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HomeMy WebLinkAboutECHDA23-004 Exhibit A_project declarationDocuSign Envelope ID: 95125780-A7E3-40AC-8179-1ACDF800FDE0
EXHIBIT A
PROJECT DECLARATION
Eagle County, CO 202300905
Regina O'Brien 01/27/2023
Pgs: 67 04:56:25 PM
REC: $343.00 DOC: $0.00
DECLARATION
FOR
HAYMEADOW
THIS DECLARATION FOR HAYMEADOW (this "Declaration"), dated as of January 27, 2023,
shall be effective upon recordation and is made by ABRIKA PROPERTIES, LLC, a Florida limited
liability company ('Declarant"). Declarant is the owner of certain real property in Eagle County,
Colorado, more particularly described on Exhibit A attached hereto and made part of this
Declaration by this reference (the "Property"), and Declarant and other third parties are the owners
of additional real property located in Eagle County, Colorado, more particularly described on
Exhibit B (the "Expansion Property"). Declarant hereby makes the following grants, submissions,
and declarations:
ARTICLE 1
IMPOSITION OF COVENANTS
Section 1.1 Purpose. The purpose of this Declaration is to create a Planned Community
pursuant to the Colorado Common Interest Ownership Act as set forth in Colorado Revised
Statutes 38-33.3-101, et. seq. on the Property, the name of which is "Haymeadow". The
Association (as hereinafter defined) shall act as a common interest community association with
respect to all Units (as hereinafter defined) initially subject to this Declaration and any Units
hereinafter made subject to this Declaration.
Section 1.2 Intention of Declarant. Declarant intends to develop the Property as a
residential community for the benefit of all persons residing in Haymeadow. 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 thereon and to promote and safeguard the health, comfort, safety, convenience, and
welfare of the owners in Haymeadow.
Section 1.3 Number of Units. The Town Documents (as that term is hereinafter
defined) in effect as of the date hereof permit the development of a maximum of eight hundred
thirty-seven (837) Units within Haymeadow. In order to allow flexibility in the operation of this
Declaration in the event that the Town Documents are revised in the future, Declarant reserves the
right for itself and any Successor Declarant to create a total maximum of one thousand two hundred
(1,200) Units.
Section 1.4 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 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 Declaration.
Section 1.5 Covenants Running With the Land. All provisions of this Declaration shall
be deemed to be covenants running with the land, or equitable servitudes, as the case may be. The
benefits, burdens, and other provisions contained in this 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 Declaration or any Supplemental Declaration, shall
have the meanings designated below unless the context shall expressly provide otherwise:
Section 2.1 "Act" means the Colorado Common Interest Ownership Act as set forth in
the Colorado Revised Statutes, Section 38-33.3-101, et. seq.
Section 2.2 "Assessment Obligation" means the apportionment of Assessments for
which a Unit is responsible as calculated pursuant to Section 5.4 below.
Section 2.3 "Assessments" means the annual, special and default Assessments and the
RETA levied pursuant to Article 5 below. Assessments are also referred to as a Common Expense
Liability under the Act.
Section 2.4 "Association" means Haymeadow Association, a Colorado nonprofit
corporation, and its successors and assigns. The Association acts through its Executive Board
unless a vote of the Owners is otherwise specifically required by the Act, this Declaration or the
articles of incorporation or bylaws of the Association.
Section 2.5 "Association Documents" means the basic documents governing the
Association, including, but not limited to, this Declaration, the articles of incorporation and bylaws
of the Association, and any procedures, rules, regulations, or policies relating to the Association
adopted under such documents by the Association or the Executive Board.
Section 2.6 "Building" means any building (including all fixtures and improvements
contained within it) located on the Property.
Section 2.7 "Common Area" means, to the extent of the Association's interest in such
real property or improvements, if any, any real property or improvements within or outside
Haymeadow (a) that are owned by the Association, (b) that are owned by a person or entity other
than the Association, but in which the Association has rights of use or possession pursuant to a
lease, license, easement or other agreement, or (c) that the Association is otherwise required to
operate, manage, maintain or repair, together with any improvements located thereon.
Section 2.8 "Common Expenses" means (a) all expenses expressly declared to be
common expenses by this Declaration or the bylaws of the Association; (b) all other expenses of
administering, servicing, conserving, managing, maintaining, repairing or replacing the Common
Area; (c) insurance premiums for the insurance carried under Article 9; and (d) all expenses
lawfully determined to be common expenses by the Executive Board.
Section 2.9 "Declarant" means Abrika Properties, LLC, a Florida limited liability
company ("Abrika Properties, LLC"), and its successors and assigns. No party other than Abrika
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Properties, LLC shall exercise the rights and privileges reserved herein to Declarant unless such
party shall receive and record in the real property records of Eagle County, Colorado a written
assignment from Abrika Properties, LLC of all or a portion of such rights and privileges.
Section 2.10 "Declarant Control Period" means the period of time commencing on the
date of incorporation of the Association and terminating on the earliest of the following events:
(i) sixty (60) days after conveyance by Declarant of seventy-five percent (75%) of the total number
of Units that may be created under this Declaration (ii) two (2) years after the last conveyance of
a Unit by Declarant in the ordinary course of business, or (iii) the date on which Declarant
voluntarily relinquishes such power as evidenced by a notice recorded in the Office of the Clerk
and Recorder for Eagle County, Colorado.
Section 2.11 "Declaration" means this Declaration for Haymeadow, together with any
supplement or amendment to this Declaration, recorded by Declarant in the office of the Clerk and
Recorder of Eagle County, Colorado.
Section 2.12 "Design Guidelines" means the guidelines and rules published and amended
and supplemented from time to time by the Design Review Committee.
Section 2.13 "Design Review Committee" means and refers to the Design Review
Committee defined in and created pursuant to Article 6 below.
Section 2.14 "Development Parcel" means a parcel of property that is allocated
residential density by the Town Documents or by other recorded document and identified as a
"Development Parcel" on Exhibit A. Development Parcels may in the future be subdivided into
Residential Units pursuant to the terms of Section 8.15 of this Declaration and in accordance with
the Town Documents either (1) by the recording of a Project Declaration and Project Map creating
condominium or townhome Residential Units upon the Development Parcel or (2) by the recording
of additional subdivision plats that subdivide the Development Parcel into single-family or duplex
lot Residential Units. Any portion of a Development Parcel that remains for future development
following the recording of one or more Project Declarations and Project Maps, or subdivision plats,
upon a Development Parcel shall itself be a Development Parcel. Upon the creation of Residential
Units from a Development Parcel as described herein, the Declarant shall record a Supplemental
Declaration for the purpose of revising Exhibit A to identify the resulting Residential Units and
Development Parcels.
Section 2.15 "Director" means a member of the Executive Board.
Section 2.16 "District" means the Haymeadow Metropolitan District No. 1, a quasi -
municipal corporation and political subdivision of the State of Colorado.
Section 2.17 "Executive Board" means the governing body of the Association, as
provided in this Declaration and in the articles of incorporation and bylaws of the Association.
Section 2.18 "Expansion Property" means the real property located in Eagle County,
Colorado, more particularly described on Exhibit B attached hereto and incorporated herein by
this reference, which Declarant may subject to this Declaration by one or more duly recorded
Supplemental Declarations.
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Section 2.19 "First Mortgage" means a Mortgage which has priority of record over all
other recorded liens except those governmental liens made superior by statute (such as general ad
valorem tax liens, special and governmental transfer assessments).
Section 2.20 "First Mortgagee" means the Mortgagee under a First Mortgage.
Section 2.21 "Function" means any activity, function or service required under this
Declaration to be undertaken or performed by the Association as well as any activity, function or
service otherwise undertaken or performed by the Association.
Section 2.22 "Guest" means any family member, agent, independent contractor, guest,
invitee or Lessee of an Owner and any person or persons, entity or entities who have any right,
title or interest in a Unit which is not the fee simple title to the Unit (including a Lessee), and any
family member, agent, independent contractor, guest or invitee of such person or persons, entity
or entities.
Section 2.23 "Haymeadow" means the entirety of the Property subject to the terms and
provisions of this Declaration.
Section 2.24 "Lessee" means the person or persons, entity or entities which constitute the
lessee under a lease of all or any part of a Unit. The term Lessee shall include Declarant to the
extent it is a Lessee as defined above and shall include a sublessee, but it shall not include the
Association or any governmental entity (which term shall include but is not limited to special
districts formed pursuant to Colorado law).
Section 2.25 "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 Common Area or for purposes of undertaking or discharging
any Function.
Section 2.26 "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 Common Area and/or the Association.
Section 2.27 "Maximum Rate" shall mean two percentage points greater 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 Declaration, or if less, the maximum rate allowed by law.
Section 2.28 "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.
Section 2.29 "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.
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Section 2.30 "Non -Association Amenities" means certain real property and any
improvements and facilities thereon located adjacent to, in the vicinity of, or within the Property,
which are privately or publicly owned and operated by persons other than the Association for
recreational, commercial and related purposes, on a membership basis or otherwise.
Section 2.31 "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).
Section 2.32 "Plat" means that certain Final Plat, Haymeadow Filing 1, recorded in the
office of the Clerk and Recorder of Eagle County, Colorado, on May 24, 2019 as Reception No.
201907561, as amended from time to time, and including any future final plat that resubdivides
any portion of the real property subject to the Final Plat, Haymeadow Filing 1.
Section 2.33 "Project" or "Projects" means one or more buildings, together with the
Development Parcel or other real property upon which such building(s) are located, that is
submitted to a condominium or planned community regime by a Project Declaration and the
associated Project Map.
Section 2.34 "Project Association" or "Project Associations" means the association(s),
formed for the purpose of representing owners of Units within a particular Project.
Section 2.35 "Project Declaration" means each Declaration creating a Common Interest
Community upon a Development Parcel, as defined in the Act and subject to this Declaration.
Section 2.36 "Project Map" or "Project Maps" means and includes any engineering
survey or surveys, condominium map, or townhome subdivision plat of a Development Parcel
depicting, in the case of a condominium Project the floor plans of the Units, together with other
drawings or diagrammatic plans and information regarding any portion of a Development Parcel
as recorded in the office of the Clerk and Recorder of Eagle County, Colorado.
Section 2.37 "Property" means the real property described in the attached Exhibit A.
Section 2.38 "Residential Unit" means, individually or collectively, (1) any parcel of
property identified on Exhibit A as a Residential Unit, which shall be permitted for single family
or duplex residential dwellings, and (2) any condominium or townhome residential dwelling unit
created pursuant to any Project Declaration and Project Map, whether or not identified on Exhibit
A.
Section 2.39 "BETA" or "Real Estate Transfer Assessment" means the real estate
transfer Assessment levied pursuant to Section 5.9 of this Declaration
Section 2.40 "Successor Declarant" means any party or entity to whom Declarant assigns
any or all of its rights, obligations, or interest as Declarant, as evidenced by an assignment or deed
of record executed by both Declarant and the transferee or assignee and recorded in the office of
the Clerk and Recorder of Eagle County, Colorado, designating such party as a Successor
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Declarant. Upon such recording, Declarant's rights and obligations under this Declaration shall
cease and terminate to the extent provided in such document. No party other than Abrika
Properties, LLC shall exercise the rights and privileges reserved herein to Declarant unless such
party shall receive and record, in the real property records of Eagle County, Colorado, a written
assignment from Abrika Properties, LLC as provided herein.
Section 2.41 "Supplemental Declaration" means an instrument that subjects any part of
the Expansion Property to this Declaration as more fully provided in Article 15 below, or that
revises Exhibit A and/or Exhibit B pursuant to the resubdivision of a Development Parcel as more
fully provided in Section 8.15 below.
Section 2.42 "Supplemental Plat" means a subdivision plat which depicts any part of the
Expansion Property becoming subject to this Declaration through a Supplemental Declaration as
more fully provided in Article 15 below, or which subdivides a Development Parcel into
Residential Units as more fully provided in Section 8.15 below.
Section 2.43 "Town" means the Town of Eagle, State of Colorado, the municipality
which has the planning and zoning authority with respect to the Property.
Section 2.44 "Town Documents" means those certain documents relating to the planned
unit development for Haymeadow covering, without limitation, the Property and other property,
such documents to include, without limitation, zoning requirements, annexation agreements,
subdivision improvement agreements, the Haymeadow PUD Guide, PUD Development Plan and
Subdivision Plans.
Section 2.45 "Unit" means the fee simple interest in and to any parcel of real property
subject to this Declaration that is designated for separate ownership and that may be conveyed in
fee in compliance with all applicable subdivision regulations, including subdivided parcels of real
property whether currently existing or created by subsequent resubdivision of the Property. Each
Residential Unit shall be a "Unit" as defined herein. Each Development Parcel shall be an
individual "Unit" as defined herein until the Development Parcel is subdivided into Residential
Units whether pursuant to a Project Declaration and Plat, or pursuant to a Supplemental Plat;
provided, however, that a portion of a phased Project may remain as a Development Parcel as
provided in Subsection 4.2.3 below. Common Area is not included within the definition of Unit
hereunder.
Section 2.46 "Voting Allocation" means the apportionment of voting rights of an Owner
as calculated pursuant to Section 4.2 below.
Each capitalized term not otherwise defined in this Declaration or in the Plat shall have the
same meanings specified or used in the Act.
ARTICLE 3
ASSOCIATION FUNCTIONS AND DUTIES
Section 3.1 Property Maintenance Function. The Association shall provide for the care,
operation, management, maintenance, repair and replacement of all Common Areas. Moreover,
the Association may provide for the care and maintenance of other areas of the Property if the
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Executive Board, in its sole and exclusive discretion, deems such care and maintenance to be
necessary or desirable for access to the boundary of or full utilization of any Unit or any
improvements within Haymeadow.
Section 3.2 Animal Control Function. The Association may provide for regulations,
facilities, personnel and funds to enforce animal control or exclude animals from Haymeadow.
Section 3.3 Exterior Maintenance Function.
3.3.1 All Owners are expected to maintain their Units, and all Project
Associations are expected to maintain their Projects, in accordance with the standards of quality
typical within Haymeadow and the Town of Eagle, and the Association does not intend to provide
any exterior maintenance and repair of such property. In addition, each Owner or Project
Association, if applicable, shall be required to maintain the landscaping within any right of way
adjacent to such Owner's or Project Association's property if not maintained by the District. If any
Owner fails to maintain its Unit, or any Project Association fails to maintain its Project, related
improvements or property, or fails to perform any acts of maintenance or repair required under
this Declaration, the Association may provide, by the affirmative vote of the Executive Board or a
majority of the members of the Design Review Committee present at any meeting thereof, exterior
maintenance and repair upon such property after thirty (30) days' notice of such failure to the
Owner of such Unit or the applicable Project Association. In addition, the Association may,
without notice, make such emergency repairs and maintenance as may in its judgment be necessary
for the safety of any person or to prevent damage to any other property. The cost of such exterior
maintenance and repairs of a Unit shall be assessed against the Owner of such Unit, shall be a lien
and obligation of the Owner and shall become due and payable in all respects as set forth in Article
5 herein. The cost of such maintenance or repairs of a Project shall be assessed against all Owners
of Units within such Project and shall be a lien and obligation of such Owners pursuant to Article
5 herein. For the purpose of performing the exterior maintenance authorized by this Section, the
Association, through its duly authorized agents or employees, shall have the right, after reasonable
notice to the Owner or Project Association, to enter upon such Unit or Project during reasonable
hours on any day. The Association or its designee is hereby granted an irrevocable license over
all property in Haymeadow to inspect (in a reasonable manner) property within Haymeadow in
order to determine whether any maintenance or repair is necessary under this Section.
3.3.2 Neither Declarant, the Association, nor any of their respective directors,
members, officers, agents or employees, shall be liable for any incidental or consequential
damages for failure to inspect any Unit or Project or improvements or portion thereof or to repair
or maintain the same. Declarant, the Association or any member of the general public, firm or
corporation undertaking such repairs or maintenance shall not be liable for any personal injury or
other incidental or consequential damages occasioned by any act or omission in the repair or
maintenance of any Unit or Project or improvements or portion thereof.
Section 3.4 Right to Make Rules and Regulations. The Association shall be authorized
to and shall have the power to adopt, amend and enforce rules and regulations applicable within
Haymeadow with respect to any Common Area or Function, and to implement the provisions of
this Declaration or other Association Documents, including but not limited to, rules and regulations
to regulate use of any and all Common Area in order to assure compliance with the Town
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Documents or to protect the natural features thereof or the interests of all Owners and Guests; to
prevent or reduce fire hazard; to prevent disorder and disturbances of the peace; to regulate
pedestrian and vehicular traffic; to regulate animals; to protect wildlife; to regulate signs; to
regulate weed and pest control on property within Haymeadow; to promote the general health,
safety and welfare of persons residing, visiting and doing business within Haymeadow; and to
protect and preserve property and property rights. All rules and regulations shall comply with the
Association Documents, the Town Documents, and other applicable land use restrictions for
Haymeadow. The rules and regulations shall be reasonable and shall be uniformly applied, except
such rules may differentiate between reasonable categories of Units, Projects, Owners, Lessees,
Guests or members of the general public. The Association may provide for enforcement of any
such rules and regulations through reasonable and uniformly applied fines and penalties, through
exclusion of violators from the Common Area or from enjoyment of any Functions, or otherwise.
Each Project Association, Owner, Lessee, Guest and member of the general public shall be
obligated to and shall comply with and abide by such rules and regulations and pay such fines or
penalties upon failure to comply with or abide by such rules and regulations, and such unpaid fines
and penalties shall be enforceable as a default Assessment in accordance with Section 5.10.
Section 3.5 Taxes. The Association shall pay all ad valorem real estate taxes, special
improvement and other assessments (ordinary and extraordinary), ad valorem personal property
taxes, and all other taxes, duties, charges, fees and payments required to be made to any
governmental or public authority which shall be imposed, assessed or levied upon, or arise in
connection with the Common Area or Functions.
Section 3.6 Right to Dispose of Common Area; Third Party Rights in Common Area.
Subject to Subsection 3.10.7 below, the Association shall have the full power and authority to sell,
lease, grant easements, rights -of -way, licenses, leases or concessions in or to, transfer, encumber,
abandon or dispose of any Common Area provided that such action does not result in a violation
of the Town Documents. The Association shall be entitled to contract with third parties, including,
without limitation, other residential or recreational associations or individuals, allowing such
persons the use and enjoyment of all or a portion of the Common Area under such terms and for
such charges as may be acceptable to the Executive Board.
Section 3.7 Governmental Successor. Subject to applicable provisions of the Act, any
Common Area and any Function may be turned over to a governmental or quasi -governmental
entity including any special district or metropolitan district which is willing to accept and assume
the same upon such terms and conditions as the Association shall deem to be appropriate.
Section 3.8 Records. The Association shall keep financial records sufficiently detailed
to enable the Association to comply with Section 38-33.3-316(8) of the Act concerning statements
of unpaid assessments.
Section 3.9 Implied Rights of the Association. The Association shall have and may
exercise any right or privilege given to it expressly in this Declaration or, except to the extent
limited by the terms and provisions of this Declaration, given to it by law and shall have and may
exercise every other right, privilege, power and/or authority necessary or desirable to fulfill its
obligations under this Declaration, including without limitation the rights to:
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3.9.1 adopt and amend the bylaws and rules and regulations of the
Association;
3.9.2 adopt and amend budgets for revenues, expenditures and reserves and
collect Assessments, including, without limitation, Assessments for Common Expenses, from
Owners;
3.9.3 hire and terminate Managing Agents and other employees, agents and
independent contractors. The Managing Agent shall not have the authority to make expenditures
except upon prior approval and direction by the Executive Board. The Executive Board shall not
be liable for any omission or improper exercise by a Managing Agent of any duty, power or
Function so delegated by written instrument executed by or on behalf of the Executive Board;
3.9.4 institute, defend or intervene in litigation or administrative proceedings
in its own name on behalf of itself or two or more Owners on matters affecting Haymeadow;
3.9.5 make contracts and incur liabilities;
3.9.6 regulate the use, maintenance, repair, replacement and modification of
the Common Area;
3.9.7 acquire, hold, encumber and convey in its own name any right, title or
interest in real or personal property; provided, however, that the fee interest of any Common Area
may not be conveyed or subjected to a security interest unless (a) such action receives approval of
Owners holding a majority of the total voting interest in the Association or any greater level of
approval if required by the Act; (b) such action is evidenced by a written agreement, or a written
ratification of an agreement, executed in the same manner as a deed by the required number of
Owners; and (c) such action does not deprive any Unit of its rights of ingress, egress and support;
3.9.8 impose and receive any payments, fees or charges for the use, rental or
operation of Common Area;
3.9.9 impose charges for late payments of Assessments, recover reasonable
attorney's fees and disbursements and other costs of collection for Assessments and other actions
to enforce the rights of the Association, regardless of whether or not suit was initiated, and after
notice and opportunity to be heard, levy reasonable fines and penalties for violations of the
Association Documents;
3.9.10 impose reasonable charges for the preparation and recordation of
amendments to the Declaration or statements of unpaid Assessments;
3.9.11 provide for the indemnification of the Association's officers and
directors and maintain directors' and officers' liability insurance;
3.9.12 assign its right to future income, including without limitation, its right
to receive Assessments (by way of example and not limitation, the Association may assign its
rights to receive RETA to secure financing for improvements to the Common Area or performance
of Functions);
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3.9.13 obtain and pay for legal, accounting and other professional services;
3.9.14 perform any Function by, through or under contractual arrangements,
licenses or other arrangements with any governmental or private entity as may be necessary or
desirable; and
3.9.15 enjoy and exercise any other power or authority which similar
associations may now or hereafter enjoy or exercise in the state of Colorado.
Section 3.10 Association Documents. Each Owner shall comply with and may benefit
from each term, provision, covenant, condition, restriction, reservation and easement contained in
the Association Documents. The obligations, burdens and benefits of membership in the
Association touch and concern the Property and are, and shall be, covenants running with each
Unit for the benefit of all other Units and the Common Area.
Section 3.11 Indemnification. The Association shall be obligated to and shall indemnify
Declarant and hold it harmless from all liability, loss, cost, damage and expense, including without
limitation attorneys' fees and disbursements, arising with respect to any operations of the
Association or any of the Common Area or any Functions undertaken by the Association pursuant
to this Declaration.
Section 3.12 Owner's Negligence. In the event that the need for maintenance, repair, or
replacement of all or any portion of the Common Area is caused through or by the negligent or
willful act or omission of an Owner or an Owner's Guest or Lessee, or by any Project Association,
then the expenses incurred by the Association for such maintenance, repair, or replacement shall
be a personal obligation of such Owner or, in the case of a negligent or willful act or omission of
a Project Association, then of all Owners of Units within that Project; and, if an Owner fails to
repay the expenses incurred by the Association within seven (7) 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 Declaration, and such expenses shall automatically become a default Assessment
determined and levied against such Unit, enforceable by the Association in accordance with
Sections 5.10, 5.11 and 5.12 below.
Section 3.13 Enforcement of Association Documents. The Association or any aggrieved
Owner or Project Association may take action against any Owner or Project Association pursuant
to Article 19 of this Declaration to enforce compliance with the rules and regulations of the
Association and with the other provisions of the Association Documents to obtain damages for
noncompliance or for injunctive relief, or both, all to the extent permitted by law.
Section 3.14 Cooperation with District and Other Associations. The Association may
contract or cooperate with the District, 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 the Association or such other organizations, for the benefit of Owners and their Lessees and
Guests. The costs associated with such efforts by the Association (to the extent not chargeable to
other organizations) shall be a Common Expense.
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Section 3.15 Assistance to Proiect 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 Association
shall cooperate with each 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 Association and the various Project 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 Association for the Owners of Units
in 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 Association. If a Project
Association fails, neglects or is unable to perform a duty or obligation required by its Project
Declaration or other Project documents, then the 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 Association may charge
the Project Association a reasonable fee for the performance of such functions.
Section 3.16 LIMITATION OF LIABILITY OF ASSOCIATION.
NOTWITHSTANDING THE DUTY OF THE ASSOCIATION TO MAINTAIN AND REPAIR
THE COMMON AREA, AND EXCEPT TO THE EXTENT COVERED BY ASSOCIATION
INSURANCE AS DESCRIBED IN ARTICLE 9, THE ASSOCIATION SHALL NOT BE
LIABLE TO OWNERS OR THE PROJECT ASSOCIATIONS FOR INJURY OR DAMAGE,
OTHER THAN FOR THE COST OF MAINTENANCE AND REPAIR, CAUSED BY ANY
LATENT CONDITION OF THE COMMON AREA TO BE MAINTAINED AND REPAIRED
BY THE ASSOCIATION OR CAUSED BY THE ELEMENTS OR OTHER OWNERS OR
PERSONS OR THE PROJECT ASSOCIATIONS.
Section 3.17 Association Standard of Care. The duty of care which the Association owes
to the Owners is that of a landowner to a licensee, notwithstanding the interest which the Owners
hold in the Common Area through their membership in the Association. NEITHER
DECLARANT, THE ASSOCIATION, NOR ANY OF THEIR RESPECTIVE DIRECTORS,
MEMBERS, OFFICERS, AGENTS OR EMPLOYEES, SHALL BE LIABLE, OTHER THAN
FOR ACTIONS TAKEN IN A GROSSLY NEGLIGENT MANNER, FOR ANY INCIDENTAL
OR CONSEQUENTIAL DAMAGES FOR FAILURE TO INSPECT THE COMMON AREA OR
TO REPAIR OR MAINTAIN THE SAME. DECLARANT, THE ASSOCIATION OR ANY
MEMBER OF THE GENERAL PUBLIC, FIRM OR CORPORATION UNDERTAKING SUCH
REPAIRS OR MAINTENANCE SHALL NOT BE LIABLE TO AN OWNER, GUEST OR ANY
MEMBER OF THE GENERAL PUBLIC FOR ANY PERSONAL INJURY OR OTHER
INCIDENTAL OR CONSEQUENTIAL DAMAGES OCCASIONED BY ANY ACT OR
OMISSION IN THE REPAIR OR MAINTENANCE OF THE COMMON AREA OR ANY
PORTION THEREOF, OTHER THAN FOR ACTIONS TAKEN IN A GROSSLY NEGLIGENT
MANNER. Signage to this effect may be placed by the Association along and within the Common
Area.
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ARTICLE 4
MEMBERSHIP IN ASSOCIATION
Section 4.1 Association Membership. Every Owner of a Residential Unit shall be a
member of the Association. Every Owner of a Development Parcel shall be a member of the
Association until such time, if at all, as the Development Parcel is further subdivided in accordance
with a Project Declaration or otherwise, at which time each Owner of the subdivided Residential
Units within the Project 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. Membership in the Association shall be appurtenant to, and may not be separated
from, ownership of a Unit.
Section 4.2 Voting Rights. Each Unit shall be allocated a number of votes for the
purpose of matters relating to Association issues as set forth below ("Voting Allocation").
4.2.1 Residential Units. Each Residential Unit shall be allocated one (1) vote.
4.2.2 Development Parcel. Until such time as individual Residential Units
are created by further subdivision of any Development Parcel, each Development Parcel shall be
allocated one (1) vote unless the Owner thereof shall give written notice to the Association of its
election that the Development Parcel be allocated one (1) vote with respect to each approved but
undeveloped Residential Unit that may be constructed on the Development Parcel based upon the
maximum residential density of such Development Parcel permitted by the Town Documents or
other recorded instrument.
4.2.3 Phasing Within a Proj ect. Each Project may be developed in phases. In
the event that less than all of the Residential Units permitted to be developed on a Development
Parcel are created by subdivision at one time, then (i) the Owner of each subdivided, developed
Residential Unit shall be entitled to cast the vote on Association matters with respect to such
Residential Unit, and (ii) the Owner of the remainder of the Development Parcel that has not been
made subject to the Project Declaration and/or further subdivided shall be entitled to vote with
respect to such Development Parcel, as determined as provided in Subsection 4.2.2 above.
Section 4.3 Election of Directors. The Executive Board shall consist of not less than
three (3) Directors, or more than five (5) Directors, appointed or elected as provided in Section 4.4
below or the bylaws of the Association. Following termination of the Declarant Control Period
and election of the first Executive Board thereafter as provided in Subsection 4.4.3 below,
Directors shall be elected as provided in the Bylaws.
Section 4.4 Declarant Control. Notwithstanding anything to the contrary provided for
herein, Declarant shall be entitled during the Declarant Control Period to appoint and remove the
members of the Association's Executive Board and officers of the Association, subject to the
following restrictions:
4.4.1 Not later than sixty (60) days after conveyance by Declarant of twenty-
five percent (25%) of the total number of Units that may be created under this Declaration to
Owners other than Declarant, at least one (1) member and not less than twenty-five percent (25%)
of the members of the Executive Board shall be elected by Owners other than Declarant.
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4.4.2 Not later than sixty (60) days after conveyance by Declarant of fifty
percent (50%) of the total number of Units that may be created under this Declaration to Owners
other than Declarant, not less than thirty-three and one-third percent (33 1/3%) of the members of
the Executive Board shall be elected by Owners other than Declarant.
4.4.3 Not later than the termination of the Declarant Control Period, the
Owners shall elect an Executive Board at least a majority of whom shall be Owners other than
Declarant or designated representatives of Owners other than Declarant.
4.4.4 Declarant may voluntarily relinquish such power set forth in this Section
4.4 evidenced by a notice executed by Declarant and 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 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 and as a condition precedent to
their effectiveness.
Section 4.5 Owner's and Association's Address for Notices. All Owners of an
individual Unit shall have one and the same registered mailing address to be used by the
Association or other Owners for notices, demands, and all other communications regarding
Association matters. The Owner or Owners shall furnish such registered address to the secretary
of the Association within five (5) 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. Notwithstanding the foregoing, the
Association shall be entitled to rely upon any such registration or other notice of a change in
address of the Owners of the Unit which is signed by less than all of the Owners of such Unit.
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 Association.
All notices and demands intended to be served upon the Executive Board shall be sent to
the following address or such other address as the Executive Board may designate from time to
time by notice to all of the Owners or that is on record with the Colorado Secretary of State as the
Association's registered address:
Executive Board
Haymeadow Association
c/o Scott Schlosser
Address: P.O. Box 5607, Eagle, CO 81631
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 (3) days after deposit in the U.S. mail.
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ARTICLE 5
ASSESSMENTS
Section 5.1 Covenant of Personal Obligation of Assessments. Declarant and every
other Owner of a Unit, by acceptance of the deed or other instrument of transfer of their 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 other Owner and with the
Association, and hereby does so covenant and agree to pay to the Association the (a) annual
Assessments, (b) special Assessments, (c) default Assessments, and (d) Real Estate Transfer
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 Declaration by not using the
Common Area or the facilities contained in the Common Area or by abandoning or leasing their
Unit.
Section 5.2 Purpose of Assessments. The Assessments levied by the 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 Common Area and the performance of
Functions, and of the services and facilities located on the Common Area. Proper uses of the
Assessments may include, but are not limited to, the following:
5.2.1 Protecting, repairing, replacing, renovating and maintaining any of the
Common Area or other improvements maintained by the Association not made the responsibility
of the Owners by Section 3.4 above or other provisions of this Declaration;
5.2.2 Furnishing garbage and trash pickup and water, sewer and other utility
services to the Common Area;
5.2.3 Obtaining and maintaining insurance in accordance with the provisions
of Article 9 below;
5.2.4 Establishing and maintaining reserves for repairs, replacement,
maintenance, taxes, capital improvements, and other purposes;
5.2.5 Protecting and managing wildlife;
5.2.6 Protecting, enhancing or restoring any environmental features or
concerns within the Property;
5.2.7 Carrying out all other powers, rights, and duties of the Association
specified in the Association Documents; and
5.2.8 Generally, addressing any other expenses necessary to meet the
purposes of the Association.
Section 5.3 Amount of Total Annual Assessments. The total annual Assessments
against all Units shall be based upon the 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 5.5 below, which estimates may include, among other things, the
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costs associated with the items enumerated in Section 5.2 above, together with any other costs and
fees which may reasonably be expected to be incurred by the Association for the benefit of the
Owners under or by reason of the Association Documents. In the event of surplus funds remaining
after payment of or provision for 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 5.4 Apportionment of Annual Assessments.
5.4.1 The total annual Assessment for any fiscal year of the Association shall
be assessed to each Unit and its Owner in the same proportion that the number of votes in
Association matters appurtenant to the Unit bears to the total number of votes entitled to be cast
on Association matters and appurtenant to all Units.
5.4.2 Any Owner's Assessment obligation computed in accordance with
Subsection 5.4.1 above is hereinafter referred to as its "Assessment Obligation".
5.4.3 Notwithstanding any terms in this Section to the contrary, (a) the
Executive Board, with the assistance of any company providing insurance for the benefit of the
Owners under Article 9, 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 9; and (b) in the event a specific item in the Association's budget may more
directly benefit a certain Project or Unit or group of Units in excess of its Assessment Obligation,
or in the event the Association has provided services to such Project or Units in excess of those
provided to other Projects or Units within the Property, the amount or rate of Assessments levied
with respect to such item or services may be modified to reflect such additional benefit at the sole
and exclusive discretion of the Executive Board; provided, however, that such amount or rate of
Assessments shall be uniform within each Project or Units benefited and shall not be used to
circumvent the Assessment apportionment formulas as generally set forth in this Declaration.
5.4.4 The total annual Assessments of the Association shall be apportioned
among all Units as provided in this Section.
Section 5.5 Annual Budget. Any budget proposed to be adopted by the Executive Board
shall include (i) the estimated Common Expenses, other costs and proposed capital expenditures
which will be chargeable to the Association to fulfill its obligations under the Association
Documents; (ii) the estimated income and other funds which will be received by the Association;
and (iii) the estimated total amounts required to be raised by the annual, special and default
Assessments and RETA to cover such costs, expenses and capital expenditures of the Association
and to provide a reasonable reserve. Within thirty (30) days after the adoption of any proposed
budget for the Association, the Executive Board shall mail, by ordinary first-class mail, or
otherwise deliver a summary of the budget to all Owners of Units 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 Owners of a majority of all votes
entitled to be cast on Association matters 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
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ratified in accordance with this Section must be continued until such time as the Owners 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 Association's annual Assessments in accordance with the annual
budget.
Section 5.6 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 Association,
except as provided in the Act 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
Common Area, any facilities located on the Common Area or any other improvements maintained
and operated by the Association, specifically including any related fixtures and personal property.
Any amounts determined, levied, and assessed pursuant to this Section shall be assessed to the
Units in the same manner as described with respect to annual Assessments in Section 5.4 above;
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 their agents, servants, Guests or
Lessees) shall be borne by that Owner. Special Assessments shall be based on a budget adopted
in accordance with Section 5.5 provided that if necessary, the Association may adopt a new budget
pursuant to Section 5.5 prior to levying a special Assessment. Such special Assessment(s) shall
be due and payable as determined by the Executive Board.
Section 5.7 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, or as otherwise determined by the Executive Board
from time to time, and shall be due and payable to the 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 calendar quarter. If any such installment shall
not be paid when due and payable, then the Board may assess a "late charge" on the installment,
impose interest on the outstanding amount and assess other costs and charges as set forth in the
Collections Policy of the Association or other rule, regulation or policy adopted by the Board and
in effect from time to time. 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 5.8 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 it.
Section 5.9 Real Estate Transfer Assessment. NOTICE IS HEREBY GIVEN THAT A
SEPARATE REAL ESTATE TRANSFER ASSESSMENT MAY BE DUE AND PAYABLE TO
THE TOWN OF EAGLE IN ADDITION TO THE REAL ESTATE TRANSFER ASSESSMENT
OWED PURSUANT TO THIS ARTICLE 5. OWNERS ARE ADVISED TO INQUIRE WITH
THE TOWN OF EAGLE REGARDING THE PAYMENT OF ANY MONIES OWED TO THE
TOWN UPON THE TRANSFER OF ANY PROPERTY SUBJECT TO THIS DECLARATION.
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5.9.1 Purpose and Use of Funds. The Real Estate Transfer Assessment shall
be levied on each Transfer of a Unit as described in this Section for the purposes of maintenance,
repair or replacement of Common Area within the Property or, to the extent required by the Town
Documents, outside of the Property, including landscaping, parks, trails, paths, alleys, a raw water
irrigation system, parking facilities and any other property to be maintained or Functions to be
performed by the Association.
5.9.2 Assessable Transfers. Upon the occurrence of any Transfer, as defined
below, the Transferee under such Transfer shall pay to the Association a Real Estate Transfer
Assessment in a total amount equal to one and four -tenths percent (1.4%) of the Fair Market Value,
as defined below, of the Unit subjected to Transfer. The percentage stated above may be revised
by the Executive Board to an amount not more than five percent (5%), any such revision to be
evidenced by a notice recorded in the real property records of Eagle County, Colorado.
5.9.3 Definitions.
5.9.3.1 Transfer. For purposes of this Section 5.9, "Transfer" means and
includes, whether in one transaction or in a series of related transactions, any conveyance,
assignment, lease or other Transfer of beneficial ownership of any Unit, including but not limited
to (i) the conveyance of fee simple title to any Unit (including any conveyance arising out of an
installment land contract or a lease containing an option to purchase), (ii) the Transfer of more
than 50 percent of the outstanding shares of the voting stock of a corporation (other than Declarant)
which, directly or indirectly, owns one or more Units, and (iii) the Transfer of more than 50 percent
of the interest in net profits or net losses of any partnership, limited liability company, j oint venture
or other entity (other than Declarant) (each referred to hereinafter as a "Business Association")
which, directly or indirectly, owns one or more Units, but "Transfer" shall not mean or include the
Transfers excluded under Subsection 5.9.4.
5.9.3.2 Transferee. For purposes of this Section 5.9, "Transferee"
means and includes all parties to whom any interest in a Unit passes by a Transfer, and each party
included in the term "Transferee" shall have joint and several liability for all obligations of the
Transferee under this Section.
5.9.3.3 Fair Market Value. In the case of a Transfer that is in all respects
a bona fide sale, "Fair Market Value" of the Unit subjected to Transfer shall be the consideration,
as such term is defined below, given for the Transfer. In the case of a Transfer that is a long-term
lease not exempt under Subsection 5.9.4 or is otherwise not in all respects a bona fide sale, Fair
Market Value of the Unit subjected to Transfer shall be determined by the Association. A
Transferee may make written objection to the Association's determination within fifteen (15) days
after the Association has given notice of such determination, in which event the Association shall
obtain an appraisal, at the Transferee's sole expense, from a real estate appraiser of good reputation,
who is qualified to perform appraisals in Colorado, who is familiar with Eagle County real estate
values, and who shall be selected by the Association. The appraisal so obtained shall be binding
on both the Association and the Transferee. The above provisions to the contrary notwithstanding,
where a Transferee does not make a full report of a Transfer within fifteen (15) days after the time
required by this Section for making such report, the Transferee shall be deemed to have waived all
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right of objection concerning Fair Market Value, and the Association's determination of such value
shall be binding.
5.9.3.4 Consideration. For purposes of this Section 5.9, "consideration"
means and includes the total of money paid and the Fair Market Value of any property delivered,
or contracted to be paid or delivered, in return for the Transfer of any Unit, and includes any money
or property paid or delivered to obtain a contract right to purchase any Unit, and the amount of any
note, contract indebtedness (including without limitation, obligations which could be characterized
as contingent land gain), or rental payment reserved in connection with such Transfer, whether or
not secured by any lien, mortgage, or other encumbrance, given to secure the Transfer price, or
any part thereof, or remaining unpaid on the property at the time of Transfer, whether or not
assumed by the Transferee. The term "consideration" does not include the amount of any
outstanding lien or encumbrance for taxes, special benefits or improvements in favor of the United
States, the state of Colorado, or a municipal or quasi -municipal governmental corporation or
district.
5.9.4 Exclusions. The RETA shall not apply to any of the following, except
to the extent that they are used for the purpose of avoiding the BETA:
5.9.4.1 any Transfer to the United States, or any agency or
instrumentality thereof, the state of Colorado, any county, city and county, municipality, district
or other political subdivision of the State of Colorado;
5.9.4.2 any Transfer to or from Declarant, any Successor Declarant or
the Association;
5.9.4.3 any Transfer, whether outright or in trust, that is for the benefit
of the Transferor or their or her relatives, but only if there is no more than nominal consideration
for the Transfer. For the purposes of this exclusion, the relatives of a Transferor shall include all
lineal descendants of any grandparent of the Transferor, and the spouses of the descendants. Any
person's stepchildren and adopted children shall be recognized as descendants of that person for
all purposes of this exclusion. For the purposes of this exclusion, a distribution from a trust shall
be treated as a Transfer made by the grantors of the trust, in the proportions of their respective total
contributions to the trust;
5.9.4.4 any Transfer arising solely from the termination of a joint
tenancy or the partition of property held under common ownership, except to the extent that
additional consideration is paid in connection therewith;
5.9.4.5 any Transfer or change of interest by reason of death, whether
provided for in a will, trust or decree of distribution;
5.9.4.6 any Transfer made (i) by a majority -owned subsidiary to its
parent corporation or by a parent corporation to its majority -owned subsidiary, or between
majority -owned subsidiaries of a common parent corporation, in each case for no consideration
other than issuance, cancellation or surrender of the subsidiary's stock; or (ii) by a partner, member
or a joint venturer (each, a "Business Association Member") to a Business Association in which
the Business Association Member has not less than a 50 percent interest, or by a Business
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Association to a Business Association Member holding not less than a 50 percent interest in such
Business Association, in each case for no consideration other than the issuance, cancellation or
surrender of the interests in the Business Association, as appropriate; or (iii) by a corporation to
its shareholders, in connection with the liquidation of such corporation or other distribution of
property or dividend in kind to shareholders, if the Unit is Transferred generally pro rata to its
shareholders, and no consideration is paid other than the cancellation of such corporation's stock;
or (iv) by a Business Association to its Business Association Members, in connection with a
liquidation of the Business Association or other distribution of property to the Business
Association Members, if the Unit is Transferred generally pro rata to its Business Association
Members, and no consideration is paid other than the cancellation of the Business Association
Members' interests; or (v) to a corporation or Business Association where such entity is owned in
its entirety by the persons Transferring the Unit and such persons have the same relative interests
in the Transferee entity as they had in the Unit immediately prior to such Transfer, and no
consideration is paid other than the issuance of each such persons' respective stock or other
ownership interests in the Transferee entity; or (vi) by any person(s) or entity(ies) to any other
person(s) or entity(ies), whether in a single transaction or a series of transactions where the
Transferor(s) and the Transferee(s) are and remain under common ownership and control as
determined by the Executive Board in its sole discretion applied on a consistent basis; provided,
however, that no such Transfer or series of transactions shall be exempt unless the Executive Board
finds that such Transfer or series of transactions (x) is for no consideration other than the issuance,
cancellation or surrender of stock or other ownership interest in the Transferor or Transferee, as
appropriate, (y) is not inconsistent with the intent and meaning of this Subsection 5.9.4.6, and (z)
is for a valid business purpose and is not for the purpose of avoiding the obligation to pay the
BETA. In connection with considering any request for an exception under Subsection 5.9.4.6, the
Executive Board may require the applicant to submit true and correct copies of all relevant
documents relating to the Transfer setting forth all relevant facts regarding the Transfer, stating
that in their opinion the Transfer is exempt under this Subsection 5.9.4.6, and setting forth the basis
for such opinion;
5.9.4.7 any Transfer made solely for the purpose of confirming,
correcting, modifying or supplementing a Transfer previously recorded, making minor boundary
adjustments, removing clouds on titles, or granting easements, rights -of -way or licenses, and any
exchange of Units between Declarant and any original purchaser from Declarant of the one or
more Units being Transferred to Declarant in such exchange. To the extent that consideration in
addition to previously purchased Units is paid to Declarant in such an exchange, the additional
consideration shall be a Transfer subject to the BETA. To the extent that Declarant, in acquiring
by exchange Units previously purchased from Declarant, pays consideration in addition to
Transferring Units, the amount of such additional consideration shall be treated as reducing the
original assessable Transfer and shall entitle an original purchaser from Declarant, who exchanges
with Declarant Units previously purchased from Declarant, to a refund from the Association of the
amount of the RETA originally paid on that portion of the original Transfer;
5.9.4.8 any Transfer pursuant to any decree or order of a court of record
determining or vesting title, including a final order awarding title pursuant to a condemnation
proceeding, but only where such decree or order would otherwise have the effect of causing the
occurrence of a second assessable Transfer in a series of transactions which includes only one
effective Transfer of the right to use or enjoyment of a Unit;
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5.9.4.9 any lease of any Unit (or assignment or Transfer of any interest
in any such lease) for a period of less than thirty (30) years;
5.9.4.10 any Transfer to secure a debt or other obligation or to release
property which is security for a debt or other obligation, including Transfers in connection with
foreclosure of a deed of trust or mortgage or Transfers in connection with a deed given in lieu of
foreclosure;
5.9.4.11 the subsequent Transfer(s) of a Unit involved in a "tax free" or
"tax deferred" trade under the Internal Revenue Code wherein the interim owner acquires property
for the sole purpose of reselling that property within thirty (30) days after the trade. In these cases,
the first Transfer of title is subject to the RETA, and subsequent Transfers will only be exempt as
long as a RETA has been paid in connection with the first Transfer of such Unit in such exchange;
5.9.4.12 the Transfer of a Unit to an organization which is exempt from
federal income taxation under Section 501(c)(3) of the Internal Revenue Code, as amended (or any
comparable statute), provided that the Executive Board specifically approves such exemption in
each particular case;
5.9.4.13 any Transfer made by a corporation or other entity, for
consideration, (1) to any other corporation or entity which owns 100 percent of its equity securities
(a "Holding Company"), or (2) to a corporation or entity whose stock or other equity securities are
owned, directly or indirectly, 100 percent by such Holding Company;
5.9.4.14 any Transfer from a partially -owned direct or indirect subsidiary
corporation to its direct or indirect parent corporation where consideration is paid for, or in
connection with, such Transfer; however, unless such Transfer is otherwise exempt, such
exemption shall apply only to the extent of the direct or indirect beneficial interest of the Transferee
in the Transferor immediately prior to the Transfer. For example, if corporation A owns 60 percent
of corporation B, and corporation B owns 100 percent of corporation C and corporation C conveys
a Unit to corporation A for $2,000,000, 60 percent of the Fair Market Value would be exempt and
a RETA would by payable only on $800,000 (i.e., 40 percent of the $2,000,000 consideration);
and
5.9.4.15 the consecutive Transfer of a Unit wherein the interim owner
acquires such Unit for the sole purpose of immediately reconveying such Unit, but only to the
extent there is no consideration to the interim owner and such interim owner receives no right to
use or enjoyment of such Unit, provided the Executive Board or its designee specifically approves
such exemption in each particular case. To the extent that consideration is paid to, or for the benefit
of, the interim owner, the additional consideration shall be a Transfer subject to the RETA. In
these cases, the first Transfer of title is subject to the RETA and subsequent Transfers will only be
exempt as long as a RETA has been paid in connection with the first Transfer of such Unit in such
consecutive transaction and only to the extent there is no consideration to the interim owner.
5.9.5 Payment and Reports. The Real Estate Transfer Assessment shall be
due and payable by the Transferee to the Association at the time of the Transfer giving rise to such
RETA. With such payment, the Transferee shall make a written report to the Association on forms
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prescribed by the Association, fully describing the Transfer and setting forth the true, complete
and actual consideration for the Transfer, the names of the parties thereto, the legal description of
the Unit transferred, and such other information as the Association may reasonably require. If the
RETA is not paid within thirty (30) days of when due, the Transferee shall pay a penalty to the
Association in the amount of 150% percent of the amount of the RETA (such penalty being in
addition to any late charges or interest due based on default in payment of the BETA). The
Association shall obtain periodic reports of or check all Transfers of record in the office of the
Clerk and Recorder of Eagle County, Colorado for the purpose of verifying the Real Estate
Transfer Assessments due.
Section 5.10 Default Assessments. All monetary fines assessed against an Owner
pursuant to the Association Documents, or any expense of the Association that is the obligation of
an Owner and collected in accordance with this Declaration shall become liens against such
Owner's Unit which may be foreclosed or otherwise collected as provided in this Declaration.
Notice of the amount and due date of such default Assessment shall be sent to the Owner subject
to the Assessment at least thirty (30) days prior to the due date.
Section 5.11 Lien for Assessments. The annual, special and default Assessments
(including installments of the Assessments) and the RETAs arising under the provisions of this
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
5.12 below) shall be burdens running with, and a perpetual lien in favor of the Association upon,
the specific Unit to which such Assessments apply. To further evidence such lien upon a specific
Unit, the 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 Section 5.12 below, the name of the Owner or
Owners of the Unit, and any and all other information that the Association may deem proper. Any
such lien notice shall be signed by a member of the Executive Board, an officer of the 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 5.12 Effect of Nonpayment of Assessments. If any annual, special or default
Assessment (or any installment of the Assessment) or RETA is not fully paid within thirty (30)
days after the same becomes due and payable, then as often as the same may happen, (i) interest
shall accrue as provided in the Collections Policy of the Association or other rule, regulation or
policy adopted by the Board and in effect from time to time, (ii) the Association may declare due
and payable all unpaid monthly or other installments of the annual Assessment or any special
Assessment otherwise due during the fiscal year during which such default occurred or in any
future fiscal year if the default has not been cured, (iii) subject to applicable provisions of the Act
and the Collections Policy of the Association or other rule, regulation or policy adopted by the
Board and in effect from time to time, the 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 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.
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An action at law or in equity by the Association against an Owner to recover a money
judgment for unpaid Assessments (or any installment thereof) may be commenced and pursued by
the Association without foreclosing or in any way waiving the Association's lien for the
Assessments. If any such Assessment (or installment thereof) is not fully paid when due and if the
Association commences such an action (or 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 and RETA (including any such installments or Assessments arising during
the proceedings of such action or foreclosure proceedings), any late charges under Section 5.7
above, any accrued interest under this Section, the 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 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 Association's lien.
Foreclosure or attempted foreclosure by the Association of its lien shall not be deemed to
estop or otherwise preclude the 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 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, and to convey, or otherwise deal with the Unit acquired in such proceedings.
Section 5.13 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
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 5.14 and Section 5.15 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 Association to such named successor in
interest pursuant to the provisions of Section 5.15 below.
Section 5.14 Waiver of Homestead Exemption, Subordination of 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 Association's perpetual lien for Assessments shall be superior
to all other liens and encumbrances except the following:
5.14.1 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
5.14.2 To the extent permitted under the Act, after taking into account the
superiority of a certain amount of assessment liens permitted by Section 3 8-33.3-3 16(2) of the Act,
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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 Association's liens.
With respect to the foregoing Subsection 5.14.2, to the extent permitted under the Act and
as provided in Subsection 5.14.2, 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 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 Section 5.14 above and obtaining a lien or
encumbrance on any Unit after the recording of this Declaration shall be deemed to consent that
any such lien or encumbrance shall be subordinate and inferior to the 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 Subsections 5.14.1 and 5.14.2 above, and except as provided in Section 5.15 below,
shall not affect the 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.
Section 5.15 Statement of Status of Assessments. Upon fourteen (14) calendar days'
written request to the Managing Agent, Executive Board or the 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,
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:
5.15.1 The amount of any unpaid Assessments, interest, late charges, costs,
expenses, and attorneys' fees then existing against a particular Unit;
5.15.2 The amount of the current installments of the annual Assessment and
the date that the next installment is due and payable;
5.15.3 The date of the payment of any installments of any special Assessments
then existing against the Unit; and
5.15.4 Any other information deemed proper by the Association, including the
amount of any unpaid lien created or imposed under the terms of the Declaration and collected by
the Association as permitted under this Declaration.
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Upon the issuance of such a certificate signed by a member of the Executive Board, by an
officer of the Association, or by a Managing Agent, the information contained therein shall be
conclusive upon the 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) calendar day period, the 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.
ARTICLE 6
DESIGN REVIEW
Section 6.1 Design Review Committee and Guidelines. There is hereby established a
Design Review Committee (the "Design Review Committee"), which will be responsible for the
establishment and administration of Design Guidelines to facilitate the purpose and intent of this
Declaration.
Section 6.2 Purpose and General Authority. The Design Review Committee will
review, study and either approve or reject proposed improvements on the Property, which shall be
reviewed for compliance with (i) this Declaration, (ii) the Design Guidelines, (iii) any rules and
regulations that the Design Review Committee may establish from time to time to govern its
proceedings, and (iv) the Town Documents. No improvement will be erected, placed,
reconstructed, replaced, repaired or otherwise altered, nor will any construction, repair or
reconstruction be commenced within Haymeadow until plans for the improvements shall have
been approved by the Design Review Committee; provided, however, improvements that are
completely within a structure may be undertaken without such approval. Upon approval of the
plans for any improvements by the Design Review Committee, a certificate of approval shall be
executed by an officer of the Design Review Committee, which certificate shall be affixed to the
approved plans. As such Design Review Committee approval shall be required by the Town as
part of any application by an Owner for a building permit submitted to the Town, the Association
hereby agrees to indemnify and hold harmless the Town, its officers, agents and insurers from and
against all liability, claims and demands, including the Town's reasonable attorneys' fees and costs,
which arise out of or in any manner are connected with the Town's refusal to issue a building
permit if such liability, claim or demand is alleged to be caused in whole or in part by the acts,
omissions, errors, mistakes or negligence of the Design Review Committee in refusing to issue a
certificate of approval as set forth above.
The Design Review Committee shall have the sole responsibility for interpreting and
enforcing the Design Guidelines. The Town shall have no responsibility to interpret or enforce
such Design Guidelines. The Design Review Committee shall also have the responsibility to
interpret and enforce the PUD Guide in accordance with the terms of this Declaration while
acknowledging that the Town has the independent right and responsibility to interpret and enforce
the PUD Guide. Within the Town Documents, the Town has expressly reserved the right to refuse
to approve any application for a building permit or certificate of occupancy for the construction or
occupancy of any building or structure within the Project if any building or structure fails to
comply with the requirements set forth under the Town Documents in the Town's sole
determination. This provision shall not be construed as a waiver by Declarant, an Owner or the
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Association of any right to appeal the Town's refusal to approve any application pursuant to the
appeal rights otherwise available under the Municipal Code of the Town or other applicable law.
Any modification of an approved building envelope shall require approval from the Design
Review Committee and the Town. Any modification to such approved building envelope shall be
requested by the Owner or building architect prior to any Design Review Committee concept
approval. The proposed modified building envelope shall be indicated graphically on a
landscape/site plan. Following approval of a request for a modified building envelope by the
Design Review Committee, such request shall then be submitted to the Town for approval. The
Town has reserved the right in the Town Documents not to issue a building or site improvement
permit until a designated building envelope, if required, has been approved by the Town. Any
term or provision set forth in this Section which benefits the Town shall not be modified, amended
or repealed without the prior written consent of the Town.
Section 6.3 Discretion. The Design Review Committee will exercise its best judgment
to see that all improvements conform and harmonize with any existing structures as to external
design, quality and type of construction, seals, materials, color, location on the building site,
height, grade and finished ground elevation, landscaping, and the schemes and aesthetic
considerations set forth in the Design Guidelines and other Association Documents. The Design
Review Committee, in its sole discretion, may excuse compliance with such requirements as are
not necessary or appropriate in specific situations and may permit compliance with different or
alternative requirements. The approval by the Design Review Committee of improvements on the
Property shall carry no precedential weight when reviewing subsequent requests for approvals,
and the Design Review Committee shall not be required to approve requests for the same or similar
improvements.
Section 6.4 Design Guidelines. The Design Guidelines may include, among other
things, at the sole discretion of the Design Review Committee, the restrictions and limitations set
forth below:
6.4.1 Procedures and necessary fees for making application to the Design
Review Committee for design review approval, including the documents to be submitted and the
time limits in which the Design Review Committee must act to approve or disapprove any
submission.
6.4.2 Time limitations for the completion, within specified periods after
approval, of the improvements for which approval is required under the Design Guidelines.
6.4.3 Designation of the building site on a residential lot and establishing the
maximum developable area of the residential lot.
6.4.4 Minimum and maximum square foot areas of living space that may be
developed on any Unit.
6.4.5 Landscaping regulations, with limitations and restrictions prohibiting
the removal or requiring the replacement of existing trees, the type and use of plants, and other
practices benefiting the protection of the environment, conservation of water, aesthetics and
architectural harmony of Haymeadow.
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6.4.6 General instructions for the construction, reconstruction, refinishing or
alteration of any improvement, including any plan to excavate, fill or make any other temporary
or permanent change in the natural or existing surface contour or drainage or any installation or
utility lines or conduits on the Property, addressing matters such as loading areas, waste storage,
trash removal, equipment and materials storage, grading, transformers and meters.
The Design Review Committee is authorized to adopt different Design Guidelines to apply
to different portions of Haymeadow at the discretion of the Design Review Committee.
Section 6.5 Modification of Design Guidelines. The Design Review Committee may
amend, repeal and augment the Design Guidelines from time to time, in the Design Review
Committee's sole discretion. The Design Guidelines will be binding on all Owners and other
persons governed by this Declaration. Notwithstanding the foregoing, the Design Review
Committee is empowered in its discretion to grant variances from the requirements of the Design
Guidelines under unique or unusual circumstances.
Section 6.6 Design Review Committee Membership. The Design Review Committee
will be composed of not less than three (3) persons nor more than five (5) persons. The Design
Review Committee need not include any member of the Association. All of the members of the
Design Review Committee will be appointed, removed and replaced by Declarant, in its sole
discretion, until all the Units comprising the Property are sold to Owners other than Declarant and
Declarant no longer has the right to annex additional property to the Association pursuant to Article
15, unless required otherwise by the Act, or such earlier time as Declarant may elect to voluntarily
waive this right by written notice to the Association, and at that time the Executive Board will
succeed to Declarant's right to appoint, remove or replace the members of the Design Review
Committee.
Section 6.7 Organization and Operation of Design Review Committee.
6.7.1 The term of office of each member of the Design Review Committee,
subject to Section 6.6, will be at the pleasure of the Declarant or the Executive Board, whichever
shall have the right to appoint the members of the Design Review Committee. Should a Design
Review Committee member die, retire or become incapacitated, or in the event of a temporary
absence of a member, a successor may be appointed as provided below.
6.7.2 So long as Declarant appoints the Design Review Committee, Declarant
will appoint the chairman. At such time as the Design Review Committee is appointed by the
Executive Board, the chairman will be elected annually from among the members of the Design
Review Committee by a majority vote of such members. In the absence of a chairman, the party
responsible for appointing or electing the chairman may appoint or elect a successor, or if the
absence is temporary, an interim chairman.
6.7.3 The Design Review Committee chairman will take charge of and
conduct all meetings and will provide reasonable notice to each member of the Design Review
Committee prior to any meeting. The notice will set forth the time and place of the meeting, and
notice may be waived by any member.
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6.7.4 The affirmative vote of a majority of the members of the Design Review
Committee will govern its actions and be the act of the Design Review Committee.
6.7.5 The Design Review Committee may avail itself of other technical and
professional advice and consultants as it deems appropriate, and the Design Review Committee
may delegate its plan review responsibilities to one or more of its members or to consultants
retained by the Design Review Committee. Upon that delegation, the approval or disapproval of
plans and specifications by such member or consultant will be equivalent to approval or
disapproval by the entire Design Review Committee.
Section 6.8 Expenses. Except as provided in this Section below, all expenses of the
Design Review Committee will be paid by the Association and will constitute a Common Expense.
The Design Review Committee will have the right to charge a fee for each application submitted
to it for review, in an amount which may be established by the Design Review Committee from
time to time, and such fees will be collected by the Design Review Committee and remitted to the
Association to help defray the expenses of the Design Review Committee's operation. Further, the
Design Review Committee may retain the services of a third party consultant to assist the Design
Review Committee in reviewing a particular application. In such event, the Design Review
Committee may charge the applicant for the professional fees incurred in retaining such consultant.
Section 6.9 Other Requirements. Compliance with the Association's design review
process is not a substitute for compliance with the Town of Eagle building requirements, including
any building envelope requirements, zoning and subdivision regulations, and each Owner is
responsible for obtaining all approvals, licenses, and permits as may be required prior to
commencing construction.
Further, the establishment of the Design Review Committee and procedures for
architectural review will not be construed as changing any rights or restrictions upon Owners to
maintain and repair their Units and improvements as otherwise required under the Association
Documents.
Section 6.10 Limitation of Liability. The Design Review Committee will use reasonable
judgment in accepting or disapproving all plans and specifications submitted to it. Neither the
Design Review Committee nor any individual Design Review Committee member will be liable
to any person for any official act of the Design Review Committee in connection with submitted
plans and specifications, except to the extent the Design Review Committee or any individual
Design Review Committee member acted with malice or wrongful intent. Approval by the Design
Review Committee does not necessarily assure approval by the appropriate governmental body or
commission for the Town of Eagle. Notwithstanding that the Design Review Committee has
approved plans and specifications, neither the Design Review Committee nor any of its members
will be responsible or liable to any Owner, developer or contractor with respect to any loss,
liability, claim or expense which may arise by reason of such approval relating to the
improvements. Neither the Executive Board, the Design Review Committee, nor any agent
thereof, nor Declarant, nor any of its partners, employees, agents or consultants will be responsible
in any way for any defects in any plans or specifications submitted, revised or approved in
accordance with the provisions of the Association Documents, nor for any structural or other
defects in any work done according to such plans and specifications. In all events the Design
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Review Committee will be defended and indemnified by the Association in any such suit or
proceeding which may arise by reason of the Design Review Committee's decisions. The
Association, however, will not be obligated to indemnify each member of the Design Review
Committee to the extent that any such member of the Design Review Committee is adjudged to be
liable for malice or wrongful intent in the performance of their duty as a member of the Design
Review Committee, unless and then only to the extent that the court in which such action or suit
may be brought determines upon application that, despite the adjudication of liability but in view
of all circumstances of the case, such person is fairly and reasonably entitled to indemnification
for such expense as such court shall deem proper.
Section 6.11 Enforcement.
6.11.1 Any member or authorized consultant of the Design Review Committee,
or any authorized officer, Director, employee or agent of the Association may enter upon any Unit
at any reasonable time after notice to the Owner, without being deemed guilty of trespass, in order
to inspect improvements constructed or under construction on the Unit to determine whether the
improvements have been or are being built in compliance with the Association Documents and the
plans and specifications approved by the Design Review Committee. In the event a violation of
the Design Guidelines or any rules and regulations of the Design Review Committee, the Design
Review Committee shall have the authority to issue a stop work order to suspend all work at a Unit
and issue fines in connection therewith, until any such violation is cured by the Owner.
6.11.2 Before any Unit may be occupied, the Owner of the Unit will be
required to obtain a temporary certificate of compliance issued by the Design Review Committee
indicating substantial completion of the improvements in accordance with the plans and
specifications approved by the Design Review Committee, and imposing such conditions for
issuance of a final certificate of compliance issued by the Design Review Committee as the Design
Review Committee may determine appropriate in its reasonable discretion. Without limiting the
generality of the preceding sentence, the Design Review Committee may require that the Owner
deposit with the Design Review Committee such sums as may be necessary to complete the
construction and landscaping by a specified date. The Design Review Committee may require that
such deposit be made at any time, including without limitation, prior to plan approval and
commencement of construction. If the construction and landscaping are not completed as
scheduled, the Design Review Committee may apply the deposit to cover the cost of completing
the work and enforce such other remedies as are available to the Association for the failure of the
Owner to comply with these covenants, including without limitation the remedies set forth in this
Section.
6.11.3 Upon completion of construction, the Design Review Committee will
issue an acknowledged certificate of compliance setting forth generally whether, to the best of the
Design Review Committee's knowledge, the Unit or Project is in compliance with the terms and
conditions of the Design Guidelines.
6.11.4 Every violation of these covenants is hereby declared to be and to
constitute a nuisance, and every public or private remedy allowed for such violation by law or
equity against an Owner will be applicable. Without limiting the generality of the foregoing, these
covenants may be enforced as provided below:
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6.11.4.1 The Design Review Committee may adopt a schedule of fines
for failure to abide by the Design Review Committee rules and the Design Guidelines, including
fines for failure to obtain any required approval from the Design Review Committee.
6.11.4.2 The Association, upon request of the Design Review Committee
and after reasonable notice to the offender and, if different, to the Owner, may enter upon any Unit
or Project at any reasonable time after notice to the Owner, without being deemed guilty of
trespass, and remove any improvement constructed, reconstructed, refinished, altered or
maintained in violation of these covenants. The Owner of the improvements will immediately
reimburse the Association for all expenses incurred in connection with such removal. If the Owner
fails to reimburse the Association within thirty (30) days after the Association gives the Owner
notice of the expenses, the sum owed to the Association will bear interest at the Maximum Rate
from the date of the advance by the Association through the date of reimbursement in full, and all
such sums and interest will be a default Assessment enforceable as provided in Article 5.
6.11.5 All improvements commenced on the Units will be prosecuted
diligently to completion and will be completed within fifteen (15) months after commencement,
unless an exception is granted in writing by the Design Review Committee. If an improvement is
commenced and construction is then abandoned for more than ninety (90) days, or if construction
is not completed within the required period of time, then after notice and opportunity for hearing
as provided in the bylaws of the Association, the Association may impose a fine of $1,000 per day
(or such other reasonable amount as the Association may set) to be charged against the Owner of
the Unit or Project until construction is resumed, or the improvement is completed, as applicable,
unless the Owner can prove to the satisfaction of the Executive Board that such abandonment is
for circumstances beyond the Owner's control. Such charges will be a default Assessment and lien
as provided in Article 5.
Section 6.12 Binding Effect. The actions of the Design Review Committee in the
exercise of its discretion by its approval or disapproval of plans and other information submitted
to it or with respect to any other matter before it, will be conclusive and binding on all interested
parties.
ARTICLE 7
EASEMENTS
Section 7.1 Recorded Easements. The Property shall be subject to all easements,
licenses, covenants and restrictions as shown on any recorded Plat affecting the Property and to
any other easements of record or of use as of the date of recordation of this Declaration. All
easements and licenses to which the Property is presently subject are set forth on Exhibit C. In
addition, the Property is subject to those easements set forth in this Article and elsewhere in this
Declaration.
Section 7.2 Easement of Enjoyment. Every Owner shall have a nonexclusive easement
for the use and enjoyment of the Common Area, which shall be appurtenant to and shall pass with
the title to every Unit, subject to the easements set forth in this Article. Such easement is subject
to such reasonable regulation on access and use as described in Article 8 and as otherwise imposed
by the Association or the Town Documents.
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Section 7.3 Delegation of Use. Any Owner may delegate, in accordance with the
Association Documents, the Owner's right of enjoyment in the Common Area to the Owner's
Guests or Lessees.
Section 7.4 Recorded Easements. The Property shall be subject to any easements,
rights -of -way or other matters as shown on any recorded Plat or Supplemental Plat affecting the
Property, as shown on the recorded Maps, as reserved or granted under the Project Declarations,
or as reflected in any other recorded documents.
Section 7.5 Easements for Encroachments. The Common Area, and all portions of it,
are subject to easements hereby created for encroachments of any portion of a Project or the
Common Area as follows:
7.5.1 In favor of the Association so that it shall have no legal liability when
any part of the Common Area encroaches upon a Unit or any portion of a Project;
7.5.2 In favor of each Project Association so that the Project Association shall
have no legal liability when any part of the common area or common elements of a Project
encroaches upon the Common Area;
7.5.3 In favor of all Owners, the Project Associations and the Association for
the existence, maintenance and repair of such encroachments.
Encroachments referred to in this Section include, but are not limited to, encroachments of
improvements located on the Common Area onto Units, or common area or common elements of
Projects, encroachments of overhangs or other portions of Buildings or other improvements which
are part of the common area or common elements of the Projects onto the Common Area, and
other encroachments caused by error or variance from the original plans in the construction of
improvements on the Common Area or within a Project, by error in a Map, by settling, rising, or
shifting of the earth, or by changes in position caused by repair or reconstruction of any part of the
improvements on the Common Area or the Projects. Such encroachments shall not be considered
to be encumbrances upon any Unit, any part of the Projects or the Common Area.
Section 7.6 Utility Easements. There is hereby created a general easement upon, across,
over, in, and under all of the Property outside the footprint of any Building 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
Project Associations, the Association and Declarant; shall prosecute 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,
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the right and authority to grant such easement upon, across, over or under any part or all of the
Property outside the footprint of any Building 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 7.7 Reservation of Easements, Exceptions and Exclusions. Declarant reserves
for itself and its successors and assigns and hereby grants to the 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 Association, in order to serve all the Owners.
Section 7.8 Emergency 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 private streets (if any) or alleys and upon the Property in the proper performance of
their duties.
Section 7.9 Maintenance Easement. An easement is hereby granted to the 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 Declaration.
Section 7.10 Drainage Easement. An easement is hereby reserved to Declarant and its
successors and assigns and granted to the Association and its officers, agents, employees,
successors and assigns to enter upon, across, over, in and under any portion of the Property outside
the footprint of any Building 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.
Section 7.11 Easements of Access for Repair, Maintenance and Emergencies. Some
portions of the Common Area or the facilities serving same are or may be located on or within
certain Units or common area or common elements of certain Projects, or may be conveniently
accessible only through certain Units or common area or common elements of certain Projects.
The Association shall have the irrevocable right to have access to each Unit and to all common
elements or common areas of any Project from time to time during such reasonable hours as may
be necessary for the maintenance, repair, removal or replacement of any of the Common Area
therein or accessible therefrom or for making emergency repairs therein necessary to prevent
damage to the Common Area or to any Unit. Additionally there is hereby created an easement for
such Common Area as it currently exists within the Units. Subject to the provisions of Section 3.4
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 Common Area or as a result of emergency
repair within another Unit at the instance of the Association shall be a Common Expense.
Section 7.12 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
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construction of improvements on the Property and/or sale of the Units and the Projects, including,
but not limited to, construction trailers, temporary construction offices, sales offices, and
directional and marketing signs. Declarant may designate a portion of the Common Area for the
foregoing construction and other purposes in connection with the development of a particular Unit
or Project. 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 Plat,
Supplemental Plat or any Map as a separate Unit. Declarant further reserves exclusive easement
rights over and across the Property for the purpose of marketing, sales and rental of Units or of
other projects developed or marketed by Declarant or its affiliates from time to time, including,
without limitation, the right to show the Property and to display signs and other promotional
devices. Declarant also reserves the right to lease unsold Units. None of the foregoing rights shall
be exercised by Declarant in such a way as to unreasonably interfere with the occupancy, use,
enjoyment or access by any Owner, Lessee, or Guest, or so as to be in contravention of applicable
laws, regulations, rules, or other governmental requirements.
Section 7.13 Governmental Requirements. Declarant hereby reserves the right to grant
such easements and rights -of -way across the Property, from time to time, as may be required by
any government agency. Such easements and rights -of -way shall specifically include, but not be
limited to, any public rights -of -way and any environmental easements required by federal, state or
local environmental agencies, for so long as the Declarant holds an interest in any Unit subject to
this Declaration.
Section 7.14 Declarant Easements. Declarant reserves unto itself, its successors, assigns,
Lessees and Guests, for so long as it holds any interest in any Unit, the same easement rights
granted to Owners under this Declaration and specific easement rights over and across the Property
as it may deem necessary for its use from time to time.
Section 7.15 Right of Declarant and Association to Own Units and to Use Common Area.
An easement is hereby reserved by Declarant for itself and its successors and assigns and granted
to the Association and its officers, agents, employees, successors and assigns to maintain offices,
storage areas, conference areas and recreational areas for use by the Association within the
Common Area, subject to all rules and regulations established under this Declaration. The
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 Association or for any other use which the Association
determines is consistent with the operation of Haymeadow. The costs and carrying charges
incurred by the Association in purchasing and owning any such Unit shall be part of the Common
Expenses.
Section 7.16 Remodeling Easement. Declarant, for itself and its successors and assigns,
including Owners, retains a right and 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 Common Area in connection with the maintenance, repair, improvement or alteration of the
Common Area, including the right of access to such areas of the Property as are reasonably
necessary to accomplish such improvements. In the event of a dispute among Owners with respect
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to the scope of the easement reserved in this Section, the decision of the Executive Board shall be
final.
Section 7.17 Reservation for Expansion. Declarant hereby reserves for itself and the
Association and/or for Owners in all future phases of Haymeadow an easement and right-of-way
over, upon and across the Property for construction, utilities, drainage, and ingress and egress from
the Expansion Property, and other properties abutting and contiguous to the Property and the
Expansion Property, and for use of the Common Area as may be reasonably necessary or incident
to the construction of improvements on the Units or other improvements on the Property or the
Expansion Property; provided, however, that no such rights shall be exercised by Declarant in a
way which unreasonably interferes with the occupancy, use, enjoyment or access to Haymeadow
by the Owners. The location of these easements and rights -of -way may be made certain by
Declarant or the Association by instruments recorded in the office of the Clerk and Recorder of
Eagle County, Colorado.
Section 7.18 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 8
RESTRICTIONS ON USE
Section 8.1 Land Use Restrictions. In addition to the restrictions found in this Article
8, all or any portion of the Property shall be further restricted in its use, density or design according
to the Town Documents; any supplemental declarations of land use restrictions for Haymeadow
recorded with the Clerk and Recorder of Eagle County, Colorado, if any such supplemental
declarations are recorded prior to the time Declarant transfers or conveys any such Property to the
Association or to any third party; and the rules and regulations of the Association. Each Owner
shall comply with all other terms, provisions, covenants, conditions, restrictions, easements and
reservations on the Owner's part to be complied with under this Declaration. During the period in
which Declarant retains Expansion and Development Rights as defined in Section 15.6 hereof, no
Owner shall be entitled to apply for any change to the Town Documents affecting the zoning of
such Owner's property without Declarant's consent.
Section 8.2 Affordable Housing Restrictions. In order to further the goal of the
Association to assist in providing housing for permanent residents of the area, certain Residential
Units (the "Restricted Units") may be restricted in one or more manners, including, without
limitation, the following: (a) the sales prices of such Restricted Units, whether applicable to the
initial sale from Declarant or any subsequent sale, may be restricted to an amount which is less
than Fair Market Value, (b) the amounts of rent chargeable for the rental of the Restricted Units
may be restricted to amounts that may be less than Fair Market Value, (c) the amounts of income
of the Owners and the tenants of the Restricted Units may be restricted to amounts which are less
than the amounts made by other Owners and tenants, and (d) the Restricted Units may be restricted
in occupancy as primary residences by Owners or their tenants who satisfy certain requirements.
The Restricted Units mayor may not be part of a Project Association. The terms of the restrictions
imposed on the Restricted Units shall be set forth either in the deed transferring the Restricted Unit
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to an Owner or in a separate instrument recorded in the real property records of Eagle County,
Colorado. Such terms may include monitoring or other requirements which may be administered
by the Project Association or another governmental or non -governmental entity. The Project
Association or other entity may be granted a right of first refusal to purchase the Restricted Units
as they are sold, as well as certain rights upon the default of an Owner on a loan made for the
purchase of a Restricted Unit by such Owner. This Section shall not be changed, deleted, or
repealed without the prior written consent of the Town.
Section 8.3 Use Limitations. All Residential Units may be used only for dwelling or
lodging purposes and typical residential activities incident thereto in accordance with applicable
zoning regulations in effect from time to time. Owners may rent or lease their Units to others for
these purposes. Except as otherwise provided in Section 8.12 or as expressly permitted in writing
by the Design Review Committee, no trailers, or temporary structures shall be permitted on the
Property. All Units must comply with the Uniform Building Code approved and enforced by the
Town.
Section 8.4 Maintenance of Property. Units, except for any portion of the Property then
undergoing major construction, including all improvements on such Property, shall be kept and
maintained by the Owner thereof in a clean, safe, attractive and sightly condition and in good
repair, and no trash, litter, junk, boxes, containers, bottles, cans, implements, machinery, lumber
or other building materials shall be permitted to remain exposed upon any Unit or common area
or common elements of a Proj ect so that they are visible from, or are a nuisance in any way to, any
other Unit, the Common Area or any road.
Section 8.5 Use of Property During Construction. It shall be expressly permissible and
proper for Declarant and any Owner acting in accordance with the Design Review Guidelines or
with the prior written consent of the Design Review Committee, and their respective employees,
agents, independent contractors, successors and assigns involved in the construction of
improvements on, or the providing of utility service to, the Property, to perform such activities and
to maintain upon portions of the Property as they deem necessary such facilities as may be
reasonably required, convenient, necessary or incidental to such construction and development of
the Property. However, no activity by an Owner will be performed and no facility will be
maintained by an Owner on any portion of the Property in such a way as to unreasonably interfere
with the use or access of any other Owner or its Guests or Lessees to such Owner's Unit. If any
Owner's use under this provision is deemed objectionable by the Design Review Committee, then
the Design Review Committee, in its sole discretion, may withdraw any permission granted.
Section 8.6 No Noxious or Offensive Activity. No noxious or offensive activity shall
be carried on upon any Unit or the Common Area nor shall anything be done or placed on any
Unit, the common area or common elements of any Project or the Common Area which is or may
become a nuisance. As used herein, the term "noxious or offensive activity" shall not include any
activities of an Owner, Declarant or their respective designees which are reasonably necessary to
the development of and construction on the Property so long as such activities do not violate
Association Documents or the statutes, rules or regulations of any governmental authority having
jurisdiction with respect thereto and do not unreasonably interfere with any Owner's use of its Unit
or with any Owner's ingress and egress to or from its Unit and a roadway.
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Section 8.7 No Hazardous Activities. No activities shall be conducted on any Unit, the
common area or common elements of any Project or the Common Area and no improvements shall
be constructed on any part of Property, which are or might be unsafe or hazardous to any person
or property.
Section 8.8 No Unsightliness. No unsightliness shall be permitted on any Unit or the
common area or common elements of any Project. Without limiting the generality of the
foregoing:
8.8.1 All unsightly structures, facilities, equipment, objects and conditions
shall be kept within an enclosed structure at all times;
8.8.2 Mobile homes, travel trailers, tent trailers, trailers, trucks (except pickup
trucks), snowmobiles, golf carts, boats, boat trailers, tractors, detached campers, camper shells,
snow removal equipment and garden or maintenance equipment shall be kept in an enclosed
structure at all times, except when in actual use; and
8.8.3 Pipes for water, gas, sewer, drainage or other purposes, wires, cables,
poles, antennas and other facilities for the transmission or reception of audio or visual signals or
electricity, utility meters or other utility facilities, gas, oil, water or other tanks, and sewage
disposal systems or devices shall be kept and maintained within an enclosed structure or below the
surface of the ground, and satellite dishes shall be appropriately regulated by the Design Review
Committee as permitted by applicable law.
All structures, including outdoor swimming pools, outdoor hot tubs or jacuzzis, or similar
facilities shall be in compliance with the rules and regulations of the Design Review Committee
as in effect from time to time. The Design Review Committee shall have the power to grant a
variance from the provisions of this Section from time to time as it deems necessary or desirable.
Section 8.9 Restriction on Animals. No animals of any kind shall be raised, bred or
kept on any Unit or Project except domestic cats, dogs or other household pets permitted by the
Association so long as they are (i) maintained in accordance with this Declaration, the rules and
regulations of the Association and any other Association Document, and (ii) not a nuisance or kept,
bred or maintained for any commercial purposes. No person shall allow any dog owned or
controlled by such person to roam within Haymeadow unattended. Dogs shall either be contained
indoors or confined within the boundary of a Unit in a manner approved by the Design Review
Committee. At all other times, dogs shall be on a leash and under the direct control and supervision
of their owners. Contractors and subcontractors shall be prohibited from bringing dogs into
Haymeadow, and such prohibition shall even apply to dogs kept inside motor vehicles. Violations
of this policy shall result in the immediate eviction of the dog and the dog's owner or owner's
representative from Haymeadow. In the event of a second violation by the same dog and/or the
same dog's owner or owner's representative, the dog and the dog's owner or owner's representative
shall be immediately evicted from Haymeadow, and the offending person in question shall be
prohibited from entering or working within Haymeadow for the following seven (7) consecutive
calendar days. In the event of a third violation, the offending person in question shall be prohibited
from entering or working within Haymeadow for the following six (6) consecutive calendar
months.
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Section 8.10 Restriction on Signs. Except as otherwise provided in Section 8.12, no signs
or advertising devices of any nature shall be erected or maintained on any Unit or the common
area or common elements of any Project in such a manner as to be visible from any other Unit or
the Common Area except signs approved by the Design Review Committee, political signs, signs
required by applicable law or legal proceedings, signs which are required by law to be allowed,
identification signs for work under construction (as approved by the Design Review Committee),
temporary signs to caution or warn of danger or the Association signs necessary or desirable to
give directions or advise of rules or regulations. Permitted signs shall be subject to the reasonable
regulation by the Design Review Guidelines.
Section 8.11 Drainage Restriction. The flow of any surface drainage into any sewer
system on the Property, except into storm sewers constructed for that purpose, shall be prohibited.
Section 8.12 Declarant's Exemption. Nothing contained in this Declaration shall be
construed to prevent (i) the exercise by Declarant of any special declarant rights (as that term is
defined in the Act); or (ii) the erection or maintenance by Declarant or its duly authorized agents,
of temporary structures, trailers, improvements or signs necessary or convenient to the
development, marketing or sale of property within Haymeadow; provided, however, that Declarant
shall comply with all applicable laws in the exercise of the rights in this Section.
Section 8.13 Health, Safety and Welfare. In the event additional uses, activities and/or
facilities are deemed by the Executive Board to be nuisances or to adversely affect the health,
safety or welfare of Owners or members of the general public or the value of any Property, the
Executive Board may adopt rules and regulations restricting or regulating the same.
Section 8.14 Compliance with Law. In addition to the compliance requirements set forth
in Section 8.1 above, no portion of the Property shall be used, occupied, altered, changed,
improved or repaired except in compliance with all present and future laws, rules, requirements,
orders, directions, ordinances and regulations of the United States of America, State of Colorado,
County of Eagle, Town of Eagle and all other municipal, governmental or lawful authority
whatsoever, affecting the Property or the improvements thereon or any part thereof, and of all their
departments, bureaus and officials. Furthermore, no Owner shall release, discharge or emit from
the Property or dispose of, or allow any person under such Owner's control or direction to release,
discharge or emit from the Property or dispose of, any material on, above or under the Property
that is designated as a pollutant or contaminant under any federal, state or local law, regulation or
ordinance.
Section 8.15 Subdivision of Units.
8.15.1 Prior to the recording in the office of the Clerk and Recorder of Eagle
County, Colorado, of an instrument submitting any portion of the Property to further subdivision,
including without limitation, the creation of duplex or townhome Units or condominium Units, the
applicant Owner (other than Declarant, whose rights to subdivide Units shall be as provided in
Subsection 8.15.2 below) of such property shall submit to the Association for its review and
approval, copies of the proposed subdivision documents, and such other information as may be
reasonably requested by the Association, which may include, without limitation, an owners'
association declaration, any maps or plats, and articles of incorporation, bylaws, policies and rules
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and regulations of the owners' association. Upon request, the applicant Owner shall also submit a
deposit against attorneys' fees and costs which the Association will incur in reviewing and
effectuating the application for approval, in an amount reasonably estimated by the Association.
The Association shall separately approve any plats, maps and owners' association declarations that
are required for each such subdivision or shall disapprove the documents. If such documents are
disapproved by the Association, the Association shall set forth the specific reasons for such
disapproval, and the applicant Owner shall thereafter either modify its application to satisfy such
concerns or terminate its subdivision application with the Town of Eagle. The approval of the
Association under this Section shall not be unreasonably withheld or delayed. So long as the
proposed density, type of use and size of any such resubdivision are in compliance with the Town
Documents and Section 1.3 above, such considerations shall not be deemed a reasonable basis for
the Association to withhold its consent to a proposed resubdivision of a Unit. All costs and
attorneys' fees incurred by the Association as a result of an application for approval shall be the
sole obligation of the applicant Owner.
8.15.2 Declarant hereby reserves all rights and privileges defined as
"development rights" under the Act with respect to the Units, including the Development Parcels.
Without limiting the generality of the foregoing, Declarant shall have the right to subdivide any
Unit owned by Declarant in conformance with applicable zoning, without the necessity of any
approval or review by the Association. Declarant shall have the absolute right to submit the
Development Parcels to further subdivision, including, without limitation, the creation of duplex
or townhome Units or condominium Units, and/or common areas or common elements, so long as
such subdivision complies with the Town Documents, and the total number of Units subject to this
Declaration does not exceed the maximum number of Units permitted pursuant to Section 1.3. The
rights of Declarant set forth in this Subsection 8.15.2 shall expire thirty (30) years from the date
of recording of this Declaration, unless terminated earlier pursuant to the terms and provisions of
the Act, or unless such rights are (i) extended as allowed by law, or (ii) reinstated or extended by
the Association, subject to whatever terms, conditions and limitations the Executive Board may
impose on the subsequent exercise of such rights by Declarant.
Section 8.16 No Timeshare. The use, occupancy, marketing, advertisement or promotion
of a Unit or Units under timeshare, fractional ownership, interval exchange (whether the program
is based on direct exchange of occupancy rights, cash payments, reward programs or other point
or accrual systems) or other membership plans or arrangements (collectively, "Occupancy Plans")
through which a participant in the plan or arrangement acquires an ownership interest in the Unit
with attendant rights of periodic use and occupancy or acquires contract rights to such periodic use
and occupancy of the Unit or a portfolio of accommodations including the Unit is absolutely
prohibited. Declarant may, independently from the Association or any Owner, enforce this
restriction by any applicable remedy at law or in equity, including, without limitation, obtaining
injunctive relief, damages and attorneys' fees.
Section 8.17 Rental and Leasing. The Executive Board shall be authorized to and shall
have the power to adopt, amend and enforce rules and regulations applicable within Haymeadow
with respect to the rental or leasing of the Units, provided that the Executive Board shall take no
action or adopt any rule or regulation which prohibits or unreasonably restricts the long-term or
short-term renting of a Unit.
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Section 8.18 Violation. Determination with respect to whether or not a particular activity
or occurrence shall constitute a violation of this Article 8 shall be made by the Executive Board
after notice and an opportunity to be heard and shall be final.
ARTICLE 9
INSURANCE AND FIDELITY BONDS
Section 9.1 General Insurance Provisions. The Association shall maintain, to the extent
reasonably available:
9.1.1 Property insurance on the Common Area 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 reasonable deductibles at the time the insurance is
purchased and at each renewal date, exclusive of land, excavations, foundations, paving areas,
landscaping and other items normally excluded from property policies; and
9.1.2 Commercial general liability insurance against claims and liabilities
arising in connection with performance of Functions and the ownership, existence, use or
management of the Common Area and the Association insuring the Executive Board, the
Association, the Managing Agent and their respective employees, agents and all persons acting as
agents. Limits of liability will be determined by the Executive Board and will be at least
$5,000,000 for any injuries or death sustained by any person in any single occurrence, and at least
$1,000,000 for property damage resulting from each occurrence. Such policy will include
coverage for contractual liability, liability for non -owned and hired automobiles, and such other
risks as are customarily covered with respect to developments similar to Haymeadow in
construction, location and use. Declarant shall be included as an additional insured in Declarant's
capacity as an Owner. 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
Common Area. The insurance shall cover claims of one or more insured parties against other
insured parties.
9.1.3 The Association may carry such other and further insurance that the
Executive Board considers appropriate, including insurance on Units, insurance covering the acts
or omissions of officers, directors, employees or agents of the Association, or other insurance that
the Association is not obligated to insure to protect the Association or the Owners.
Section 9.2 Cancellation. If the insurance described in Section 9.1 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 Association promptly shall cause notice of
that fact to be hand delivered or sent prepaid by United States mail to all Owners.
Section 9.3 Policy Provisions. Insurance policies carried pursuant to Section 9.1 above
must provide that:
9.3.1 Each Owner is an insured person under the policy with respect to
liability arising out of such Owner's interest in the Common Area or membership in the
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9.3.2 The insurer waives its rights to subrogation under the policy against any
Owner or member of their household;
9.3.3 No act or omission by any Owner, unless acting within the scope of such
Owner's authority on behalf of the Association, will void the policy or be a condition to recovery
under the policy; and
9.3.4 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 Association's policy provides
primary insurance
Section 9.4 Insurance Proceeds. Any loss covered by the property insurance policy
described in Section 9.1 above must be adjusted with the Association, but the insurance proceeds
for that loss shall be payable to any insurance trustee designated for that purpose, or otherwise to
the Association, and not to any holder of a security interest. The insurance trustee or the
Association shall hold any insurance proceeds in trust for the Owners and First Mortgagees as their
interests may appear. Subject to the provisions of Article 12 below, the proceeds must be disbursed
first for the repair or restoration of the damaged property, and the 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 Declaration is terminated.
Section 9.5 Association Policies. The 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 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 Association.
Section 9.6 Insurer Obli ag tion. To the extent the following is available, an insurer that
has issued an insurance policy for the insurance described in Section 9.1 shall issue insurance
policies to the Association and, upon request from any Owner, the Association's insurance agent
shall issue certificates of insurance to said Owner. To the extent reasonably available, unless
otherwise provided by statute, the insurer issuing the policy may not cancel or refuse to renew it
until sixty (60) days after notice of the proposed cancellation or nonrenewal has been mailed to
the Association and to each Owner to whom a certificate or memorandum of insurance has been
issued at their respective last -known addresses. The notice requirement above may not apply
should the insurance be placed with non -admitted insurance companies, which are not subject to
the same regulatory notice requirements as admitted insurance companies.
Section 9.7 Repair and Replacement.
9.7.1 Subject to Article 12 below with respect to insufficient insurance
proceeds, any portion of the Common Area for which insurance is required under this Article
which is damaged or destroyed must be repaired or replaced by the Association in a diligent
manner and timeframe as reasonably determined by the Executive Board unless:
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9.7.1.1 The regime created by this Declaration is
terminated;
9.7.1.2 Repair or replacement would be illegal under any
state or local statute or ordinance governing health or safety;
9.7.1.3 Owners representing ninety percent (90%) of all
votes in the Association vote not to rebuild; or
9.7.1.4 Prior to the conveyance of any Unit to a Person
other than Declarant, the party holding a deed of trust or mortgage on the damaged
portion of the Common Area rightfully demands all or a substantial part of the
insurance proceeds.
9.7.2 The cost of repair or replacement in excess of insurance proceeds and
reserves is a Common Expense. If the entire Common Area is not repaired or replaced, the
insurance proceeds attributable to the damaged Common Area must be used to restore the damaged
area to a condition compatible with the remainder of Haymeadow, and except to the extent that
other Persons will be distributees, the insurance proceeds must be distributed to all the Owners, as
their interests may appear in proportion to the Common Expense liabilities of all the Units.
Section 9.8 Fidelity Insurance. Fidelity insurance must be maintained by the
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 Association in an amount not less than two (2) months' current
Assessments plus reserves as calculated from the current budget of the Association. In addition, if
responsibility for handling funds is delegated to a Managing Agent, such insurance may be
obtained for the Managing Agent and its officers, employees and agents, as applicable. Any such
fidelity coverage shall name the Association as an obligee and such fidelity bonds shall contain
waivers by the issuers of all defenses based upon the exclusion of Persons serving without
compensation from the definition of "employees," or similar terms or expressions. This section
complies with Section 38-33.3-313 of the Act.
Section 9.9 Workmen's Compensation Insurance. The Association shall obtain
workmen's compensation insurance compliant with state requirements, if applicable, in the
amounts and forms as may now or hereafter be required by law.
Section 9.10 Other Insurance. The 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 the Executive Board, an individual
Director or a member of the Design Review Committee or incurred by them in their capacity of or
arising out of their status as a Director or Design Review Committee member, as applicable. The
Executive Board may obtain insurance against such other risks, of a similar or dissimilar nature as
it shall deem appropriate with respect to the Association's responsibilities and duties.
Section 9.11 Insurance Obtained by Owners. Each Owner shall obtain and at all times
maintain physical damage and liability insurance for such Owner's benefit, at such Owner's
expense, covering the full replacement value of the improvements upon the Owner's Unit, personal
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property as well as personal liability insurance in a limit of not less than One Million Dollars
($1,000,000) per occurrence with respect to bodily injury, death or personal injury (including libel
and slander) to any number of persons, or for damage to third party property, and if higher limits
shall at any time be customary to protect against tort liability, such higher limits shall be
carried. Personal liability insurance of One Million Dollars ($1,000,000) may be achieved as a
stand-alone Homeowners Insurance Policy, or combination of a Homeowners Insurance Policy
and Personal Umbrella Liability Policy. In addition, an Owner may obtain such other and
additional insurance coverage on the Unit and related improvements as such Owner in their sole
discretion shall conclude to be desirable; provided, however, that none of such insurance coverage
obtained by the Owner shall operate to decrease the amount which the Executive Board, on behalf
of all Owners, may realize under any policy maintained by the Executive Board or otherwise affect
any insurance coverage obtained by the Association or cause the diminution or termination of that
insurance coverage. Any insurance obtained by an Owner shall include a provision waiving the
particular insurance company's right of subrogation against the Association and other Owners,
including Declarant, should Declarant be the Owner of any Unit. No Owner shall obtain separate
insurance policies on the Common Area.
Upon request of the Association, any Owner shall submit and maintain on file with the
Association copies of all such current policies to evidence their obligations hereunder and to
facilitate recovery of all appropriate awards or proceeds by the Association.
ARTICLE 10
MECHANICS' LIENS
Section 10.1 No Liability. If any Owner shall cause any material to be furnished to their
Unit or any labor to be performed therein or thereon, no Owner of any other Unit shall under any
circumstances be liable for the payment of any expense incurred or for the value of any work done
or material furnished. All such work shall be at the expense of the Owner causing it to be done,
and such Owner shall be solely responsible to contractors, laborers, material suppliers and other
persons furnishing labor or materials to their or her Unit. Nothing herein contained shall authorize
any Owner or any person dealing through, with or under any Owner to charge the Common Area
or any Unit other than the Unit of such Owner with any mechanic's lien or other lien or
encumbrance whatsoever. On the contrary (and notice is hereby given) the right and power to
charge any lien or encumbrance of any kind against the Common Area or against any Owner or
any Owner's Unit for work done or materials furnished to any other Owner's Unit is hereby
expressly denied.
Section 10.2 Indemnification. If, because of any act or omission of any Owner, any
mechanic's or other lien or order for the payment of money shall be filed against the Common Area
or against any other Owner's Unit or an Owner or the Association (whether or not such lien or
order is valid or enforceable as such), the Owner whose act or omission forms the basis for such
lien or order shall at their own cost and expense cause the same to be cancelled and discharged of
record or bonded by a surety company reasonably acceptable to the Association, or to such other
Owner or Owners, within twenty (20) days after the date of filing thereof, and further shall
indemnify and save all the other Owners and the Association harmless from and against any and
all costs, expenses, claims, losses or damages including, without limitation, reasonable attorneys'
fees resulting therefrom.
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Section 10.3 Association Action. Labor performed or materials furnished for the
Common Area, if duly authorized by the Association in accordance with this Declaration, shall be
the basis for the filing of a lien pursuant to law against the Common Area. Any such lien shall be
limited to the Common Area and no lien may be effected against an individual Unit or Units.
ARTICLE 11
ASSOCIATION AS ATTORNEY -IN -FACT
Section 11.1 Appointment. Each and every Owner hereby irrevocably constitutes and
appoints the 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 Common Area upon its damage, destruction,
condemnation, or obsolescence as provided below in Articles 12, 13 and 14. In addition, the
Association, or any insurance trustee or substitute insurance trustee designated by the Association,
is hereby appointed as attorney -in -fact under this Declaration for the purpose of purchasing and
maintaining insurance under Article 9 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 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 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 exercise the powers granted to the Association as attorney -in -fact.
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 Common Area, improvement, or other
property covered by insurance written in the name of the Association under Article 9, the Executive
Board shall arrange for and supervise the prompt repair and restoration of the damaged Property
(the Property insured by the Association pursuant to Article 9 is sometimes referred to as the
"Association -Insured Property").
Section 12.2. Estimate of Damages or Destruction. As soon as practicable after an event
causing damage to or destruction of any part of the Association -Insured Property, the Executive
Board 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. "Repair and
reconstruction" as used in Article 12 shall mean restoring the damaged or destroyed improvements
to substantially the same condition in which they existed prior to the damage or destruction. Such
costs may also include professional fees and premiums for such bonds as the Executive Board or
the Insurance Trustee, if any, determines to be necessary.
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Section 12.3. Repair and Reconstruction. As soon as practical after the damage occurs
and any required estimates have been obtained, the Association shall diligently pursue to
completion the repair and reconstruction of the damaged or destroyed Association -Insured
Property. As attorney -in -fact for the Owners, the Association may take any and all necessary or
appropriate action to effect repair and reconstruction of any damage to the Association -Insured
Property, and no consent or other action by any Owner shall be necessary. Assessments of the
Association shall not be abated during the period of insurance adjustments and repair and
reconstruction.
Section 12.4. Funds for Repair and Reconstruction, Insufficient Funds. The proceeds
received by the Association from any hazard insurance carried by the Association shall be used
for the purpose of repair and reconstruction of the Association -Insured Property. If the proceeds
of the Association's insurance are insufficient to pay the estimated or actual cost of such repair and
reconstruction, or if upon completion of such work the insurance proceeds for the payment of such
work are insufficient, the Association may, pursuant to Section 5.6 but subject to applicable law,
levy, assess, and collect in advance from the Owners, without the necessity of a special vote of the
Owners, a special Assessment sufficient to provide funds to pay such estimated or actual costs of
repair and reconstruction. Further levies may be made in like manner if the amounts collected
prove insufficient to complete the repair and reconstruction. Notwithstanding the foregoing, in the
event that insurance proceeds are insufficient to pay the estimated cost of repair, replacement or
reconstruction of the damaged improvements based on the estimate or estimates of the costs to
complete same and such damage is less than the seventy percent (70%) of the total replacement
cost of all Common Areas, then Owners representing at least sixty-seven percent (67%) of the total
allocated votes in the Association and sixty-seven percent (67%) of all directly adversely affected
Owners may agree in writing not to repair and reconstruct the damaged improvements or may
adopt a plan for the construction of alternative improvements. Any improvements not
reconstructed shall be restored to an attractive state and maintained by the Association in a neat
and attractive condition. Any remaining insurance proceeds shall be distributed in accordance with
the Act.
Section 12.5. Disbursement of Funds for Repair and Reconstruction. The insurance
proceeds held by the Association and the amounts received from the special Assessments provided
for above, constitute a fund for the payment of the costs of repair and reconstruction after casualty.
It shall be deemed that the first money disbursed in payment for the costs of repair and
reconstruction shall be made from insurance proceeds, and the balance from the special
Assessments. If there is a balance remaining after payment of all costs of such repair and
reconstruction, such balance shall be distributed to the Owners in proportion to the contributions
each Owner made as special Assessments, then in equal shares per Unit, if any, to the Owners
thereof, as their interests appear or, in the reasonable discretion of the Executive Board, the balance
may be paid to any maintenance or working capital reserves maintained by the Executive Board.
Section 12.6. Decision Not to Rebuild Common Areas. If Owners representing at least
ninety percent (90%) of the total votes in the Association and all directly adversely affected
Owners agree in writing not to repair and reconstruct improvements, if any, within the affected
Common Area, and if no alternative improvements are authorized, then and in that event the
damaged property shall be restored to its natural state and maintained as an undeveloped portion
of the Common Area by the Association in a neat and attractive condition; provided, however, in
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the event such decision is made during the Declarant Control Period, the same shall require the
approval of the Declarant. Any remaining insurance proceeds shall be distributed in accordance
with the Act.
ARTICLE 13
[RESERVED]
ARTICLE 14
[RESERVED]
ARTICLE 15
EXPANSION AND WITHDRAWAL
Section 15.1 Reservation of Expansion and Withdrawal Rights.
15.1.1 Declarant reserves the right for itself and any Successor Declarant to
subject all or any part of the Expansion Property to the provisions of this Declaration and thereby
expand the Property to include up to a maximum of one thousand two hundred (1,200) Units and
to expand the Common Area without consent or approval of the Owners.
15.1.2 Subject to those restrictions set forth in Section 38-33.3-222 of the Act,
Declarant reserves the right for itself and any Successor Declarant at any time and from time to
time to subject unspecified real property to Haymeadow and the provisions of this Declaration.
Section 15.2 Supplemental Declarations and Supplemental Plats. Such expansion may
be accomplished by the filing for record by Declarant in the office of the Clerk and Recorder for
Eagle County, Colorado, of one or more Supplemental Declarations and, if the real property being
subject to this Declaration by such Supplemental Declaration has not been previously platted in a
plat recorded in the Office of the Clerk and Recorder for Eagle County, Colorado, of a
Supplemental Plat depicting such Expansion Property recorded concurrently with the applicable
Supplemental Declaration. The Supplemental Declaration shall set forth the Development Parcels,
Residential Units, Common Area and other real property, if any, to be included in the expansion,
together with any covenants, conditions, restrictions and easements particular to such property.
The expansion, which shall cause Haymeadow to contain no more than one thousand two hundred
(1,200) Units, may be accomplished in stages by successive supplements or in one supplemental
expansion. Declarant may exercise such rights for expansion on all or any portion of the Expansion
Property in whatever order of development Declarant in its sole discretion determines. Declarant
shall not be obligated to expand Haymeadow beyond the number of Units initially submitted to
this Declaration.
Section 15.3 Expansion of Definitions. In the event of such expansion, the definitions
used in this Declaration shall be expanded automatically to encompass and refer to the Property
subject to this Declaration as so expanded. For example, "Unit" shall mean the Units as shown on
the Plat plus any additional Units added by a Supplemental Declaration or Declarations and, if
necessary, Supplemental Plat or Plats, and reference to this Declaration shall mean this Declaration
as supplemented. All conveyances of Units shall be effective to transfer rights in the Property as
expanded.
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Section 15.4 Declaration Operative on New Units.
15.4.1 The new Units shall be subject to all of the terms and conditions of this
Declaration and of any Supplemental Declaration, upon placing the Supplemental Declaration and,
if necessary, the Supplemental Plat(s) depicting the Expansion Property of public record in the real
estate records of Eagle County, Colorado.
15.4.2 It is contemplated that additional Units on the Property will be
committed to this Declaration. In the event that a portion of the Expansion Property is submitted
to the provisions of this Declaration, Declarant shall retain the right to, but shall not be obligated
to, submit any additional portion of the Expansion Property to the provisions of this Declaration.
The rights of Declarant and any Successor Declarant, as described herein, shall apply to all Units
which are added to this Declaration in accordance with these provisions relating to enlargement
thereof.
15.4.3 No rights of any character of any owner of Units in the Expansion
Property shall attach until a Supplemental Declaration and, if necessary, a Supplemental Plat is
filed of record annexing the Lots constructed in such area to Haymeadow. Upon the recording of
such Supplemental Declaration and, if necessary, Supplemental Plat, the Units constructed in the
area shall be deemed to be governed in all respects by the provisions of this Declaration.
Section 15.5 Effect of Expansion. Upon the construction of additional Units and their
inclusion under this Declaration and the filing of the Supplemental Declaration(s) and, if
necessary, Supplemental Plat(s) thereof, the Voting Allocation and the Assessment Obligation
applicable to a Unit shall automatically be amended in the manner described in Sections 4.2 and
5.4 respectively.
Notwithstanding any inclusion of additional Units under this Declaration, each Owner
(regardless of whether such Owner is the owner of a Unit shown on the original Plat or is the
Owner of a Unit constructed on the Expansion Property) shall remain fully liable with respect to
their obligation for the payment of the Common Expenses of the Association, including the
expenses for such new Common Area, costs and fees, if any. The recording of a Supplemental
Declaration or Supplemental Plat shall not alter the amount of the Common Expenses assessed to
a Unit prior to such recording.
Section 15.6 Termination of Expansion and Development Rights. The rights reserved to
Declarant for itself, its successors and assigns for the expansion and development of the Expansion
Property ("Expansion and Development Rights") shall expire thirty (30) years from the date of
recording this Declaration, unless terminated earlier pursuant to the terms and provisions of the
Act, or unless the Expansion and Development Rights are (i) extended as allowed by law or (ii)
reinstated or extended by the Association, subject to whatever terms, conditions, and limitations
the Executive Board may impose on the subsequent exercise of the Expansion and Development
Rights by Declarant.
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ARTICLE 16
[RESERVED]
ARTICLE 17
ACKNOWLEDGMENTS
Section 17.1 Acknowledgments. Each Owner is hereby advised of the following matters
affecting the Property and the Owners' use and enjoyment thereof:
17.1.1 No interest in or right to use any Non -Association Amenities located
near or on the Property, such as recreational facilities permitted by the Town Documents, including
the community center, recreational fields, or swimming pools, and spas, golf facilities, ski facilities
or the like, shall be conveyed to any Owner pursuant to this Declaration. The owners of those
facilities shall have the right, in their sole discretion, to remove, relocate, discontinue operation of,
restrict access to, charge fees for the use of, sell interests in or otherwise deal with such assets in
their sole discretion without regard to any prior use of or benefit to any Owners. To the extent any
of such facilities are made available to the public, the Owners will be subject to all applicable rules
and procedures for use of such Non -Association Amenities. Access to and use of the Non -
Association Amenities are strictly subject to the rules and procedures of the respective owners of
the Non -Association Amenities, and no person gains any right to enter or to use those facilities by
virtue of membership in the Association or ownership or occupancy of a Unit.
17.1.2 ALL PERSONS, INCLUDING ALL OWNERS, ARE HEREBY
ADVISED THAT NO REPRESENTATIONS OR WARRANTIES, EITHER WRITTEN OR
ORAL, HAVE BEEN MADE OR ARE MADE BY DECLARANT OR ANY OTHER PERSON
WITH REGARD TO THE NATURE OR SIZE OF IMPROVEMENTS TO, OR THE
CONTINUING OWNERSHIP OR OPERATION OF, THE NON -ASSOCIATION AMENITIES.
NO PURPORTED REPRESENTATION OR WARRANTY, WRITTEN OR ORAL, IN
REGARD TO THE NON -ASSOCIATION AMENITIES SHALL EVER BE EFFECTIVE
WITHOUT AN AMENDMENT HERETO EXECUTED OR JOINED INTO BY DECLARANT.
17.1.3 Substantial construction -related activities relating to the development of
Units or Projects or other development within or near Haymeadow may cause considerable noise,
dust and other inconveniences to the Owners.
17.1.4 Properties located within Haymeadow may be developed pursuant to the
land uses and restrictions set forth in the Town Documents with no representation being made
herein concerning the planned uses of such other properties. The zoning for Haymeadow is
established and governed by the Town Documents. Any amendment of the Town Documents
requires approval by the Town of Eagle. Each Owner acknowledges and agrees that such Owner
has not relied upon any statements or representation regarding Haymeadow or any other properties
except for the statements and representations expressly set forth in this Declaration and the Town
Documents. Each Owner and Project Association further acknowledges and agrees that such
Owner and Project Association will not take any action to impair or delay any development of real
property governed by the Town Documents so long as such development complies with the Town
Documents, and each Owner and Project Association hereby waives any right it may have to object
to any Project to be developed on any Development Parcel so long as such Project is in
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conformance with the terms, conditions and restrictions of the Town Documents as the same may
be amended from time to time.
ARTICLE 18
DURATION OF COVENANTS AND AMENDMENT
Section 18.1 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 18.2 Amendment. The provisions of this Declaration may be amended or
terminated, in whole or in part, from time to time, upon the written consent of Owners holding an
aggregate of sixty-seven percent (67%) or more of the total voting interest in the Association. No
amendment shall be effective to change, limit, impair or reduce any right of Declarant as provided
herein unless such amendment is approved in writing by Declarant. Notwithstanding the foregoing,
Declarant, acting alone, reserves to itself the right and power to modify and amend this Declaration
and/or the Plat to the fullest extent permitted under the Act including, without limitation, to correct
clerical, typographical or technical errors, or to comply with the requirements, standards, or
guidelines of recognized secondary mortgage markets, the Department of Housing and Urban
Development, the Federal Housing Administration, the Veterans Administration, the Federal
Home Loan Mortgage Corporation, the Government National Mortgage Association, or the
Federal National Mortgage Association.
Section 18.3 Recording of Amendments. Any amendment to this 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, 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 Association stating that the
required number of consents of Owners 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 Association.
ARTICLE 19
ALTERNATIVE DISPUTE RESOLUTION
Section 19.1 Agreement to Encourage Resolution of Disputes, Exclusive Procedures,
Statutes of Limitation. Declarant, the Association, its officers and directors, all Owners, and any
Person not otherwise subject to the Declaration but who agree to submit to the procedures set forth
in this Article (these "Procedures"), including all construction professionals, architects,
contractors, subcontractors, developers, builders, builder vendors, engineers, inspectors and others
who performed or furnished any engineering, design, planning, supervision, inspection,
construction or observation of the construction of any improvement in Haymeadow (each of the
foregoing being referred to as a "Party"), hereby agree to encourage the amicable resolution of
disputes involving Haymeadow and all of its improvements without the emotional and financial
costs of litigation. Accordingly, each Party covenants and agrees to submit all Claims, as defined
below, each alleges to have to the Procedures set forth herein and not to a court of law. All Parties
herby agree to the mandatory mediation and arbitration of all Claims as set forth in this
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Article and irrevocably waive any right to trial of any Claim by jury or otherwise in a court
of law.
Each Party agrees that these Procedures shall be the sole and exclusive remedy that
each Party shall have for any Claim. Should any Party commence litigation or any other action
against any Party in violation of the terms of this Article, such Party shall reimburse all costs and
expenses, including attorneys' fees, incurred by the other Party in such litigation or action within
ten (10) days after written demand.
The Parties understand and agree that no Claim may be initiated after the date when
institution of legal or equitable proceedings based on such Claim would be barred by the applicable
statute of limitation or statute of repose.
Section 19.2 Statement of Clarification. Without modifying or restricting the scope of
these Procedures and as a statement of clarification only, the intent of these Procedures is to foster
constructive dialogue between the Parties, to permit corrective measures to be implemented
without the necessity of final settlement documentation, to inform Parties of implications related
to certain Claims that may not otherwise be readily apparent to such Parties, and to assist the
Parties in resolving Claims, if possible, before incurring significant legal and consultant expenses,
particularly through the informal Procedures set forth in Section 19.4 below.
Section 19.3 Certain Definitions.
19.3.1 Definition of Claim. As used in this article, the term "Claim" shall mean
all claims, disputes and other controversies between one Party and another Party, regardless of
how the same may have arisen or on what it might be based, excepting only those matters identified
as exclusions in this Section below. Without limiting the generality of the foregoing, "Claim" shall
include all claims, disputes or controversies relating to or arising out of, in whole or in part, any
of the following: (a) any Agreement for Sale and Purchase between Declarant and any Owner; (b)
the Lot or the residence (as defined in any such Agreement); (c) the purchase of any Unit or
construction of a residence; (d) the interpretation, application or enforcement of any of the
Association Documents; (e) the soils of any property that lie within Haymeadow or the presence
of radon and/or mold within any Unit or other areas within Haymeadow; (f) land development,
design, construction and/or alteration of any of the improvements within Haymeadow and/or any
alleged defect therein; (g) any rights, obligations and duties of any Party under any of the
Association Documents; (h) any limited warranty agreement between Declarant and any Owner
and/or the Association; or (i) any breach of any of the foregoing referenced documents.
Notwithstanding the foregoing, the following will not be considered "Claims" unless all
parties to the matter otherwise agree to submit the matter to the Procedures set forth in this Article:
(i) any suit by the Association to collect Assessments or other amounts due from any Owner, (ii)
any suit or other action by the Association or Declarant to act under or enforce any provisions of
this Declaration relating to additions or alteration of improvements by Owners and/or any
restrictive covenants or obligations of this Declaration, including any suit to obtain a temporary
restraining order or injunction (or equivalent emergency equitable relief) or such other ancillary
relief as the court may deem necessary, (iii) any suit between Owners, which does not include
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Declarant or the Association as a party, and (iv) any suit in which any indispensable party is not a
Party.
19.3.2 Definition of Defect Claim, Presumptions in Defining Construction
Defect. Any Claim involving the development, design, construction and/or alteration of
Haymeadow or any improvement within Haymeadow and/or any alleged defect therein, however
arising, is referred to herein as a "Defect Claim." The Association, its officers, directors and
members, and Owners generally acknowledge, understand and agree that not every necessary
repair or replacement of an improvement within Haymeadow is due to a construction defect and,
similarly, Declarant and other construction and design professionals that are Parties hereunder
generally acknowledge, understand and agree that not every necessary repair or replacement of an
improvement is due to faulty required maintenance of or damage to such improvement. Often,
such repair and replacement issues arise from a combination of issues that may or may not include
the original design and construction, the level of inspection and maintenance programs (or lack
thereof) and the existence of other factors such as unusual weather events or conditions, improper
use and/or unforeseen wear and tear. Accordingly, in defining a construction defect for purposes
of this Article, a presumption exists in the absence of specific contrary evidence that each Party
has acted in good faith in (a) on the one hand, providing proper ongoing inspection, maintenance
and repair for Haymeadow, and (b) on the other hand, performing proper original design and
construction without defect and in accordance with building codes and other requirements
applicable to such design and construction. This presumption supports the proper evaluation of
all factors and encourages a collaborative and comparative approach to responsibility.
19.3.3 Association and Owner Responsibilities. The Association and its
Executive Board, with respect to Common Area, and each Owner, with respect to such Owner's
Unit, understand and acknowledge the importance of a regular inspection and maintenance
program for Haymeadow and the Units and shall comply with all maintenance manuals and other
documents and recommendations provided to the Association and/or Owners, as applicable, with
respect to the inspection, operation and routine maintenance of all systems, equipment, and similar
items (including, but not limited to, mechanical, electrical, plumbing, structural and exterior
systems and improvements) made part of or serving, respectively, the Common Area or the
Owner's Unit. The Association and each Owner shall perform such recommended inspection and
maintenance and shall make all necessary repairs and maintenance called for to reasonably address
the results of these inspections and to maintain the applicable improvements to a level consistent
with its original quality. Further, the Executive Board and each Owner shall cooperate, at no cost
or expense to them, with all inspections that may be undertaken by or at the request of the Declarant
on or with respect to Haymeadow or its Units and any improvement thereon or therein. The
Association and each Owner understand and agree that, if either fails to follow the inspection,
maintenance and repair requirements and standards contained in such manuals or materials
delivered to them and such failure causes, whether in whole or in part, damage to improvements
for which such party is responsible, the resulting damage shall not be deemed to be the result of a
design or construction defect.
Section 19.4 Informal Procedures.
19.4.1 Association Meetings. For a period of eight (8) years following the
recording of this Declaration, notices of Association and director meetings (including notice of
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agenda items relating to potential claims for defective design or construction within Haymeadow)
shall be given to Declarant, and Declarant and/or its representative(s) shall be entitled to attend
and participate in such meetings. The Declarant and the Executive Board agree to use their
respective good faith efforts to engage in constructive dialogue toward the goal or resolving any
design or construction concerns.
19.4.2 Initial Notice. Any Party asserting a Claim ("Claimant") against
another Party ("Respondent") shall give written notice to each Respondent and to the Executive
Board stating Claimant's good faith description of: (i) the nature of the Claim, including the
persons involved and the Respondent's role in the Claim, and (ii) the Claimants' desire to meet
with the Respondent to discuss in good faith, ways to resolve the Claim. In that legal and
professional fees are discouraged at this stage of these Procedures, no statement as to the legal
basis of the Claim or of any proposed remedy is necessary.
19.4.3 Right to be Heard, Negotiation. Any Respondent shall have the right to
be heard by the Claimant and, if any Claimant is the Association, by the Members, and the
Claimant shall make itself reasonably available upon the request of Respondent to meet in person
and to confer for the purpose of resolving the Claim by good faith negotiation. The Parties shall
confer and negotiate in good faith toward such resolution for a minimum period of forty-five (45)
days after the date that the Claimant has provided notice to each Respondent pursuant to Section
19.4.2 above. Notwithstanding such minimum negotiations period, the Parties are encouraged
throughout these Procedures to attempt to resolve any differences between them through ongoing
communications and informal dialogue. Any settlement of the Claim through discussion and
negotiation shall be documented in writing and signed by the Parties in the manner described in
Section 19.6.4 below.
19.4.4 Right to Cure and Correct. Any Respondent shall have the right
(without obligation), before the institution by the Claimant of binding arbitration below, to cure
and correct any improvement or condition within Haymeadow or Unit with respect to a Defect
Claim. As such, the Respondent has the right, but is not obligated, to inspect, monitor and test
(including, without limitation, destructive testing) and to repair, redesign and correct any structure,
improvement, or condition that may exist on any portion of Haymeadow or a Unit that is the basis
of or related to the Defect Claim, and the Association and each Owner hereby grants to the
Respondent a perpetual right and easement of access over and through Haymeadow, including the
Units, upon reasonable advance notice during business hours to exercise such right. Any
correction to or redesign of an improvement shall be made only upon the approval to all affected
Parties, which approval will not be unreasonably withheld or delayed, it being expressly
understood and agreed by the Parties that the Parties shall permit a Respondent's good faith attempt
to correct an improvement or condition that is the subject of a Defect Claim, at such Respondent's
sole expense. In the exercise of the inspection and correction rights contained herein, the
Respondent conducting such inspection or correction work shall:
19.4.4.1 Be careful to avoid unreasonable intrusion upon, or harm,
damage or costs to the affected Party including, without limitation, using its reasonable best efforts
to avoid causing any damage to, or interference with, any improvements to the Unit or
Haymeadow;
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19.4.4.2 Minimize any disruption or inconvenience to any person who
occupies the applicable Unit;
19.4.4.3 Remove daily all debris caused by the work conducted by
Respondent and located on the Unit or Haymeadow, as applicable;
19.4.4.4 In a reasonable and timely manner, at the sole cost and expense
of the Respondent, promptly remove all equipment and materials from Haymeadow, repair and
replace all damage, and restore the property to the condition as existed prior to such work, the
specific repair and/or redesign work excepted; and
19.4.4.5 Not permit any lien, claim or other encumbrance arising from
the exercise of its right to inspect to accrue against or attach to the Unit or Haymeadow. The
Respondent shall indemnify, defend, and hold harmless the Association and the affected Owners
and their tenants, guests, employees and agents, against any and all liability, claims, demands,
losses, costs and damages incurred, including court costs and reasonable attorneys' fees, resulting
from any breach of this Section by the Respondent.
19.4.5 No Requirement for Final Settlement to Begin Repairs, Settlement
Proposal. The informal Procedures set forth in this Section 19.4 are for the purpose of encouraging
early resolution of Claims and no formal written settlement or other agreement shall be required
for inspection and corrective work to occur pursuant to Section 19.4.4 above, other than the general
approval to affected Parties not be unreasonably withheld or delayed as described in Section
19.4.4. Any such approval by affected Parties shall not be deemed a waiver of any rights or Claims
by such Parties and the Claimant shall be entitled to monitor the effectiveness of the corrective
measures instituted. Alternatively, if the Respondent desires a formal settlement agreement before
commencing corrective measures or other action to resolve the subject matter of the Claim, the
following Procedures may be employed:
19.4.5.1 Within thirty (30) days following completion of the inspection
process, the Respondent may give Claimant written notification of its settlement proposal,
including, in the case of a proposal to remedy a Defect Claim, a report of the scope, findings and
results of the inspection, the damage caused by the alleged construction defect and a description
of and a timetable for the work necessary to remedy the defect.
19.4.5.2 Within fifteen (15) days after its receipt of Respondent's
settlement proposal, Claimant shall notify Respondent of its acceptance or rejection thereof.
Failure to give such notice shall be deemed to be a rejection of the proposal.
19.4.5.3 If the settlement proposal for remedial work is accepted,
Claimant and Respondent shall endeavor to document the settlement proposal in writing within
thirty (30) days after acceptance, which settlement shall be signed by the Parties in the manner
described in Section 19.6.4 below.
19.4.6 Effect of Corrective Work. It is acknowledged and agreed by all Parties
and by any guarantors, insurers and/or indemnitors of the Parties that any work conducted pursuant
to Section 19.4.4 above (a) is in the nature of corrective or repair work and does not constitute nor
shall be asserted or construed to be an "improvement" to real property for purposes of C.R.S. § 13-
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80-104, and (b) unless part of a written settlement agreement signed by the Claimant and each
Respondent, does not constitute nor shall be asserted or construed to be a voluntary payment or
assumption of a voluntary obligation without insurer consent under any applicable commercial
general liability insurance policy.
19.4.7 Broad Construction. The Procedures set forth in this Section 19.4 shall
are designed to encourage the good faith resolution of a Claim or appropriate correction of
improvements and the right of the Respondent to be heard and to inspect and correct shall be
ongoing and construed liberally throughout all of the Procedures set forth in this Article so as to
permit the same, for example but not limitation, as there arise new issues, legal theories,
engineering opinions, developments with insurers, and other developments and information, even
if after the formal dispute resolution procedures commence as described below. Accordingly, the
informal and formal dispute resolution procedures are anticipated to run concurrently from time to
time and the Parties agree to reasonably, timely and in good faith cooperate with each other to
respond to requests, to permit the rights set forth in these Procedures and to facilitate the processes
of these Procedures toward the goal of a successful and voluntary resolution of Claims.
Section 19.5 Formal Notice and Association Consensus.
19.5.1 Formal Notice. At any time following the forty-five (45) negotiation
period described in Section 19.4.3 above (or following such longer period as the Parties may agree
and subject to Section 19.5.2 below), the Claimant may provide written formal notice to each
Respondent stating (i) the nature of the Claim, including if applicable a list of any alleged
construction defects and a description, in reasonable detail, of the type and location of such defects,
the damages claimed to have been caused thereby, and Respondent's role in the Claim, (ii) the
legal or contractual basis of the Claim (i.e., the specific authority out of which the Claim arises),
(iii) the date on which the Claim first arose, (iv) copies of any expert reports or other
documentation or information relating in any way to the Claim that Claimant has in its possession
or under its control, and (v) the specific relief and/or proposed remedy sought. Notwithstanding
the foregoing or any contrary provision herein, the Claimant shall, in addition to complying with
these Procedures, follow the alternative dispute resolution procedures set out in the Construction
Defect Action Reform Act, Colo. Rev. Stat. § 13-20-801 et seq., as it may be amended from time
to time ("CDARA") with respect to any Defect Claim, and the initial formal notice required under
CDARA may be combined with the formal notice of Claim required by this Section 19.5.1.
Formal written notice as provided in this Section 19.5.1, following the satisfaction of the
Association Consensus Vote (defined below), if applicable, is required as an express condition to
commence the resolution Procedures set forth in Sections 19.6, 19.7 and the Sections following,
below.
19.5.2 Association Defect Claims. Notwithstanding any contrary provision
herein, no formal notice of Claim under Section 19.5.1 (including, without limitation, a Notice of
Claim under CDARA) may be made by a Claimant (a) if the Claim is a Defect Claim which relates,
in whole or in part, to the Common Area of Haymeadow, to any portion of Haymeadow or the
Units that is the responsibility of the Association to maintain, repair, and replace, or to any Defect
Claim that the Association intends to assert on behalf of the Owners (referred to herein as an
"Association Defect Claim"), and (b) unless and until the Procedures set forth in this Section 19.5
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below are satisfied. The Parties understand and agree that the Procedures of this Section 19.5 are
essential to the protection of individual Owners who may not understand the implications and
effects of the assertion of an Association Defect Claim by the Association, including, without
limitation, the possible impact of such Claim on sales of Units within Haymeadow and/or the
ability of Owners to borrow funds when an Owner's Unit is being pledged as collateral for the
loan.
19.5.3 Power of Attorney to Association. The Association is hereby designated
to act as the exclusive representative of all Owners in asserting any Association Defect Claim, and
each Owner does hereby appoint the Association to exclusively act as its power of attorney (which
power shall be irrevocable) with respect to any Association Defect Claims, including the right to
compromise and settle the same. No Owner shall assert an Association Defect Claim except
through the Association.
19.5.4 Consensus Vote for Association Action. Notwithstanding anything
contained in these Procedures to the contrary and in addition to any requirements prescribed by
law, the Association shall not provide any formal notice of an Association Defect Claim and/or
shall not commence any action, proceeding, mediation or arbitration, other than those limited
Procedures set forth in Section 19.4 above, until satisfaction of the following:
19.5.4.1 The Executive Board of the Association, following the approval
of an Association Defect Claim by a majority of all Directors, shall mail or deliver written notice
to each Owner at the Owner's last -known address described in the Association's records
containing the following: (a) the nature of the Association Defect Claim, the parties involved, and
the relief sought, (b) the expenses and fees that the Executive Board anticipates will be incurred,
directly or indirectly, in the prosecuting the Association Defect Claim, including attorney fees and
consultant and witness fees and other costs of prosecution of the Claim, (c) the costs, if any, to the
Association pursuant to an agreement with its attorney or otherwise that would be incurred if the
Association elects at any time not to proceed with the Association Defect Claim, (d) the manner
in which the Association proposes to fund the cost of the Association Defect Claim, including any
proposed special assessments or use of reserves, (e) the anticipated duration of the Association
Defect Claim, the likelihood of its success, and the risks to which the Association is exposed (e.g.,
an assessment of counter -claims and/or other potential liability to the Association), (f) a reasonable
assessment and explanation of the anticipated impact of the Association Defect Claim on the
marketability of Units for sale within Haymeadow and the impact on the ability of Owners to
refinance and buyers of Units to secure financing, explained for both during the pendency of the
Association Defect Claim and after its resolution, together with a prominent statement advising
Owners if it is concluded that any such impact does exist, (g) a prominent statement advising
Owners that the existence of the Association Defect Claim may represent a material matter
requiring legal disclosure to lenders, purchasers, auditors and/or other appropriate parties, and (h)
providing proper notice for a meeting of Owners to be held not sooner than thirty (30) days or
longer than sixty (60) days after such mailing, at which Owners shall discuss and vote on the
Association Defect Claim as described in Section 19.5.4.2 below.
19.5.4.2 The Association Defect Claim must be approved and authorized
at the meeting of Owners held pursuant to the notice described in Section 19.5.4.1 above by the
written affirmative vote, by ballot or by proxy directing the specific vote of the Owner (but not by
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proxy granting discretion to the proxy holder as to how to vote), of Owners holding at least a
majority of the total voting rights in the Association (the "Association Consensus Vote").
19.5.5 Limit on Director and Officer Liability. No director or officer of the
Association shall be liable to any person or entity for failure to institute or maintain or bring to
conclusion a cause of action, mediation or arbitration for an Association Defect Claim if the
following criteria are satisfied: (i) the director or officer was acting within the scope of their or her
duties; (ii) the director or officer was not acting in bad faith; and (iii) the act or omission was not
willful, wanton or grossly negligent.
19.5.6 Association Approval. Only after an Association Consensus Vote is
successfully secured by the Association in the manner described in this Section 19.5 may the
Association deliver a formal notice of the Association Defect Claim to each Respondent in the
manner described in Section 19.5.1 above.
Section 19.6 Mediation.
19.6.1 Following the formal written notice discussed in Section 19.5.1 above,
the Claimant shall have thirty (30) days to submit the Claim to mediation with an entity designated
by the Association (if the Association is not a party to the Claim) or to an independent agency
providing dispute resolution services in Eagle County, Colorado, unless otherwise agreed by the
Parties. A mediator shall be selected no later than forty-five (45) days after the Claimant has given
notice to the Respondent of its submittal to mediation and, if the Association is a Party and the
Parties are unable to agree on a mediator, one shall be chosen by the American Arbitration
Association. Each Party shall bear its own costs of the mediation, including attorneys' fees, and
each Party shall share equally all charges rendered by the mediator.
19.6.2 If the Claimant does not submit the Claim to mediation within such time,
or does not appear for the mediation when scheduled, the Claimant shall be deemed to have waived
the Claim, and the Respondent shall be released and discharged from any and all liability to
Claimant on account of such Claim; provided, nothing herein shall release or discharge
Respondent from any liability to any person other than the Claimant.
19.6.3 If the parties do not settle the Claim within thirty (30) days after
submission of the matter to mediation, or within such time as determined reasonable by the
mediator, the mediator shall issue a notice of termination of the mediation proceedings indicating
that the parties are at an impasse and the date that mediation was terminated. The Claimant shall
thereafter be entitled to submit the Claim to binding arbitration as provided below.
19.6.4 Any settlement of the Claim through mediation or through negotiation
shall be documented in writing and signed by the Parties. If any Party thereafter fails to abide by
the terms of such agreement, then any other Party may file suit or initiate administrative
proceedings to enforce such agreement without the need to again comply with the Procedures set
forth in this Article. In such event, the Party taking action to enforce the agreement or award shall,
upon prevailing, be entitled to recover from the non -complying Party (or if more than one non-
complying Party, from all such Parties in equal proportions) all costs incurred in enforcing such
agreement or award, including, without limitation, attorney's fees and court costs.
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Section 19.7 Final and Binding Arbitration. Upon termination of mediation as provided
in Section 19.6.3 above, if Claimant desires to pursue the Claim, Claimant shall have forty-five
(45) days to deliver an arbitration notice to Respondent(s) and to initiate final, binding arbitration
of the Claim under the auspices of the American Arbitration Association ("AAA") in accordance
with the AAA's Commercial or Construction Industry Arbitration Rules, as appropriate. If any
Claim is not timely submitted to arbitration, or if Claimant fails to appear for the arbitration
proceeding, then the Claim shall be deemed waived and abandoned, and Respondent(s) shall be
released and discharged from any and all liability to Claimant arising out of any such Claim. The
following arbitration procedures shall be applicable to each Claim that is arbitrated:
19.7.1 The arbitrator must be a person qualified, with applicable industry
experience and/or legal experience, to consider and resolve the applicable Claim.
19.7.2 No person shall serve as the arbitrator where that person has any
financial or personal interest in the result of the arbitration or any family, social or significant
professional acquaintance with any Party to the arbitration. Any person designated as an arbitrator
shall immediately disclose in writing to all Parties any circumstance likely to affect the appearance
of impartiality, including any bias or financial or personal interest in the outcome of the arbitration
("Arbitrator Disclosure"). If any Party objects to the service of any arbitrator with fourteen (14)
days after receipt of the Arbitrator's Disclosure, such arbitrator shall be replaced in the same
manner in which that arbitrator was selected.
19.7.3 The arbitration shall be presided over by a single arbitrator.
Notwithstanding any other provision of this Section 19.7, if the Parties are unable to agree upon
an arbitrator to resolve a Claim, they shall request from the AAA a list of an odd number of
qualified arbitrators. Promptly following their receipt of the list, the Parties shall meet in person
or by telephone and alternate, beginning with Claimant, striking names from the list until the name
of only one person is left. The remaining person shall serve as the arbitrator. The cost of the list
shall be split equally by the Parties.
19.7.4 The arbitrator shall hold at least one hearing in which the Parties, their
attorneys and expert consultants may participate. The arbitrator shall fix the date, time and place
for the hearing. The arbitration proceedings shall be conducted in Eagle County unless otherwise
agreed by the Parties.
19.7.5 No formal discovery shall be conducted in the absence of an order of
the arbitrator or express written agreement among all the Parties. The manner, timing and extent
of any discovery shall be committed to the arbitrator's sound discretion, provided that under no
circumstances shall the arbitrator allow more depositions or interrogatories than permitted by the
presumptive limitations set forth in Federal Rules Of Civil Procedure 30(a)(2)(A) and 33(a). The
arbitrator shall levy appropriate sanctions, including an award of reasonable attorneys' fees, against
any Party that fails to cooperate in good faith in discovery agreed to by the Parties or ordered by
the arbitrator pursuant to this Section.
19.7.6 The arbitrator may, in their or her reasonable discretion, permit the
Parties to submit pre -hearing briefs, post -hearings briefs and/or proposed findings of fact and
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conclusions of law. The arbitrator shall also have authority to establish reasonable terms regarding
inspections, destructive testing and retention of independent consultants, if applicable.
19.7.7 The Parties agree that where any Claim, dispute or other controversy
existing between them is submitted to arbitration, and any other Party may have liability with
respect thereto, all Parties including any third parties agree that the third parties may be joined as
additional Parties in the arbitration, or if a separate arbitration exists or is separately initiated, to
the consolidation of all such arbitrations. By way of example only and not by limitation, in the
event of a Claim relating to an alleged construction defect, Declarant would have the right to join
in the arbitration any design professional, contractor, subcontractor or other third party whose acts
or omissions allegedly caused or contributed to the damages alleged by the Claimant.
Notwithstanding this right to j oin third parties, however, the arbitrator shall not have the authority
to join in any arbitration more than one Owner (without Declarant's consent) nor shall these
Procedures permit the assertion of any Claim in the nature of a class or collective action, such
resort to resolution by class or collective treatment being expressly waived by each Owner and by
the Association.
19.7.8 The arbitration award shall address each specific Claim to be resolved
in the arbitration, provide a summary of the reasons therefore and the relief granted, and be
rendered promptly after the close of the hearing and no later than thirty (30) days from the close
of the hearing, unless otherwise agreed by the Parties. The arbitration award shall be in writing
and shall be signed by the arbitrator.
19.7.9 Any issue about whether a Claim is covered by this Article shall be
determined by the arbitrator. Notwithstanding anything to the contrary, if a Party contests the
validity or scope of arbitration in a court of law, the arbitrator or the court shall award reasonable
attorneys' fees and expenses incurred in defending such contests, including those incurred in trial
or on appeal, to the non -contesting Party.
19.7.10 The arbitrator shall apply the substantive law of Colorado and may
award injunctive relief or any other remedy available in Colorado but (a) shall not have the power
to award attorneys' fees and/or costs to the prevailing Party (such fees and costs being the
responsibility of each Party) unless such award is specifically provided by law (e.g., the Act), and
(b) shall limit the amount and/or type of any monetary damage award to the extent required by law
with respect to the particular Claim, including, without limitation, the damage limitations
applicable to Claims under CDARA.
19.7.11 The award rendered by the arbitrator shall be final and binding, may be
filed with any court of competent jurisdiction in the County in which Haymeadow is located in
accordance with applicable law and judgment obtained thereon, and execution may issue. If any
Party objects to entry of judgment upon any arbitration award entered pursuant to this Section
19.7, the Party that substantially prevails in any ensuing dispute concerning the entry of judgment
upon such award shall be entitled to all reasonable attorneys' fees and costs incurred in the
enforcement of the award.
19.7.12 The fees and costs of the arbitration, including without limitation the
arbitrator and its consultants, shall be borne equally by the Parties.
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19.7.13 Except as may be required by law or for confirmation of an arbitration
award, neither a Party nor an arbitrator may disclose the existence or contents of any arbitration or
arbitration award without the prior written consent of all Parties to the Claim.
Section 19.8 Utilization of Funds Resulting from a Defect Claim. In the event a Claimant
receives funds as a result of a Defect Claim (whether by settlement, arbitration or otherwise), after
payment of fees and costs incurred in connection with such Defect Claim, the Claimant shall (a)
deposit the proceeds in a special, interest -bearing account; and (b) utilize the proceeds only for the
purpose of performing remedial or repair work on the conditions which were the subject of the
Defect Claim or otherwise for purposes of remedying the Defect Claim.
Section 19.9 Amendments to this Article; Standing to Enforce. Notwithstanding
anything to the contrary contained in this Declaration or any of the Association Documents, the
terms and provisions of this Article 19 inure to the benefit of Declarant, are enforceable by
Declarant, and shall not ever be amended or nullified without the written consent of Declarant and
without regard to whether Declarant owns any portion of the Property at the time of such
amendment. BY TAKING TITLE TO A UNIT, EACH OWNER ACKNOWLEDGES AND
AGREES THAT THE TERMS OF THIS ARTICLE 19 ARE A SIGNIFICANT INDUCEMENT
TO THE DECLARANT' S WILLINGNESS TO DEVELOP AND SELL UNITS AND THAT IN
THE ABSENCE OF THE PROVISIONS CONTAINED IN THIS ARTICLE, DECLARANT
WOULD HAVE BEEN UNABLE AND UNWILLING TO DEVELOP AND SELL THE UNITS
FOR THE PRICES PAID BY THE ORIGINAL PURCHASERS. Any amendment made without
the requisite written consent of Declarant shall be null and void and shall have no effect. Further,
all employees and agents of Declarant and all contractors, subcontractors, architects, engineers and
other development professionals associated with the design or construction of any portion of the
Property (each a "Third Party Beneficiary") are third -party beneficiaries of this Article and of the
terms and conditions contained herein, including without limitation the requirement for binding
arbitration, and any Third Party Beneficiary has standing to enforce the terms and conditions of
this Article, including without limitation to compel binding arbitration.
Section 19.10 Reformation. The Parties agree that reliance upon courts of law and equity
can add significant costs and delays to the process of resolving Claims. Accordingly, they
recognize that an essential part of this Declaration is this Article and its agreement between and
among the Parties to provide for the submission of all Claims to informal negotiation and
correction efforts, mediation and final and binding arbitration. Therefore, if any court or arbitrator
concludes that any provision of these Procedures is void, voidable or otherwise unenforceable, the
Parties understand and agree that the court or arbitrator shall reform each such provision to render
it enforceable, but only to the extent absolutely necessary to render the provision enforceable and
only in view of the Parties' express desire that the merits of all Claims be resolved only by
arbitration and, to the greatest extent permitted by law, in accordance with the principles,
limitations and procedures set forth in these Procedures.
Section 19.11 Notices, Computation of Time. All notices given or required by these
Procedures shall be in writing and shall be deemed given and received (a) when hand delivered to
the intended recipient by whatever means; (b) three business days after the same is deposited in
the United States mail, with adequate postage prepaid and sent by certified mail, return receipt
requested, or (c) one business day after the same is deposited with an overnight courier service of
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national reputation, with the delivery charges prepaid. In the event any date called for herein falls
on a Saturday, Sunday or legal holiday for which U.S. mail service is not provided, such date shall
be extended to the next business day following such Saturday, Sunday or holiday.
ARTICLE 20
DECLARANT'S RIGHTS REGARDING TRANSFER
Any right or any interest reserved or contained in this Declaration for the benefit of
Declarant may be transferred or assigned by Declarant, either separately or with one or more other
such rights or interests, to any person, corporation, partnership, association, or other entity, only
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. Upon such recording, Declarant's
rights and obligations under this Declaration shall cease and terminate to the extent provided in
such instrument.
ARTICLE 21
SPECIAL DISTRICT
The Association shall have the power, and is hereby authorized, to contract with and to
cooperate with the District in order to ensure that their respective responsibilities are discharged.
The Association is further authorized to act on behalf of its members to ensure that the level of
services provided by the District, if created, is consistent with the standards of Haymeadow.
Each Owner, by acceptance of their or her deed or recorded contract of sale, is deemed to
covenant and consent to the creation of the District and to executing a separate document so
consenting to the creation of the District, if requested to do so by the Declarant.
ARTICLE 22
MISCELLANEOUS
Section 22.1 Compliance with the Act. 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
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.
Section 22.2 Nonwaiver. Failure by Declarant, the Association, or any Owner or First
Mortgagee to enforce any covenant, condition, restriction, easement, reservation, right-of-way, or
other provision contained in this Declaration shall in no way or event be deemed to be a waiver of
the right to do so thereafter.
Section 22.3 Severability. The provisions of this 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.
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Section 22.4 Number and Gender. Unless the context provides or requires to the
contrary, the use of the singular herein shall include the plural, the use of the plural shall include
the singular, and the use of any gender shall include all genders.
Section 22.5 Captions. The captions to the Articles and Sections and the Table of
Contents at the beginning of this 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
Declaration or the intent of any provision of this Declaration.
Section 22.6 Conflicts in Legal Documents. In case of conflicts between the provisions
in this Declaration and the articles of incorporation of the Association or the bylaws of the
Association, this Declaration shall control. In case of conflicts in the provisions in the articles of
incorporation of the Association and the bylaws of the Association, the articles of incorporation of
the Association shall control. In case of conflicts in the provisions in the articles of incorporation,
bylaws or this Declaration, on the one hand, and the Act, on the other hand, the terms of the Act
shall control subject to the provisions of Section 22.1 above. Any and all policies, rules and
regulations of the Association shall be construed to be consistent with the terms of this Declaration,
and in the case of any inconsistency, the provisions of this Declaration shall be deemed substituted
for any inconsistent provisions of any such policies, rules and regulations.
Section 22.7 Exhibits. All the Exhibits attached to and described in this Declaration are
incorporated in this Declaration by this reference.
[Signature page follows]
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1
Executed as of the � ,/ 1 day of '7rk r1 Q (N r( 2023.
ABRIKA PROPERTIES, LLC, a Florida limited liability
company
By. --
Brandon Cohen, President
STATE OFF/ eki'd4L )
COUNTY OFYG,,Hrd )
The foregoing instrument was acknowledged before me this 7A day of -70n v4k)l ,
2023, by Brandon Cohen, as President of Abrika Properties, LLC, a Florida limited liability
company.
WITNESS my hand and official seal.
My commission expires: � /� 1 � ,?v-% �JJ
Notary Public
60
=NotaryPublic State ofFlorida
n J. Mendel
20902800
12/25/2025
202300905
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
Tract RMF-1, Haymeadow Filing 1, according to the Plat thereof recorded on May 24, 2019 as
Reception No. 201907561, and First Amendment thereto recorded July 7, 2021 under Reception
No. 202115650, and Second Amendment thereto recorded September 2, 2022 under Reception
No. 202214557, Eagle County, Colorado.
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EXHIBIT B
LEGAL DESCRIPTION OF EXPANSION PROPERTY
Lots 1-15, Tracts E, X, Z, RMF-2, RMF-3 and RMF-4, Haymeadow Filing 1, according to the
Plat thereof recorded on May 24, 2019 as Reception No. 201907561, and First Amendment
thereto recorded July 7, 2021 under Reception No. 202115650, and Second Amendment thereto
recorded September 2, 2022 under Reception No. 202214557, Eagle County, Colorado.
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EXHIBIT C
EASEMENTS, LICENSES AND TITLE MATTERS
A VEIN OR LODE TO EXTRACT AND REMOVE their ORE THEREFROM SHOULD THE
SAME BE FOUND TO PENETRATE OR INTERSECT THE PREMISES AS RESERVED IN
UNITED STATES PATENT RECORDED MARCH 06, 1990, IN BOOK 523 ATPAGE 986.
RIGHT OF PROPRIETOR OF A VEIN OR LODE TO EXTRACT AND REMOVE their ORE
THEREFROM SHOULD THE SAME BE FOUND TO PENETRATE OR INTERSECT THE
PREMISES AS RESERVED IN UNITED STATES PATENT RECORDED MARCH 06, 1990,
IN BOOK 523 ATPAGE 987.
RIGHT OF WAY FOR DITCHES OR CANALS CONSTRUCTED BY THE AUTHORITY OF
THE UNITED STATES AS RESERVED IN UNITED STATES PATENT RECORDED JUNE
15, 1922, IN BOOK 93 AT PAGE 332.
RIGHT OF PROPRIETOR OF A VEIN OR LODE TO EXTRACT AND REMOVE their ORE
THEREFROM SHOULD THE SAME BE FOUND TO PENETRATE OR INTERSECT THE
PREMISES AS RESERVED IN UNITED STATES PATENT RECORDED JUNE 15, 1922, IN
BOOK 93 AT PAGE 332.
RIGHT OF PROPRIETOR OF A VEIN OR LODE TO EXTRACT AND REMOVE their ORE
THEREFROM SHOULD THE SAME BE FOUND TO PENETRATE OR INTERSECT THE
PREMISES AS RESERVED IN UNITED STATES PATENT RECORDED MARCH 22, 1990,
IN BOOK 525 AT PAGE73.
EASEMENT AND RIGHT OF WAY FOR BRUSH CREEK.
RIGHT OF WAY FOR COUNTY ROADS LOCATED WITHIN THE DESCRIBED
PROPERTY.
RIGHT OF PROPRIETOR OF THE EFFECT OF THE ORDER OF INCLUSION IN THE
GREATER EAGLE FIRE PROTECTION DISTRICT RECORDED SEPTEMBER 22, 1989 IN
BOOK 513 AT PAGE920.
RIGHT OF WAY EASEMENT AS GRANTED TO HOLY CROSS ELECTRIC ASSOCIATION,
INC. IN INSTRUMENT RECORDED JUNE 18, 1980, IN BOOK 304 AT PAGE 201 AND
RECORDED JULY 18, 1980 IN BOOK 305 AT PAGE 584.
RIGHT OF WAYEASEMENT AS GRANTED TO HOLY CROSS ELECTRIC ASSOCIATION,
INC. IN INSTRUMENT RECORDED JUNE 18, 1980 IN BOOK 304 AT PAGE202.
RIGHT OF PROPRIETOR OF A VEIN OR LODE TO EXTRACT AND REMOVE their ORE
THEREFROM SHOULD THE SAME BE FOUND TO PENETRATE OR INTERSECT THE
PREMISES AS RESERVED IN UNITED STATES PATENT RECORDED JANUARY 02, 1991,
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IN BOOK 35 AT PAGE 457 AND IN UNITED STATES PATENT RECORDED MAY 25, 1922,
IN BOOK 93 AT PAGE 68 AND AS RESERVED IN UNITED STATES PATENT RECORDED
MARCH 16, 1923 IN BOOK 48 AT PAGE 384 AND AS RESERVED IN UNITED STATES
PATENT RECORDED MARCH 14, 1892 IN BOOK 48 AT PAGE 168.
RIGHT OF WAY FOR DITCHES OR CANALS CONSTRUCTED BY THE AUTHORITY OF
THE UNITED STATES AS RESERVED IN UNITED STATES PATENT RECORDED MAY 25,
1922, IN BOOK 93, AT PAGE 68 AND RECORDED MARCH 16, 1923, IN BOOK 48 AT PAGE
384.
WATER AND WATER RIGHTS, DITCH AND DITCH RIGHTS, WHETHER OR NOT
SHOWN BY THE PUBLIC RECORD.
TERMS, CONDITIONS AND PROVISIONS OF OIL AND GAS MINING LEASE RECORDED
FEBRUARY 13, 1931 IN BOOK 118 AT PAGE 7 AND OIL AND GAS LEASE RECORDED
JULY 14, 1947 IN BOOK 134 AT PAGE 215.
RESERVATION OF AN UNDIVIDED 1/2 INTEREST IN AND TO ALL OIL, GAS AND
OTHER MINERALS IN AND UNDER SUBJECT PROPERTY AS RESERVED IN DEED
RECORDED NOVEMBER 1, 1947 IN BOOK 133 AT PAGE 213.
RESERVATION OF AN UNDIVIDED 1/4 INTEREST OF ALL MINERALS AND MINERAL
RIGHTS OF WHATSOEVER KIND OR NATURE, INCLUDING BUT WITHOUT
LIMITATION ON THE ABOVE, OIL, GAS, CASINGHEAD GAS AND OTHER PETROLIUM
PRODUCTS AS RESERVED BY RAY E. CHATFIELD IN DEED RECORDED MARCH 10,
1958 IN BOOK 161 AT PAGE 229.
TERMS, CONDITIONS AND PROVISIONS OF COOPERATIVE AGREEMENT FOR
PERMANENT DAMAGE PREVENTION FENCING RECORDED NOVEMBER 14, 1988 IN
BOOK 495 AT PAGE 149 AND NOVEMBER 14, 1988 IN BOOK 495 AT PAGE 150.
TERMS, CONDITIONS AND PROVISIONS OF EASEMENT DEED RECORDED JANUARY
19, 1977 IN BOOK 251 AT PAGE 808 AND RECORDED JUNE 26, 1978 IN BOOK 271 AT
PAGE 438 AND RECORDED APRIL 18, 1980 IN BOOK 301 AT PAGE 829.
TERMS, CONDITIONS AND PROVISIONS OF WATER SERVICE AGREEMENT
RECORDED FEBRUARY27, 2002 AT RECEPTION NO.787317.
TERMS, CONDITIONS AND PROVISIONS OF WARRANTY EASEMENT DEED
RECORDED SEPTEMBER 15, 2003 AT RECEPTION NO. 849703.
TERMS, CONDITIONS AND PROVISIONS OF WARRANTY EASEMENT DEED
RECORDED SEPTEMBER 15, 2003 AT RECEPTION NO. 849704.
TERMS, CONDITIONS AND PROVISIONS OF WATER FACILITIES AGREEMENT
RECORDED JULY 27, 2005 AT RECEPTION NO. 924072.
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TERMS, CONDITIONS AND PROVISIONS OF DITCH EASEMENT (LOVE AND WHITE)
RECORDED AUGUST 24, 2005 RECEPTION NO. 927206 AND MODIFICATION THERETO
RECORDED OCTOBER 4, 2005 RECEPTION NO. 931848.
TERMS, CONDITIONS AND PROVISIONS OF DITCH EASEMENT (WILKINSON DITCH)
RECORDED AUGUST 24, 2005 RECEPTION NO. 927205 AND MODIFICATION THERETO
RECORDED OCTOBER 4, 2005 RECEPTION NO. 931847.
TERMS, CONDITIONS AND PROVISIONS OF DITCH EASEMENT (MATHEWS DITCH)
RECORDED AUGUST 24, 2005 RECEPTION NO. 927204 AND MODIFICATION
RECORDED OCTOBER 4, 2005 RECEPTION NO. 931846.
TERMS, CONDITIONS AND PROVISIONS OF NOTICE OF SETTLEMENT AGREEMENT
RECORDED AUGUST 24, 2005 RECEPTION NO. 927201.
TERMS, CONDITIONS AND PROVISIONS OF DEED RECORDED AUGUST 24, 2005 AT
RECEPTION NO. 927202 AND RECORDED OCTOBER 4, 2005 RECEPTION NO. 931845.
EASEMENTS, CONDITIONS, COVENANTS, RESTRICTIONS, RESERVATIONS AND
NOTES ON THE PLAT OF BRUSH CREEK MEADOWS FILING 3 RECORDED TUNE O1,
2012 UNDER RECEPTION NO. 201211315.
TERMS, CONDITIONS AND PROVISIONS OF ORDINANCE NO. 1 (SERIES 2012)
RECORDED JUNE O1, 2012 AT RECEPTION NO.201211311.
TERMS, CONDITIONS AND PROVISIONS OF ORDINANCE NO. 2 (SERIES 2012)
RECORDED JUNE O1, 2012 AT RECEPTION NO.201211309.
TERMS, CONDITIONS AND PROVISIONS OF ORDINANCE NO. 3 (SERIES 2012)
RECORDED JUNE O1, 2012 AT RECEPTION NO.201211314.
TERMS, CONDITIONS AND PROVISIONS OF ORDINANCE NO. 10 (SERIES 2012)
RECORDED JUNE O1, 2012 AT RECEPTION NO.201211320.
TERMS, CONDITIONS AND PROVISIONS OF QUITCLAIM DEED OF WATER RIGHTS
RECORDED MAY 07, 2013 AT RECEPTION NO. 201309785.
TERMS, CONDITIONS, PROVISIONS, BURDENS AND OBLIGATIONS AS SET FORTH IN
ORDINANCE NO. 8, SERIES, 2014 RECORDED APRIL 10, 2014 UNDER RECEPTION NO.
201405689.
TERMS, CONDITIONS, PROVISIONS, BURDENS AND OBLIGATIONS AS SET FORTH IN
ORDINANCE NO. 9, SERIES 2014 RECORDED APRIL 10, 2014 UNDER RECEPTION NO.
201405690.
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TERMS, CONDITIONS, PROVISIONS, BURDENS AND OBLIGATIONS AS SET FORTH IN
ORDINANCE NO. 10, SERIES 2014 RECORDED APRIL 10, 2014 UNDER RECEPTION NO.
201405691
TERMS, CONDITIONS, PROVISIONS, BURDENS AND OBLIGATIONS AS SET FORTH IN
ORDINANCE NO. 11, SERIES 2014 RECORDED APRIL 10, 2014 UNDER RECEPTION NO.
201405692
ANNEXATION PLAT FOR THE HAYMEADOW ADDITION TO THE TOWN OF EAGLE
RECORDED APRIL 10, 2014 UNDER RECEPTION NO. 201405693
TERMS, CONDITIONS, PROVISIONS, BURDENS AND OBLIGATIONS AS SET FORTH
IN RESOLUTION NO. 12, SERIES 2014 RECORDED MAY 30, 2014 UNDER RECEPTION
NO.201408816 AND RECORDED JANUARY 19, 2021 UNDER RECEPTION NO.
202101127.
TERMS, CONDITIONS, PROVISIONS, BURDENS, OBLIGATIONS AND EASEMENTS AS
SET FORTH AND GRANTED IN BICYCLE AND PEDESTRIAN TRIAL EASEMENT
AGREEMENT RECORDED MARCH 24, 2015 UNDER RECEPTION NO. 201504931.
TERMS, CONDITIONS, PROVISIONS, BURDENS, OBLIGATIONS AND EASEMENTS AS
SET FORTH AND GRANTED IN BICYCLE AND PEDESTRIAN TRIAL EXTENSION
AGREEMENT RECORDED OCTOBER 21, 2015 UNDER RECEPTION NO. 20150051.
TERMS, CONDITIONS, PROVISIONS, BURDENS, OBLIGATIONS AND EASEMENTS AS
SET FORTH AND GRANTED IN TEMPORARY CONSTRUCTION EASEMENT DEED
RECORDED OCTOBER 30, 2015 UNDER RECEPTION NO. 201520760.
TERMS, CONDITIONS, PROVISIONS, BURDENS AND OBLIGATIONS AS SET FORTH
IN ORDINANCE NO. 14 (SERIES OF 2019) RECORDED MAY 24, 2019 UNDER
RECEPTION NO. 201907560.
EASEMENTS, CONDITIONS, COVENANTS, RESTRICTIONS, RESERVATIONS AND
NOTES ON THE PLAT OF HAYMEADOW FILING 1 RECORDED MAY 24, 2019 UNDER
RECEPTION NO. 201907561 AND FIRST AMENDMENT THERETO RECORDED JULY 7,
2021 UNDER RECEPTION NO. 202115650 AND SECOND AMENDMENT THERETO
RECORDED SEPTEMBER 2, 2022 UNDER RECEPTION NO. 202214557.
TERMS, CONDITIONS, PROVISIONS, BURDENS AND OBLIGATIONS AS SET FORTH
IN DECLARATION OF REAL ESTATE TRANSFER COVENANT RECORDED MAY 24,
2019 UNDER RECEPTION NO. 201907562.
TERMS, CONDITIONS AND PROVISIONS OF TRENCH, CONDUIT, AND VAULT
AGREEMENT RECORDED JULY 10, 2019 UNDER RECEPTION NO. 201910829.
TERMS, CONDITIONS AND PROVISIONS OF TOWN OF EAGLE, COLORADO
RESOLUTION NO. 13 RECORDED APRIL 18, 2022 UNDER RECEPTION NO. 202207205.
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TERMS, CONDITIONS AND PROVISIONS OF TOWN OF EAGLE, COLORADO
RESOLUTION NO 43 RECORDED JULY 29, 2022 UNDER RECEPTION NO. 202212780.
TERMS, CONDITIONS AND PROVISIONS OF TOWN OF EAGLE, COLORADO
RESOLUTION NO. 53 RECORDED JULY 29, 2022 UNDER RECEPTION NO. 202212781.
TERMS, CONDITIONS AND PROVISIONS OF TRENCH, CONDUIT, AND VAULT
AGREEMENT RECORDED NOVEMBER 01, 2022 UNDER RECEPTION NO. 202217201.
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