TC Res. No. 1997-14TOWN OF AVON
RESOLUTION NO. 97-14
SERIES OF 1997
A RESOLUTION APPROVING THE FINAL PLAT, OF
BROOKSIDE PARK, A RESUBDIVISION OF LOT 1,
EAGLEWOOD SUBDIVISION, TOWN OF AVON, EAGLE
COUNTY, COLORADO
WHEREAS, Riverview Park Associates Inc. has submitted a Final Plat, Brookside Park,
A Resubdivision of Lot 1, Eaglewood Subdivision, Town of Avon, Eagle County, Colorado; and
WHEREAS, the Final Plat has been reviewed by the Town Staff, and
WHEREAS, the Final Plat was found to be substantially in accord with the Title I - of the
Avon Municipal Code; and
WHEREAS, the proposed subdivision complies with the'requirements for consideration-
as a Final Plat.
NOW, THEREFORE, BE IT RESOLVED, by the Town Council of the Town of Avon,
that the Final Plat, Brookside Park, A Resubdivision of Lot 1, Eaglewood Subdivision, Town of
Avon, Eagle County, Colorado, is hereby approved by the Town of Avon, subject to:
1. Completion of a Subdivision Improvement Agreement and posting of any required
collateral for subdivision improvements as approved by Town Staff.
2. Dedication of a trail easement and construction of a 10 foot wide bike trail in
conformance with Town of Avon and Eagle County standards.
3. Approval of the subdivision by laws, articles of incorporation, and declarations by
Town Staff.
4. The completion of technical corrections as identified by Town Staff.
AND FURTHER,BE IT RESOLVED that the Town Council of the Town of Avon
hereby authorizes the Mayor to sign the subdivision improvements agreement.
ADOPTED THIS 284th DAY OF JANUARY, 1997
TOWN COUNCIL
TOWN OF AVON, COLORADO
Jac Fawcett, Mayor
j'
ESCROW AGREEMENT
This agreement is entered into this 20th day of February, 1997, by
and between Riverview Park Associates, Inc., a Colorado corporation .
("Developer"), the Town of Avon, a Colorado municipality (the "Town"),
and FirstBank of Avon ("Bank").
Recitals
A. Developer has entered into a Subdivision Improvements
Agreement ("SIA") with Town concerning the construction of
improvements by or on behalf of Developer on real property
located within the boundaries of Town and described in more
detail on Exhibit A attached hereto.
B. Under the terms of the SIA, Developer is required to obtain a
j1 letter of credit or other collateral acceptable to Town that
will guaranty the completion of construction of the improve-
ments. The letter of credit or other collateral is required
to be in an amount equal to 125 percent of the estimated
.amount of the reimbursable costs described in the SIA.
C. Developer, in place of a letter of credit, has agreed to
establish an escrow deposit account to be maintained at
Bank for the benefit of Town. Bank will act as the escrow
agent under the terms of this agreement.
D. Upon execution of this agreement by the parties and
confirmation of the amount of the deposit in the escrow
account, Town is willing to accept this agreement in lieu
of a letter of credit under the SIA.
Accordingly, in consideration of the covenants and undertakings to
be performed under the terms of this agreement,,the parties hereby agree C~
as follows :
G►~
1. Creation of Escrow Account. Developer has deposited the sum
of,$63,953.75 with Bank to be maintained in deposit account
number 3536836372 (the "escrow account"). Bank will be
designated as escrow agent for the escrow account and will
have authority to disburse funds from the escrow account in
accordance with the terms of this agreement and as supplement-
ed by the terms of the SIA. All funds in the escrow account
shall earn interest at the rate paid by Bank for a 'savings
account of a corresponding amount and maturity.,
2. Escrow Account Disbursements. Bank shall follow the
i mm nm niiii Niiii~iii HIM 111111111111111111 IN
616531 13/1997 SOP BM I of 7 R 36-90 D 0-M N 0.00 Eagle, Colorado
instructions and conditions described in this section with
respect to the maintenance and disbursement of funds from
the escrow account.
2.1 Bank will retain a copy of the SIA in its files and
will not take any action with respect to the deposit
account funds that is in conflict with the provisions
of the SIA.
2.2 Upon receipt of a written statement and request from
Town asserting that Developer has failed to perform the
completion of the improvements in accordance with the
SIA, Bank shall disburse to Town a portion or all of the
funds in the escrow account in the amount requested by Town
in writing. Bank shall be required to notify Developer
10 days prior to any such disbursement, and Bank shall be
entitled to rely on the truth and accuracy of the written
statement and request from Town in all respects.
2.3 After Bank receives written confirmation from Town that all
or a portion of construction of the improvements has been
completed (including the date of completion) for which
the Town approves the release of funds. Bank may disburse
all funds in the escrow account to Developer except for an
amount equal to 25 percent of the total actual cost of
completion of the improvements as certified by Developer
and approved by Town.
2.4 The remaining..funds shall be held by Bank in the escrow
account for a period of one-year from the date of completion.
If Bank receives a written demand from Town during this
period of time relating to warranty claims under the SIA,
Bank shall disburse such sums as requested in writing by
Town up to the amount held on deposit in the escrow account.
2.5 In the-event Developer is required to perform corrective
work under Developer's warranty, Bank shall withhold or
limit disbursements from the escrow account for a
period of one year from the date of completion of the
corrective work in order to assure that funds remain in
the escrow account in an account at least equal to 125
percent of the cost of the corrective work. This amount
may be estimated by Town under the terms of the SIA, and
such amount shall be certified to Bank in writing.
C
C.7
2.6 At the end of the one year period described in Section 2.4
(provided no corrective work has been commenced by
Developer for warranty claims), or at the end of the one
year period described in Section 2.5, Bank will. request
written certification from Town that no warranty claims
remain with respect to the initial work or any corrective
i iniii 11111 HIM MIN III HIM 1111111111 nisi 11111111
616531 03/13/-1997 03:36P B720 P560 23
2 of 7 R 36.W D O.W N 0.00 Eagle, Colorado
work. Upon receipt of such certification, Bank may
disburse all remaining funds in the escrow account to
Developer.
r
3. Interest. Notwithstanding any other provisions of this
agreement, interest accruing upon escrow account funds shall
at all times be held by Bank for the benefit of Developer
and shall be disbursed to Developer upon request.
4. Account Maintenance Rules. Other than as provided in this
agreement, the escrow account will be governed by and
maintained in accordance with Bank's standard deposit
account agreement, rules and regulations.
5. Term. This agreement shall terminate upon agreement of the
parties or on February 20 , 1998 , whichever event
occurs first. All funds remaining on balance in the escrow
account on the date of termination shall be disbursed in the
manner described in this agreement or in any other manner
that may be agreed upon by the parties.
6. Limited Role of Bank. Bank shall act under this agreement
only as an escrow agent. By agreeing to act in this capacity,
Bank makes no representations or recommendations concerning
the nature or quality of the improvements to be constructed
under the SIA or the suitability of Developer or any other
person or entity to perform such work.
7. Expenses and Fees. Developer shall pay a fee to Bank for its
services as the escrow agent-iri accordance with the fee
schedule attached hereto as Exhibit B. Developer will pay
all costs and expenses incurred by Bank.in connection with
Bank's review of the SIA and the administration of the escrow
account as well as the preparation of this agreement and any
supplementary documents.
8. Indemnification. Developer agrees to indemnify and hold
Bank harmless from and against all liabilities, claims,
damages, costs, and expenses arising out of the administration
of its agreement and the escrow account. This provision shall
be construed in this most comprehensive sense and shall
include any attorney's fees and costs incurred by Bank
relating to this agreement or the escrow account.
9. Good Faith Actions. Bank shall not be liable for any act it
may do or omit to do.under this agreement while acting in
good faith and in the exercise of its judgement or upon the
advice of its attorneys.
10. Orders of Court. Banks is hereby expressly authorized to
comply with and obey any and all orders, judgements, or
111111111111111111111111111111111111111 Ill muiii IN
616531 03/13/1997 05:56P B726'P560 23
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decrees of any court relating to this agreement. In the
event Bank complies with or obeys such judicial process,
it shall not be liable to any of the parties hereto or to any
other person, firm or entity by reason of such compliance,
notwithstanding that any such order, judgement or decree may
be subsequently reversed, modified, annulled, set aside or
vacated, or found to be entered without jurisdiction.
11. Miscellaneous
11.1 All notices shall be in writing and shall be deemed
to have been given when presented personally, sent by
facsimile transmission, or when deposited in the United
States,mail, certified mail, return receipt requested,
addressed as follows (or as contained in any amendments
hereto):
Bank: FirstBank of Avon
Attn: Terry L. Halverson
FirstBank of Avon
PO Drawer 5270
Avon, CO 81620
Facsimile No. 970-949-6073
Developer:
Riverview Park Associates, Inc.,
a Colorado corporation Attn: Frank E. Navarro
PO BOX 18223
Avon, CO 81620
Town: Town of Avon
PO BOX 975
Avon, CO 81620
With copies to: John W. Dunn, Esq.
Dunn, Abplanalp & Christensen, P.C.
108 S. Frontage Rd. W., #300
Vail, CO 81657
Facsimile No. 970-476-4765
W
11.2 This agreement embodies all written and oral negotiations
between the parties and may not be amended except in
writing executed by all parties.
11.3 This agreement has been executed in several counterparts,
any one of which may be deemed an original. Signature
pages bearing facsimile signatures shall be received
in lieu of original signatures, and such copies taken
4
11111 HIM IIIII III 111111111111111111111111 IN
03/13/19WO GM5:56. B720 P1 23
together shall be deemed to be a full and complete
agreement between the parties.
11.4 This agreement shall be governed by construed in
accordance with the laws of the State of Colorado.
11.5 The terms of this agreement will bind and benefit the
heirs, legal representatives, successors and assigns
of the parties.
11.6 The invalidity or unenforceability of any one or more
provisions of this agreement shall in no way affect
any other provisions.
BANK: DEVELOPER:
FirstBank of Avon, a Colorado Riverv' w ar sociates, Inc.,
banking tion a Col c ration
By: By:
Title: P siden Title: 2[
TOWN:
By :
Title: ayor
J
IIIIII IIIII HIM 1111111111-1111111111111111111111111
I616331 03/13/1997 03:36P 8720 P360 23
3 of 7 R 36.00 D 0.00 N 0.00 Eagle, Colorade
C.:
5
EXHIBIT A
The real property that is the subject of this escrow agreement is
legally described as follows:
Final Plat-for Brookside Park, a Resubdivision of Lot
Eaglewood Subdivision, recorded on
in Book , at Page in the Office of
Clerk and Recorder
COUNTY OF EAGLE
STATE OF COLORADO
1997
the
111111111111111111,111111111111111111111111111111111111
1/13/1997 05:56P MOM@ 23
8 of 7 R 36.00 D 0.00 N 0.09 Eagle, Colorado
C.~
CV!
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6
r
EXHIBIT B
The fees and expenses to be imposed by Bank.in accordance with
Section 7 of this agreement are as follows:
Bank will impose no fees or expenses during the initial
term of this agreement. 6165,31 gl gi gIIIII IN IN
7 of, 7 R 36-00 D 0.00 N 0.00 Eagle, Colorado
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.Y+
7
4/
SUBDIVISION IMPROVEMENTS AGREEMENT
THIS SUBDIVISION IMPROVEMENTS AGREEMENT is made and entered
into as of the P day of fM~_ , 1997, by and between
RIVERVIEW PARK ASSOCIATES, INC., a Colorado corporation
("Subdivider"), RESORT CONCEPTS LLC, a Colorado limited liability
company ("Purchaser"), and the TOWN OF AVON, by and through its
Council (the "Town").
WITNESSETH:
WHEREAS, Subdivider owns that certain property (the
"Property") shown on the Final Plat for Brookside Park, a
Resubdivision of Lot 1, Eaglewood Subdivision, recorded on
1997 in Book , Page , in the Office of the Clerk
and Recorder of Eagle County, Colorado (the "Plat");
f WHEREAS, Purchaser and Subdivider have entered a contract
J~ pursuant to which Purchaser may purchase from Subdivider Lots 2 and
3 shown on the Plat (each lot shown on the Plat being referred to
as a "Lot");
WHEREAS, in connection with the approval of the Plat, the Town
has requested, and Subdivider and Purchaser have agreed to execute,
a Subdivision Improvements Agreement as provided for by Section
16.24.100 of the Avon Municipal Code, as amended;
WHEREAS, pursuant to said Code, the Town desires to make
reasonable provision on the Property for construction of a public
pedestrian and bicycle path (the "Improvements") in accordance with
the Development Plan referred to in that certain Ordinance No. 96-8
recorded on November 27, 1996 in Book 712, Page 443 of the Office
of the Clerk and Recorder of Eagle County, Colorado (the "Plan"),
and "within the area dedicated to the Town and designated as "Trail
Easement" on the Plat;
WHEREAS, Subdivider and Purchaser (in the event Purchaser
purchases Lots 2 and 3.of the Property) have agreed to construct
that portion of the Improvements relating to each Lot no later than C
the. date on which a final certificate of occupancy is first G7
obtained from the Town of Avon for any structure on such Lot; and
WHEREAS, the undersigned parties have made the agreements.
described herein in connection with the Improvements.
AGREEMENT:
NOW THEREFORE, in consideration of the following mutual
covenants, conditions, and promises, the parties hereby agree, as
follows:
1. The construction on each Lot of the Improvements relating
to such Lot is a condition to the issuance of- any final certificate
111110 111111111111111111111 i w 111111101111111111111 IN
of occupancy first received for a structure on any portion of the
Lot. Any subsequent owner of a Lot, including Purchaser, if
applicable (each owner, including Subdivider, being referred to as
an "Owner), by taking title thereto, shall take title subject to
and be bound by the terms of this Agreement until the Improvements
have been constructed on the Owner's Lot and approved by the Town
in accordance with this Agreement. Every Owner of a Lot shall-be
required to construct those Improvements shown on the Plan on such
Lot as the Lot is developed and to furnish all equipment and
material necessary to perform and complete, in a good and
workmanlike manner, all such Improvements and work incidental
thereto. Each Owner will be responsible for all costs related to
the Improvements on the relevant Lot. All said work shall be
performed substantially in accordance with the construction
specifications and drawings as approved by the Town. All work
shall be done under the inspection procedures and standards
established by the Town, shall be to the reasonable satisfaction of
the Town and shall not be deemed complete until approved and
accepted by the Town.
2. The estimated cost of the Improvements on all Lots is
$51,163.00 as follows: (a) $12,750.00 for Lot 1, (b) $12,078.00
for Lot 2, and (c) $26,336.00 for Lot 3. Subdivider shall deliver
to the Town an irrevocable letter of credit issued by a bank
acceptable to the Town in an amount equal to one hundred and
twenty-five percent (125%) of the foregoing estimated cost of
completion of the Improvements on all Lots. A breakdown of the
estimated costs of completion of all Improvements is set forth on
Exhibit A attached hereto. The letter of credit shall be delivered
to the Town-prior to, or concurrently with, recording of this
Agreement and the Plat.
3. Upon conveyance of one or more Lots to any subsequent
owner, including Purchaser, if applicable, such Owner will be
required to substitute collateral which satisfies Section 16.24.100
of the Avon Municipal Code, as amended, for the portion of
Subdivider's letter of credit relating to the Improvements on the
Lot(s) being transferred. Such substituted collateral shall be in
the amount of one hundred and twenty-five percent (125%) of the
amount described above and set forth on Exhibit A to complete the
Improvements to be constructed on the Lot(s) being transferred.
~a
4. The Town hereby agrees that a different form of acceptable
collateral may be substituted by Subdivider or any subsequent Owner
at any time for all or a portion of the letter of credit deposited
with the Town pursuant hereto to guaranty the faithful completion
of the Improvements on each Lot and the performance of the terms of
this Agreement. The Town hereby agrees to accept collateral
satisfying the terms of Section 16.24.100 of the Avon Municipal
Code, as amended, from any subsequent Owner and, if one or more
Lots are conveyed to separate parties, the obligations of such
parties to construct the Improvements shall be independent from
2
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another Owner's obligations in connection with the Improvements on
its Lot(s). The Town agrees that the construction obligations on
each Lot shall be secured only by the collateral furnished by the
owner of such Lot and not by the collateral furnished for any Lot
owned by another party.
5. The Town agrees that on a monthly basis, subsequent to the
Town's approval of work on the Improvements, the Town will approve
construction draws for one or more Lots. Provided that Subdivider
or any subsequent Owner submits a schedule of work completed no
later than the first of the month, the Town shall consider the
approval of the draw(s) at its first monthly council meeting. Upon
the approval of such construction draws, the amount of the letter
of credit or other collateral shall be reduced by the' amount of
such draw; provided, however, that in no event will' any such
reduction cause the amount remaining which is allocated to any Lot
under said letter of.credit or other collateral to be less than an
amount equal to one hundred and twenty-five percent (12511) of the
estimated costs of completion of the remaining Improvements to be
constructed on such Lot. Upon completion of all work related to
the Improvements on any Lot and the Town's acceptance of the
Improvements, the entire amount remaining under the letter of
credit or other collateral, less those sums described in Section 9
below, shall be released.
. 6. Upon completion of portions of the Improvements on any
Lot, Subdivider or any subsequent Owner will cause its,engineers
(who shall be registered in the State of Colorado) to certify in
writing that the installation of the Improvements, or portions
thereof as may be completed from time to time, have been completed
in conformance with all standards, drawings and specifications as
submitted to and previously approved by the Town. 'Inspection
reports, test results and other supporting documentation shall be
submitted with the certification. The Town may provide periodic
inspections as it deems necessary to assure conformance with
approved plans and specifications. 'Fees in accordance with the
Town's subdivision regulations for the review of,preliminary plans
and final plats have been paid.in full. Additional fees shall be
paid to the Town by Subdivider or a subsequent Owner to cover the
cost of inspections by the Town. These additional fees will not
exceed five percent (5°s) of the total construction costs. The fees
will be based on direct (out-of-pocket) costs of the Town plus
fifteen percent (15%) of said costs for administration.; W
U
7. Subdivider and every subsequent Owner, including
Purchaser, if applicable, each agrees that in the event it shall
fail to perform its obligations as set forth herein, the:Town shall
be under -no obligation to complete or perform any of the
Improvements or to issue final certificates of occupancy for a
structure on any Lot.
i ~m i~,niiii MIN uuiiiu aini M nai w IN
g.. The Town shall not, nor shall any officer, agent, or
employee thereof, be liable or responsible for any accident, loss
or damage related to the work specified in this Agreement, nor
shall the Town, nor any officer, agent, or employee thereof, be
liable for any persons or property injured by reason of the nature
of said work. All of said liabilities are hereby assumed by
Subdivider and/or any subsequent Owner. Subdivider and every
subsequent Owner, including Purchaser, if applicable, hereby agree
to indemnify and hold harmless the Town, and any of its officers,
agents, and employees against any losses, claims, damages or
liabilities to which the Town or any of its officers, agents, or
employees may become subject to, because of any losses, claims,
damages or liabilities (or actions in respect thereof) that arise
out of, or are based upon, any obligation of Subdivider or other
owner as hereinbefore stated. Furthermore, Subdivider and/or every
subsequent owner shall reimburse the Town for any and all legal or
other expenses reasonably incurred by the Town in connection with
investigating or defending any such loss or claim.
9. The Improvements on each Lot shall be warranted to be
free from defects in workmanship or quality for a period of one (1)
year after acceptance by the Town of the Improvements located on
such Lot. In the event of any such defect, the Town-may require
the Owner of the Lot to correct the defect in material or
workmanship. An amount equal to twenty-five percent (25t) of the
total actual cost of completion of the Improvements on each Lot
shall be retained from the collateral deposited to secure the
Improvements constructed on such Lot during the one (1) year period
as a guaranty of performance of the work required pursuant to the
above-described warranty for the Improvements on each Lot. In the
event any corrective work is performed on a Lot during the one year
warranty period then the warranty on said corrected work shall be
extended for one (1) year from the date on which it is completed.
Subdivider and every subsequent owner, including Purchaser, if
applicable, each agrees to allow one hundred and twenty-five
percent (125°x) of the cost of any corrected work on any Lot, as
estimated and approved by the Town, to be retained from the
collateral securing the Improvements on such Lot for a period of
one (1) year from the date of completion of the corrected work.
10. When the collateral on any Lot has been released and the
work on such Lot accepted by the Town, the Town agrees that it will
issue a letter, in recordable form, certifying that all obligations
of Subdivider or other Owner with respect to such Lot under this
Agreement have been satisfied.
11. This Agreement may be amended from time to time, provided
that such amendment is in writing and signed by the Town and the
Owner(s) of the Lot(s) to which the amendment applies.
11111111111111111111111 gi iii iii u~m iinNN nu IN
12.. In the event of a lawsuit arising out of the terms of
this Agreement, the prevailing party shall be entitled to court
costs and reasonable attorney's fees.
13. This Agreement and the obligations hereof shall be deemed
to be covenants running with the land and shall be binding-on the
successors and assigns of the parties hereto.
The parties hereto have executed this Agreement as of the date
above written.
TOWN OF AVON, A COLORADO
MUNICIPAL CORPORATION
By :
Mayor
RIVERIJIF~d PAfKSOCIATES, INC.,
a Col r o 0 oration
By:
t
RESORT CONCEPTS LLC, a Colorado
limited i "lity company
Name c•4+-~
Title: 117--A,444 rr✓
v
C.~
i iimi nisi 111111111111111111111111111111111111111111
616530 03/13/1997 05:53P B720 P559 B9
5 of 7 R 36.00 D 0.00 N 0.00 Eagle, Colorado
5
STATE OF COLORADO )
) SS
COUNTY OF EAGLE )
The foregoing instrument was acknowledged before me this 13th
day of March , 1997, by Jack Fawcett
as Mayor, and Patty Lambert as Town Clerk, of the Town of
Avon.
WITNESS my hand and official
My Commission Expires:
STATE OF COLORADO
COUNTY OF EAGLE
lb tit (2tau'(X((,
is
C04
y )
The foregoing-instrument was acknowledged before me this
day of l ~.P ru 1997, by lc,k-7k A,.h,,
as. of Riverview Park Associates, Inc., a
r' `-Iiltolorai~o• corporation.
-3 WI-41 ESS my hand and off 1:
-A '
Je7
My Commission Expires:
V
Nota+rPublic j
STATE OF COLORADO )
)ss
COUNTY OF EAGLE )
The foregoing instrument was acknowledged before me this
't-- day of hh~lfitit , 1997, by kL llie, n Arm-ffeae
as., Cio I of Resort Concepts LLC, a Colorado limited
company.
WITNESS my hand and official(~eal:
My Commission Expires
/sub-bro.3dc
i IIIIII nisi IIIIII IIIIII 111111111111111111111111111 IN
8 of 7 R 36.09 D 8.H N 0.09 Eagle, Colorado
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C'I
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BROOKSIDE PARK P.U.D. PEDESTRIAN PATH COST ESTIMATES
Lot 1
ITEM
DESCRIPTION
UNIT
QUANTITY
UNIT PRICE
TOTAL
GRADING AND SITEWORK
1
Topsoil Remove and Replace
C Y
253
$10.00
$2,530.00
2
Earthwork & Subgrade Preparation
LF
285
$20.00
$5,700.00
EROSION CONTROL
3
Silt Fence
LF
300
$4.50
$1,350.00
PAVING
4
Asphalt (3)
TON
42.2
$50.00
$2,110.00
5
Base Course (47
TON
53
$20.00
$1,060.00
TOTAL FOR LOT 1
$12,750.00
Lot 2
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ITEM
DESCRIPTION
UNIT
QUANTITY
UNIT PRICE
TOTAL
GRADING AND SITEWORK
1
Topsoil Remove and Replace
CY
188
$10.00
$1,880.00
2
Earthwork & Subgrade Preparation
LF
212
$20.00
$4,240.00
EROSION CONTROL
3
Silt Fence
LF
220
$4.50
$990.00
DRAINAGE
4
36" CMP Culvert
LF
16
$110.00
$1,760.00
5
36" STD Flared End Section
EA
2
$425.00
$850.00
PAVING
6
Asphalt (3'
TON
31.4
$50.00
$1,570.00
7
Base Course (41
TON
39.4
$20.00
$788.00
TOTAL FOR LOT 2
$12,078.00
Lot 3
ITEM
DESCRIPTION
UNIT
QUANTITY
UNIT PRICE
TOTAL
GRADING AND SITEWORK
1
Topsoil Remove and Replace
CY
505.1
$10.00
$5,051.00
2
Earthwork & Subgrade Preparation
LF
568
$20.00
$11,360.00
EROSION CONTROL
3
Silt Fence
LF
580
$4.50
$2,610.00
PAVING
4
Asphalt (31
TON
104.1
$50.00
$5,205.00
5.
Base Course (41
TON
105.5
$20.00
$2,110.00
TOTAL FOR LOT 3
$26,336.00
L~
MASTER DECLARATION
FOR
BROOKSIDE PARR
C;
C.~
I IIIIII IIIII HIM 111111 III AN 11111111111111111 IN
616329 03/13/1997 03:34P 8720 P338 133
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TABLE OF CONTENTS
Paae
ARTICLE
1
IMPOSITION OF COVENANTS . . . . . . . . . .
1
Section
1.1
Purpose . . . . . . . . . . . . . . . . . .
1
Section
1.2
Intention of Declarant . . . . . . . . . . .
1
Section
1.3
Projects . . . . . . . . . . . . . . . . . .
1
Section
1.4
Master Declaration . . . . . . . . . . . . .
2
Section
1.5
Covenants Running With the Land . . . . . .
2
ARTICLE
2
DEFINITIONS . . . . . . . . . . . . . . . .
2
ARTICLE
3
MASTER COMMON ELEMENTS . . . . . . . . . . .
6
Section
3.1
Master Common Elements . . . . . . . . . . .
6
Section
3.2
Third Party Interests in Master Common
Elements . . . . . .
6
Section
3.3
Nonpartitionality of Master Common Elements
6
Section
3.4
Rights and Easements . . . . . . . . . . . .
7
Section
3.5
Separate Tax Assessments . . . . . . . . . .
8
ARTICLE
4
MEMBERSHIP IN MASTER ASSOCIATION . . . . . .
8
Section
4.1
Master Association Membership . . . . . . .
8
Section
4.2
Voting Rights . . . . . . . . . . . . . . .
9
Section
4.3
Declarant Control . . . . . . . . . . . . .
10
Section
4.4
Owner's and Association's Address for
Notices . . . . . . . . . . . . . . . . . .
10
ARTICLE
5
MASTER ASSOCIATION DUTIES . . . . . . . . .
11
Section
5.1
Master Association Management Duties . . . .
11
Section
5.2
Master Association Responsibilities . . . .
11
Section
5.3
Project, Unit Responsibility . . . . . . . .
12
Section
5.4
Reserve"Account . . . . . . . . . . . . . .
12
Section
5.5
Owner's Negligence . . . . . . . . . . . . .
13
Section
5.6
Delegation of Management and Maintenance
Duties . . . . . . . . . . . . . . . . . . .
13
Section
5.7
Acquiring and Disposing of Personal
Property . . . . . . . . . . . . . . . . . .
13
Section
5.8
Cooperation with Governmental Districts and
Other Associations . . . . . . . . . . . . .
13
Section
5.9
Cooperation with Project Associations . . .
13
Section
5.10
Delegation by Master Association . . . . . .
14
Section
5.11
Issuance of Rules and Regulations . . . . .
14
Section
5.12
Enforcement of Master Association Documents
14
Section
5.13
Identity of Executive Board and
Managing Agent . . . . . . . . . . . . .
14
Section
5.14
Payments to Working Capital Account
14
Section
5.15
Implied Rights . . . . . . . . . .
15
Section
5.16
Books and Records of the Master Association
15
IIWI IIIII RIIII ~IIII III NIIII Illld III IWI IIII III
616M U/13/L997 05:54P B720 P558 133
2 of 52 R 261-M D @.'N N 43.09 Eagle, Colorado
w
ra ,
t~
L
ARTICLE
6
ASSESSMENTS . . . . . . . . . . . . . . . .
15
Section
6.1
Covenant of Personal Obligation of
Assessments . . . . . . . . . . . . . . . .
. 15
Section
6.2
Purpose of Assessments . . . . . . . . . . .
16
Section
6.3
Amount of Total Annual Assessments . . . . .
16
Section
6.4
Apportionment of Annual Assessments . . . .
17
Section
6.5
Annual Budget . . . . . . . . . . . . . . .
18
Section
6.6
Special Assessments . . . . . . . . . . . .
18
Section
6.7
Due Dates for Assessment Payments . . . . .
19
Section
6.8
Declarant's Obligation to Pay Assessments
19
Section
6.9
Default Assessments . . . . . . . . . . . .
19
Section
6.10
Lien for Assessments . . . . . . . . . . . .
20
Section
6.11
Effect of Nonpayment of Assessments . . . .
20
Section
6.12
Successor's Liability for Assessments . . .
21
Section
6.13
Waiver of Homestead Exemption;
Subordination of Association's Lien-
for Assessments . . . . . . . . . . . . . .
21
Section
6.14
Statement of Status of Assessments . . . . .
22
Section
6.15
Liens . . . . . . . . . . . . . . . . . . .
23
ARTICLE
7
INSURANCE AND FIDELITY BONDS . . . . . . . .
23
Section
7.1
General Insurance Provisions . . . . . . . .
23
Section
7.2
Cancellation . . . . . . . . . . . . . . . .
24
Section
7.3
Policy Provisions . . . . . . . . . . . . .
24
Section
7.4
Insurance Proceeds . . . . . . . . . . . . .
25
Section
7.5
Association Policies . . . . . . . . . . . .
25
Section
7.6
Insurer Obligation . . . . . . . . . . . . .
25
Section
7.7
Repair and Replacement . . . . . . . . . . .
25
Section
7.8
Common Expenses . . . . . . . . . . . . . .
26
Section
7.9
Fidelity Insurance . . . . . . . . . . . .
26
Section
7.10
Workmen's Compensation Insurance . . . . . .
26
Section
7.11
Other Insurance . . . . . . . . . . . . . .
27
Section
7.12
Insurance Obtained by Owners . . . . . . . .
27
ARTICLE
8
MECHANICS' LIENS . . . . . . . . . . . . . .
27
Section
8.1
Mechanics' Liens . . . . . . . . . . . . . .
27
Section
8.2
Enforcement by the Master Association . . .
- 28
ARTICLE
9
USE RESTRICTIONS . . . . . . . . . . . . . .
28
Section
9.1
Conveyance of Units . . . . . . . . . . . .
28
Section
9.2
Use of Master Common Elements . . . . . . .
28
Section
9.3
Prohibition of Increases in Insurable
Risks and Certain Activities . . . . . . . .
28
Section
9.4
Structural Alterations and Exterior
Appearance . . . . . . . . . . . . . .
29
ARTICLE
10
EASEMENTS . . . . . . . . . . . . . . . . .
29
Section
10.1
Easement of Enjoyment . . . . . . . . . . .
29
Section
10.2
Delegation of Use . . . . . . . . . . . . .
29
Section
10.3
Recorded Easements . . . . . . . . . . . . .
30
Section
10.4
Easements for Encroachments . . . . . . . .
30
Section
10.5
Utility Easements . . . . . . . . . . . . .
30
Section
10.6
Reservation of Easements, Exceptions,
and Exclusions . . . . . . . . . . . . . . .
31
Illill IIIII111111111111 III111111111111 III IIIII IIII IIII
NEW 03/13/1997 03:34P 8720 P338 133
3 of 32 R 261.00 0 0.00 N 0.00 Easls, Colorado
V
r
Section
10.7
Emergency Access Easement . . . . . . . . .
31
Section
10.8
Maintenance Easement . . . . . . . . . . . .
31
Section
10.9
Drainage Easement . . . . . . . . . . . . .
31
Section
10.10
Easements of Access for Repair, Maintenance,
and Emergencies . . . . . . . . . . . . . .
31
Section
10.11
Declarant's Rights Incident to Construction
and Marketing . . . . . . . . . . . . . . .
32
Section
10.12
Right of Declarant and Association to Own
Units and to Use Common Elements . . . . . .
32
Section
10.13
Remodeling Easement . . . . . . . . . . . .
32
Section
10.14
Easements Deemed Created . . . . . . . . . .
33
ARTICLE
11
ASSOCIATION AS ATTORNEY-IN-FACT . . . . . .
33
Section
11.1
Appointment . . . . . . . . . . . . . . . .
33
Section
11.2
General Authority . . . . . . . . . . . . .
33
ARTICLE
12
DAMAGE OR DESTRUCTION . . . . . . . . . . .
34
Section
12.1
The Role of the Executive Board . . . . . .
34
Section
12.2
Estimate of Damages or Destruction . . . . .
34
Section
12.3
Repair and Reconstruction . . . . . . . . .
34
Section
12.4
Funds for Repair and Reconstruction . . . .
34
Section
12.5
Insurance Proceeds Sufficient to Repair . .
34
Section
12.6
Insurance Proceeds Insufficient to Repair;
Special Assessment; Remedies for Failure
to Pay Special Assessment . . . . . . . . .
35
Section
12.7
Repairs . . . . . . . . . . . . . . . . . .
37
Section
12.8
Notice of Damage or Destruction to First
Mortgagees . . . . . . . . . . . . . . . . .
37
ARTICLE
13
OBSOLESCENCE . . . . . . . . . . . . . . . .
37
ARTICLE
14
CONDEMNATION . . .
37
Section
14.1
Consequences of Condemnation . . . . . . . .
37
Section
14.2
Repair and Reconstruction . . . . . . . . .
38
Section
14.3
Notice of Condemnation . . . . . . . . . . .
38
ARTICLE
15
OTHER ASSOCIATION MATTERS . . . . . . . . .
38
Section
15.1
Architectural Control . . . . . . . . . . .
38 C7
Section
15.2
General Reservation . . . . . . . . . . .
38 t~
Section
15.3
Access . . . . . . . . . . . . . . . . . . .
38
Section
15.4
Project Activities . . . . . . . . . . . . .
38
ARTICLE 16 - MORTGAGEE PROTECTIONS . . . . . . . . . . .
Section 16.1 Introduction . . . . . . . . . . . . . . . .
Section 16.2 Percentage of Eligible Mortgage Holders . .
Section 16.3 Notice of Actions . . . . . . . . . . . . .
Section 16.4 Consent Required . . . . . . . . . . . . . .
Section 16.5 Notice of Objection . . . . . . . . . . . .
Section 16.6 First Mortgagees' Rights . . . . . . . . . .
I IIIIII "III "II~I'IIII„I' II"II'II"I III "III'I~I III
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4 of 52 R 261.00 0 0.00 N SAM Eagle, Colorado
39
39
39
39
39
41
41
ARTICLE
17
DURATION OF COVENANTS AND AMENDMENT . . .
. 41
Section
17.1
Term . . . . . . . . . . . . . . . . . . .
. 41
Section
17.2
Amendment . . . . . . . . . . . . . . . .
. 41
Section
17.3
Unilateral Amendment Rights Reserved by
Declarant
42
Section
17.4
Recording of Amendments . . . . . . . . .
. 42
ARTICLE
18
DECLAR.ANT'S RIGHTS REGARDING TRANSFER . .
. 42
ARTICLE
19
MISCELLANEOUS . . . . . . . . . . . . . .
. 42
Section
19.1
Restriction on Declarant Powers . . . . .
42
Section
19.2
Master Association Statutes . . . . . . .
. 42
Section
19.3
Conflicts with Law . . . . . . . . . . . .
43
Section
19.4
Enforcement . . . . . . . . . . . . . . . .
43
Section
19.5
Nonwaiver . . . . . . . . . . . . . . . . .
43
Section
19.6
Severability . . . . . . . . . . . . . . . .
43
Section
19.7
Number and Gender . . . . . . . . . . . . .
.43
Section
19.8
Captions . . . . . . . . . . . . . . . . . .
' 43
Section
19.9
Conflicts in Legal Documents.. . . . . . . .
44
Section
19.10
Exhibits . . . . . . . . . . . . . .
44
C..1
11111111111111111111111111111111111111103/13/1997 4005:-W n 111 m1iw
MASTER DECLARATION
FOR
BROOKSIDE PARK
THIS MASTER DECLARATION FOR BROOKSIDE PARK (this "Master
Declaration") dated as of 1997, shall be
effective upon recordation and is made by RIVERVIEW PARK
ASSOCIATES, INC., a Colorado corporation ("Declarant"). Declarant
is the owner of certain real property in Eagle County, Colorado,
more particularly described on'Exhibit A attached and made part of
this Master Declaration by this reference (the "Property").
Declarant hereby makes the following grants, submissions, and
declarations:
ARTICLE 1
IMPOSITION OF COVENANTS
Section 1.1 Purpose. The purpose of this Master
Declaration is to create a Master Association pursuant to the
Colorado Common Interest Ownership Act as set forth in Article
33.3, Title 38, Colorado Revised Statutes, as amended and
supplemented from time to time (the "Act").
Section 1.2 Intention of Declarant. Declarant desires to
protect the value and desirability of the Property, to own and
operate certain common amenities and properties for the benefit of
the owner (s) of the Property and the separate projects which may be
formed therein and to promote and safeguard the health, comfort,
safety, convenience, and welfare of the owners of units in such
projects.
Section 1.3 Projects. The Property will be comprised of a
maximum of three separate lots (the "Lots") on which three (3)
project communities will be formed under the Act pursuant to
separate Declarations, one being a commercial project to be located
-Ilk
on Lot 1 as shown on the Plat (the "Commercial Project"), one being
C.r
a condominium project to be located on Lot 2 as shown on the Plat
U
(the "Condominium Project") , and one being a townhome project to be
located on Lot 3 as shown on the Plat (the "Townhome Project"), the
Declarations for each Project to be recorded in the office of the
Clerk and Recorder of Eagle County, Colorado (each such community,
a "Project" and such Declaration, a "Project Declaration").
Declarant intends for this Master Declaration to be consistent with
those declarations, and this Master Declaration shall be
interpreted in accordance with that intent, although each such
Declaration shall be subject and subordinate to this Master
Declaration. The maximum number of Lots within the Property will
be three (3), and the maximum number of Units within each Project
on a Lot will be set forth and as established by each Project
Declaration.
~I
111111111111111111111111111111111111111111111111111
3MAN" 05:54P B720 P5511 133
Section 1.4 Master Declaration. To accomplish the purposes
and intentions recited above, Declarant hereby submits the
Property, together with all improvements, appurtenances, and
facilities relating to or located on the Property now and in the
future, to the provisions of the Act, and hereby imposes upon all
of the Property the covenants, conditions, restrictions, easements,
reservations, and other provisions of this Master Declaration
below, and Declarant hereby declares that all of the Property shall
be held, sold, conveyed, encumbered, leased, rented, occupied, and
improved, subject to the provisions of this Master Declaration.
Section 1.5 Covenants Running With the Land. All
provisions of this Master Declaration shall be deemed to be
covenants running with the land, or as equitable servitudes, as the
case may be. The benefits, burdens, and other provisions contained
in this Master Declaration shall be binding upon and shall inure to
the benefit of Declarant, all Owners, and their respective heirs,
executors, administrators, personal representatives, successors,
and assigns.
ARTICLE 2
DEFINITIONS
The following words, when used in this Master Declaration,
shall have the meanings designated below unless the context shall
expressly provide otherwise:
2.1 "Assessments" means the annual, special and default
Assessments levied pursuant to Article 6 below. Assessments are
also referred to as a Common Expense Liability under the Act.
2.2 "Building" means any
building (including all
fixtures and
improvements contained within
it) located on the Property in which
Units are located.
2.3 "Common Expense(s)"
means and includes the
following:
VOW
2.3.1 Expenses
of administration,
insurance,
w
operation, and management, repair, or replacement of the Master
Common Elements except to the
extent such repairs and
replacements
are responsibilities of an Owner as delineated in
Section 5.3
below;
,
2.3.2 Expenses declared Common Expenses by the
provisions of this Master Declaration or the bylaws of the Master
Association;
2.3.3 All sums lawfully assessed against the Units by
the Executive Board;
2.3.4 Expenses agreed upon as Common Expenses by the
Master Association; and
616529 03/13/11997 05:w B720' PON in
7 of 52 R 262.09 0 S.W N 0.00 Eagle, Colorado
2.3.5 Expenses provided to be paid pursuant to any
Management Agreement.
2.4 "Declarant" means Riverview Park Associates, Inc., a
Colorado corporation, and its successors and assigns.
2.5 "Director" means a member of the Executive Board.
2.6 "Eligible Mortgage Holder" means a First Mortgagee or any
insurer or guarantor of a First Mortgage which has notified the
Master Association in writing of its name and address and its
status as the holder, insurer or guarantor of a First Mortgage:
Such notice shall be deemed to include a request that the Eligible
Mortgage Holder be given the notices and other rights described in
Article 16 below, regardless of whether such Article requires
notice to such party.
2.7 "Executive Board" means the governing body of the Master
Association, as provided in this Master Declaration and in the
articles of incorporation and bylaws of the Master Association.
2.8 "First Mortgage" means an unpaid and outstanding
mortgage, deed of trust, or other security instrument recorded in
the office of the Clerk and Recorder of Eagle County, Colorado,
which secures financing for the construction or development of any
portion of the Property or which encumbers a Unit, and which, in
any case, has priority of record over all other recorded liens
except those governmental liens made superior by statute (such as
general ad valorem tax liens and special assessments).
2.9 "First Mortgagee" means. the Mortgagee under 'a First
Mortgage.
2.10 "Lot s " shall mean and refer to any separately numbered
lot shown on the Plat for any portion of the Property which is
recorded in the records of the Clerk and Recorder for the County of
Eagle, State of Colorado, as the same may be amended from time to
time, together with all appurtenances and improvements now or
hereafter located thereon, but not referring to any public streets.
The boundaries of each Lot shall be shown on the Plat thereof.
2.11 "Management Agreement" means any contract or arrangement
entered into for purposes of discharging the -responsibilities of
the Executive Board relative to the operation, maintenance, and
management of the Master Common Elements.
2.12 "Managing Agent" means a person, firm, corporation, or
other entity employed or engaged as an independent contractor
pursuant to a Management Agreement to perform management services
for the Master Common Elements.
w
I IIIIII 11111111111111111111 as: W BM inii 11111111111111 IN IN
2.13 "Mato" or "Maps" means and includes any engineering survey
or surveys of the Property locating the Units in the respective
Buildings and the Buildings on the Property, and depicting the
floor plans of the Units together with other drawings or
diagrammatic plans and information regarding any portion of the
Property as recorded in the office of the Clerk and Recorder of
Eagle County, Colorado.
2.14 "Master Association" means Brookside Park Master
Association, a Colorado nonprofit corporation, and its successors
and assigns.
2.15 "Master Association Documents" means the basic documents
governing the Master Association, including, but not limited to,
this Master Declaration, the articles of incorporation and bylaws
of the Master Association, and any procedures, rules, regulations,
or policies relating to the Master Association adopted under such
documents by the Master Association or the Executive Board.
2.16 "Master Common Elements" means those property interests
described on Exhibit B attached hereto and incorporated herein,
together with all improvements, appurtenances and facilities
relating to or located on such property now or in the future, and
any other property owned or interest held currently or in the
future by the Master Association for the common use and enjoyment
of some or all of the members of the Master Association and such
other persons as may be permitted to use the Master Common Elements
under the terms of this Master Declaration and/or any contract with
the Master Association. Such interest owned by the Master
Association may include, without limitation, estates in -fee, for
terms of years, or easements.
2.17 "Master Declaration" means this,Master Declaration_ for
Brookside Park, together with any supplement or amendment to this
Master Declaration, recorded by Declarant in the office of the
Clerk and Recorder of Eagle County, Colorado.
w
2.18 "Maximum.Rate" shall mean two percentage points greater W
than that rate of interest charged by a bank designated from time
to time by the Executive Board to the best commercial customers of
the designated bank for short-term loans and identified as the
"prime rate" by such bank as of the date on which such Maximum Rate
is imposed with respect to.any amount payable under this Master
Declaration, or if less, the maximum rate allowed by law.
2.19 "Mortgage" means any unpaid and outstanding mortgage,
deed of trust, or other security instrument recorded in the office
of the Clerk and Recorder of Eagle County, Colorado, which secures
financing for the construction or development of any portion of the
Property or which encumbers a Unit.
I iii IIIIIHIM iiiii III mill IIIIII III lull IIIIIIII 05:54P B720 P558 131
9 of 52 R 261.W D 10.10 N ILM Eagle. Colorado
2.20 "Mortgagee" means any person or entity named as a
mortgagee or beneficiary under any Mortgage, or any successor to
the interest of any such person under such Mortgage.
2.21 "Owner" means any record owner (including Declarant, and
including a contract seller, but excluding a contract purchaser),
whether a natural person or persons, or an entity, of a fee simple
title interest in and to any Unit; excluding, however, any record
owner with an interest therein merely as a Mortgagee (unless such
Mortgagee has acquired fee simple title interest in the Unit
pursuant to foreclosure or any proceedings in lieu of foreclosure)..
2.22 "Percentage Assessment Obligation" means the,percentage
apportionment of Assessments for which a Unit is responsible as
calculated pursuant to Section 6.4 below.
2.23 "Percentage Voting Allocation" means -the percentage
apportionment of voting rights of an Owner as calculated pursuant
to Section 4.2 below.
2.24 "Plat" means that certain Final Plat of Brookside Park,
a Resubdivision of Lot 1, Eaglewood Subdivision, recorded in the
office of the Clerk and Recorder of Eagle County, Colorado, as
amended from time to time, and any resubdivision plat of any Lot.
2.25 "Project" or "Projects" means any portion of the Property
which is submitted to a condominium regime or planned community by
a Project Declaration and the associated Map.
2.26 "Project Association" or "Project Associations" means the,
association(s) formed for the purpose of representing owners of
Units within a particular Project.
2.27 "Project Declaration" or "Project Declarations" means
each Declaration creating a Common Interest Community as defined in
the Act and subject to this Master Declaration.
2.28 "Property" means the real property described in the W
attached Exhibit A.
2.29 "Unit" means the fee simple interest in and to any
subdivided parcel of real property subject to and defined in a
Project Declaration or, until such time as a Project Declaration is
recorded creating a Project on a Lot, "Unit" shall mean a Lot.
Unit is also referred to as a Unit under the Act.
Each capitalized term not otherwise defined in this Master
Declaration or in the Map shall have the same meanings specified or
used in the Act.
I iu IIIII olio
1997 e5:54P W= P558 IIIIII 11111111111111111111111111111111.
10 of 52 R 261.0 o G.ee N 0.09 Eagle, Colorado
ARTICLE 3
MASTER COMMON ELEMENTS
Section 3.1 Master Common Elements. If necessary to convey
any portion of the Master Common Elements from Declarant to the
Master Association, Declarant shall, from time to ,time when
appropriate or upon completion of the relevant portion of the
Master Common Elements, convey to the Master Association by written
instrument recorded with the Clerk and Recorder of Eagle County,
Colorado, by deed, easement conveyance or other appropriate
property interest, certain portions of the Property which are
Master Common Elements, including the improvements located on and
any rights and easements appurtenant to such Property. For
example, upon completion of the Commercial Project, the Lot of
which shall contain certain of the Master Common Elements,
Declarant shall convey to the Master Association the condominium
unit in which the exercise facilities are to be located for the use
of the Owners and their families, tenants, employees, 'guests and
invitees. From time to time, Declarant and/or an Owner of a Lot or
Project Association may, but shall not be obligated to, convey to
the Master Association upon approval of the Executive Board certain
other parts of the Property or other properties or interests. within
the discretion of such party. In addition, the Executive Board may
from time to time determine additional facilities, improvements or
interests which shall be Master Common Elements for the benefit of
the Master Association.
The Master Common Elements are generally' designated by this
Master Declaration for the common use and enjoyment of the Owners
and their families, tenants, employees, guests and invitees, and of
such other persons as may be permitted to use the Master Common
Elements as Declarant or the Master Association may specify in
accordance with Section 3.2 below, and not for the use of the
general public.
Section 3.2 Third Party Rights in Master Common Elements.
The Master Association shall, in its discretion, be entitled to
contract with third parties, including, without limitation, other
residential or recreational associations; allowing the members of ~j
such entities the use and enjoyment of all or a portion of the
Master Common Elements under such terms and for such charges as may _ C4
be acceptable to the Executive Board of the Master Association.
Section 3.3 Nonpartitionability of Master Common Elements.
Subject to the provisions of this Article and Article 16 below, the
Master Common Elements shall be owned by the Master Association and
shall remain physically undivided, and no Owner shall bring any
action for partition or division of the Master Common Elements. By
acceptance of a deed or other instrument of conveyance or
assignment to a Unit, each owner of the.Unit shall be deemed to
have specifically waived such Owner's right to institute or
maintain a partition action or any other cause of action designed
1997 W: 54P 0720 P538 133
to cause a division of the Master Common Elements, and this Section
may be pleaded as a bar to the maintenance of such an action. Any
Owner who shall institute or maintain -any such action shall be
liable to the Master Association and hereby agrees to reimburse the
Master Association for the Master Association's costs, expenses,
and reasonable attorneys' fees in defending any such action. Such,
amounts shall automatically become a default Assessment determined
and levied against such Owner's Unit and enforced by the Master
Association in accordance with Sections 6.9, 6.10 and 6.11 below.
Notwithstanding the foregoing, the Master Association shall
have the right to dedicate, sell or otherwise transfer all or any
part of the Master Common Elements to any public, governmental, or
quasi-governmental agency, authority or utility for such purposes
and subject to such conditions as may be agreed to by the Executive
Board, provided that' an instrument effecting such conveyance is
signed by a majority of the members of each of the executive boards
of the 'Project Associations. Notwithstanding the preceding
sentence, the granting of easements for public utilities or for
other public purposes not inconsistent with the intended use of the
Master Common Elements, or the conveyance of any portion of or
interest in the Master Common Elements to a governmental or quasi-
governmental district for the purposes of constructing and
maintaining public improvements serving the Property shall not be
deemed a transfer requiring such consent of the Project Association
directors within the meaning of this Section.
Section 3.4 Rights and Easements. Every Owner-and the
family members, guests, tenants, and licensees of each owner shall
have a perpetual right and easement of use and enjoyment of the
Master Common Elements and of access over, across, and upon the
Master Common Elements for the purpose of getting to and from his
or its Unit and the parking area of such Owner and the public ways
for both pedestrian and vehicular travel, which rights and
easements shall be appurtenant to and pass with the transfer of
title to such Unit; provided, however, that such right and easement
shall be subject to the following: _
3.4.1 The covenants, conditions, restrictions, CJ
easements, reservations, rights-of-way, and other provisions
contained in this Master Declaration, the Project Declarations, the G.?
Plat and the Maps;
3.4.2 The right of the Master Association to regulate
on an equitable basis the use of the Master Common Elements from
time to time;
3.4.3 The right of the Master Association to adopt,
from time to time, any and all rules and regulations concerning
vehicular traffic and travel upon, in, under, and across that
portion of the Property shown on the Plat as an access easement for
the benefit of one or more of the Lots; and
61 iii n~ nim iiiiii iii 111111111111111 mu III IN
12 of 52 R 261.W D @.N N 0.00 Eagle, Colorado
3.4.4 The right of the Master Association to adopt,
from time to time, any and all rules and regulations concerning the
Master Common Elements as the Master Association may determine is
necessary or prudent including, without limitation, the imposition
of fees for the use of certain amenities.
Section 3.5 Separate Tax Assessments. Upon the recording
of the Plat or any Map in Eagle County, Colorado, Declarant or the
party filing such Plat or Map shall deliver a recorded copy thereof
to the Assessor of Eagle County, Colorado, as provided by law,
which notice shall set forth the descriptions of the Lots or Units
set forth on such Plat or Map so that thereafter all taxes,
assessments, and other charges by the State or any governmental or
political subdivision or any special improvement district or any
other taxing agent or assessing authority shall be assessed against
and collected on each Lot or Unit, each of which shall be carried
on the tax records as a separate and distinct parcel for that
purpose. For the purpose of such assessment against the Lots or
Units, valuation of the Master Common Elements shall be apportioned
among the Lots and/or Units in accordance with the apportionment of
annual Assessments as described in Section 6.4 hereof.
Accordingly, the Master Common Elements shall not be assessed
separately but shall be assessed with the Lots or Units as provided
pursuant to Colorado Revised Statutes Subsection 38-33.3-105(2).
No forfeiture or sale of any Lot or Unit for delinquent taxes,
assessment, or other governmental charge shall divest or in any way
affect the title to any other Lot or Unit.
ARTICLE 4
MEMBERSHIP IN MASTER ASSOCIATION
Section 4.1 Master Association Membership. , Every Owner
shall be a member of the Master Association, and such members will
be the Owners of the Lots until such time as the Property is
further divided into Units, when each Owner of a Unit shall be a
member for the period of the Owner's ownership of the Unit. No
Owner, whether one or more persons, shall have more than one
membership per Unit owned, as applicable, but all of the persons
owning a Unit shall be entitled to rights of membership and of use
and enjoyment appurtenant to ownership thereof. Membership in the 0
Master Association shall be appurtenant to, and may not be
separated from, ownership of a Unit.' However, any Owner may
appoint, in a written instrument furnished to the secretary of the
Master Association, a delegate to exercise the rights of such owner
as a member of the Master Association, and in the event of such
appointment, the_ delegate shall have the power to cast votes on
behalf of the Owner as a member of the Master Association, subject
to the provisions of and in accordance with the procedures more
fully described in the bylaws of the Master Association.
111111111111111111111111111111111111111111111111111 IN
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13 of 52 R 261.00 D 0.09 N 9.09 Ea9le, Colorado
Section 4.2 Votinc7 Rights. Members of the Executive Board
of the Master Association shall be elected by members of the
executive board of each Project Association on the basis that the
executive board of the Commercial Project may elect two (2) members
to serve on the Executive Board of the Master Association, the
executive board of the Condominium Project may elect one (1) member
to serve on the Executive Board of the Master Association, and the
executive board of the Townhome Project may elect one (1) member to
serve on the Executive Board of the Master Association. The Owner
of a Lot may exercise all rights granted under this Declaration to
a Project Association prior to the establishment of the Project and
the formation of the Project Association relating to such Lot. To
the fullest extent permitted under the Act, all matters requiring
a vote of the members of the Master Association shall be voted upon
by the members of the executive board of each Project Association,-
each such executive board being entitled to the number of votes
equal to the number of Directors such Project Association executive
board appoints to the Executive Board of the Master Association
(the executive board of the Commercial Project being collectively
entitled to two votes, the executive board of the Condominium
Project being collectively entitled to one vote and the executive
board of the Townhome Project being collectively entitled to one
vote). Notices for member meetings shall be deemed sufficiently
provided if delivered to all members of the executive boards of the
Project Associations in accordance with the bylaws of the Master
Association. Any matter required by law to be voted upon by the
owners shall permit each Owner a vote equal to the following: (a)
with respect to each Lot, the Lot on which the Commercial Project
will be located shall be entitled to two (2) votes, and each of the
Lots on which the Condominium Project and the Townhome Project will
be located shall be entitled to one,(1) vote, and (b) with respect
to an Owner of a Unit within a Lot, such voting rights granted to
each Lot shall be - further allocated by multiplying such Lot's
aggregate voting interest by the percentage allocation of voting
interest of such Owner granted under the applicable Project
Declaration (an owner's voting interest being referred to as the
"Percentage Voting Allocation"). All voting rights may be
ti
exercised subject to and in accordance with the provisions of the
bylaws of the Master Association. Any matter which cannot be
decided by at a meeting of the Executive Board, the executive board
members of the Project Associations or the owners based on a lack
of a majority vote by such parties shall be submitted to binding
arbitration in Eagle County, Colorado in accordance with the rules
of the American Arbitration Association then in effect. The
decision of the arbitration shall be final and binding on the
parties and judgment may be entered thereon in a court having
jurisdiction over the Association. The arbitrator shall be
appointed by the Executive Board, which appointment shall require
the affirmative vote of a majority of voting Directors. In the
event the Executive Board is unable to do so within ten (10) days
of submitting this matter to arbitration, the arbitrator shall be
designated by the chief judge in the District Court of the County
1111111111R11111111111111111111111111111111111111 IN 03/13/1997
9720 In
14 of 52 261.ea 0 @.W N 0.09 Eagle., C010rado
of Eagle, Colorado. The cost and expense of the arbitrator shall
be deemed an expense of the Association. In the event that the
arbitrator determines that representatives on the Executive Board
from any Project Association or Project Associations has not acted
in good faith in resolving deadlocked decisions of the Executive
Board, the prevailing party in the arbitration proceedings shall be
entitled to reimbursement of all costs of such proceedings
(including, without limitation, reasonable attorneys' fees) from
the Project Association(s) which did not act in good faith.
Section 4.3 Declarant Control. Notwithstanding anything to
the contrary provided for herein or in the bylaws, Declarant shall
be entitled to appoint and remove the members of the Master
Association's Executive Board and officers of the Master
Association to the fullest extent permitted under the Act. The
specific restrictions and procedures governing the exercise of
Declarant's right to so appoint and remove Directors and officers
shall be set out in the bylaws of the Master Association.
Declarant may voluntarily relinquish such power evidenced by a
notice recorded in the office of the Clerk and Recorder for Eagle
County, Colorado, but in such event, Declarant may at its option
require that specified actions of the Master Association or the
Executive Board as described in the recorded notice, during the
period Declarant would otherwise be entitled to appoint and remove
directors and officers, be approved by Declarant before they become
effective.
Section 4.4 Owner's and Association's Address for Notices.
All owners of an individual Unit or Lot shall have one and the same
registered mailing address to be used by the Master Association or
other Owners for notices, demands, and all other communications
regarding Master Association matters. The Owner or Owners shall
furnish such registered address to the secretary of the Master
Association within five days after transfer of title to the Unit to
such Owner or Owners. Such registration shall be in written form
and signed by all of the Owners or by such persons as are
authorized by law to represent the interests of all owners.
If no address is registered or if all of the owners cannot
a
agree, then the address on the Warranty Deed for the Unit shall be
deemed their registered address until another registered address is
1a
furnished as required under this Section.
~J
If the address of the Unit is the registered address of the
owners, then any notice shall be deemed duly given if delivered to
any person occupying the Unit or, if the Unit is unoccupied, if the
notice is held and available for the owners at the principal, office
of the Master Association.
All notices and demands intended to be served upon the
Executive Board shall be sent to the following address or such
10YN 11111 111111 IIIIi III HIM III IN
B720 PW8 133
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15 of 52 R 261.09 D 0.00 N 0.09 Eagle, Colorado
other address as the Executive Board may designate from time to
time by notice to all of the Owners:
Executive Board
Brookside Park Master Association
P.O. Box 18223
37333 Highway 6
Avon, Colorado 81620
All notices given in accordance with this Section shall be
sent by personal delivery, which shall be effective upon receipt;
by overnight courier service, which shall be effective one business
day following timely deposit with the courier service; or regular,
registered or certified mail, postage prepaid, which shall be
effective three days after deposit in the U.S. mail.
ARTICLE 5
MASTER ASSOCIATION DUTIES
Section 5.1 Master Association Management Duties. Subject
to the rights and obligations of Declarant and other Owners as set
.forth in this Master Declaration, the Master Association shall be
responsible for the administration, operation, management, control,
maintenance, repair, replacement, and improvement of the Master
Common Elements (including facilities, furnishings, and equipment
related thereto), and shall keep the same in good, clean,
attractive, and sanitary condition, order, and repair. In
addition, in order to serve the purposes of consistent operation,
maintenance and appearance, the Master Association shall, on behalf
of the Project Associations, also be responsible for the
administration, operation, management, control, maintenance,
repair, replacement, and improvement of all outdoor surface (and
not underground) parking areas and landscaping throughout the
entire Property ("Parking and Landscaping") regardless of ownership
of such improvements or areas. Notwithstanding the foregoing, each
Project Association or the individual Owners of Units within each
Lot, as applicable under the relevant Project Declaration, shall be
responsible for the operation, maintenance, repair and replacement
of the following: (a) any underground parking structures or spaces
within any Unit or Lot, and (b) any irrigation systems within each
Lot or the Units constituting any Lot. The expenses, costs, and W
fees of such management, operation, maintenance, and repair by the
Master Association shall be part of the Assessments (subject to
adjustment only as set forth in this Declaration) and, subject to
the budget approval procedures of Section 6.5 below, prior approval
of the owners shall not be required in order, for the Master
Association to pay any such expenses, costs, and fees.
Section 5.2 Master -Association Responsibilities. The
Master Association shall maintain and keep the Master Common
Elements and the Parking and Landscaping in good repair, such
maintenance to be funded as provided below. This maintenance shall
I I
61 f M7 0: W B7= r= IIIIINRIIIIIIIIIIIIIIIIIIIIIIIIflWII~BI011N
16 of - 52 R 261. 6B 0 6. ft -N 8. W Eagle, Colorado
include, but not be limited to, maintenance, repair and
replacement, subject to any insurance then in effect, of all
structures and improvements situated within the Master Common
Elements, and the Parking and Landscaping throughout the Property.
The Master Association may, in the discretion of the Executive
Board, assume the maintenance responsibilities set out in any
Project Declaration for any Project located on the Property, after
giving the responsible Project Association reasonable notice and an
opportunity to correct its deficient maintenance, as more fully
discussed in Section 5.3 below. In such event,'all costs of such
maintenance shall be assessed only against those Owners of Units in
the Project to which the services are provided. The assumption of
this responsibility may take place by contract or because, in the
opinion of the Executive Board, the level and quality of service
then being provided is not consistent with the community-wide
standard of Avon, Colorado. The provision of services in
accordance with this Section shall not constitute discrimination
within a class.
Section 5.3 Project, Unit Responsibility. Except as
provided otherwise in the Master Association Documents, the
applicable Project Declaration or documents, or by written
agreement with the Master Association or a Project Association, all
maintenance of the Lots, Buildings and Units, and all structures,
and other' improvements located on a Lot or comprising part of a
Project or unit shall be the sole responsibility of the Project
Association or Owner thereof, who shall maintain such Lot, Project
or Unit in accordance with the community-wide standard of Avon,
Colorado. The Master Association shall, in the discretion of the
Executive Board, assume the maintenance responsibilities of such
Project Association or Owner if, in the opinion of the Executive
Board, the level and quality of maintenance being provided by such
Project Association or Owner does not satisfy such standard, and
the Project Association for the Project in which the Unit is
located has failed to adequately provide such maintenance. Before
assuming the maintenance responsibilities, the Executive Board
shall notify the Owner and the applicable Project Association in
writing of its intention to do so, and if the Owner or the Project
Association has not commenced and diligently pursued remedial
action within thirty (30) days after the mailing of such written
W
notice, then the Master Association shall proceed. The expenses of
such maintenance by the Executive Board shall be reimbursed to the
Master Association by the Project Association or owner, as is
applicable, together with the interest from the date of the
expenditure at the Maximum Rate. Such charges shall be a default
Assessment and a lien on the Lot or Unit of the applicable Owner or
on the Units comprising the applicable Project.
Section 5.4 Reserve Account. The Master Association may
establish and maintain, as part of its budget and out of the
installments of the annual Assessments, an adequate reserve-account
111111111111111111111111111111111111111111 HIM III IN
f2997 05:54P 8720 M8 133
17 at 32 R 261.N 0 G.N N @.W Eagle, Colorado
for maintenance, repair, or replacement of those Master Common
Elements or other improvements maintained by the Master Association
that must be replaced on a periodic basis.
Section 5.5 Owner's Nectlictence. In the event that the" need
for maintenance, repair, or replacement of all or any portion of
the Master Common Elements or other improvements maintained by the
Master Association is caused through or by the negligent or willful
act or omission of an Owner, or by any member of an Owner's family,
or by an Owner's guests, invitees, or tenants, then the expenses
incurred by the Master Association for such maintenance, repair, or
replacement shall be a personal obligation of such Owner; and, if
the Owner fails to repay the expenses incurred by the Master
Association within seven days after notice to the Owner of the
amount owed, then the failure to so repay shall be a default by the
owner under the provisions of this Section, and such expenses shall
automatically become a default Assessment determined and levied
against' such Unit, enforceable by the Master Association in
accordance with Sections 6.9, 6.10 and 6.11 below.
Section 5.6 Delectation of Management and Maintenance
Duties. The Executive Board may delegate all or any part of its
powers and duties to a Managing Agent, including Declarant;
however, the Executive Board, when so delegating, shall not be
relieved of its responsibilities under this Master Declaration.
Section 5.7 Acauirincr and Disposincr of Personal Property.
The Master Association may acquire, own; and hold for the use and
benefit of all Owners tangible and intangible personal property,
and may dispose of the same by sale or otherwise. Each Owner may
use such personal property in accordance with the purposes for
which it is intended, without hindering or encroaching upon the
lawful rights of other Owners.
Section 5.8 Cooperation with Governmental Districts and
Other Associations. The Master Association may contract or
cooperate with governmental or quasi-governmental districts, the
Project Associations, or with other homeowners' associations or
entities as convenient or necessary to provide services and
privileges, 'and to fairly allocate costs among the parties
utilizing such services and privileges which may be administered by CJ
the Master Association or such other organizations, for the benefit LT
of owners and their family members, guests, tenants and invitees.
The costs associated with such efforts by the Master Association
(to the extent not chargeable to other organizations) shall be a
Common Expense.
Section 5.9 Cooperation with Project Associations. The
Executive Board shall assist the Project Associations in the
performance of their duties and obligations under their respective
Project Declarations and other documents governing the applicable
Project, and the Master Association shall cooperate - with each
i 1111111 Hill 111111 IN I1N 111111-111111111111111111111 IN
61. f1997 W:54P B720'P558 133
18 of 52 R "i.00 D 9.09 N S.W Eagle, Colorado
Project Association so that each of those entities may most
efficiently and economically provide their respective services'to
Owners. It is contemplated that from time to time the Master
Association and the various Projects Associations may use the
services each of the other in the furtherance of their respective
obligations, and they may contract with each other to better
provide for such cooperation. The payment for such contract
services or a variance in services provided may be reflected in an
increased Assessment by the Master Association for the particular
Project or by an item in the Project Association's budget which
shall be collected through the Assessments of such Project
Association and remitted to the Master Association. If a Project
Association fails, neglects or in unable to perform a duty or
obligation required by its Project Declaration or other Project
documents, then the Master Association may, after reasonable notice
and an opportunity to cure given to the Project Association,
perform such duties or obligations until such time as the Project
Association is able to resume such functions, and the Master
Association may charge the Project Association a reasonable fee for
the performance of such functions.
Section 5.10 Delegation by Master Association. The Master
Association may delegate any of its rights, duties or
responsibilities to any committee or other entity which it may
choose to form.
Section 5.11 Issuance of Rules and Recrulations. The
Executive Board may make and amend reasonable rules and regulations
governing the use of the Master Common Elements, which rules and
regulations shall be substantially consistent with the rights and
duties established in this Master Declaration. The Executive Board
shall provide 30 days' written notice prior to the adoption or
amendment of any rules and regulations and provide for a reasonable
opportunity for Owners to comment at a meeting of the Executive
Board on the proposed adoption or amendment of any rules and
regulations.
Section 5.12 Enforcement of Master Association Documents.
The Master Association or any aggrieved Owner may take judicial
action against any owner to enforce compliance with such rules and
regulations and with the other provisions of the Master Association
Documents to obtain damages for noncompliance or for injunctive
relief, or both, all to the extent permitted by law.
Section 5.13 Identity of Executive Board and Managing Agent.
From time to time, but no less than annually, there shall be mailed
by the Master Association to each Owner a notice containing the
names and addresses of the members of the Executive Board and the
Managing Agent, if any.
Section 5.14 Payments to Working Capital Account. In order
to provide the Master Association with adequate working capital
i ioiii 720 Dui io IIIIII III IN
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W
RA
0
funds, the Master Association shall collect at the time of the sale
of each Unit an amount equal to three months' installments of
annual Assessments at the rate in effect at the time of the sale.
Such payments to this fund shall not be considered advance payments
of annual Assessments. The unused portion of the working capital
deposit shall be returned to each Owner upon the sale of his Unit,
provided that the new purchaser of the Unit has deposited the
required working capital deposit with the Master Association.
Section 5.15 Implied Rights. The Master Association may
exercise any and all other rights or privileges given to it by this
Master Declaration, or by the other Master Association Documents,
or as may otherwise be given to it by law, and every other right or
privilege reasonably to be implied from the existence of any right
or privilege given to the Master Association in the Master
Association Documents or reasonably necessary to effectuate any
such right or privilege.
Section 5.16 Books and Records of the Master Association.
The Managing Agent or the Executive Board, as the case may be,
shall keep detailed, accurate records of the receipts and
expenditures affecting the Master Common Elements and shall
maintain such other books and records as may be required under the
Act. Owners and Mortgagees may inspect the records of receipts and
expenditures of the Managing Agent or the Executive Board at
convenient weekday business hours. In addition, the other books,
records, and papers of the Master Association, including this
Master Declaration, the articles of incorporation and the bylaws of
the Master Association, as well as any Management Agreement and any
rules and regulations of the Master Association, shall be available
for inspection by any Owner or Mortgagee at all times during
convenient weekday business hours.
ARTICLE 6
ASSESSMENTS
Section 6.1 Covenant of Personal Obligation of Assessments.
Declarant and every other owner, by acceptance of the deed or other
instrument of transfer of his Unit (whether or not it shall be so
expressed in such deed or other instrument of transfer), is deemed
to personally covenant and agree, jointly and severally, with every
v
other Owner and with the Master Association, and hereby does so
covenant and agree to pay to the Master Association the (a) annual
G~
Assessments, (b) special Assessments, and (c) default Assessments
applicable to the Owner's Unit. No Owner may waive or otherwise
escape personal liability for the payment of the Assessments
provided for in this Master Declaration by not using the Master
Common Elements or the facilities contained in the Master Common
Elements or by abandoning or leasing his Unit. The Project
Associations are hereby empowered and authorized, and upon the
request of the Master Association are hereby required, to levy and
collect from Owners of Units within their respective Projects the
n
I 111111111111-11111111111111111111111111 ill ip ii iw
Assessments owing to the Master Association as part of such Project
Association's own assessment procedures and to promptly remit such
Assessments collected by the Project Association to the Master
Association. Assessments shall be levied against each Unit but,
upon formation, each Project Association is hereby designated as
the agent of each Owner of a Unit within such Project for receipt
of notices of Assessments and the collection of Assessments and
remittance to the Master Association.
Section 6.2 Pu=ose of Assessments. The Assessments levied
by the Master Association shall be used for the purpose of
promoting the health, safety, convenience, and general welfare of
the owners and the improvement and maintenance of the Master Common
Elements and any other improvements on the Property maintained by
the Master Association, and of the services and facilities located
on the Master Common Elements. Proper uses of the Assessments
shall include, but are not limited to, the following:
6.2.1 Repairing, replacing, renovating and
maintaining any of the Master Common Elements or other improvements
maintained by the Master Association not made the responsibility of
the Owners by Section 5.3 above or other provisions of this Master
Declaration;
6.2.2 Furnishing garbage and trash pickup and water,
sewer and other utility services to the Master Common Elements;
6.2.3 Obtaining and maintaining insurance in
accordance with the provisions of Article 7 below;
6.2.4 Establishing and maintaining reserves for
repairs, replacement, maintenance, taxes, capital improvements, and
other purposes;
6.2.5 Carrying out all other powers, rights, and
duties of the Master Association specified in the Master
Association Documents; and
6.2.6 Generally, addressing any other expenses
necessary to meet the primary purposes of the Master Association.
Section 6.3 Amount of Total Annual Assessments. The total
7
annual Assessments against all Units shall be based upon the Master-
C
k,e
Association's advance budget of the cash requirements needed by it
to provide for the administration and performance of its duties
during such fiscal year, as approved pursuant to Section 6.5 below,
which estimates may include, among other things, the costs
associated with the items enumerated in Section 6.2 above, together
with any other costs and fees which may reasonably be expected to
be incurred by the Master Association for the benefit of the owners
under or by reason of the Master Association Documents. In the
event of surplus funds remaining after payment of or provision for
I IIIIII nisi 1111111111111111111111111111111111111111-1111
616M 03/13/1997 05:54P B720 P558 233
Common Expenses and any prepayment of or provision for reserves the
Executive Board may within its discretion apply the surplus funds
(a) into reserves, (b) toward the following year's Common Expenses,
(c) toward a credit to Owners against future assessments or in the
form of a distribution, or (d) any combination of the foregoing.
Section 6.4 Apportionment of Annual Assessments. The total
annual Assessment for any fiscal year of the Master Association
shall be assessed to the Units within each Project as follows: (a)
each Lot shall be allocated an equal portion of the Common
Expenses, except that the Owner of the Lot on which the Commercial
Project will be located shall be responsible for forty percent
(400) of the Common Expenses related to the outdoor surface (and
not underground) parking areas within the Property, and the Lots on
which the Condominium Project and the Townhome Project will be
located shall each be responsible for thirty percent (300) of the
Common Expenses related to the outdoor surface (and not
underground) parking areas within the Property, and (b) an owner of
a Unit within a Lot shall be responsible for an annual Assessment
determined by multiplying such Lot's aggregate Assessment
obligation by W the percentage assessment allocation of such
owner specifically described in the applicable Project Declaration
for the purpose of determining the amount of the annual Assessments
due to the Master Association, or if none, then (ii) the percentage
assessment allocation of such Owner described in the applicable
Project Declaration for the purpose of determining the amount of
assessments due to the Project Association (an Owner's Assessment
obligation being referred to as its "Percentage Assessment
Obligation"). The Owner of a Lot shall be responsible for the
Lot's apportionment of Common Expenses prior to the establishment
of the Project and the formation of the Project Association
relating to such Lot as further described below. Notwithstanding
the foregoing, (a) the Executive Board, with the assistance of any
company providing insurance for the benefit of the owners under
Article 7, may reasonably adjust the allocation to each owner of
the cost of premiums for any insurance carried for, and to be
charged to, a particular Owner, as more fully detailed in
Article 7; and (b) in the event a specific item in the Master
Association's budget may more directly benefit a certain Project,
Unit or group of Units, or use classification (residential,
commercial, or otherwise) in excess of its Percentage Assessment W
Obligation, or in the event the Master Association has provided
services to such Project, Units or classification in excess of U
those provided to other Projects, Units or classifications within
the Property, the rate of Assessments levied with respect to such
item or services maybe modified to reflect such additional benefit
at the sole and exclusive discretion of the Executive Board;
provided, however, that such rate of Assessments shall be uniform
within each Project, Units or classification benefitted and shall
not be used to circumvent the Assessment apportionment formulas
with respect to surface parking, landscaping and amenities as set
111111111111111111111111111111111111111111111111111 a~i
616529 03/13/1997 0:54P B720 P08 133
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forth in this Declaration, but may be used, without limitation, as
follows:
6.4.1 Prior to the commencement of construction on
any Lot, the Owner of such Lot shall not be required to pay annual
Assessments and shall not be entitled to use of the Master Common
Elements.
6.4.2 From the date of commencement of construction
on a Lot until the issuance of the first temporary certificate of
occupancy for any Unit or structure on the Lot (other than the_
Master Common Elements), the only Assessments attributable to such
Lot shall be for the cost, split equally between all Lots on which
construction has commenced, of operation, maintenance, repair and
replacement of the access easement area across Lot 1 shown on the
Plat. During this period, the Owner of the Lot shall not be
entitled to use of the Master Common Elements.
6.4.3 From and after the date the first temporary
certificate of occupancy is issued for a Unit or other structure on
a Lot (other than the Master Common Elements) and in no event later
than two (2) years after the date of recording of this Declaration
for all Lots, annual Assessments shall be payable in accordance
with the provisions for apportionment set forth above.
The total annual Assessments of the Master Association shall
be apportioned among all Units as provided in this Section.
Section 6.5 Annual Budget. Within thirty (30) days after
the adoption of any proposed budget for the Master Association, the
Executive Board shall mail, by ordinary first-class mail, or
otherwise deliver a summary of the budget to all the members of the
executive boards of the Project Associations and shall set a date
for a meeting to consider ratification of the budget not less than
fourteen (14) nor more than sixty (60) days after mailing.or other
delivery of the summary. Unless at that meeting a majority of the
members of two (2) of the three (3) executive boards of the Project
Associations reject the budget, the budget is ratified, whether or
not a quorum is present. In the event that the proposed budget-is
rejected, the periodic budget last ratified in accordance with this
Section must be continued until such time as the Project
Association directors ratify a subsequent budget proposed by the
Executive Board. The Executive Board shall adopt a budget and
submit the budget to a vote as provided herein no less frequently
than annually. The Executive Board shall levy, and assess the
Ca
Master Association's annual Assessments in accordance with the
GJ
annual budget.
Section 6.6 Special Assessments. In addition to the annual
Assessments authorized above, the Executive Board, if permitted
under the Act, may at any time and from time to time determine,
levy, and assess in any fiscal year (without the vote of the
members of the Master Association, except as provided in the Act
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23 of 52 261.90 0 0.09 N 11-M FA910,, C010ra"
and in this Section below) a special Assessment applicable to that
particular fiscal year (and for any such longer period as the
Executive Board may determine) for the purpose of defraying, in
whole or in part, the unbudgeted costs, fees, and expenses of any
construction, reconstruction, repair, demolishing, replacement,
renovation or maintenance of the Master Common Elements, any
facilities located on the Master Common Elements or any other
improvements maintained and operated by the Master Association,
specifically including any related fixtures and personal-property.
Any amounts determined, levied, and assessed pursuant to this
Master Declaration shall be assessed to the Units in the same
percentages as are applicable to annual Assessments; provided,
however, that any extraordinary insurance costs incurred as a
result of the value of a particular Owner's Unit or the actions of
a particular Owner (or his agents, servants, guests, tenants, or
invitees) shall be borne by that Owner. Special Assessments shall
be based on a budget adopted in accordance with Section 6.5
provided that if necessary, the Master Association may adopt a new
budget pursuant to Section 6.5 prior, to levying a special
Assessment. Such special Assessment (s) shall be due and payable as
determined by the Executive Board.
Section 6.7 Due Dates for Assessment Payments. Unless
otherwise determined by the Executive Board, the annual Assessments
and any special Assessments which are to be paid in installments
shall be paid quarterly in advance and shall be due and payable to
the Master Association at its office or as the Executive Board may
otherwise direct in any Management Agreement, without notice
(except for the notices required by this Article), on the first day
of each quarter. If any such installment shall not be paid within
15 days after it shall have become due and payable, then the Board
may assess a "late charge" on the installment in an amount of $100
or such other charge as the Executive Board may fix by rule from
time to time as provided in the bylaws of the Master Association to
cover the extra expenses involved in handling such delinquent
Assessment installment. An Owner's Assessment shall be prorated if
the ownership of a Unit commences or terminates on a day other than
the first day or last day, respectively, of a quarter or other
applicable payment period.
Section 6.8 Declarant's Obligation- to Pay Assessments.
Declarant shall be obligated to pay the annual and special
Assessments (including installments thereof) on each Unit owned by Cj,
it. n3
`k
Section 6.9 Default Assessments. All monetary fines
assessed against an owner pursuant to' the Master Association
Documents, or any expense of the Master Association which is the
obligation of an owner and collected in-accordance with this Master
Declaration shall become liens against such Owner's Unit which may
be -foreclosed or otherwise collected as provided in this Master
Declaration. Notice of the amount and due -date of such default
i ioiii III HIM iiiini11111111111111111111111111
m24 of 52 R 261.W 0 0.00 N 8.90 Eagle, C010radD
Assessment shall be sent to the Owner subject to the Assessment,at
least 30 days prior to the due date.
Section 6.10 Lien for Assessments. The annual, special, and
default Assessments (including installments of the Assessments)
arising under the provisions of this Master Declaration (together
with any and all interest, costs, late charges, expenses, and
reasonable attorneys' fees, including legal assistants' fees, which
may arise under the provisions of Section 6.11 below) shall be
burdens running with, and a perpetual lien in favor of the Master
Association upon, the specific Unit to which such Assessments
apply. To further evidence such lien upon a specific Unit, the
Master Association may, but shall not be obligated to, prepare a
written lien notice setting forth the description of the Unit, the
amount of Assessments on the Unit unpaid as of the date of such
lien notice, the rate of default interest as set by the bylaws of
the Master Association and Section 6.11 below, the name of the
Owner or Owners of the Unit, and any and all other information that.
the Master Association may deem proper. Any such lien notice shall
be signed by a member of the Executive Board, an officer of the
Master Association, or the Managing Agent and shall be recorded in
the office of the Clerk and Recorder of Eagle County, Colorado.
Any such lien notice shall not constitute a condition precedent or
delay the attachment of the lien, but such lien is a perpetual lien
upon the Unit and attaches without notice at the beginning of the
first day of any period for which any Assessment is levied.
Section 6.11 Effect of Nonpayment of Assessments. If any
annual, special, or default Assessment (or any installment of the
Assessment) is not fully paid within 30 days after the same becomes
due and payable, then as often as the same may happen, (i) interest
shall accrue at the Maximum Rate on any amount of the Assessment
which was not paid within such 30-day period or on the amount of
Assessment in default, whichever shall be applicable, accruing from
the due date until date of payment, (ii) the Master Association may
declare due and payable all unpaid quarterly or other installments
of the annual Assessment or any special Assessment otherwise due
during the fiscal year during which such default occurred,
(iii) the Master Association may thereafter bring an action at law
or in equity, or both, against any owner personally obligated to
pay the same, and (iv) the Master Association may proceed to
foreclose its lien against the particular Unit in the manner and
form provided by Colorado law for foreclosure of real estate
mortgages.
An action at law or in equity by the Master Association
against an Owner to recover a money judgment for unpaid Assessments
(or any installment thereof) may be commenced and pursued by the
Master Association without foreclosing or in any way waiving the
Master Association's lien for the Assessments. If any such
Assessment (or installment thereof) is not fully paid when due and
if the Master Association commences such an action (or
I mill 11111111111111111111111111111111111111111111 IN
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a1
counterclaims or cross-claims for such relief in any action)
against any Owner personally obligated to pay the same, or proceeds
to foreclose its lien against the particular Unit, then all unpaid
installments of annual and special Assessments and all default
Assessments (including any such installments or Assessments arising
during the proceedings of such action or foreclosure proceedings),
any late charges under Section 6.7 above, any accrued interest
under this Section, the Master Association's costs, expenses, and
reasonable attorneys' fees (including legal assistants' fees)
incurred for any such action and/or foreclosure proceedings shall
be taxed by the court as part of the costs of any such action or
foreclosure proceedings and shall be recoverable by the Master
Association from any Owner personally obligated to pay the same and
from the proceeds from the foreclosure sale of the particular Unit
in satisfaction of the Master Association's lien.
Foreclosure or attempted foreclosure by the Master Association
of its lien shall not be deemed to stop or otherwise preclude the
Master Association from again foreclosing or attempting to
foreclose its lien for any subsequent Assessments (or installments
thereof) which are not fully paid when due or for any subsequent
default Assessments. The Master Association shall have the power
and right to bid in or purchase any Unit at foreclosure or other
legal sale and to acquire and hold, lease, or mortgage the Unit, or
exercise the votes in the Master Association appurtenant - to
ownership of the Unit, and to convey, or otherwise deal with the
Unit acquired in such proceedings.
Section 6.12 Successor's Liability for Assessments.
Notwithstanding the personal obligation of each Owner of a Unit to
pay all Assessments on the Unit, and notwithstanding the Master
Association's perpetual lien upon a Unit for such Assessments, all
successors in interest to the fee simple title of a Unit, except as
provided in Section 6.13 and Section 6.14 below, shall be jointly
and severally liable with the prior Owner or Owners of the Unit for
any and all unpaid Assessments, interest, late charges, costs,
expenses, and attorneys' fees against such Unit, without prejudice
to any such successor's right to recover from any prior Owner any
amounts paid thereon by such successor. However, such successor in
interest shall be entitled to rely upon the existence and status of
unpaid Assessments, interest, late charges, costs, expenses, and.
attorneys' fees as shown upon any certificate issued by or on
behalf of the Master Association to such named successor- in
interest pursuant to the provisions of Section 6.14 below.
W
Section 6.13 Waiver of Homestead Exemption; Subordination of
U
Association's Lien for Assessments. By acceptance of the deed or
other instrument of transfer of a Unit, each Owner irrevocably
waives the homestead exemption provided by Part 2, Article 41,'
Title 38, Colorado Revised Statutes, as amended. The Master
Association's perpetual lien for Assessments shall be superior to
all other liens and encumbrances except the following:
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e1997 05'.154P B720 P536 133
26 of 32 R 261.09 0 0.10 N 0.09 Eagle, Colorado
6.13.1 Real property ad valorem taxes and special
assessment liens duly imposed by a Colorado governmental or
political subdivision or special taxing district, or any other
liens made superior by statute; and
6.13.2 To the extent permitted under the Act, the lien
of any First Mortgage, including any and all advances made by the
First Mortgagee and notwithstanding that any of such advances may
have been made subsequent to the date of the attachment of the
Master Association's liens.
With respect to the foregoing subpart 6.13.2, to the extent
permitted under the Act, any First Mortgagee who acquires title to
a Unit by virtue of foreclosing the First Mortgage or by virtue of
a deed or assignment in lieu of such a foreclosure, or any
purchaser at a foreclosure sale of the First Mortgage, will take
the Unit free of any claims for unpaid Master Association
Assessments, interest, late charges, costs, expenses, and
attorneys' fees against the Unit which accrue prior to the time
such First Mortgagee or purchaser acquires title to the Unit, and
the amount of the extinguished lien may be reallocated and assessed
to all Units as a Common Expense at the direction of the Executive
Board.
All other persons not holding liens described in
subpart 6.13.1 above and obtaining a lien or encumbrance on any
Unit after the recording of this Master Declaration shall be deemed
to consent that any such lien or encumbrance shall be subordinate
and inferior to the Master Association's future liens for
Assessments, interest, late charges, costs, expenses, and
attorneys' fees, as provided in this Article, whether or not such
consent is specifically set forth in the instrument creating any
such lien or encumbrance.
A sale or other transfer of any Unit., including but not
limited to a foreclosure sale, except as provided in subparts
6.13.1 and 6.13.2 above, and except as provided in Section 6.14
below, shall not affect the Master Association's lien on such Unit
for Assessments, interest, late charges, costs, expenses, and
attorneys' fees due and owing prior to the time such purchaser
acquires title and shall not affect the personal liability of each
owner who shall have been responsible for the payment thereof.
Further, no such sale or transfer shall relieve the purchaser or
transferee of a Unit from liability for, or the Unit from the lien
of, any Assessments made after the sale or transfer. Ca
Section 6.14 Statement of Status of Assessments. Upon LZ
fourteen (14) business days' written request to the Managing Agent,
Executive Board or the Master Association's registered agent and
payment of a reasonable fee set from time to time by the Executive
Board, any Owner, prospective purchaser of a Unit, or Mortgagee
shall be furnished, by personal delivery or by certified mail,
i 11111111111 HIM IIIIII 111111111-111111111111111111 IN
GI f 1997 98: W BM P5N 133
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first class postage prepaid, return receipt requested, ,to the
inquiring party (in which event the date of posting shall be deemed
the date of delivery), a statement of the Owner's account setting
forth:
6.14.1 The amount of any unpaid Assessments, interest,
late charges, costs, expenses, and attorneys' fees then existing
against a particular Unit;
6.14.2 The amount of the current installments of the
annual Assessment and the date that the next installment is due and
payable;
6.14.3 The date of the payment of any installments of
any special Assessments then existing against the Unit; and
6.14.4 Any other information deemed proper by the
Master Association, including the amount of any unpaid lien created
or imposed under-the terms of the Master Declaration and collected
by the Master Association as permitted under this Master
Declaration.
Upon the issuance of such a certificate signed by a member of the
Executive Board, by an officer of the Master Association, or by a
Managing Agent, the information contained therein shall be
conclusive upon the Master Association as to the person or persons
to whom, such certificate is addressed and who rely on the
certificate in good faith. Unless such a statement of status of
Assessments is delivered as described above within said fourteen
(14) business day period, the Master Association shall have no
right to assert a priority lien upon the Unit over the inquiring
party's interest for unpaid Assessments which were due as of the
date of the request.
Section 6.15 Liens. Except for annual, special, and default
Assessment liens as provided in this Master Declaration, mechanics'
liens (except as provided in Article 8 below), tax liens, and
judgment liens and other liens validly arising by operation of law
and liens arising under Mortgages, there shall be no other liens
obtainable against the Master Common Elements.
ARTICLE 7
INSURANCE AND FIDELITY BONDS
Section 7.1 General Insurance Provisions. The Master
Association shall maintain, to the extent reasonably available:
7.1.1 Property insurance on the Master Common
Elements for broad -form covered causes of loss; except that the
total amount of insurance must be not less than the full insurable
replacement costs of the insured property less applicable
deductibles at the time the insurance is purchased and at each
iiuui
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28, of 52 R 261.09 D 0.00 N 6.68 Eagle, Colorado
w
renewal date, exclusive of land, excavations, foundations, paving
areas, landscaping and other items normally excluded from property
policies; and
7.1.2 Commercial general liability insurance against
claims and liabilities arising in connection with the ownership,
existence, use, or management of the Master Common Elements and the
Master Association, in an amount, if any, deemed sufficient in the
judgment of the Executive Board, insuring the Executive Board, the
Master Association, the Managing Agent, and their respective
employees, agents, and all persons acting as agents. Declarant
shall be included as an additional insured in Declarant's capacity
as an owner and Executive Board member. The Owners shall be
included as additional insureds but only for claims and liabilities
arising in connection with the ownership, existence, use or
management of the Master Common Elements. The insurance shall
cover claims of one or more insured parties against other insured
parties.
7.1.3 The Master Association may carry such other and
further insurance that the Executive Board considers appropriate,
including insurance on Units that the Master Association is not
obligated to insure to protect the Master Association or the
Owners.
Section 7.2 Cancellation. If the insurance described in
Subsection 7.1 above is not reasonably available, or if any policy
of such insurance is cancelled or not renewed without a replacement
policy therefore having been obtained, the Master Association
promptly shall cause notice of that fact to be hand delivered or
sent prepaid by United States mail-to all owners.
Section 7.3 Policy Provisions. Insurance policies carried
pursuant to Section 7.1 above must provide that:
7.3.1 Each Owner is an insured person under the
policy with respect to liability arising out of such owner's
interest in the Master Common Elements or membership in the Master
Association;
7.3.2 The insurer waives its rights to subrogations
under the policy against any Owner or member of his household;
7.3.3 No act or omission -by any owner, unless acting
within the scope of such Owner's authority on behalf of the Master
i
Association, will void the policy or be a condition to recovery
~
under the policy; and
7.3.4 If, at the time of a - loss under. the policy,
there is other insurance in the name of an Owner covering the same
risk covered by the policy, the Master Association's policy
provides primary insurance.
111111111, Hill I111111111111111111111111111111111 III 1111111111111111111
Section 7.4 Insurance Proceeds. Any loss covered by the
property insurance,policy described in section 7.1 above must be
adjusted with the Master Association, but the insurance proceeds
for that loss shall be payable to any insurance trustee designated
for that purpose, or otherwise to the Master Association, and not
to any holder of a security interest. The insurance trustee or the
Master Association shall hold any insurance proceeds in trust for
the Owners and mortgagees holding a first security interest in a
Unit as their interests may appear. Subject to the provisions of
Section 7.7 below, the proceeds must be disbursed first for the
repair or restoration of the damaged property, and the Master
Association, Owners and First Mortgagees are not entitled to
receive payment of any portion of the proceeds unless there is a
surplus of proceeds after the damaged property has been completely
repaired or restored or the regime created by this Master
Declaration is terminated.
Section 7.5 Association Policies. The Master Association
may adopt and establish written nondiscriminatory policies and
procedures relating to the submittal of claims, responsibility for
deductibles, and any other matters of claims adjustment. To the
extent the Master Association settles claims for damages to the
Property, it shall have the authority to assess negligent Owners
causing such loss or benefiting from such repair or restoration all
or any equitable portion of the deductibles paid by the Master
Association.
Section 7.6 Insurer Obligation. An insurer that has issued
an insurance policy for the insurance described in Section 7.1
above shall issue certificates or memoranda of insurance to the
Master Association and, upon request, to any Owner or Mortgagee.
Unless otherwise provided by statute, the insurer issuing the
policy may not cancel or refuse to renew it until thirty (30) days
after notice of the proposed cancellation or nonrenewal has been
mailed to the Master Association and to each Owner and Mortgagee to
whom a certificate or memorandum of insurance has been issued at
their respective last-known addresses.
Section 7.7 Repair and Ret)lacement.
7.7.1 Any portion of the Master Common Elements for
which insurance is required under this Article which is damaged or
destroyed must be repaired or replaced promptly by the Master
Association unless:
7.7.1.1 The regime created by this Master Declaration
is terminated;
7.7.1.2 Repair or replacement would be illegal under
any state or local statute or.ordinance governing health or
safety;
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c~
7.7.1.3 Eighty percent of the owners and all directly
adversely affected Owners agree in writing not to rebuild; or
7.7.1.4 Prior to the conveyance of any Unit to a person
other than Declarant, the Mortgagee holding a Mortgage on the
damaged portion of the Master Common Elements rightfully
demands all or a substantial part of the insurance proceeds.
7.7.2 The cost of repair or replacement in excess of
insurance proceeds and reserves is a Common Expense. If all are
not repaired or replaced, the insurance proceeds attributable to
the damaged Master Common Elements must be used to restore the
damaged area to a condition compatible with the remainder of the
Projects, and except to the extent that other persons will, be
distributees, the insurance proceeds must be distributed to all the
Owners or Mortgagees, as their interests may appear, in proportion
to their respective Percentage Assessment Obligations with respect
to Master Association Assessments.
Section 7.8 Common Expenses. Premiums for insurance that
the Master Association acquires and other expenses connected with
acquiring such-insurance are Common Expenses.
Section 7.9 Fidelity Insurance. Fidelity bonds must be
maintained by the Master Association to protect against dishonest
acts on the part of its officers, directors, trustees, and
employees and on the part of all others who handle or are
responsible for handling the funds belonging to or administered by
the Master Association in an amount not less than two (2) months'
current Assessments plus reserves as calculated from the current
budget of the Master Association. The Master-Association must also
secure and maintain, or require to be secured or maintained by any
parties handling the collection, deposit, transfer or disbursement
of Association funds, fidelity insurance with aggregate coverage of
not less than two (2) months' assessments plus reserves, as
calculated from the then-current budget of the Master Association;
provided, however, in no event shall the coverage for third parties
handling the collection, deposit, transfer or disbursement of
Association funds be less than $50,000. In addition all funds and
accounts of the Master Association being held by a Managing Agent
or other third persons shall be kept in an account" separate from
the funds of other parties held by such Managing Agent or third
party, and all reserves of the Master Association shall be kept in
an account separate from the "operational account of the Master
w
Association. Any such fidelity coverage shall name the Master
t~
Association as an obligee and such bonds shall contain waivers by
V
the issuers of all defenses based upon the exclusion of persons
serving without compensation from the definition of "employees," or
similar terms or expressions.
Section 7.10 Workmen's Compensation Insurance. The Master"
Association shall obtain workmen's compensation or similar
26
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3i of 32'R 2-6-1.00 0 0 M N, 9.90 Eagle, Colorado
insurance with respect to its employees in the amounts and forms as
may now or hereafter be required by law.
Section 7.11 Other Insurance. The Master Association shall
also maintain insurance to the extent reasonably available and in
such amounts as the Executive Board may deem appropriate on behalf
of Directors against any liability asserted against a Director or
incurred by him in his capacity of or arising out of his status as
a Director. The Master Association may obtain insurance against
such other risks, of a similar or dissimilar nature, as it shall
deem appropriate with respect to its responsibilities and duties.
Section 7.12 Insurance Obtained by Owners. It shall be the
responsibility of each Owner or Project Association (as set forth
in the applicable Project Declaration), at such party's expense, to
maintain physical damage insurance on such Owner's Unit and
personal property and furnishings and on the common elements of
such Project and public liability insurance covering such Owner's
Unit. In addition, an Owner may obtain such other and additional
insurance coverage on and in relation to the Owner's Unit as the
Owner in the Owner's sole discretion shall conclude to be
desirable. However, none of such insurance coverages shall affect
any insurance coverage obtained by the Master Association or cause
the diminution or termination of that insurance coverage, nor shall
such insurance coverage of an owner result in apportionment of
insurance proceeds as between policies of insurance of the Master
Association, the Project Association and/or the Owner. An Owner
shall be liable to the Master Association for the amount of any
such diminution of insurance proceeds to the Master Association as
a result of insurance coverage maintained by the Owner, and the
Master Association shall be entitled to collect the amount of the
diminution from the owner as if the amount were a default
Assessment, with the understanding that the Master Association may
impose and foreclose a lien for the payment due. Any insurance
obtained by an Owner shall include a provision waiving the
particular insurance company's right of subrogation against the
Master Association and other owners.
The Executive Board may require an Owner or Project
Association who purchases insurance coverage as described herein to
file copies of such policies with the Master Association within
thirty (30) days after purchase of the coverage to eliminate W
potential conflicts with any master policy carried by the Master w
Association. C~
ARTICLE 8
MECHANICS' LIENS
Section 8.1 Mechanics' Liens. Subsequent to the recording
of this Master Declaration, no labor performed or materials
furnished for use and incorporated in any Unit with the consent of
or at the request of the Owner of the Unit or the Owner's agent,
F1997 W-54P B720 P558 133
32 of 32 R 261.W 0 0.00 N @.W Eagle, Colorado
contractor or subcontractor shall be the basis for the filing of a
lien against a Unit of any other owner not expressly consenting to
or requesting the same, or against any interest in the Master
Common Elements. Each Owner shall indemnify and hold harmless each
of the other owners and the Master Association from and against any
liability or loss arising from the claim of any mechanic's lien for
labor performed or for materials furnished in work on such Owner's
Unit against the Unit of another Owner or against the Master Common
Elements, or any part thereof.
Section 8.2 Enforcement by the Master Association. At its
own initiative or upon the written request of any Owner (if the
Master Association determines that further action by the Master
Association is proper) the Master Association shall enforce the
indemnity provided by the provisions of Section 8.1 above by
collecting from the Owner of the Unit on which the labor was
performed or materials furnished the amount necessary to discharge
by bond or otherwise any such mechanic's lien, including all costs
and reasonable attorneys' fees incidental to the lien, and obtain
a release of such lien. In the event that the Owner of the Unit on
which the labor was performed -or materials furnished refuses or
fails to so indemnify within seven days after the Master
Association shall have given notice to such Owner of the total
amount of the claim, or any portions thereof from time to time,
then the failure to so indemnify shall be a default by such Owner
under the provisions of this Section, and such amount to be
indemnified shall automatically become a default Assessment
determined and levied against such Unit, and enforceable by the
Master Association in accordance with Sections 6.9, 6.10 and 6.11
above.
ARTICLE 9
USE RESTRICTIONS
Section 9.1 Conveyance of Units. All Units, whether or not
the instrument of conveyance or assignment shall refer to this
Master Declaration, shall be subject to the covenants, conditions,
restrictions, easements, reservations, rights-of-way, and other
provisions contained in this Master Declaration, as the same may be
amended from time to time.
Section 9.2 Use of Master Common Elements. There shall be
no obstruction of the Master Common Elements, nor shall anything be
kept or stored on any part of the Master Common Elements by any CW.7
Owner without the prior written approval of the Master Association.
Nothing shall be altered on, constructed in, or removed from the
Master Common Elements by any Owner without the prior written
approval of the Master Association.
Section 9.3 Prohibition of Increases in Insurable Risks and
Certain Activities. Nothing shall be done or kept in any Unit or
in or on the any of the Projects or the Master Common Elements, or
uum 11111RHIM
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33 of 52 261.00 D 0.00 N 0.0 Eagle, Colorado
any part thereof, which would result in the cancellation of the
insurance carried by the Master Association or in an increase in
such rate of the insurance over what the Master Association, but
for such activity, would pay, without the prior written approval of
the Master Association. Nothing shall be done or kept in any Unit
or in or on any of the Projects or the Master Common Elements which
would be in violation of any statute, rule, ordinance, regulation,
permit, or other imposed requirement of any governmental body. No
damage to or waste of the Master Common Elements shall be committed
by any Owner, or by any member of the Owner' s family, or by any
guest, invitee, or contract purchaser of any Owner, and each owner
shall indemnify and hold the Master Association and the other
owners harmless against all loss resulting from any such damage or
waste caused by him, the members of his family, or his guests,
invitees, or contract purchasers. Failure to so indemnify shall be
a default by such Owner under this Section, and such amount to be
indemnified shall automatically become a default Assessment
determined and levied against such Unit. At its own initiative or
upon the written request of any Owner (and if the Master
Association determines that further action by the Master
Association is proper), the Master Association shall enforce the
foregoing indemnity as a default Assessment as provided in
Sections 6.9, 6.10 and 6.11 above.
. Section 9.4 Structural Alterations and Exterior Appearance.
No structural or exterior alterations to any Master Common Element
shall be made or caused to be made by any Owner without the prior
written approval of the Master Association.
ARTICLE 10
EASEMENTS
Section 10.1 Easement of Enjoyment. Every Owner shall have
a nonexclusive easement for the use and "enjoyment of the Master
Common Elements, which shall be appurtenant to and shall pass with
the title to every Unit, subject to the easements set forth in this
Article. With respect to any Master Common Elements which are
recreational facilities and improvements to be built for the
benefit of all Owners, their families, guests, employees and other
invitees on the Lot on which the Commercial Project will be
constructed ("Commercial Project Lot"), the intended and permitted
users of such facilities are granted a non-exclusive easement
across such areas within the Commercial Project Lot which the
Project Association for the Commercial Project has designated for
W
ingress to and egress from such Master Common Elements on such Lot.
t~
Such easement is subject to such reasonable regulation on access
and use imposed by the Master Association such that the intended
use of the Commercial Project is not affected by such use of the
Master Common Elements by the Owners.
Section 10.2 Delegation of Use. Any Owner may delegate, in
accordance with the Master Association Documents, the Owner's right
111111 IIIII 111111 AVI III YIIII VIII 1811111 ~I IIII
61. f1297 05:54P,B720 P358 133
of enjoyment in the Master Common Elements to the Owners tenants,
employees, family, guests, and invitees.
Section 10.3 Recorded Easements. The Property shall be
subject to any easements as shown on any recorded plat affecting
the Property, and as shown on the recorded Maps, and as reserved or
granted under the Project Declarations. The recording data for
recorded easements, licenses or other matters appurtenant to or
included in the Property or to which any parts of the Property may
become subject is set forth on the attached Exhibit C.
Section 10.4 Easements for Encroachments. The Master Common
Elements, and all portions of it, are subject to easements hereby
created for encroachments of any portion of a Unit, Project or the
Master Common Elements as follows:
10.4.1 In favor of the Master Association so that it
shall have no legal liability when any part of the Master Common
Elements encroaches upon a Unit;
10.4.2 In favor of each Owner of a Unit and each
Project Association so that the Owner or Project Association shall
have no legal liability when any part of the Unit or Project
encroaches upon the Master Common Elements;
10.4.3 In favor of all Owners, the Project
Associations and the Master Association for the existence,
maintenance and repair of such encroachments.
Encroachments referred to this Section include, but are not limited
to, encroachments caused by error,or variance from the original
plans in the construction of the Building or any Unit constructed
on the Property, by error in the Map, by settling, rising, or
shifting of the earth, or by changes in position caused by repair
or reconstruction of any part of the Projects. Such encroachments
shall not- be considered to be encumbrances upon any part of the
Projects or the Master Common Elements.
Section 10.5 Utility Easements. There is hereby created a
general easement upon, across, over, in, and under all of the
Property for ingress and egress and for installation, replacement,
repair, and maintenance of all utilities, including but not limited
to water, sewer, gas, telephone, electricity, and a cable
communication system. By virtue of this easement, it shall be
expressly permissible and proper for the companies providing
electrical, telephone, and other communication services to erect
and maintain the necessary equipment on the Property and to affix
and maintain electrical, communications, and telephone wires,
circuits, and conduits under the Property. Any utility company
using this general easement shall use its best efforts to install
and maintain the utilities provided without disturbing the uses of
the Owners, the Master Association, and Declarant; shall prosecute
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its installation- and maintenance activities as promptly as
reasonably possible; and shall restore any disturbed property to
its original condition as soon as possible after completion of its
work. Should any utility company furnishing a service covered by
the general easement request a specific easement by separate
recordable document, Declarant or the Executive Board shall have,
and are hereby given, the right and -authority to grant such
easement upon, across, over, or under any part or all of the
Property without conflicting with the terms hereof. The easements
provided for in this Section shall in no way affect, avoid,
extinguish, or modify any other recorded easement on the Property.
Section 10.6 Reservation of Easements, Exceptions, and-
Exclusions. Declarant reserves for itself and its successors and
assigns and hereby grants to the Master Association the concurrent
right to establish from time to time by declaration or otherwise,
utility and other easements for purposes including but not limited
to streets, paths, walkways, drainage, recreation areas, parking-
areas, ducts, shafts, flues and conduit installation areas,
consistent with the ownership of the Property for the best interest
of all of the Owners and the Master Association, in order to serve
all the owners.
Section 10.7 Emercrency Access Easement. A general easement
is hereby granted to all police, sheriff, fire protection,
ambulance, and all other similar emergency agencies or persons to
enter upon all streets and upon the Property in the proper
performance of their duties.
Section 10.8 Maintenance Easement.' An easement is hereby
granted to the Master Association and any Managing Agent and their
respective officers, agents, employees, and assigns upon, across,
over, in, and under the Property and a right to make such use of
the Property as may be necessary or appropriate to perform the
duties and functions which they are obligated or permitted to
perform pursuant to this Master Declaration.
Section 10.9 Drainage Easement. An easement is hereby
reserved to Declarant and its successors and assigns and granted to
the Master Association and its officers, agents, employees,
successors, and assigns to enter upon, across, over,. in, and under
any portion of the Property for the purpose of changing,
correcting, or otherwise modifying the grade or drainage channels
of the Property so as to improve the drainage of water on the
Property.
t'
Section 10.10 Easements of Access for Repair, Maintenance,
and Emergencies. Some portions of the Master Common Elements or
the facilities serving same are or may be located on certain Lots
or within Units or may be conveniently accessible only through
certain Lots or Units. The Master Association shall have the
irrevocable right to have access to each Lot and Unit and to all
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Project common elements from time to time during such reasonable
hours as may be necessary for the maintenance, repair,, removal, or
replacement of any of the Master Common Elements therein or
accessible therefrom or for making emergency repairs therein
necessary to prevent damage to the Master Common Elements or to any
Unit. Additionally there is hereby created an easement for such
Master Common Elements as they currently exist within the Units.
Subject to the provisions of Section 5.3 above, damage to the-
interior of any part of a Unit resulting from the maintenance,
repair, emergency repair, removal, or replacement of any of the
Master Common Elements or as a result of emergency repair within
another Unit at the instance of the Master Association shall be a
Common Expense.
Section 10.11 Declarant's Rights Incident to Construction and
Marketing. Declarant, for itself and its successors and assigns,
hereby retains a right and easement of ingress and egress over, in,
upon, under, and across the Property and the right to store
materials on the Property and to make such other use of the
Property as may be reasonably necessary or incident to the complete
construction and sale of the Projects, including, but not limited
to, construction trailers, temporary construction offices, sales
offices, and directional and marketing signs; provided, however,
that no such rights shall be exercised by Declarant in such a way
as to unreasonably interfere with the occupancy, use, enjoyment, or
access by any Owner, or family members, guests, or invitees of an
Owner.. Declarant, for itself and its successors and assigns,
hereby retains a right to maintain any Unit or Units as sales
offices, management offices or model residences so long as
-.Declarant, or its successors or assigns, continues to be an Owner
of a Unit. The use by Declarant of,any Unit as a model residence,
office or other use shall not affect the Unit's designation on the
Map as a separate Unit.
Section 10.12 Right of Declarant and Association to Own Units
and to Use Common Elements. An easement is hereby reserved by
Declarant for itself and its successors and assigns and granted to
the Master Association and its officers, agents, employees,
successors and assigns to maintain offices, storage areas,
conference areas, and recreational areas for use by the Master'
Association within the Master Common Elements, subject to all rules
and regulations established under this Master Declaration. The
Master Association shall also have the -right (but not the
obligation) to purchase and own any Unit for the purpose of
maintaining an office for the Master Association or for any other
CJ
use which the Master Association determines is consistent with the
r-3
operation of the respective Projects. The costs and carrying
-charges incurred by the Master Association in purchasing and owning
any such Unit shall be part of the Common Expenses.
Section 10.13 Remodeling Easement. Declarant, for itself and
its successors and assigns, including Owners, retains a right and
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easement in and about the Buildings for the construction and
installation of any duct work, additional plumbing, or other
additional services or utilities serving the Master Common Elements
in connection with the improvement or alteration of the Master
Common Elements, including the right of access to such areas of the
Property as is reasonably necessary to accomplish such
improvements. In the event of a dispute among Owners with respect
to the scope of the easement reserved in this Section, the decision
of the Executive Board shall be final.
Section 10.14 Easements Deemed Created. All conveyances of
Units hereafter made, whether by Declarant or otherwise, shall be
construed to grant and reserve the easements contained in this
Article, even though no specific reference to such easements or to
this Article appears in the instrument for such conveyance.
ARTICLE 11
ASSOCIATION AS ATTORNEY-IN-FACT
Section 11.1 Appointment. Each and every Owner hereby
irrevocably constitutes and appoints the Master Association as such
Owner's true and lawful attorney-in-fact in such owner's name,
place,_ and stead for the purpose of dealing with the Master Common
Elements upon its damage, destruction, condemnation, or
obsolescence as provided below in Articles 12, 13 and 14. In
addition, the Master Association, or any insurance trustee or
substitute insurance trustee designated by the Master Association,
is hereby appointed as attorney-in-fact under this Master
Declaration for the purpose of purchasing and maintaining insurance
under Article 7 above, including: the collection and appropriate
disposition of the proceeds of such insurance; the negotiation of
losses and the execution of releases of liability; the execution of
all documents; and the performance of all other acts necessary to
accomplish such purpose. The Master Association, or any insurance
trustee, shall hold or otherwise properly dispose of any insurance
proceeds in trust for the Owners and their Mortgagees, as their
interests may appear. Acceptance by any grantee of a deed or other
instrument of conveyance from Declarant or from any owner shall
constitute appointments of the attorneys in fact as provided above.
Section
11.2 General Authority
. As attorney-in-fact, the
Master Association shall have full
and complete authorization,
right, and
power to make, execute,
and deliver any contract,
assignment,
deed, waiver, or other instrument with respect to the
interest of
any Owner which may be
necessary or appropriate to
Cj
exercise the
powers granted to the Master Association as attorney-
in-fact.
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ARTICLE 12
DAMAGE OR DESTRUCTION
Section 12.1 The Role of the Executive Board. Except as
provided in Section 12.6, in the event of damage to or destruction
of all or part of any Master Common Elements, or other property
covered by insurance written in the name of the Master Association
under Article 7, the Executive Board shall arrange for and
supervise the prompt repair and restoration of the damaged areas of
the Master Common Elements.
.Section 12.2 Estimate of Damages or Destruction. As soon as
practical after an event causing damage to or destruction of any
part of the Master Common Elements or other covered property, the
Master Association shall, unless such damage or destruction shall
be minor, obtain an estimate or estimates that it deems reliable
and complete of the costs of repair and reconstruction of that part
of the Master Common Elements damaged or destroyed. "Repair and
reconstruction" as used in this Article shall mean restoring the
damaged or destroyed part of the Master Common Elements to
substantially the same condition in which it existed prior to the
damage or destruction, with the Master Common Elements having
substantially the same vertical and horizontal boundaries as
before.
Section 12.3 Repair and Reconstruction. As soon as
practical after obtaining estimates, the Master Association shall
diligently pursue to completion the repair and reconstruction of
the part of the Master Common Elements or other covered property
damaged or destroyed. As attorney-in-fact for the owners, the
Master Association may take any and all necessary or appropriate
action to effect repair and reconstruction, and no consent or other
action by any Owner shall be necessary in connection with that
action.
Section 12.4 Funds for Repair and Reconstruction. Subject
to the provisions of Section 12.6 below, the proceeds received by
the Master Association from any hazard insurance shall be used for
the purpose of repair, replacement, and reconstruction.
Section 12.5 Insurance Proceeds Sufficient to Repair. In
the event of damage or destruction due to fire or other disaster,
the insurance proceeds, if sufficient to reconstruct the
improvements, shall be applied by the Master Association as
attorney-in-fact to such reconstruction, and the improvements shall
be promptly repaired and reconstructed. The Master Association
shall have full authority, right, and power as attorney-in-fact to C
cause the repair and restoration of'the improvements. Assessments
for Common Expenses shall not be abated during the period of
insurance adjustments and repair and reconstruction.
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Section 12.6 Insurance Proceeds Insufficient to Reoair•
Special Assessment; Remedies for Failure_to Pay Special Assessment.
If the insurance proceeds are insufficient to repair and
reconstruct the improvements, and if such damage is not more than
70% of the total replacement cost of all of the Master Common
Elements or other covered property, not including land, such damage
or destruction shall be promptly repaired and reconstructed by the
Master Association as attorney-in-fact, using the proceeds of
insurance and if permitted under the Act, the proceeds of a special
Assessment to be made against all of the Owners and their Units.
Any such special Assessment shall be a Common Expense in accordance
with Section 6.6 above and shall be due and payable within thirty
(30) days after written notice as provided in Article 6 above. The
Master Association shall have full authority, right, and power as
attorney-in-fact to cause the repair, replacement, or restoration
of the improvement using all of the insurance proceeds for such
purpose, notwithstanding the failure of an Owner to pay the
Assessment.
Any Assessment provided for in this Section shall be a debt of
each Owner and a lien on the Owner's Unit and may be enforced and
collected as provided in Article 6 above.
If the insurance proceeds are insufficient to repair and
reconstruct the improvements, and if such damage is more than 70%
of the total replacement cost of all of the Master Common Elements
or other covered property, not including land, such damage or
destruction shall be promptly repaired and reconstructed by the
Master Association, as attorney-in-fact, using the proceeds of
insurance and, if permitted under the Act, the proceeds of a
special Assessment made against all, of the Owners and their Units,
provided, however, that Owners holding an aggregate Percentage
Assessment Obligation in the Master Association of 6716 or more, and
51% or more of the First Mortgagees of record (based on one vote
for each Mortgage owned) may elect to terminate the Master
Association, as provided in Article 16 below; and in such event,
the Master Association shall forthwith record a notice setting
forth such fact or facts, and upon the recording of such notice by
the Master Association's president and secretary or assistant
secretary, the Master Common Elements shall be rendered safe and
unsightly and shall be permitted to'remain in such state and any
Master Common Elements capable of sale shall be sold pursuant to
the provisions of this Section by the Master Association free and
clear of the provisions contained in this Master Declaration and
the articles of incorporation, and bylaws of the Master
Association. Assessments for Common Expenses shall not be abated
during the period prior to sale.
In such event, the insurance settlement proceeds shall be
collected by the Master Association, and such proceeds shall be
divided by the Master Association according to each owner's
Percentage Assessment Obligation and such divided proceeds shall be
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paid into separate accounts, each such account representing one of
the Units. Each such account shall be in the name of the Master
Association, and shall be further identified by the Unit
designation and the name of the Owner and designated as an agency
account. From each separate account the Master Association, as
attorney-in-fact, shall use and disburse the total amount of each
of such accounts, without contributions from one account to
another, toward the partial or full payment of the lien of any
First Mortgagee encumbering the Unit represented by such separate
account. Thereafter, each such account shall be supplemented by
the apportioned amount of the proceeds obtained from the sale, if
any, of the Master Common Elements. Such apportionment shall be
based upon each Unit Owner's Percentage Assessment Obligation. The
total funds of each account shall be used and disbursed, without
contribution from one account to another, by the Master Association
as attorney-in-fact for the purposes and in the order as follows:
12.6.1 For payment of real property ad valorem taxes,
special assessment liens duly imposed by a governmental
subdivision, and customary expenses of sale;
12.6.2 For payment of the balance of the lien of any
First Mortgage affecting the Unit;
12.6.3 For payment of unpaid Master Association
assessments, interest, costs, late charges, expenses and attorneys'
(and legal assistants') fees;
12.6.4 For payment of unpaid Project Association
Assessments, interest, costs, late charges, expenses and attorneys'
(and legal assistants') fees;
12.6.5 For payment of junior Mortgages affecting the
Unit in the order of and to the extent of their priority; and
12.6.6 For payment of the balance remaining, if any,
to the Owner of the Unit.
In the event that the Owners and First Mortgagees do not elect
to terminate the Master Association as provided above, owners
representing at least 80% of the total Percentage Assessment
Obligations in the Master Association (other than Declarant) and
all directly adversely affected Owners may alternatively agree in
writing not to repair and reconstruct improvements within the
Master Common Elements and if no alternative improvements are W
authorized, then and in that event the damaged property shall be CJ
restored to a safe and unsightly state and maintained as an V
undeveloped portion of the Master Common Elements by the Master
Association in a neat and attractive condition. Any remaining
insurance proceeds shall be distributed in accordance with the Act.
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Section 12.7 ReAairs. All repairs and reconstruction
contemplated by this Article shall be performed substantially in
accordance with this Master Declaration and the original plans and
specifications for the Master Common Elements or other covered
property, unless other action is approved by the Master Association
in accordance with the requirements of this Master Declaration and
the other Master Association Documents.
Section 12.8 Notice of Damage or Destruction to First
Mortgagees. In the event that a substantial portion of the Master
Common Elements or other covered property is substantially damaged
or destroyed by fire or other casualty, then written notice of the
damage or destruction shall be given by the Master Association to
each Owner and First Mortgagee within a reasonable time following
the event of casualty damage.
ARTICLE 13
OBSOLESCENCE
The Owners holding an aggregate Percentage Assessment
obligation of 67% or more may agree that the Master Common Elements
are obsolete and adopt a written plan for the renewal and
reconstruction thereof, which plan must have the approval of at
least 5196 of the First Mortgagees (based on one vote for each
Mortgage owned) of record at the time of the adoption of such plan.
Written notice of the adoption of such a plan shall be given to all
owners and a copy of such plan shall be recorded in the office of
the Clerk and Recorder of Eagle County, Colorado, and the expense
of renewal and reconstruction shall be payable by all of the Owners
as Common Expenses.
ARTICLE 14
CONDEMNATION
Section 14.1 Consequences of Condemnation. If, at any time
or times, all or any part of the Master Common Elements shall be
taken or condemned by any public authority or sold or otherwise
disposed of in lieu or in avoidance of condemnation, then all
compensation, damages, or other proceeds of condemnation, the sum
of which is referred to as the "condemnation award" below, shall be
payable to the Master Association, and the provisions of this
Article shall apply. The condemnation award shall be apportioned
among the Owners and the Mortgagees on the basis of their
respective Percentage Assessment Obligations. The Master
Association shall, as soon as practical, determine the share of the
condemnation award to which each Owner and Mortgagee is entitled,
and such shares shall be paid into separate accounts and disbursed
as soon as practical for the same purposes and in the same order as
is provided in Sections 12.6.1 through 12.6.6 above.
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Section 14.2 Repair and Reconstruction. Any repair and
reconstruction necessitated by condemnation shall be governed by
the procedures contained in Article 12 above.
Section 14.3 Notice of Condemnation. In the event that any
portion of the Master Common Elements shall be made the subject
matter of any condemnation or eminent domain proceeding or is
otherwise sought to be acquired by a condemning authority, then
timely written notice of such condemnation shall be given by the
Master Association to each Owner and First Mortgagee.
ARTICLE 15
OTHER ASSOCIATION MATTERS
Section 15.1 Architectural Control.
15.1.1 No exterior addition to or change or alteration
to a Unit shall be made until the plans and specifications showing
the nature, kind, shape, height, color, materials, and location of
the same shall have been submitted to and approved in writing as to
harmony of external design and location in relation to surrounding
structures and topography by the executive board of the applicable
Project Association.
15.1.2 After receiving the approval of such executive
board, the Owner required to obtain such approval shall thereafter
obtain all other approvals as may be required by any governmental
or quasi-governmental body having jurisdiction over the Property.
Section 15.2 General Reservation. Declarant reserves the
right to dedicate any access roads and streets serving the Property
for and to public use, to grant road easements with respect thereto
and to allow such street or road to be used by owners of adjacent
land.
Section 15.3 Access. Each Owner acknowledges that the
access roads within the Property are private, limited access roads.
Each Owner accepting a deed to a Unit agrees to be subject to the
easements and the rules and regulations of the Master Association
governing the use of the private roads, as presently in effect.
Absent a conveyance or other agreement between the Master
Association, relevant Project Associations and Declarant, Declarant
shall have no responsibility regarding the road system within the
Property.
Section 15.4 Project Activities. Each Owner is hereby CJ
advised that substantial construction-related activities relating F
to the development of the Property or other development within or
near the subdivision may cause considerable noise, dust and other
inconveniences to the Owners.
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ARTICLE 16
MORTGAGEE PROTECTIONS
Section 16.1 Introduction. This Article establishes certain
standards and covenants which are for the benefit of the holders,
insurers and guarantors of certain Mortgages. This Article is
supplemental to, and not in substitution for, any other provisions
of this Master Declaration, but in the case of any conflict, this
Article shall control.
Section 16.2 Percentage of Eligible Mortgage Holders.
Wherever in this Master Declaration the approval or consent of a
specified percentage of Eligible Mortgage Holders is required, it
shall mean the approval or consent of Eligible Mortgage Holders
under Mortgages encumbering Units which in the aggregate have
allocated to them such specified percentage of votes in the Master
Association when compared to the total allocated to all Units then
subject to Mortgages held by Eligible Mortgage Holders.
Section 16.3 Notice of Actions. The Master Association
shall give prompt written notice to each Eligible Mortgage Holder
of the following:
16.3.1 Any condemnation loss or any casualty loss
which affects a material portion of the Master Common Elements.
16.3.2 Any delinquency which remains uncured for 60
days in the payment of Assessments by an Owner whose Unit is
encumbered by a Mortgage held by such Eligible Mortgage Holder.
16.3.3 Any lapse, cancellation, or material
modification of any insurance policy or fidelity bond maintained by
the Master Association.
16.3.4 Any proposed action which would require the
consent of Eligible Mortgage Holders as required in Section 16.4
below.
16.3.5 Any judgment rendered against the Master
Association.
Section 16.4 Consent Required.
16.4.1 Document Changes. Except as provided in
Sections 17.3 and 17.4 below, no amendment of any material
provision of this Master Declaration described in this Subsection
16.4.1 may be effective without the vote of Owners representing at
least 67% of the Percentage Assessment Obligations of the Units and
until approved in writing by at least 51k of the Eligible Mortgage
Holders. "Material" provisions include any provision affecting the
following:
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16.4.1.1 Assessments, Assessment liens, or subordination
of Assessment liens.
16.4.1.2 Voting rights.,
16.4.1.3 Reserves for maintenance, repair and
replacement of the Master Common Elements.
16.4.1.4 Responsibility for maintenance and repair.
16.4.1.5 Rights to use the Master Common Elements.
16.4.1.6 Expansion or contraction of the Property.
16.4.1.7 Insurance or fidelity bonds.
16.4.1.8 Imposition of restrictions on an Owner's right
to sell or transfer his Unit.
16.4.1.9 Restoration or repair of the Master Common
Elements after hazard damage or partial condemnation in a
manner other than that specified in this Master Declaration.
16.4.1.10 Termination of this Master Declaration after
the occurrence of substantial destruction or condemnation.
16.4.1.11 The benefits of Eligible Mortgage Holders.
16.4.2 Actions. The Master Association may not take
any of the following actions, except as such rights have been
specifically reserved by Declarant under the provisions of this
Master Declaration, without the approval of at least 51% of the
Eligible Mortgage Holders:
16.4.2.1 Conveyance or encumbrance of the Master Common
Elements (provided, however, that the granting of easements
for public utilities, for construction and maintenance of
roads within the Project, or for other public purposes not
inconsistent with the use of the Master Common Elements by the
owners, and the conveyance or encumbrance of personal
property, will not be deemed a conveyance, encumbrance, or
other transfer within the meaning of this clause).
16.4.2.2 Restoration or repair of the Master Common
Elements (after hazard, damage or partial condemnation) in a
manner other than that specified in this Master Declaration.
16.4.2.3 Termination of this Master Declaration for
reasons other than substantial destruction or condemnation, as
permitted with the approval. percentages specified in Articles
12 and 14 above.
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16.4.2.4 Merger of the Master Association with any other
association.
16.4.2.5 The granting of easements, leases, licenses or
concessions through or over the Master Common Elements
(excluding, however, any such grants for public utilities or
other public purposes or generally benefitting the Owners
consistent with the use of the Master Common Elements by the
Owners).
16.4.2.6 Any action not to repair or replace the Master
Common Elements except as permitted under Articles 12 and 13
above.
Section 16.5 Notice of Objection. Unless an Eligible
Mortgage Holder provides the Secretary of the Master Association
with written notice of its objection, if any, to any proposed
amendment or action outlined above within thirty (30) days
following the receipt of notice of such proposed amendment or
action, the Eligible Mortgage Holder will be deemed conclusively to
have approved the proposed amendment or action.
Section 16.6 First Mortc;acTees' Rights.
16,.6.1 First Mortgagees, jointly or singly, may pay
taxes or other charges which are in default and which may or have
become a charge against any of the Master Common Elements or
improvements thereon, and may pay overdue premiums on hazard
insurance policies, or secure new hazard insurance coverage on the
lapse of a policy, for the Master Common Elements. First
Mortgagees making such payments shall be owed immediate
reimbursement from the Master Association.
16.6.2 Eligible Mortgage Holders shall be entitled to
cure any delinquency of the Owner of a Unit encumbered by the
Eligible Mortgage Holder in the payment of Assessments of which the
Eligible Mortgage Holder has received notice under Section 16.3.2.
above. In that event, the Eligible Mortgage Holder shall be
entitled to obtain a release from the lien imposed or perfected by
reason of such delinquency.
ARTICLE 17
DURATION OF COVENANTS-AND AMENDMENT
Section 17.1 Term. The covenants and restrictions of this
Declaration shall run with and bind the land in perpetuity, subject
to the termination provisions of the Act.
Section 17.2 Amendment., The provisions of this Master
Declaration may be amended or terminated, in whole or in part,, from
time to time, upon the written consent of Owners representing an
aggregate voting interest of 67% or more, subject, however, to any
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w
other provisions of this Master Declaration requiring the consent
of a certain percentage of First Mortgagees or Eligible Mortgage
Holders.
Section 17.3 Unilateral Amendment Rights Reserved by
Declarant. Notwithstanding the provisions of 'Section 17.2 above or
any other provision of this Master Declaration, Declarant, acting
alone, reserves to itself the right and power to modify and amend
this Master Declaration to the fullest extent permitted under the
Act.
Section 17.4 Recording of Amendments. Any amendment to this
Master Declaration made in accordance with this Article shall be
immediately effective upon recording in the office of the Clerk and
Recorder of Eagle County, Colorado, a copy of the amendment,
executed and acknowledged by the appropriate number of Owners (and
by First Mortgagees and/or` Eligible Mortgage Holders, as required),
accompanied by a certificate of a licensed title insurance company
as to ownership, or upon the recording of a copy of the amendment,
together with a duly authenticated certificate of the secretary of
the Master Association stating that the required number of consents
of Owners (and-First Mortgagees and/or Eligible Mortgage Holders,
as applicable) and a certificate of a licensed title company as to
title to the Units were obtained and are on file in the office of
the Master Association.
ARTICLE 18
DECLARANT'S RIGH'T'S REGARDING'TRANSFER
Any right or any interest reserved or contained in this Master
Declaration for the benefit of Declarant may be transferred of
assigned by Declarant, either separately or with one or more other
such rights or-interests, to any person, corporation, partnership,
association, or other entity, by written instrument executed by
both Declarant and the transferee or assignee and recorded in the
office of the Clerk and Recorder of Eagle County, Colorado.
ARTICLE 19
MISCELLANEOUS
Section 19.1 Restriction on Declarant Powers.
Notwithstanding anything to the contrary in this Declaration, no
rights or powers reserved to Declarant hereunder shall exceed the
time limitations or permissible extent of such rights or powers as
restricted under the Act. Any provision in this Master Declaration
in conflict with the requirements of the Act shall not be deemed to
invalidate such provision as a whole but shall be adjusted as is
necessary to comply with the Act. W
Section 19.2 Master Association Statutes. Notwithstanding
anything to the contrary in this Declaration, it is the intention
of this Declaration to, permit to the fullest extent permitted under
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the Act all rights and powers of the Owners and/or Mortgagees to be
exercised by the members of the executive boards of the respective
Project Associations in accordance with the powers granted to such
Project Association board members pursuant to Section 4.2 above and
the remaining terms of this Declaration, and any provision of this
Declaration limiting the exercise of such rights and powers by
these board members shall be adjusted to permit them to exercise
these permissible rights and powers.
Section 19.3 Conflicts with Law. If any provision contained
in this Master Declaration is deemed to be in violation with the
Rule against Perpetuities or is deemed an unreasonable restraint on
alienation, notwithstanding anything in this Master Declaration to
the contrary, such provision shall be deemed to remain valid only
during the period of time ending on, or any interest in property
granted under this Master Declaration shall be deemed to vest on or
before, the date of the death of the survivor of the now living
children of Prince Charles, Prince of Wales, plus twenty-one (21)
years, and shall be construed in a matter as to make such provision
and this Master Declaration valid and enforceable.
Section 19.4 Enforcement. Enforcement of the covenants,
conditions, restrictions, easements, reservations, rights-of-way,
and other provisions contained in this Master Declaration and the
other Master Association Documents shall be through any proceedings
at law or in equity brought by any aggrieved Owner, the Master
Association, or Declarant against the Master Association or any
owner. Such actions may seek remedy by injunction or restraint of
a violation or attempted violation, or an action for damages, or
any of them, without the necessity of making an election.
Section 19.5 Nonwaiver. Failure by Declarant, the Master
Association, or any Owner or First Mortgagee to enforce any
covenant, condition, restriction, easement, reservation, right-of-
way, or other provision contained in this Master Declaration shall
in no way or event be deemed to be a waiver of the right to do so
thereafter.
Section 19.6 Severability. The provisions of this Master
Declaration shall be deemed to be independent and severable, and
the invalidity of any one or more of the provisions of it by
judgment or court order or decree shall in no way affect the
validity or enforceability of any of the other provisions, which
provisions shall remain in full force and effect.
Section 19.7 Number and Gender. Unless the context provides "
or requires to the contrary; the use of the singular herein shall CJ
include the plural, the use of the plural shall include the
singular, and the use of any gender shall include all genders.
Section 19.8 Captions. The captions to the Articles and
Sections and the Table of Contents at the beginning of this Master
u
111 - 072e n652 imp HIM 11111111' 111111. 11111111111111111 omIN
48 of 32 R 281.09 D OM N 0.00 Eaglof Colorado
Declaration are inserted only as a matter of convenience and for
reference, and are in no way to be construed to define, limit, or
otherwise describe the scope of this. Master Declaration or the
intent of any provision of this Master Declaration.
Section 19.9 Conflicts in Legal Documents. In case of
conflicts between the provisions in this Master Declaration and the
articles of incorporation of the Master Association and the bylaws
of the Master Association, this Master Declaration shall control.
In case of conflicts in the provisions in the articles of
incorporation of the Master Association and the bylaws of the
Master Association, the articles of incorporation of the Master
Association shall control.
Section 19.10 Exhibits. All the Exhibits attached to and
described in this Master Declaration are incorporated in this
Master Declaration by this reference.
Executed as of the day of 1997.
STATE OF COLORADO
COUNTY OF EAGLE
~he foi
day of
RIVERVI
Colora cc
By:
Na e•
Ti le.
ss.
P ASSOCIATES,
~p ion
ing ins rument was ac
1997,
. as
Park Associates, Inc., a Colorado corporation.
WITNESS my hand and offic
My commission expires : \l
Notary
lovirey\dec-bro.6dc
1/31/97
f
INC., a
me this
of Riverview
w
ablic
11111111111111,OF
IIIIII I
11111111111111111111111111 In
9116529 W/13/199r? IN35:54P 872i3 P538 133
49 Of 52 R 261-00 D 0.00 N e.jM-Eagle, Colorado
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EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
Final Plat, BROOKSIDE PARK, a Resubdivision of Lot 1,
Eaglewood Subdivision, Town of Avon, Eagle County, Colorado,
recorded in Book , Page of the Office of the Clerk
and Recorder of Eagle County, Colorado.
Aft
W
o-~
IIIIII 11111111111111111 III 111111111111111111111 III IN
616329 03/13/1997 03:34P B720 P338 133
50 of 52 R 261.00 D 0.00 N 0.00 Eagle, Colorado
EXHIBIT B
MASTER COMMON ELEMENTS
1. All those certain recreational facilities intended for the use
of all Owners, to be located on the Lot on which the Commercial
Project will be constructed, between the Building constituting the
Commercial Project and the public bike and pedestrian path on such
Lot, including a pool, patio and/or deck, walkways, lighting,
landscaping and any other improvements which benefit, are intended
to serve or,located within the vicinity, of such recreational
facilities.
2. A condominium Unit to be located within the Commercial Project
and conveyed to the Master Association, in which Unit an exercise
facility will be operated and maintained by the Master Association.
3. Any other facilities, improvements or property determined to
be Master Common Elements by the Executive Board in accordance with
the terms of this Declaration.
IIIIII IIIII 111111111111111111111111111 III 111111111
616529 03/13/1997 05:54P 9720 P558 133
51 of 52 R 261.00 D 0.00 N 0.00 Ea91e, Colorado
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MMXBIT C
RBcoitDZlM DATA rOX $ASZM2NTS, LICZKS$S AND TITLE MATTERS
1. Right of proprietor of a vein or lode to extract and remove
his are therefrom should the same be found to penetrate or
intersect the premises as reserved in United States Patent recorded
May 4, 1905, in Book 48 at Page 272 and in United States Patent
recorded November 29, 1916, in Book 48 at Page 606.
2. Right of way for ditches or canals constructed by the
authority of the United States as reserved in United States Patent
recorded November 29, 1916, in Book 48 at Page 606.
3. Terms, conditions and provisions of the Agreement between the
Town of Avon and S.G. Meyer and Kelton/Garton/vaughan Venture, a
general partnership, recorded October 15, 1981 in Book 330 at Page
592, and an ordinance recorded November 27, 1996 in Book 712 at
Page 443.
4. Terms, conditions and provisions of Service Agreement recorded
June 2, 1982 in Book 341 at Page 134, and Amendment recorded June
2, 1982 in Book 341 at Page 133.
5. Annexation map and restrictions and provisions as contained
thereon as recorded October 15, 1981 in Book 330 at Page 590.
6. Easements, reservations and restrictions as shown or reserved
on the plat recorded January 5, 1989 in Book 497 at Page 919.
7. Sanitary Sewer Easement traversing subject property as shown.
on the recorded plat of Eaglewood Subdivision.
8. 7.5 foot drainage, utility and public pedestrian easement
along the easterly lot line of subject property as shown on the
recorded plat of Eaglewood Subdivision.
9. Terms, conditions and provisions of Holy Cross Electric
Association, Inc. Underground Right of Way Easement recorded
November 25, 1996 in Book 712 at Page 294.
14. Terms, conditions and provisions of Trench, Conduit and Vault
Agreement recorded November 25, 1996 in Book 712 at Page 296. CJ
11. Final Plat, Brookside Park, a Resubdivision of Lot 1, v
Eaglewood Subdivision, Town of Avon, Eagle County, Colorado,
recorded in Book , Page
12. Subdivision Improvements Agreement recorded in Book ,
Page
IYI~ IPdIpIIWI I~III III III IIIIM 0111NII B IIM
wi.W-029 PBS 133
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