the party to whom it is issued, be conclusive against the Association, for all purposes,
that no greater or other amounts were then due or accrued and unpaid.
M. No Abatement. No diminution or abatement of Assessments shall be allowed or claimed
for any reason including, without limitation, from the making of repairs or improvements to the Common
Area or from any action taken to comply with any law, ordinance, or order of a governmental authority.
N. Rights of First Mortgages. Any first Mortgagee of a Lot within the Project may jointly or
severally pay any tax or other charge which is in default and which may have become a charge or a lien
against any Common Area of the Association, and any first Mortgagee may jointly or severally pay any
overdue premium on hazard insurance policies or secure new hazard insurance coverage on the lapse of
any such policy, upon Common Area of the Association, and any ftrst Mortgagee(s) making such payments
shall be entitled to immediate reimbursement therefor from Mountain River Townhomes Association, Inc.
0. Exempt Property. The following property subject to this Declaration shall be exempted
from the Assessments, a charge and lien created herein: (a) All properties to the extent of any easement or
other interest therein dedicated and accepted by a public authority and devoted to public use; (b) all
Common Areas; and (c) all properties exempted from taxation by the State of Colorado or Larimer County
or other governmental entity on the terms and to the extent of such legal exemption.
ARTICLE VI
USE AND OTHER RESTRICTIONS
A. Nuisances. No nuisance shall be permitted to exist or operate upon any property so as to
jeopardize property values or to be detrimental to the well being of any other Member of the Association.
B. Restriction on Further Subdivision. No Lot upon which a Living Unit has been constructed
shall be further subdivided or separated into smaller lots by any Owner, and no portion less than all of any
such Lot, nor any easement or other interest herein shall be conveyed or transferred by an Owner, provided
that this shall not prohibit deeds of correction, deeds to resolve boundary line disputes, and similar
corrective instruments.
C. Single-Family Residence. No Living Unit shall be used for any other purpose other than
as a single-family residence, and no business or commercial activity shall be carried on or within the
Property other than those home occupations defmed as such by the Town of Estes Park zoning code.
Nothing herein shall prevent short term and long term rentals as provided in this Article VI and Article IV
above.
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D. Common Area Restriction. All use and occupancy of the Common Area shall be subject
to and governed by the Rules and Regulations adopted by Association. A Member shall not place any
furniture, patio, deck or other improvement or property on or in the Common Area. No damage or waste
shall be committed to the Common Area or Improvements located therein.
E. No Imperiling of Insurance. Nothing shall be done or kept in or on any portion of the
Property which might result in an increase in the premiums with respect to insurance obtained for all or any
portion of the Property which might cause cancellation of such insurance except with the prior written
consent of the Association.
F. No Violation of Law. Nothing shall be done or kept in or on any portion of the Property
which would be in violation of any statute, rule, ordinance, regulation, permit, or validly imposed
requirement of any governmental body.
G. No Fences or Clotheslines. No fence of any kind shall be constructed on the Property
including, but not limited to, private fences or dog runs. No clotheslines of any type shall be allowed on
the Property.
H. Appearance. All parts of the Property shall be kept in a clean, safe, and attractive condition,
and no rubbish, refuse or garbage shall be allowed to accumulate. Any exterior storm door or screen door
attached to any Dwelling Unit shall be only be the brand and color Pella Brown. Exterior storm doors or
screen doors shall be Pella full view storm/screen interchangeable or Pella Rollscreen.
I. Restrictions on Si@s. No signs or advertising devices of any nature shall be erected or
maintained on any part of the Property (including, without limitation, any Lot) without the prior written
approval ofthe Architectural Review Board of the Association. Nothing herein shall prevent the use any
for sale or for lease signs as approved or allowed by the Town of Estes Park.
J. Conditions for Architectural Control. No improvements, alterations, repairs, change of
paint colors, excavations, changes in grade or other work which in any way alters the exterior of any Lot,
Dwelling Unit, Common Area or the improvements located thereon from its natural or improved state
existing on the date such property was first subject to this Declaration shall be made or done without
compliance with the procedures set forth in Article IX of this Declaration regarding architectural control.
Plantings of any types of flowers, fruits, vegetables or trees shall also be subject to the provisions of this
Article and Article IX regarding architectural control and shall require the prior approval of the
Architectural Control Committee or the Declarant, as the case may be.
K. Rules and Regulations. Every Owner or guests or members ofthe family of an Owner or
Related User, and employees shall strictly adhere to the rules and regulations adopted from time to time by
the Association. The Board may adopt general rules, including, but not limited to, rules to regulate potential
problems relating to the use of the Property and the well being of the members, such as keeping of animals,
storage items, and the use of all vehicles and parking ofvehicles, storage and use of machinery, protection
of wildlife, use of outdoor drying lines, antennas, signs, trash, trash containers, maintenance, and removal
of vegetation on the Property, including any Lot.
L. Mineral Exploration. No portion of the Property, including, without limitation, any area
within a Lot shall be used to explore for or to remove any water, soil, hydrocarbons, gas oil or other minerals
ofanykind.
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M. Restrictions on Parking and Storage. Except as expressly heretofore provided, no Lot,
including the private drives or parking areas, unless specifically designated by the Association therefore,
shall be used as a storage or display area for any type of automobile, house trailer, camping trailer, boat
trailer, hauling trailer, running gear, boat or accessories thereto, motor driven cycle, truck, self-contained
motorized vehicle, or any type of business vehicle used in any business of the Owner or Related User except
as a temporary expedience for loading, delivery or emergency. The same shall be stored, parked or
maintained within the garage area of the Living Unit It is the intent of this restriction that all vehicles of
any type be stored within the garage area of any Living and that the private drives or parking areas adjacent
to a Living Unit not be used for storage or display of any motorized vehicle as described in this Section.
This restriction, however, shall not restrict commercial vehicles within the Property which are necessary
for the construction of residential dwellings or for the maintenance of the Common Area within the
Property. The restrictions set forth in this Section shall not prevent an Owner of a Dwelling Unit or Related
User from parking a motor home in the driveway of a Dwelling Unit for a reasonable period oftime (not to
exceed twenty-four (24) hours) for either loading or unloading of that motor home by the Owner of the
Dwelling Unit. No parking shall occur on the Property which blocks any access to public streets, Moreau
Lane, Bird Circle, or any private driveways. All parking shall be subject to any rules and regulations
adopted from time to time by the Association. The Town of Estes may or may not address any parking
within or on the Property.
N. Animals within the Project No animals shall be kept or harbored within the Property
except that any Owner may keep no more than 2 household pets, subject to existing ordinances of the Town
of Estes Park, Colorado. It shall be the obligation of each Owner owning a pet to control it in accordance
with the existing ordinances of the Town of Estes Park. It shall be the responsibility of each Owner or
occupant to maintain any Lot or Common Area used in any manner by any pet to avoid any noise, odor or
nuisance to any other Owner or occupant within the Association. The Board of the Association may, at any
time, create rules and regulations regarding the keeping of animals within the Project, and all Owners and
occupants shall be subject to this covenant which requires that the Owners and occupants comply with the
terms and conditions of those rules and regulations regarding animals within the Property.
0. Control of Antennas and Receiving Equipment. Exterior television recelVlng or
transmitting devices of any type are subject to review and approval, in writing, by the Architectural Review
Committee or the Association. Although the Architectural Review Committee or Association may prohibit
certain types of antennas and receiving or transmitting devices, the Architectural Review Committee or
Association shall not enact rules or regulations regarding antennas and receiving or transmitting devices
contrary to Federal Communications Commission (FCC) rules or any other applicable federal law, rule or
regulation.
P. Underground Electric and Utility Lines. All electric, television, internet, and telephone
line installations and connections from any property line of a Lot to a Dwelling Unit or other structures
shall be placed underground, except that during the construction of a Dwelling Unit, the contractor or
builder may install temporary utility line(s) which shall be promptly removed upon completion of
construction.
Q. No Hazardous Activities. No activities shall be conducted on the Property and on
improvements constructed on the Property and Lots 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 upon
any part of the Project or a Lot and no open fires shall be lighted or permitted on the Property except in a
contained barbecue unit while attended and in use for cooking purposes or within a safe and well designed
interior fireplace.
Page 14 of 32
R No Annoying Light. Sound or Odors. No light shall be emitted from any Lot which is
unreasonably bright or causes unreasonable glare; no sound shall be emitted on any Lot which is
unreasonably loud or annoying; and no odor shall be emitted on any Lot which is noxious or offensive to
others.
S. Decks and Patios. Dwelling Units with the following locations or addresses Bird Circle
#2, #3, #4, #5, #6, #7, #8, #9, #10 and #11 and Moreau Lane #14, #15, #16, #17, #18, #19, #20, #21, and
#22 shall be permitted to have decks that protrude a maximum of 9' -0" out from the exterior Great Room
wall and a maximum of 3 '-6" out from the exterior deck door side of the Dwelling Unit. The length which
is the side of the deck parallel with the Great Room wall shall not be more than 18' -6".
Dwelling Units with the following locations or addresses Bird Circle# 1 and # 12 and Moreau Lane
#13, #23, #24 and #25 and Park River Place #26 shall have decks that protrude a maximum of 9'-0" out
from the exterior Great Room wall and a maximum of 3 '-6" out from the exterior deck door side of the
Dwelling Unit. The length which is the side of the deck parallel with the Great Room wall shall not be
more than 33 '-6''.
Patios shall be allowed 9'-0" out from the Great Room wall. The length which is the side of the
Patio parallel with the Great Room wall shall not be more than 33'-6" and shall start at the comer of the
deck above and not protrude past the comer of the lower level exterior wall of the Family Room. Any
patios allowed shall be of 4" natural gray concrete with a broom finish.
T. Hot Tubs. Hot tubs shall only be allowed on patio areas which are located under decks.
Hot tubs shall not be allowed on decks and shall not be allowed on any patio area which is not located under
a deck. Any hot tub shall be subject to the provisions of this Declaration regarding Architectural Control
as well as any and all rules and regulations of the Association.
U. Garbage and Refuse Disposal. Garbage, refuse, and rubbish shall be placed in the bear
resistant dumpsters provided by the Association for collection.
V. Re.pair. 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 on any Lot unless it is
done within completely enclosed structures located in the Dwelling Unit which screen the sight and sound
of the activity from the street and from adjoining property nor shall any such activity be performed on the
Common Area. The foregoing restriction shall not be deemed to prevent washing and polishing of any
motor vehicle, boat, trailer, or motorcycle together with those activities normally incident and necessary to
such washing and polishing.
W. Storage. No tanks for the storage of gas, fuel, oil, or other materials shall be erected, placed
or permitted above or below the surface of a Lot. However, nothing herein shall prevent the use of a typical
propane gas grill for cooking purposes on a Lot
X. Trash Burning. Trash, leaves, and other similar materials shall not be burned within the
Property.
Y. Owner's Obligation Uoon Resale or Lease ofLot.
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(1) Reference to Declaration. The Owner shall disclose to a buyer the existence of this
recorded Declaration and that the OWner's Lot is subject to the covenants and restrictions
set forth in this Declaration as supplemented or amended.
(2) Any lease agreement between an Owner and a tenant shall provide that the tenant shall
comply in all respects to the provisions of this Declaration, the Articles oflncorporation,
Bylaws and rules and regulations of the Association, and that any failure by the tenant to
comply with the terms and provisions of such documents shall be a default under the
lease. The Board may require information forms to be completed and security deposits
to be made by tenants. Further, all leases shall be in writing, and a copy thereof shall be
provided upon request to the Board, which may require the use of its approved lease form
or the insertion of particular provisions. After notice and an opportunity for hearing, the
Board may require an Owner to evict any tenant who has violated any provision of this
Declaration, the Articles of Incorporation or the Bylaws.
(3) Short term (including nightly rentals) and long term leasing of a Dwelling Unit shall be
allowed subject to the zoning for the Property as well as the provisions of the Estes Valley
Development Code as may be amended from time to time or any successor code. There
shall be no requirement for a minimum night stay in any rental of a Dwelling Unit located
on the Property.
Z. Covenants Run with Land. It is expressly understood and agreed that all covenants,
conditions, and restrictions contained herein are intended to and shall run with the land, and Declarant
hereby agrees, for itself and its successors and assigns, that such covenants, individually and collectively,
touch and concern the: land and shall be binding, fully and in all respects, upon Declarant's successors in
title to the land, regardless of how succession of title may be accomplished.
ARTICLE VII
INSURANCE
A. Insurance. All insurance, other than title insurance, carried in connection with the
Common Area, Lots, Dwelling Units, Improvements and Property shall be governed by the provisions of
this Article VII.
B. Insurance Requirements Generally. The Association shall obtain and maintain in full force
and effect at all times certain casualty and liability insurance for all Common Areas, and other insurance as
hereinafter provided. All such insurance shall be obtained, to the extent possible, from responsible
companies duly authorized and licensed to do insurance business in the State of Colorado.
To the extent possible, the casualty, property, and liability insurance shall: ( 1) provide for a
Waiver of subrogation by the insurer as to claims against the Association, its directors, officers, employees,
agents, and members; (2) provide that the insurance cannot be canceled, invalidated or suspended on
account of the conduct of Owners as such; (3) provide that the policy of insurance shall not be terminated,
canceled, or substantially modified without at least thirty (30) days' prior written notice to the Association;
and ( 4) provide for a standard Mortgagee's clause in favor of all first Mortgagees who have an interest
within the Property.
Any insurance policy may contain such deductible provisions as the Association deems consistent
with good business practice and which shall be consistent with the requirements of any first Mortgagees.
Any loss falling within the deductible portion of a policy shall be borne by the Association. The cost and
expense of all insurance obtained by the Association shall be paid out of Association funds collected by
Assessments and otherwise as elsewhere provided in this Association Declaration.
Page 16 of32
C. Insurance for Common Area and Fidelity Insurance. The Association shall maintain
insurance covering all insurable improvements located or constructed upon the Common Area. The
Association shall maintain the following types of insurance to the extent that such insurance is reasonably
available from a carrier with a Best's Insurance Rating of Class of Class X-B or better.
(1) A policy of property insurance covering all insurable improvements located on the
Common Area with coverage sufficient to obtain a replacement cost endorsement providing
that any claim will be settled on a full replacement cost basis without deduction for
depreciation., and including an "Inflation Guard Endorsement" and an "Agreed Amount
Endorsement". The Association may also purchase a "Demolition Endorsement", an "Increased
Cost of Construction Endorsement", a "Contingent Liability from Operation of Building Laws
Endorsement" or the equivalent, and/or coverage on personal property owned by the
Association. Such insurance maintained by the Association pursuant to this subsection shall
afford protection against at least the following:
(a) loss or damage by fire and other hazards covered by the standard all risk form; and
(b) such other risks as shall customarily be covered with respect to projects similar in
construction, location and use.
(2) A comprehensive policy of public liability insurance covering all of the Common Area,
insuring the Association in an amount of not less than $1,000,000 covering bodily injury,
personal injury and property damage liability arising out of a single occurrence, such coverage
to include protection against liability for non-owned and hired automobile and, if applicable,
water damage liability, contractual liability, worker compensation insurance for employees of
the Association, if any, and such other risks as shall customarily be covered with respect to
projects similar in construction, location and use.
(3) A policy providing adequate fidelity coverage or fidelity bonds to protect against dishonest
acts on the part of officers, directors, trustees and employees of the Association and all others who
handle or are responsible for handling funds of the Association. Such fidelity coverage or bonds shall
meet the following requirements:
(a) all such fidelity coverage or bonds shall name the Association as an obligee;
(b) such fidelity coverage or bonds shall contain waivers of defense based upon the
exclusion of persons or serve without compensation from any definition of"employee"
or similar expression.
(c) the amount of coverage shall not be less in aggregate than two (2) months current
assessments plus reserves, as calculated from the current budget of the Association or
such amount that is subsequently required by legislative amendment to C.R.S. §38-
33.3-313.
All policies of insurance in this Section C shall contain waivers of subrogation and waivers of any
defense based on invalidity arising from any acts of a Member of the Association and shall provide that the
policies may not be canceled or substantially modified without at least thirty (30) days' prior written notice
to the insured, as well as to the first Mortgagees of Dwellings Units who have requested notice of
cancellation modification from the Association. Duplicate originals of all policies and renewals thereof,
together with proof of payment of premiums, shall be delivered to any first Mortgagee of any Dwelling
Unit upon written request. The insurance shall be carried in blanket form naming the Association as the
Page 17 of 32
insured, as trustee and attorney in fact for all Owners, and their respective first Mortgagees and each Owner
shall be an insured person under such policies with respect to liability arising out of any such Owner's
membership in the Association.
D. Insurance on Dwellings. Dwelling Unit Owners shall be responsible for obtaining standard
homeowners property insurance for said Owner's Dwelling Unit built within the Property. Insurance
obtained by a Dwelling Unit Owner for said Owner's Dwelling Unit shall include: insurance coverage for
each building constructed; decks, patios, equipment, fixtures and machinery which become a permanent
part of the building; any air conditioning equipment installed to service the building; and floor coverings,
wall coverings, outdoor fixtures and materials and supplies intended for use in the construction, alteration
or repair of the Dwelling Unit. The Association shall not be responsible for any insurance covering any
Dwelling Unit or personal property owned by. used by or in the care. custody or control of a Dwelling Unit
Owner.
E. Worker's Compensation and Employer's Liability Insurance. The Association may obtain
and maintain worker's compensation and employer's liability insurance as may be necessary to comply with
applicable laws.
F. Officers and Directors Liability Insurance. The Association may obtain and maintain
officers and directors liability insurance at the discretion of the Board. Any such policy placed in force
must cover the Declarant or any employee of the Declarant who serves on the Board during the period of
Declarant control described in this Declaration.
G. Annual Review of Insurance Policies. All insurance policies carried by the Association
shall be reviewed at least annually by the Board of the Association to ascertain that the coverage provided
by such policies adequately covers those risks insured by the Association.
H. Distribution of Insurance Proceeds by the Association. In the event that the Association is
required to distribute any insurance proceeds directly o an Owner for losses to property, any such
distribution shall be made jointly payable to the Owner and any first Mortgagee of record, as defmed in
Article I of this Declaration.
I. Other Insurance. The Association may obtain insurance coverage against such additional
risks as it shall determine to be appropriate.
ARTICLE VIII
V ARlO US RIGHTS AND EASEMENTS
A. Association Easements. Declarant hereby expressly creates and reserves for the benefit of
Mountain River Townhomes Association, Inc., its designees, successors and assigns, the following
easements:
(1) Easements Over Lots for Painting/Staining and Refinishing of Exterior Surfaces of
Dwelling Units. Easements over and across each Lot and the Dwelling Unit thereon as may
be necessary for the painting/staining and refinishing of the Exterior Surface, as defined
herein, of such Dwelling Unit, and for access, ingress and egress necessary for such
painting/staining and refinishing.
(2) Easements Over Lots for Maintenance of Common Area. Easements over and across Lots
as may be necessary or appropriate for Mountain River Townhomes Association, Inc. to
perform duties and functions which it is obligated or permitted to perform under this
Page 18 of32
Declaration, including the use, enjoyment, maintenance, repair and replacement of any portion
of Common Area or Improvements thereon, and for access, ingress and egress necessary for
such use, enjoyment, maintenance, repair and replacement.
(3) Easements Over Lots for Maintenance of Association Maintenance Areas. Easements
over and across the Lots, including the Association Maintenance Areas, as may be necessary
or appropriate for the Association to manage, operate, maintain, and repair any portion of the
Association Maintenance Areas as provided for herein, and for access, ingress and egress
necessary for such purposes.
( 4) Easements Over Lots for Snow Removal. Easements over and across the Lots as may be
necessary or appropriate for the Association to remove snow as provided herein, and for
access, ingress and egress necessary for such snow removal.
(5) Water Line Easements for Common Water Lines. A water line easement over, across,
under and through each water line easement area within which is located a common water
line.
(6) Storm Drainage Easements. Easements over and across the Property, Lots and Common
Area as shown on the recorded plat map for the Property for any and all storm drainage
purposes, including, but not limited to, the transfer of storm water drainage over and across
the Property, Lots and Common Area.
(7) No Easement Obstruction or Encroachment. An Owner or Related User shall not plant
any vegetation or otherwise block or encroach upon any easement of the Association.
B. Owner Easements. Declarant hereby expressly creates and reserves for the benefit of each
Lot, and for the benefit of the Owner of such Lot, the following easements:
(1) Easements for Encroachments. A valid, currently existing easement for any
encroachment, and for the maintenance of the same, which results from any portion of any
Dwelling Unit on a Lot encroaching upon an adjoining Lot or adjoining Common Area,
whether as a result of errors in construction of any Improvements by Declarant, or
reconstruction, repair, shifting, settlement, or movement of such Improvements, which
easement shall exist for so long as such Dwelling Unit exists.
(2) Easements Over Common Area for Use and Maintenance of Dwelling Units. Easements
over Common Area may be necessary or appropriate for the use, enjoyment, maintenance,
repair and replacement of the Dwelling Unit constructed on such Lot, and for access, ingress
and egress necessary for such use, enjoyment, maintenance, repair and replacement.
(3) Easements Over Common Area for Utilities. An easement over, across, under and
through Common Area, in the location where such utilities and related facilities are originally
installed by Declarant or in such other location as may be designated from time to time by the
Association, for the purpose of installation, operation, maintenance, repair and replacement
of underground utilities and related surface facilities necessary for the use, enjoyment and
operation of the Dwelling Unit constructed on such Lot, including, but not limited to, water
lines, sewer lines, gas lines, telephone lines, television cable lines, and all equipment and
facilities incidental thereto, and for access, ingress and egress necessary for such installation,
operation, maintenance, repair and replacement.
Page 19 of32
(4) Owners' Rights in Association Maintenance Areas. Subject to the provisions of this
Declaration, each Owner of a Lot in the Association shall have an exclusive right to use and
enjoy such Lot including any Association Maintenance Areas located thereon.
(5) Limitation on Owners' Rights in Common Area. Except as is otherwise specifically
provided in this Declaration and except as may be authorized by the Association acting
through its Board, Owners and Related Users of Owners shall have a right to use Common
Area.
C. Easements Deemed Aoourtenant The easements and rights hereinabove created shall be
binding upon and inure to the benefit of Mountain River Townhomes Association, Inc. or each Lot on the
Property and the Owner of each such Lot, as the case may be, and all conveyances of and other instruments
affecting title to any such Lot or Common Area shall be deemed to grant and reserve the easements and
rights as are provided for herein, even though no specific reference to such easements appears in any such
conveyance.
D. Emergency Access Easement. An easement and right-of-way for ingress, egress and access
for service and emergency vehicles is hereby granted to all police, fire protection, ambulance and all other
similar emergency agencies or persons over, across, on and through any and all private roads and ways, if
any, now or hereafter established within the Property.
E. Title to Common Area. Title to the Common Area shall be conveyed to the Association by
the Developer, free and clear of financial encumbrances, in the first phase or in any subsequent phases,
prior to the conveyance of the first Lot to an Owner within that phase who is not the Developer.
ARTICLE IX
ARCHITECTURAL REVIEW
A. Membership and Activation of the Association Architectural Review Committee. The
initial Architectural Review Committee and the membership of thereto shall be the Board of the
Association. The Committee shall begin to function at such time as the construction period exception
defined in Section X of this Article IX has been concluded by the construction of all Living Units which
can be built within the Property.
B. Improvement to Property Defined. "Improvement to Property" requiring approval of the
Association Architectural Review Committee, shall mean and include, without limitation: (a) the
construction, installation, erection or expansion of any building, structure or other Improvements, including
utility facilities; (b) the demolition or destruction, by voluntacy action, of any building, structure of other
Improvements; (c) the grading, excavation, filling or similar disturbance to the surface of the land including,
without limitation, change of grade, change of ground level, change of drainage pattern or change of stream
bed; (d) landscaping, planning, clearing or removing of trees, shrubs, grass or plants; and (e) any change or
alteration of any previously approved Improvement to Property including any change of exterior
appearance, color or texture.
C. Aooroval oflmprovements Required. After the activation of the Association Architectural
Review Committee, the approval of the Association Architectural Review Committee shall be required for
any Improvement to Property on any lot within the Property, except for any Improvement to Property made
by Declarant and except as prior approval may be waived or certain Improvements to Property may be
exempted in writing or under written guidelines or rules promulgated by the Association Architectural
Page 20 of32
Review Committee because approval in such case or cases is not reasonably required to carry out the
purposes of this Declaration.
D. Committee Guidelines or Ru1es. The Association Architectural Review Committee may
issue guidelines or rules relating to the procedures, materials to be submitted and additional factors which
will be taken into consideration in connection with the approval of any proposed Improvement to Property.
Such guidelines or rules may specify circumstances under which the strict application of limitations or
restrictions under this Declaration will be waived or deemed waived in whole or in part because such strict
application of such limitations or restrictions wou1d be unreasonable or unduly harsh under the
circumstances. Such guidelines or rules may waive the requirement for approval of certain Improvements
to property or exempt certain Improvements to the purposes of this Declaration. Such guidelines or rules
may elaborate or expand upon the provisions herein relating to procedures and criteria for approval. Such
guidelines or rules may specifY rules and restrictions pertaining to the construction of Improvements to
Property including, for example, the storage of construction materials and hours of construction operations.
Such guidelines or rules shall have the same force and effect as if they were set forth in and were a part of
this Declaration.
E. Submission of Plans. Prior to commencement of work to accomplish any proposed
Improvement to property, the Owner or its duly authorized representative proposing to make such
Improvement to property ("Applicant") shall submit to the Association Architectural Review Committee at
its offices such descriptions, surveys, plot plans, drainage plans, elevation drawings, construction plans,
landscape plans, specifications and samples of materials and colors as the Association Architectural Review
Committee shall reasonably request showing the nature, kind, shape, height, width, color, materials, and
location of the proposed Improvement to Property ("Plans"). The Association Architectural Review
Committee may require submission of additional Plans or other information prior to approving or
disapproving the proposed Improvement to Property. Until receipt by the Association Architectural Review
Committee of all required materials in connection with the proposed Improvement to Property, the
Association Architectural Review Committee may postpone review of any materials submitted for
approval.
F. Criteria for Approval The Association Architectural Review Committee shall approve any
proposed Improvement to Property only if it deems in its reasonable discretion that the Improvement to
Property in the location indicated will not be detrimental to the appearance of the project in the vicinity of
the proposed Improvement to Property; that the appearance of the proposed Improvement to Property will
be in harmony with the surrounding areas of the project, that the Improvement to Property will not detract
from the beauty, wholesomeness and attractiveness of the project or the enjoyment thereof by Owners, and
that the upkeep and maintenance of the proposed Improvement to Property will not become a burden to the
Association. The Association Architectural Review Committee may condition its approval of any proposed
Improvement to Property upon the making of such changes therein as the Association Architectural Review
Committee may deem appropriate.
G. Architectural Review Fee. The Association Architectural Review Committee may, in its
guidelines or rules, provide for the payment of a fee to accompany each request for approval of any
proposed Improvement to Property. The Association Architectural Review Committee may provide that
the amount of such fee shall be uniform for similar types of any proposed Improvement to Property or that
the fee shall be determined in any other reasonable manner, such as based upon the estimated cost of the
proposed Improvement to Property.
H. Decision of Committee. The decision of the Association Architectural Review Committee
shall be made within thirty (30) days after receipt by the Association Architectural Review Committee of
Page Zlof3Z
all materials required by the Association Architectural Review Committee unless such time period is
extended mutual agreement. The decision shall be in writing and, if the decision is not to approve a
proposed Improvement to Property, the reasons therefor shall be stated. The decision of the Association
Architectural Review Committee shall be promptly transmitted to the Applicant at the address furnished by
the Applicant to the Association Architectural Review Committee.
I. Failure of Committee to Act on Plans. Any request for approval of a proposed Improvement
to Property shall be deemed approved, unless disapproval or a request for additional information or
materials is transmitted to the Applicant by the Association Architectural Review Committee within thirty
(30) days after the date of receipt by the Association Architectural Review Committee of all required
materials including in the case of initial Improvements, final working drawings.
J. Obtaining Government Approvals. Applicant shall obtain, prior to commencement of
construction of any Improvements to Property, all permits, licenses, certificates, consents and any other
approvals necessary or required pursuant to any law, ordinance, resolution, order, rule or regulation of any
governmental authority having jurisdiction ("Governmental Approvals") in order for Applicant to construct,
operate and maintain the Improvements to Property. The Governmental Approvals shall be deemed to
include, but not be limited to, building approvals by the Town of Estes Park, Colorado.
K. Prosecution of Work After APProval. After approval or any proposed Improvement to
Property, the proposed Improvement to Property shall be accomplished as promptly and diligently as
possible in complete conformity with the description of the proposed Improvement of Property, any
materials submitted to the Association Architectural Review Committee in connection with the proposed
Improvement to Property, any conditions imposed by the Association Architectural Review Committee and
in compliance with the conditions and restrictions of this Declaration.
L. Notice of Completion. Upon completion of any Improvement ofProperty, the Applicant
may give written Notice of Completion to the Association Architectural Review Committee. Until the date
of receipt of such a Notice of Completion, the Association Architectural Review Committee shall not be
deemed to have notice of completion of such initial Improvements or Improvement to Property.
M. Inspection of Work. The Committee or its duly authorized representative shall have the
right to inspect any Improvement to Property or the Lot itself prior to, during or after completion of any
Improvement to the Property. The Committee's right of inspection of improvements shall terminate thirty
(30) days after the work or improvement shall have been completed and the respective Owner shall have
given written notice to the Committee of such completion. The Committee's right to inspection shall not
be terminated pursuant to this Section in the event plans for the construction of improvements or medication
of improvements have not been previously submitted to it by the Applicant/Owner. If, as a result of any
inspection, the Committee fmds that such improvement has been initiated without obtaining approval of
the plans therefor, or is not being constructed in substantial compliance with the plans approved by the
Committee, the Committee shall have the right to initiate a civil action seeking injunctive relief against the
Owner of the Property and any contractor or subcontractor who is completing the improvements without
compliance with the Architectural Control provisions of this Declaration. Should the Committee be
successful in obtaining injunctive relief against the Owner, any contractor or subcontractor involved in
construction of improvements, the Committee shall be entitled to receive from the Owner all costs of the
action, including reasonable attorneys fees. It is the intent of this Section to give the Committee the ability
to prevent any construction within the subdivision of any type of improvement that has not been previously
approved by the Architectural Review Committee.
Page 22 of32
N. Notice of Noncompliance. If, as a result of inspections or otherwise, the Association
Architectural Review Committee finds that any Improvement to Property has been done without obtaining
the approval or the Association Architectural Review Committee, or was not done in substantial compliance
with the approved Plans or other materials furnished to, and any conditions imposed by, the Association
Architectural Review Committee, or has not been accomplished as promptly and diligently as possible, then
the Association Architectural Review Committee shall notify the Applicant in writing of the
noncompliance; which notice shall be given, in any event, within thirty (30) days after the Association
Architectural Review Committee receives a Notice of Completion from the Applicant. The notice shall
specify the particulars of the noncompliance and shall require the Applicant to take such action as may be
necessary to remedy the noncompliance.
0. Failure of Committee to Act After Completion. If, for any reason other than the Applicant's
act or neglect, the Association Architectural Review Committee fails to notify the Applicant of any
noncompliance within thirty (30) days after receipt by the Association Architectural Review Committee of
written Notice of Completion from the Applicant, the Improvement to Property shall be deemed in
compliance if the Improvement to Property, in fact, completed as of the date of the Notice of Completion.
P. Correction of Noncomoliance. If the Board of the Association determines that a
noncompliance exists, the Applicant shall remedy or remove the same within a period of not more than
forty-five (45) days from the date of receipt by the Applicant of the ruling of the Board of the Association.
If the Applicant does not comply with the Board of the Association ruling within such period, the Executive
Board, may, at its option, record a Notice of Noncompliance against the real property on which the
noncompliance exists, may remove the noncomplying Initial Improvements or other Improvement to
Property or may otherwise remedy the noncompliance, and the Applicant shall reimburse the Association,
upon demand, for all expenses incurred in connection therewith. If such expenses are not promptly repaid
by the Applicant, the Board of the Association may levy a Reimbursement Assessment against the Owner
of the Lot for such costs and expenses. The right of the Association to remedy or remove any noncompliance
shall be in addition to all other rights and remedies which the Association may have at law, in equity, or
under this Declaration.
Q. No Implied Waiver or EstQPPel. No action or failure to act by the Association Architectural
Review Committee or the Association shall constitute a waiver or estoppel with respect to future action by
the Association Architectural Review Committee with respect to any Improvement to Property.
Specifically, the approval by the Association Architectural Review Committee of any Improvement to
Property shall not be deemed a waiver of any right or an estoppel to withhold approval or consent for any
similar Improvement to property or any similar proposals, plans, specifications or other materials submitted
with respect to any other Improvement to Property.
R Committee Power to Grant Variances. The Association Architectural Review Committee
may authorize variances from compliance with any of the provisions of this Declaration for property in the
project when circumstances such as, but not limited to, topography, natural obstructions, hardship, aesthetic
or environmental considerations may require. Such variances must be evidenced in writing and shall
become effective when signed by at least a majority of the members of the Board or a majority of the
members of the Association Architectural Review Committee. If any such variance is granted, no violation
of the provisions of this Declaration for property in the project shall be deemed to have occurred with
respect to the matter for which the variance was granted; provided, however, that the granting of the
variance shall not operate to waive any of the provisions of this Declaration for property in the project for
any purpose except as to the particular property and particular provisions covered by the variance, nor shall
the granting of a variance affect in any way the Owner's obligation to comply with Restrictions in any deed
or lease from Declarant or to comply with all governmental laws and regulations affecting the property
Page 23 of32
concerned, including, but not limited to, development guides and zoning ordinances and setback lines or
requirements imposed by any governmental authority having jurisdiction.
S. Compensation ofMembers. Members of the Association Architectural Review
Committee may receive reimbursement of out-of-pocket expenses incurred by them in the performance of
their duties hereunder as compensation for the performance of such duties if approved by the Board of the
Association.
T. Meetings of Committee. The Association Architectural Review Committee shall meet
from time to time as necessary to perform its duties hereunder. The Association Architectural Review
Committee may, from time to lime, by resolution in writing adopted by a majority of the members, designate
a Committee Representative (who may, but need not, be one of its members) to take any action or perform
any duties for or on behalf of the Association Architectural Review Committee, except the granting of
approval to any Improvement to Property and granting of variances. The action of such Committee
Representative within the authority of such Committee Representative or the written consent or the vote of
a majority of the members of the Association Architectural Review Committee shall constitute action of
the Association Architectural Review Committee.
U. Records of Actions. The Association Architectural Review Committee shall report in
writing to the Board of the Association all final action of the Association Architectural Review Committee
and the Board shall keep a permanent record of such reported action.
V. Estoppel Certificates. The Association shall, upon the reasonable request of any interested
party and after confirming any necessary facts with the Association Architectural Review Committee,
furnish a certificate with respect to the approval or disapproval of any Improvement to Property or with
respect to whether any Improvement to Property was made in compliance herewith. Any Person, without
actual notice to the contrary, shall be entitled to rely on said certificate with respect to all matters set forth
therein.
W. Nonliabilitv for Committee Action. There shall be no liability imposed on the Association
Architectural Review Committee, any member of the Committee, any Committee representative, the
Association, any member of the Board, or Declarant for any loss, damage or injury arising out of or in any
way connected with the performance of the duties of the Association Architectural Review Committee
unless due to the willful misconduct or bad faith of the party to be held liable. In reviewing any matter, the
Association Architectural Review Committee shall not be responsible for reviewing, nor shall its approval
of an Improvement to Property be deemed approval of the Improvement to Property from the standpoint of
safety, whether structural or otherwise, or conformance with building codes or other governmental laws or
regulations.
X. Construction Period Exception. Until such time as all (1 00%) Living Units are built upon
Lots within the project, all actions regarding architectural control shall be decided by the Declarant without
participation by the Board of the Association. The Declarant may incorporate and utilize any or all of the
provisions of this Article IX to arrive at its decision.
ARTICLE X
TERMINATION AND AMENDMENT OF DECLARATION
A . Termination. This Declaration shall continue in effect until and unless terminated as
provided in accordance with the provisions ofC.R.S. §38-33.3-218 as originally enacted or as subsequently
amended by Colorado Legislature.
Page24of32
B. Amendment. Unless terminated as provided in Section A above, each and every provision
of this Declaration shall run with and bind the land for a term of twenty (20) years from the date recording
of this Declaration, after which time this Declaration shall be automatically extended for successive periods
of twenty (20) years each except for provisions stated in Article XU, Section B, which identify specific
voting requirements for those actions to be authorized. This Declaration may be amended in accordance
with the provisions ofC.R.S. §38-33.3-217 as originally enacted or subsequently amended by the Colorado
Legislature.
ARTICLE XI
CONDEMNATION. DAMAGE OR DESTRUCTION TO COMMON AREA
A. Damage or Destruction to Common Area In the event of damage or destruction to all or a
portion of the Common Area due to fire or other disaster, the insurance proceeds, if sufficient to reconstruct
or repair the damage, shall be applied by the Association to such reconstruction and repair. If the insurance
proceeds with respect to such Common Area damage or destruction are insufficient to repair and reconstruct
the damaged or destroyed Common Area, the Association shall present to the Members a notice of a special
assessment for approval by the membership as provided for in Article V, Section G of this Declaration. If
such assessment is approved, the Association shall levy such assessment and proceed to make such repairs
or reconstruction. If such assessment is not approved, the insurance proceeds may be applied in accordance
with the wishes of the membership as expressed by the written consent of seventy-five percent (75%) of
the Owners other than Declarant, except that the proceeds shall not be distributed to the Owners, unless
made jointly payable to Owners and the first Mortgagees of their respective Lots, if any. The assessment as
to each Lot shall be equal to the assessment against every other Lot. Such assessment shall be due and
payable as provided by resolution of the Board, but not sooner than sixty (60) days after written notice
thereof. The assessment provided for herein shall be a debt of each Owner and a lien on the Lot, and may
be enforced and collected in the same manner as any assessment lien provided for in this Declaration.
B. Owner Caused Damage If, due to the act or neglect of an Owner or a Related User of an
Owner, whether by virtue of the exercise by such Owner or Related User of any easement or right granted
to him herein or otherwise, loss or damage shall be caused to any property, including the Common Area,
and, in the case of damage to property, if such Owner does not promptly repair and restore any such
damaged property to the condition it was in prior to such damage at such owner's sole cost and expense,
such Owner shall be liable and responsible for the same except to the extent that such damage or loss is
covered by insurance obtained by Mountain River Townhomes Association, Inc. and the carrier of the
insurance has waived its rights of subrogation against such Owner. The amount of such loss or damage
may be collected by Mountain River Townhomes Association, Inc from such Owner as a Reimbursement
Assessment against such Owner, by legal proceedings or otherwise, and such amount shall be secured by a
lien on the Lot of such Owner as provided elsewhere in this Declaration for assessments or other charges.
C. Condemnation Procedure In the event proceedings are initiated by any government or
agency thereof, seeking to take by eminent domain the Common Area, any part thereof or any interest
therein, any improvement thereon, or any interest therein, with a value (including loss of value to the
balance of the Common Area and improvements thereof), as reasonably determined by the Association in
excess of$10,000, the Association shall give prompt notice thereof, including a description ofthe part of
or interest in the Common Area or improvement thereon sought to be so condemned, to all first Mortgagees,
Members, and to the Declarant. The Association shall have full power and authority to defend in said
proceedings, but the Association shall not enter into proceedings, pursuant to which the Common Area or
any part thereof or any interest therein, or any improvement thereon or any part thereof or interest therein
is relinquished without giving all first Mortgagees, Members, and Declarant at least fifteen ( 15) days prior
written notice thereof.
Page 25of32
In the event, following such proceedings, there is such a taking in condemnation or by eminent
domain of a part or all of the Common Area, the award made for such taking shall be payable to the
Association, subject to the provisions of C.R.S. §38-33 .3-107 regarding the distribution of eminent domain
awards as that section was originally enacted or is subsequently amended by the Colorado Legislature.
ARTICLE XU
MORTGAGEE'S RIGHTS
A. Notice to Mort~agee. Each holder of a first deed of trust on any Lot shall, upon written
request by such holder to the Board, receive any of the following:
(1) Copies of budgets, notices of assessments, insurance certificates, or any other notices or
statements provided under this Declaration by the Association to the Owner of the Lot
covered by the deed of trust;
(2) Any audited or unaudited financial statements of the Association within ninety (90) days
following the end of any fiscal year, which are prepared for the Association and distributed
to the Owners subject to the limitation that the Association shall not be required to provide
an audited financial statement to any owner or mortgagee unless the holder of the first
mortgage requests either an audited or unaudited financial statement from the Association;
(3) Copies of notices of meetings of the Owners and the right to be represented at any such
meetings by designated representative;
(4) Notice ofthe decision ofthe Owners or the Association to make any material amendment to
the Declaration (as defined in Federal National Mortgage Association Lending Guide), the
Bylaws, or the Articles oflncorporation of the Association;
(5) Notice of substantial damage to or destruction of any Dwelling Unit, other building or any
part of the Common Area;
( 6) Notice of commencement of any condemnation or eminent domain proceedings with respect
to any part of the Common Area or any Lot within the Property;
(7) Notice of any default of the holder's Owner which is not cured by the Owner within thirty
(30) days after the giving of notice by the Association to the Owner of the existence of the
default;
(8) The right to examine the books and records of the Association at any reasonable time;
(9) Notice of any lapse, cancellation or material modification of any insurance policy or fidelity
bond maintained by the Association.
B. Actions Requiring Both Member and First Mortgagee A!Wfoval. Notwithstanding
anything to the contrary set forth in this Declaration, the Association shall not:
(1) unless it has obtained the prior written consent of at least sixty seven percent (67%) of all
classes ofMembers and 67% offrrst Mortgagees of Lots (based upon one vote for each First
Mortgage owned):
Page 26of32
a. by act or omission, change, waive, or abandon any scheme of architectural control,
or enforcement thereof, as set forth in this Declaration, regarding the design or
maintenance of the Lots, Improvements thereon or the Common Area;
b. fail to maintain full current replacement cost fire and extended insurance coverage
on the Common Area; or
c. use hazard insurance proceeds for Common Area property losses for purposes other
than to repair, replace, or reconstruct such property; or
d. by act or omission, seek to abandon, partition, subdivide, encumber, sell, or transfer
any common property owned, directly or indirectly, by the Association for the
benefit of the Owners (excluding the granting of easements for public utilities or
other purposes consistent with the intended use of such common property); or
e. change or alter in any respect the required insurance coverages or fidelity bonds;
f. seek to expand or contract the project subject, however, to the Declarant's right of
expansion and special amendment set forth within this Declaration;
g. alter any provision within the Declaration, Articles of Incorporation, or Bylaws
which is for the express benefit of a first mortgage holder or eligible insurer or
guarantor or first mortgage of a Lot within the project,
h. attempt restoration or repair of the project (after a hazard damage or partial
condemnation) in a manner other than that specified in the documents;
i. take any action to terminate the legal status of the project after substantial destruction
or condemnation occurs;
j. attempt a termination for reasons other than substantial destruction or condemnation.
C. Rights of First Mortgagees to Pay Assessments. Etc. Any fust Mortgagee of a Lot within
the Property may jointly or severally pay any tax or other charge which is in default and which may have
become a charge or a lien against any common property of the Association, and any first Mortgagee may
jointly or severally pay any overdue premium on hazard insurance policies or secure new hazard insurance
coverage on the lapse of any such policy upon any common area of the Association, and any first
Mortgagee(s) making such payments shall be entitled to immediate reimbursement therefor from the
Association.
ARTICLEXill
RIGHTS RESERVED BY DECLARANT
A. Special Declarant Right§. Declarant hereby reserves the right from time to time until the
Turnover Date, to perform the acts and exercise the rights hereinafter specified (the "Special Declarant
Rights"). Declarant's Special Declarant Rights include the following:
(1) Completion of Improvements. The right to complete Improvements indicated on Plats
and Maps maintained by the Declarant.
Page 27of32
(2) Exercise of Development Rights. The right to exercise any Development Right reserved
in Article XIII of this Declaration.
(3) Sales Management and Marketing. The right to maintain sales offices, management
offices, signs advertising the Property and any model Dwelling Units.
( 4) Construction Easements. The right to use easements through the Property Elements for
the purpose of making improvements within said Property or Lots.
(5) Master Association. The right to make the project subject to a master association.
(6) Merger. The right to merge or consolidate the project with another project of the same
form of ownership.
(7) Control of Association and Board. The right to appoint or remove any officer of the
Association or any Board member.
(8) Amendment of Declaration. The right to amend this Declaration in connection with the
exercise of any Development Rights.
(9) Amendmc:mt of Map. The right to amend any plat or map in connection with the exercise
of any Development Rights.
B. Additional Reserved Rights. In addition to the Special Declarant Rights set for in Section
A above, Declarant also reserves the following additional rights (the "Additional Reserved Rights"):
( 1) Dedications. The right to establish from time to time, by dedication or otherwise, utility
and other easements for purposes, including but not limited to, streets, paths, walkways,
drainage, recreation areas, parking areas and conduit installation areas and to create other
reservations, exceptions and exclusions for the benefit of and to serve the Lot Owners
within the Property.
(2) Use Agreements. The right to enter into, establish, execute, amend and otherwise deal with
contracts and agreements for the use, lease, repair, maintenance or regulation of parking,
which may or may not be a part of the Property for the benefit of the Lot Owners and/or
the Association.
(3) Other Rights. The right to exercise any Additional Reserved Rights created by any other
provisions of this Declaration.
C. Rights Transferrable. Any Special Declarant Right or Additional Reserved Right created
or reserved under this Article for the benefit of Declarant may be transferred to any Person by an instrument
describing the rights transferred and recorded in Larimer County. Such instrument shall be executed by the
transferor Declarant and the transferee.
D. Expansion Rights. Declarant expressly reserves the right to subject all or any part of
additional real property to the provisions of this Declaration. The consent of the existing Dwelling Unit
Owners or mortgagees shall not be required for any such expansion, and Declarant may proceed with such
expansion without limitation at its sole discretion.
Page 28 of32
E. Amendment of the Declaration. If Declarant elects to submit additional real property to
this Declaration, Declarant shall record an amendment to this Declaration and such amendment shall
contain, at a minimum, the legal description of the additional real property. Upon the recording of an
amendment to this Declaration, the definitions used in this Declaration shall automatically be extended to
encompass and to refer to the Property, as expanded.
F. Construction Easement. Declarant expressly reserves a construction easement necessary
to perform warranty work, repairs and construction work and to store materials in secure areas on the
Property and Lots and Common Area, and the future right to control such work and repairs, and the right
of access thereto, until completion. Such easement includes the right to construct underground utility lines,
pipes, wires, conduits and other facilities across the Property. Declarant's reserved construction easement
includes the right to grant easements to public utility companies and to convey improvements within those
easements .
G. Transfer of Development Rights. Any Special Declarant Right or Additional Reserved
Right created or reserved under this Article for the benefit of Declarant may be transferred to any Person
by an instrument describing the rights transferred and recorded in Larimer County. Such instrument shall
be executed by the transferor Declarant and the transferee.
ARTICLE XIV
REOUJRED ALLOCATION OF INTERESTS
A. Allocated Interests The Common Expense liability and voting in the Association allocated
to each Lot are as follows: (1) The percentage liability for Common Expenses shall be determined by using
a formula in which the numerator is 1 and the denominator is the total number ofLots subject to this original
Declaration or any subsequent amendment to this Declaration which are shown on a recorded subdivision
plat(s) required by the Town ofEstes Park and recorded with the Larimer County Clerk and Recorder; and
(2) The number of votes in the Association, on the basis of one (1) vote being allocated to each Lot Owner,
as determined by the total number of Lots that have been submitted to this original Declaration or any
subsequent amendment of this Declaration which are shown on a recorded subdivision plat required by the
Town of Estes Park and recorded with the Larimer County Clerk and Recorder.
ARTICLE XV
GENERAL PROVISIONS
A. Enforcement The Association or any Owner shall have the right to enforce, by any
proceeding at law or in equity, all restrictions, conditions, covenants, reservations, liens, and charges now
or hereafter imposed by the provisions of this Declaration. Failure by the Association or by any Owner to
enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do
so thereafter.
B. Severability. Invalidation of any of these covenants or restrictions by judgment or court
order shall in no way affect or limit any other provisions which shall remain in full force and effect.
C. Claims No claim or cause of action shall accrue in favor of any person in the event of the
invalidity of any provision of this Declaration or for failure of the Association or Declarant to enforce any
provision hereof. This Section may be pleaded as a full bar to the maintenance of any suit, action, or
arbitration brought in violation of this provision.
Page 29 of32
CONSENT OF LIENHOLDER(S)
The undersigned Lienholder hereby consents and agrees to the foregoing Declaration:
LIENHOLDER:
l?u.&l or Cbl9\ a ti -0 BANK
~~~Vl"d..J "'~
t:-s k~ POI\..JJ &-.~
STATE OF COLORADO )
) ss.
COUNTY OF LARIMER )
tJ\
The foregoing instrument was acknowled:ed before me this 7 ._., day of ~ o C ~ \ , l
2014, by Chx s\-!M J~rcJ~ as ~~ Pa std0\.4-of l3 CtA k ... O't Co ora.cto
Bank, Lienholder.
WITNESS my hand and offici'l se1 .
My commission expires: ] ')..c/$
MY COMMISSION EXP~RES:
July 20,2015
Page 32 of32
D. Waiver. No provision contained in this Declaration shall be deemed to have been
abrogated or waived by reason of any failure to enforce the same, irrespective of the number of violations
or breaches which may occur.
E. Liti~ation Limitations So long as the Declarant or any successor in interest has an interest
in the Property, the Association shall not use its financial resources to defray any costs of opposing the
development activities of Declarant so long as they remain consistent with the general intent of any
development plan identified by the Declarant. Nothing in this Section shall be construed to limit the rights
of members to act as individuals or in affiliation with other members or groups in an action against the
Declarant.
F. Conflicts of Proyisions. In case of any conflict between this Declaration, the Articles of
Incorporation or By laws of the Association, this Declaration shall control. In case of any conflict between
the Articles oflncorporation and Bylaws of the Association, the Articles of Incorporation shall control.
G. Owners' Right to Examine. Each Lot owner shall have a right to examine the books and
records of the Association at any reasonable time.
H. Registration by Owner of Addresses. Each Owner shall register a mailing address and an
electronic mail address with the Association, and any notice by the Association to an Owner may be sent
by first class mail, certified mail or electronically. All notices, demands, or other notices intended to be
served upon the Board of the Association or the Association shall be sent by certified mail, postage prepaid,
to the office of the Association.
IN WITNESS WHEREOF, Declarant has executed this Declaration on the it_ day of
November, 2014.
B and L Development, LLC
a Colorado limited liability company,
By:~L~~
Bryc . Dallman, Member
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STATE OF A.r'1 U>V"' "'-
COUNTY oF Pimov
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ss.
The foregoing instrument was acknowledged before me this JL.day ofNovember, 2014, by~
L. Dallman as MeQJber ofB and L Development LLC.
My commission expires: M m~ I 2 I Z..oC 'e Witness my hand and official seal.
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(),.~J ' hJtnM? Notary ~
Page 31 of3Z