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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 3 of 7 R 36.09 D 0.09 N 0.00 Eagle, Colorado 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! W 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 W .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 1111111111111111 nFIN III IIIIII mIIIIIIu111111111 IN 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 W C'I G'~ 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 o ~ o 0 V ~m o~ • in am-on a W -N m ~m4D ~80 m _i2 a in m o in ~m mW ~0P X mr 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 1 of 32 R 261.00 0 0.00 N 0.00 Ea91e, Colorado 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 616329 03/13/1997 03:34P.9720 P336 133 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 616M 03/13/1997 W:54P B720 P558 133' 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 13/13.1997 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 19 of 32 R 961.09 0 0.09 N ILU Eagle, Colorado 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 22 of 52 R 251.08 -0 O.W N 0.90 Eagle, Colorado 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 111111111111R0111111111111111111111111111 616M 03/13/1997 W HIM 11 WI 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 611 r NO IN: W WM MS 133 n of W R U1.08 1) 0.0 N 0.00 Eagle, Colorado e W 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: 10111111111111111-111111111111111111111111111 IN 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 27 of 52 R 261.00 0 0.90 N 0.09 Eagle,,Colorado 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 i wm u~ nim r~ ui nn9720 ii w~i 133 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; uN r~ 111111111111 0/13/2997 HIM 111111111111111111111111111111111111 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 so f 1997 '05: 54P 9720 PWS 133 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 W13/1W 05:54P B720 PUS 111111111111111111111111 i]1111111 IN 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 i III III 35 of 52 It 261.W 0 OAN N 11.09'Eagle, Colorado W CJ C.7 93/13/107 05:54P B720 P559 133 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 IIIIIII IIIII HIM 1111111111111111111111111111111 IN 36 of 32 R 261. 09 D a. N N @.IN Eagle. Colorado 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 Illul IAII 111111 I~1 ~I IAlll IIIAI III III IIII IIN 611 f1997 05:54P 8728.P558 133 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. IIIIII IIIII 111111 IIIIII 111111111111111111111111111 IN 616529 03/13/1997 W:34P 0772 P558 133 38 of 32 R 261.00 0 0.00 N 0.00 Eagle, Colorado 33 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. 111111111111111111111111111111111111111111111111111-1111 616529 03/13/1997 05:54P B720 P558 133 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 1111111111111111111111111111111111111111111111111 IN III 1614 F1997 W:34P 97M P558- 133 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. I 1111111111111111111111111111111111111111111111 IN IN ell (1997 05:54P B720 P558 41 of s2 R 2el.66 0 0.09 N 9.09 Eagle. Colorado 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. 111111111111 03/13/1997 03:34P HIM 111111111111111111111111111111111 iIN 42 of 52 R 261.N D 0.00 N 0.00 Eagle, Colorado 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. 111111111111111111111111111111111111111111111111111 IN 614 f1997 05:54P B7241 P558 233 43 of 52 R 261.10 D 9.00 N @.W Eagle. Colorado 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: 616529 W 111111111111111111111111111-1111111111111111111111111 IN 44 of 52 R 261-IM 0 0-N N 0.00 Eagle, C616rado cJ P558 133 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. 45 of 52 INM 11111111 Hill IIIIII 1111111111111111, 11111111111 s W 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 Hill 11111111111111111111111111111111111,111111-III IN ei 03/13/1997 09:34P 8720 P338 133 46 of 52 R 261.00 0 0.00 N 0.00 Eagle, Colorado 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 11111111111111111111111111111111111-1111111111,1111111. 616=43/13/1997 03:W 8720 PUS 133 47 of 59 R 261'.00 D-0-00 N 6.98'Eagle, Colorado 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 w • J 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 w W r~~ 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 92 of 52