HomeMy WebLinkAboutRestated Declaration of Covenants Briar Patch REVISED FINAL DRAFT revised 7-12-2011SECOND AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR THE RESIDENCES AT BRIAR PATCH
THIS SECOND AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS,
RESTRICTIONS AND EASEMENTS FOR THE RESIDENCES AT BRIAR PATCH (“Second Restated Declaration” or “Declaration”) shall be effective upon recordation and is made as of May 1, 2009, by Briar
Patch Condominium Association, a Colorado nonprofit corporation (the “Association”).
RECITALS
The “Residences at Briar Patch” (“Briar Patch”) community exists pursuant to “The Restated
Declaration of Protective Covenants for The Residences at Briar Patch” dated September 16, 1994, and recorded October 6, 1994, at Book 651, Page 821, under Reception No. 547859 in
Eagle County, Colorado (the "Existing Declaration"). [The Existing Declaration amended and restated the initial declaration being the Condominium Declaration for Briar Patch Condominiums
recorded October 5, 1981, in Book 329 at Page 858 at Reception No: 226218, as amended by the First Amended Condominium Declaration for Briar Patch Condominiums, recorded January 14,
1986, in Book 434 at Page 335, Reception No: 330590, and further amended by the Second Amended Condominium Declaration For Briar Patch Condominiums, recorded January 8, 1988, in Book
476 at Page 836, at Reception No: 373049 (collectively, the “Original Declaration”), after the community was replatted to be a planned community, as opposed to a condominium community.]
The Existing Declaration was supplemented by the plat for The Residences at Briar Patch, recorded October 6, 1994, at Reception No.: 547858 (the “Prior Plat”), which has since been revised,
with the most recent and currently effective plat being the “Amended Plat - Fourth Amendment to the Residences at Briar Patch,” recorded July 26, 2005, at Reception No.: 923884, amending
the map designated as the Amended Plat - Third Amendment to the Residences at Briar Patch, recorded July 5, 2000, at Reception No.: 733834 (collectively, the “Plat”).
The purpose of
the Existing Declaration was to provide for the community to be developed and to exist as a planned community, and not as a condominium project, notwithstanding various erroneous provisions
and references within the Existing Declaration that continued to describe properties within Briar Patch as condominium units.
It was and continues to be the intention of the Association
and Owners (as defined in the Existing Declaration) that Briar Patch not be subject to the Colorado Common Interest Ownership Act, Colorado Revised Statutes 38-33.3-101, et. seq. (the
“Act”), notwithstanding references in the Existing Declaration to the contrary.
The purpose of this Second Restated Declaration is to entirely amend and restate the Existing Declaration
with this Declaration replacing and superseding the Existing Declaration in its entirety to correct deficiencies and errors referring to the Residential Units within Briar Patch as condominiums,
to provide for all easements, rights and provisions appropriate to the development, operation and maintenance of Briar Patch as a planned community of single family parcels and townhome
units, to establish terms upon which legal,
single family lots will be created for the Owners of the single family parcels, and to allow for the terms and conditions upon which the single family parcel Owners may withdraw from
the Association following the creation of legal single family lots.
This Declaration, together with the Plat, govern with respect to all matters pertaining to Briar Patch, the Association
and all within property and constituting Briar Patch, which Property is depicted and described in the Plat. The legal description of the Property is as contained in the Plat, a copy
of which is attached hereto as Exhibit A, and is incorporated into the Agreement by this reference. Capitalized terms shall have the meaning set forth in Article II below. Upon the
recording of the Replat contemplated by this Declaration, the Replat shall govern solely with respect to all plat matters for Briar Patch.
It is the intention of the Owners and the Association
that Briar Patch, which pre-dated the Act, not be subject to the Act, except as set forth herein or as required by the Act. Section 33.3-117(1.5)(d) of the Act provides that certain
sections of the Act and events or circumstances related thereto occurring after January 1, 2006, be governed by the Act, notwithstanding that a common ownership interest community may
predate the Act. Accordingly, any amendment to the Existing Declaration for Briar Patch proposed after January 1, 2006 shall be governed by the Act. Pursuant to Section 33.3-217(1)(a)(I)
of the Act, the Existing Declaration may only be amended by affirmative vote of 67% of the votes allocated to Owners in Briar Patch. There are a total or eight (8) Owners being members
of the Association, requiring an affirmative vote of not less than (6) Owners to amend the Existing Declaration.
Article XVII, Section 2 of the Existing Declaration further requires
that an amendment be approved by not less than of 51% of “Eligible Mortgage Holders” of first deeds of trusts or mortgages (the “First Mortgage Holders”). As of May 1, 2009, there were
six (6) First Mortgage Holders of record, requiring the approval of not less than four (4) First Mortgage Holders to amend the Existing Declaration.
The Owner and Lender consents
attached hereto as Exhibit C1 and Exhibit C2, respectively, and the certificate of the president of the Association attached hereto as Exhibit C3 confirm that (i) the affirmative vote
of the requisite percentage of Owners entitled to vote has been obtained (a) to amend the Existing Declaration by this Second Restated Declaration and (b) to amend the Plat by the Replat,
and (ii) the consent of the requisite percentage of First Mortgage Holders having the right of approval has been obtained (a) to amend the Existing Declaration by this Second Restated
Declaration and (b) to amend the Plat by the Replat
DECLARATION
The Association, on behalf of the Owners, does hereby declare that this Declaration restates and replaces the Existing
Declaration and all other declarations and covenants of record.
Status of Development and Use. Briar Patch is comprised of eight Parcels, (consisting of three Townhome Units and five
Single-Family Parcels) and one Common Parcel (designated as “Parcel F” on the Plat). All development rights pertaining to the Townhome Units
and Single-Family Parcels are hereby reserved to the respective Owners, including without limitation with respect to Parcel C, which is not yet developed, and which rights are reserved
solely to the Owner of Parcel C No additional Residential Units may be established on the Property by subdivision of existing Townhome Units, or Single-Family Parcels or further subdivision
of the Common Parcel without the consent of all Owners. Notwithstanding the foregoing, all Owners by consent to this Declaration, hereby approve the creation of Single-Family Parcels,
as defined in Article II and discuss in greater detail in Article 7 and elsewhere in this Declaration.
Property Subject to Declaration. The Association hereby declares that all Parcels
within the Property be held, sold, and conveyed subject to the covenants, restrictions and easements in this Declaration, as supplemented by the Plat, which are for the purpose of developing
and protecting the value and desirability of the Property.
Section 1.3 Covenants Running With the Land. All provisions of this Declaration and the Plat shall be deemed 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 all Owners, and their respective heirs, executors, administrators, personal representatives, successors, and assigns.
DEFINITIONS
Unless otherwise expressly provided herein, the
following words and phrases when used in this Declaration shall have the meaning hereinafter specified:
“Access Easement” has the meaning set forth in Section 7.5,
“Access Improvements”
means all driveways, retaining walls, sidewalks, curbs and other improvements related to access to any Residence within an Access Easement, as further discussed in Section 7.5.
“Act”
means the Colorado Common Interest Ownership Act, codified as C.R.S. § 38-33.3-101 et seq.
“Articles of Incorporation” means the corporate articles for the Association on file with the
Secretary of State, as amended from time to time.
“Association” means Briar Patch Association, a Colorado nonprofit corporation (previously known as Briar Patch Condominium Association).
“Board” means the board of directors of the Association.
“Briar Patch” or “The Residences of Briar Patch” means the “planned community” (as defined in the Act) described in this Declaration
and the Plat.
“Bylaws” means the duly adopted Bylaws of the Association, as the same may from time to time be amended.
“Common Parcel” means “Parcel F” as depicted on the Plat and the Association's
interest in any other real property or improvements for the common use and enjoyment of all of the Owners on a non-exclusive basis that (a) are owned by the Association, (b) 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) the Association
is required to operate, manage, maintain or repair, together with any improvements located thereon. Such interest may include, without limitation, estates in fee, for terms of years,
or easements. Parcel F was dedicated to the Association by the “Declarant” under the Existing Declaration and Prior Plat, the transfer and conveyance of which is further evidenced by
the “Parcel F Conveyance Deed” attached hereto as Exhibit B.
“Common Expenses” means all annual, special and default assessments levied with respect to expenses common to all Parcel
Owners in accordance with the Declaration and the Act.
“Common Townhome Expenses” means all annual, special and default assessments levied solely with respect to the Tri-Plex Building
or all Townhome Units in accordance with the Declaration and the Act, such as with respect to the maintenance, repair, upgrade and replacement of any portion of the roof, heat tape,
exterior lighting and utility closets for the Tri-Plex Building, and all other expenses associated solely with the Tri-Plex Building as the Association may undertake for the benefit
of all Townhome Unit Owners, as further set forth in accordance with Section 11.5, insurance for the Tri-Plex Building and such other expenses as the Board may deem appropriate.
“Declaration”
means this Second Restated Declaration and all amendments or supplements thereto hereafter recorded in the public records of Eagle County, Colorado.
“Eligible Mortgage Holder” means
First Mortgage Holders.
“First Mortgage Holders” means a mortgagee under a first mortgage or the beneficiary under a first deed of trust encumbering a Parcel (excluding Parcel F), as
discussed further in Section 18.1.
“Limited Common Elements” means any part of the Common Parcel conveyed or assigned by the Association to any Owner or any portion of the Property
designated as a “limited common element” or “L.C.E.” by the Declaration or the Plat and reserved for the exclusive use and enjoyment of one or more, but less than all Parcel Owners.
“Owner” means the owner of record, whether one or more persons or entities, of fee simple title to any Parcel (excluding Parcel F). “Owner” also includes the purchaser under a contract
for deed covering a Parcel (excluding Parcel F) with a current right of possession and interest in such Parcel, but excludes those having an interest in a Parcel merely as security for
the performance of an obligation, including a mortgagee or beneficiary, unless and
until such person or entity acquires fee simple title to such Parcel pursuant to foreclosure or other proceedings.
“Parcel” means each of Parcels A, B, C, D, and E as designated on
the Plat, and Units 1, 2 and 3, as designated on the Plat. Any reference in this Declaration to a Parcel excludes Parcel F, unless otherwise expressly stated. (Parcel F is referred
to as the Common Parcel, as set forth further in Section 2.18.) The Parcels designated as “Units” 1, 2 and 3 on the Plat are referred to as Parcels 1, 2 and 3 in this Declaration.
“Parcel
F” means the Common Parcel, title to which is held by the Association, subject to the terms of the Declaration, and “Parcel F Conveyance Deed” means the deed from the “Declarant” under
the Existing Declaration to the Association confirming the transfer and dedication of Parcel F to the Association in accordance with the provisions of the Existing Declaration and Prior
Plat.
“Parcel G” means the legal lot consisting primarily of a “rockfall hazard area” to be created by the Replat and conveyed thereafter by the Association to the Town of Vail in accordance
with the terms of a separate agreement. By this Declaration, the Owners confirm their approval for the Association’s conveyance of Parcel G to the Town of Vail, together with the undertaking
of all acts necessary to effect and consummate such conveyance.
“Parcel Improvements” means the Residence and all improvements of every nature, including landscape, hardscape, softscape,
decks, vegetation, pathways, driveways, trees, retaining walls, fencing, lighting, hot tubs, sprinklers and any similar type improvements installed by any Owner (or developer) and intended
to serve any single Parcel.
“Parcel Easement Area” means the area immediately adjacent to each Single-Family Parcel, within which Parcel Improvements serving the Residence are constructed,
as generally described in Section 7.6 below, and as further particularly depicted in the maps attached to Exhibit E, as to the Parcels described therein. The Parcel Easement Area appurtenant
to each Single-Family Parcel shall be a Limited Common Element reserved exclusively for the use of the respective Parcel Owner.
“Parcel Owner” means the Owner of any Parcel.
“Party
Wall” means any common wall adjoining two (2) Townhome Units and shall be deemed to include the footings underlying, the portion of the roof over and the utility lines within a common
wall as further discussed in Article XII.
“Plat” has the meaning set forth in Recital A.
“Property” means that certain real property situated in the Town of Vail, County of Eagle, State
of Colorado, and more particularly described in Exhibit A, attached hereto and incorporated herein, commonly known as “The Residences at Briar Patch.”
“Replat” means the replat of the
current Plat discussed in greater detail in Section 7.___, to be processed and approved by the Town of Vail and Eagle County to create legal, Single-Family Parcels for the Owners of
Single-Family Parcels. Upon recording of the
Replat, fee title in the respective Single-Family Parcel and Parcel Easement Area benefitting such Parcel shall merge into the respective Single-Family Parcel and the Replat shall become
the Plat for the Briar Patch community. Upon recording of the Replat, the location of Parcel C shall for all purposes be deemed relocated and shall be as depicted in Exhibit _, and
legally described in Exhibit __ (the “Revised Parcel C Envelope”). Notwithstanding the creation of a Single-Family Parcel for Parcel C, the area within which any Residence for Parcel
C shall be constructed shall be within the Revised Parcel C Envelope, as discussed further in Section 7.__.
“Residence” means the residential structure constructed on a Single-Family
Parcel and each Townhome.
“Residential Unit” means each Townhome Unit and Single-Family Unit.
“Roadway” means the access road shown as the “Private Drive” on the Plat, connecting (or
to be connected) from Buffehr Creek Road to the Townhome Units and to Parcels B and C as further discussed in Section 7.5. Although part of the Common Parcel owned by the Association,
the Roadway shall be deemed a Limited Common Element appurtenant to Parcels 1, 2, 3, B and C and shall be managed and maintained in accordance with the provisions of Section 7.5, and
elsewhere in this Declaration..
“Sharing Ratio” means an equal allocation among all Residential Units subject to this Declaration from time to time, which in terms of a percentage
means each Parcel bearing 12.5% of the Common Expenses.
“Single-Family Parcel” means Parcels A, B, C, D and E as depicted on the Plat and the legal lots to be created as Parcel A through
E as contemplated and depicted on the Replat map attached as Exhibit __. From and after the recording of the Replat, the area depicted on the Replat as the “Parcel” for each Single-Family
Unit shall be the respective Parcel Owner’s legal “lot” and the portion of the Common Parcel encompassed within each Parcel created by the Replat, shall be deeded by the Association
to the respective Parcel Owner (collectively, the “Association Deeds”) and the entire of each Parcel shall, from and after the recording of the Replat and the Association Deeds, be owned
by each respective Owner of an existing Parcel in fee forever into the future. The Single-Family Parcels are discussed in greater detail in Section 7.__.
“Single-Family Unit” means
each Single-Family Parcel, together with the Residence constructed thereon, all Parcel Improvements, the Parcel Easement Area, and all easements and rights-of-way appurtenant to such
Parcel. After recordation of the Replat map, all interests in the Single-Family Units shall merge into the Single-Family Parcels created by the Replat.
“Townhome” means each attached
residence situated on Townhome Parcel.
“Townhome Parcel” means each of the areas designated as “Unit” 1, 2, and 3 on the Plat. Each Townhome Unit, together with improvements, is owned
in fee by the respective Townhome Parcel Owner.
“Townhome Unit” means a Townhome Parcel, together with the attached Townhome constructed thereon up to the center of any Party Wall, all Parcel Improvements serving solely the Townhome
Unit constructed on the Townhome Parcel and all easements and rights-of-way appurtenant thereto.
“Townhome Units Sharing Ratio” means an allocation of Common Townhome Expenses among
the Townhome Units based on the square footage of each Townhome as a percentage of the three Townhomes comprising entire Tri-Plex Building, as reflected in Exhibit D.
“Triplex Unit”
as noted on the Plat or in the Declaration means a Townhome Unit.
“Triplex Building” means the entire building comprising the three Townhomes situated on Parcels 1, 2 and 3.
“Withdrawal”
means the permitted withdrawal of any Owner of a Single-Family Parcel from the Association following recordation of the Replat creating Single-Family Parcels by any such Parcel Owner
exercising the right to withdraw as authorized by this Declaration in accordance with the terms and conditions discussed in greater detail in Section 7.__.
NAMES: DESCRIPTION OF
REAL ESTATE
Names.
The name of the Planned Community is “The Residences at Briar Patch.”
The name of the Association is the Briar Patch Association, a Colorado nonprofit association.
Real Property. The Property constituting the Planned Community is located in the Town of Vail, Colorado, and is legally described in Exhibit A.
Planned Community Plat. The Plat of
Briar Patch is as defined in “Recital A.” Upon recording of the Replat attached as Exhibit __, all references in this Declaration to the “Plat” shall thereinafter mean and refer to
the Replat.
Easements of Record. All easements of record affecting the Property shall mean those easements shown on the Plat and all easements granted herein or on the Replat, after
recording, including without limitation each Access Easement, the Roadway Easement, the Driveway Easement and each Parcel Easement Area.
Maximum Number of Units. In no event shall
the number of Residential Units in Briar Patch exceed eight (8) without unanimous consent of all Owners. A caretaker residence shall be deemed a part of a Residential Unit.
THE ASSOCIATION
Authority. The business affairs of Briar Patch shall be managed by the Association. The Association shall be governed by this Declaration, the Articles of Incorporation
and the Bylaws, as amended from time to time. The Association shall be managed by the Board, which shall have three (3) directors, at least one of whom shall be a Townhome Unit Owner
(the “Townhome Director”) and one of whom shall be a Single-Family Unit Owner (the “Single-Family Director”). With respect to all matters affecting solely the Townhome Units, a majority
vote by the Board must include the vote of the Townhome Director and with respect to all matters affecting solely the Single-Family Units, a majority vote by the Board must include the
vote of the Single-Family Director.
Voting.
Every Owner of a Parcel (excluding the Common Parcel) shall be a member in the Association. Each Parcel shall be allocated one vote.
In
addition to the foregoing, the Owners of the Townhome Parcels shall also comprise a separate class of voters and shall have the sole power to vote on issues solely affecting the Townhomes
Units, Triplex Building or the Common Townhome Expenses. Each Townhome Parcel shall be allocated one vote to this special class. Common Townhome Expenses shall be set forth in a separate
budget and or line item and shall be approved by the Townhome Director prior to submission to the Townhome Parcel Owners for approval.
Powers.
The Association shall have all of the
powers, authority and duties generally applicable to nonprofit companies in Colorado and as permitted pursuant to the Act, necessary and proper to manage the business and affairs of
Briar Patch.
To the extent required by the Act, any provision in this Declaration that is in conflict with the Act shall be deemed amended and revised to the extent required to eliminate
the conflict in favor of the Act. Otherwise, the terms of the Declaration shall govern in the event of a conflict between the Declaration and the Act. In the event of a conflict between
the Articles of Incorporation, the Bylaws and the Declaration, the provisions of Section 19.7 shall govern.
RESTRICTIONS ON USE AND OCCUPANCY
Prohibition Against Time-Shares. No Residential
Unit may be conveyed pursuant to a time-share arrangement described in Section 38-33-110 to 22, Colorado Revised Statutes.
Subdivision. No Residential Unit or part of a Residential Unit
shall be subdivided without the prior written consent of the Board and all Owners, provided that the
boundaries of an existing Parcel may be adjusted by a vote of Owners required to amend the Plat pursuant to the Act. No boundary of any Townhome Parcel may be adjusted or altered without
unanimous consent of the Owners of Townhome Parcels and a majority of the Owners of the Parcels. To the extent the Plat is amended by the Replat to extend any Single-Family Parcel boundaries
to include all or a portion of the Parcel Easement Area serving any Parcel the portion of the Parcel Easement Area over which the Parcel boundary is extended shall become part of the
Parcel served by such easement and shall be owned in fee by the Parcel Owner as a Single-Family Parcel, without further approval of the Association or any Owner, other than the Owner
of the respective Singe-Family Parcel.
Use and Occupancy. The Residential Units shall be used and occupied solely for dwelling purposes. The following use restrictions apply to all Residential
Units and to the Common Parcel:
Signs. No sign, billboard, or advertisement of any kind, including without limitation, those of realtors, contractors, and subcontractors, shall be erected
within the Property without the written consent of the Association, except as may be required by legal proceedings or by the Act. If permission is granted to any Owner to erect a sign
within the Property, the Association reserves the right to restrict the size, color, lettering, and location of such sign. Under no circumstances shall signs, banners, or similar items
advertising or providing directional information for activities being conducted outside the Property be permitted within the Property. No sign shall be nailed or otherwise attached to
trees.
Parking and Vehicular Restrictions. The Association may establish traffic and parking regulations that will preclude unreasonable construction traffic. No recreational vehicle
storage, trailer storage, boat storage, storage of vehicles not used on a regular basis or not currently licensed and parking of commercial vehicles (except during construction) shall
be permitted on the Property.
Occupants Bound. All provisions of the Declaration, the Bylaws and of any rules and regulations or use restrictions promulgated pursuant thereto that govern
the conduct of Owners (including any that provide for sanctions against Owners, if any) shall also apply to all occupants, guests, and invitees of any Residential Unit. Owners shall
cause all occupants of the Owner’s Residential Unit to comply with the Declaration, Bylaws, and the rules and regulations adopted pursuant thereto, and each Owner shall be responsible
for all violations and losses to the Property caused by the Owner’s occupants, notwithstanding that the Association may also promulgate rules requiring that the occupants of a Residential
Unit be liable and sanctioned for any violation of the Declarations, Bylaws, and rules and regulations adopted pursuant thereto.
Animals and Pets. No animals, wildlife, livestock, reptiles,
or poultry of any kind shall be raised, bred, or kept on any portion of the Property, except that dogs, cats, and other usual and common household pets not to exceed a total of four
(4) per Residential Unit may be permitted. All pets shall be leashed when on the Common Parcel. Those pets which, in the sole discretion of the Association, endanger health, make objectionable
noise, or constitute a nuisance or inconvenience to the Owners of other Residential Units shall be removed upon the request of the Board. No pets shall be kept, bred, or maintained for
any commercial purpose.
Household pets shall at all times whenever they are outside a Residential Unit be confined on a leash held by a responsible person. Pets shall only be permitted on the Common Parcel
if such portions thereof are so designated by the Association. All persons bringing a pet onto the Common Parcels shall be responsible for immediately removing any solid waste of said
pet. For purposes of this Section, Common Parcels excludes the Residential Easement.
Nuisances. No portion of the Property shall be used, in whole or in part, for the storage of any
property or thing that will cause it to appear to be in an unclean or untidy condition or that will be obnoxious to the eye; nor shall any substance, thing, or material be kept on any
portion of the Property that will emit foul or obnoxious odors or that will cause any noise or other condition that will or might disturb the peace, quiet, safety, comfort, or serenity
of the occupants of any Residential Unit or other surrounding property. No noise, illegal or offensive activity shall be carried on upon any portion of the Property, nor shall anything
be done on the Property tending to cause embarrassment, discomfort, annoyance, or nuisance to any person using any portion of the Property. There shall not be maintained any plants or
animals or device or thing of any sort whose activities or existence in any way is noxious, dangerous, unsightly, unpleasant, or of a nature that may diminish or destroy the enjoyment
of the Property. No outside burning of wood, leaves, trash, garbage, or household refuse shall be permitted within the Property.
Trash. No rubbish, trash, garbage, or other waste material
shall be kept or permitted on the Property except in containers located in appropriate areas, if any, and no odor shall be permitted to arise from the containers so as to render the
Property or any portion thereof unsanitary, unsightly, offensive, or detrimental to any other property in the vicinity thereof or its occupants. No clothing or household fabrics shall
be hung, dried, or aired in an manner that is visible from any roadway, and no lumber, grass, shrub, or tree clippings, or trash shall be kept, stored, or allowed to accumulate on any
portion of the Property, except within an enclosed structure appropriately screened from view erected for that purpose, if any.
Unsightly or Unkempt Conditions. It shall be the responsibility
if each Owner to prevent the development of any unclean, unhealthy, unsightly, or unkempt condition on his or her Residential Unit. The pursuit of hobbies or other activities, including
specifically, without limiting the generality of the foregoing, the assembly and disassembly of mechanical devices, that might tend to cause disorderly, unsightly, or unkempt conditions,
shall not be undertaken on any part of the Property.
Outside Installations. No exterior antennas, aerials, satellite dishes, or other apparatus for the reception or transmission of television,
radio, or other signals of any kind shall be placed, allowed, or maintained upon any portion of the Property, including any Residential Unit, except to the extent required by law.
Firearms.
The discharge of firearms within the Property is prohibited. Notwithstanding anything to the contrary contained herein or in the Bylaws, the Association shall not be obligated to take
action to enforce this subsection.
Tents, Trailers and Temporary Structures. Except as may be permitted by the Association during initial construction of the Residential Units, no tent,
utility shed, shack,
trailer, outbuilding, basement, or other structure of temporary nature shall be placed on any Residential Unit or Parcel or any portion of the Property.
Insurance Rates. Nothing shall
be done or kept on the Property, including within the Common Parcel or within any Residential Unit, that will increase the rate of insurance of any other Residential Unit, the Triplex
Building or any portion of the Property or which would result in the cancellation of insurance on any Residential Unit, the Triplex Building or portion of the Property or which would
be in violation of any law.
Air Conditioning Units. No window air conditioning units may be installed in a Residential Unit, except as approved by the Board.
Lighting. Except for seasonal
decorative lights, which may be displayed between December 1 and January 30 only, all exterior lights must be approved by the Board in accordance with Article 16 of this Declaration.
Energy
Conservation Equipment. No solar energy collection panels or attendant hardware or other energy conservation equipment shall be constructed or installed on any Residential Unit unless
it is an integral and harmonious part of the architectural design of a structure, as determined in the reasonable discretion of the Board pursuant to Article 16 hereof or as may be required
by law.
Fences. No dog runs, animal pens, or fences of any kind shall be permitted on any Residential Unit, except as approved by the Town of Vail and the Board.
Business Use. No trade
or business may be conducted in or from any Residential Unit, except that an Owner or occupant residing in a Residential Unit may conduct business activities within the Residential Unit
so long as: (i) the existence or operation of the business activity is not apparent or detectable by sight, sound, or smell from outside the Residential Unit; (ii) the business activity
conforms to all zoning requirements for the Property; (iii) the business activity does not involve persons coming onto the Property who do not reside in the Property or door-to-door
solicitation of residents of the Residential Units; and (iv) the business activity is consistent with the residential character of the Property and does not constitute a nuisance, or
a hazardous or offensive use, or threaten the security or safety of other residents of the Property, as may be determined in the sole discretion of the Board. No garage sales shall be
permitted. The terms “business” and “trade” as used in this provision, shall be construed to have their ordinary, generally accepted meanings, and shall include, without limitation,
any occupation, work, or activity undertaken on an ongoing basis which involves the provision of goods or services to persons other than the provider’s family and for which the provider
receives a fee, compensation, or other form of consideration, regardless of whether: (A) such activity is engaged in full or part-time; (B) such activity is intended to or does generate
a profit; or (C) a license is required therefor. Notwithstanding the above, the leasing of a Residential Unit shall not be considered a trade or business within the meaning of this subsection.
On-Sit
e Fuel Storage. On-site storage of gasoline or other fuels is prohibited on any part of the Property or Residential Units, with the exception of up to five (5)
gallons of fuel stored within each Residential Unit for emergency purposes and the Association will be permitted to store fuel for operation of maintenance vehicles, generators, and
similar equipment. Notwithstanding this provision, fuel tanks for gas grills and underground fuel tanks for storage of heating fuel for dwellings may be permitted if approved by the
Board.
Play Equipment, Strollers. All bicycles, tricycles, scooters, skateboards, and other play equipment, baby strollers, and similar items shall be stored so as not to be visible
from streets, property or Residential Units adjacent to the Residential Unit. No such items shall be allowed to remain on the Common Parcel or in Residential Units so as to be visible
from adjacent Residential Units or properties when not in use.
Leasing of Residential Units.
Definition. “Leasing” for purposes of this Declaration, is defined as regular, exclusive
occupancy of a Residential Unit by any person or persons other than the Owner for which the Owner receives any consideration or benefit, including, but not limited to a fee, service,
gratuity, or emolument.
General Leasing Provisions. Residential Units may be rented only in their entirety; no fraction or portion may be rented. There shall be no subleasing of Residential
Units or assignment of leases unless prior written approval is obtained from the Board. No transient tenants may be accommodated in a Residential Unit. All leases shall be in writing
except with the prior written consent of the Board. No Residential Unit may be subject to more than one (1) lease in any twelve (12) month period, regardless of the lease term. The Owner
must make available to the lessee copies of the Declaration, Bylaws, and any rules and regulations adopted pursuant thereto by the Association or the Board.
Compliance with Declarations
Bylaws, and Rules and Regulations. Every Owner shall cause all occupants of his or her Residential Unit to comply with the Declaration, Bylaws, and any rules and regulations adopted
pursuant thereto, and shall be responsible for all violations and losses to the Common Parcel caused by such occupants, notwithstanding that the occupants of a Residential Unit may also
be fully liable for any violation of the Declaration, Bylaws, and rules and regulations adopted pursuant thereto. All leases of Residential Units shall be automatically deemed to include
a covenant on the part of the tenant to comply with, and be fully bound by, the provisions of this Declaration and the rules and regulations of the Association. This subsection shall
also apply to subleases of Residential Units and assignments of leases.
RESIDENTIAL UNITS
Residential Units Inseparable. Each Residential Unit shall be inseparable and may be conveyed,
leased, devised or encumbered only as a Residential Unit. Title to a Residential Unit may be held individually or in any form of concurrent ownership recognized in Colorado. In case
of any such concurrent ownership, each co-owner shall be jointly and severally
liable for performance and observance of all the duties and responsibilities of any “Owner” with respect to the Residential Unit in which he owns an interest.
Access to Residential Units.
The Owners of each Residential Unit shall have an unrestricted perpetual right of ingress and egress to the Owner’s Residential Unit over the Access Easement pertaining to the Owner’s
Residential Unit, as further described in Section 7.5.
Identification of Residential Units. Any contract for sale, deed, lease, deed of trust, mortgage, will or other instrument affecting
a Residential Unit shall describe the Residential Unit by its Unit number (as to Units 1, 2 or 3) or by the Parcel letter (as to Parcels A, B, C, D, or E), and shall describe the property
as follows:
[PARCEL ___OR UNIT ___] OF THE RESIDENCES AT BRIAR PATCH, ACCORDING TO THE FOURTH AMENDMENT TO THE RESIDENCES AT BRIAR PATCH PLAT, RECORDED JULY 26, 2005, AT RECEPTION NO.
923884, AND AS DEFINED AND DESCRIBED IN THE RESTATED DECLARATION OF PROTECTIVE COVENANTS FOR THE RESIDENCES AT BRIAR PATCH DATED SEPTEMBER 16, 1994, RECORDED OCTOBER 6, 1994, AT BOOK
651, PAGE 821, UNDER RECEPTION NO. 547859, AS AMENDED AND RESTATED BY THE SECOND AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS DATED AS OF JULY __, 2011,
AND RECORDED _________, 20__ IN BOOK ____ AT PAGE ______, COUNTY OF EAGLE, STATE OF COLORADO.
[AFTER RECORDING OF THE REPLAT, REFERENCE TO THE “FOURTH AMENDMENT TO THE RESIDENCES AR
BRIAR PATCH PLAT” SHALL BE REPLACED BY REFERENCE TO THE “FIFTH AMENDMENT TO THE RESIDENCES AR BRIAR PATCH PLAT” RECORDED _____, 2011, AT RECEPTION NO. _________.]
Separate Assessment
and Taxation. Each Residential Unit will be separately assessed and taxed in accordance with Section 38-33.3-105(2), with the valuation of the Common Parcel assessed to the Association.
Restrictions
on Common Parcels. No recreational facility shall be situated upon any part of the Common Parcel without Board approval, which may be withheld in the Board’s sole discretion, and which,
if granted, shall be subject to such rules and terms as determined by the Board.
COMMON AREAS; COMMON TOWNHOME ELEMENTS; ENCROACHMENTS
Common Parcel Ownership. The Common Parcel shall be owned by the Association. No Owner shall assert any right of partition with
respect to the Common Parcel.
Use of Common Parcel. Each Owner shall be entitled to use the Common Parcel in accordance with the purpose for which it is intended, without hindering,
impeding or imposing upon the rights of the other Owners and in accordance with the rules and regulations duly established from time to time by the Association.
Townhome Encroachments.
If any portion of any Townhome Unit now encroaches upon any other Townhome Unit as a result of the construction of the Tri-Plex Building, or if any such encroachment shall occur hereafter
as a result of settling or shifting of the Tri-Plex Building or of any Townhome Unit, a valid easement shall exist for the encroachment and maintenance of same and for reconstruction
in a substantially similar manner if all or any portion of a Townhome Unit shall be destroyed as a result of fire, casualty, condemnation or eminent domain proceedings.
Addition of Decks
and Patios on Residential Units. The Owners of the Single-Family Units and the Owners of the Townhome Units may add an attached deck within their respective Parcels, as to the Townhomes
Parcels, and within the Parcel or Parcel Easement Area, as to the Single-Family Parcels, subject to restrictions set forth on the Plat and approval by the Board and the Town of Vail
as to all Parcels.
Access Easements. The Owner of every Residential Unit shall have an unrestricted perpetual easement for ingress and egress over and across Parcel F to a public right-of
way, in the manner described below (as to each Residential Unit, an “Access Easement”), and a perpetual easement over Parcel F to the Access Easement benefitting the subject Parcel to
install and maintain driveways, retaining walls and related improvements (the “Access Improvements”) providing for such access.
Location of Access Easements.
Parcels 1, 2 and 3. For
Parcels 1, 2, and 3, such Access Easement shall be over and across the Roadway.
Parcels B and C. For Parcels B and C, such Access Easement shall be over and across the Roadway and
shall further extend therefrom and include the existing driveway improvements serving Parcel B (as approved by the Town of Vail) and any future driveway improvements serving Parcel C
(as approved by the Town of Vail) to the boundary of the Owner’s respective Parcel.
Parcel A. For Parcel A, such Access Easement shall be over and across the existing driveway improvements
serving Parcel A (as approved by the Town of Vail) connecting the Residence to Buffehr Creek Road, or over and across such area required to
provide alternative access, as may be approved by the Town of Vail in the future, if the Town of Vail (or other authority having jurisdiction over the access point) shall require a relocation
of existing Access Improvements within the right-of-way (the “Driveway Access”). The terms of the “Agreement Permitting Encroachment” shall govern with respect to the access and the
design of the Driveway Access serving Parcel A shall be as approved by the Town of Vail, with no further approval by the Association or Owners. The Owner of Parcel A agrees to screen
any alternative access across Parcel F with vegetation similar to that originally approved by the Town of Vail and existing today, consisting of aspen trees and similar vegetation
Parcels D and E. For Parcels D and E such Access Easement shall be over and across the existing driveway improvements depicted on the Replat as the “Parcels D/E Access Drive” and any
future driveway improvements (as may be approved by the Town of Vail) serving Parcels D and E and connecting to Sandstone Drive. Neither the Owner of Parcel D nor Parcel E shall make
any modification of the Parcels D/E Access Drive without the approval of the other Owner. The Parcels D/E Access Drive shall be appurtenant to Parcel D and Parcel E, which rights
and interests in such access drive shall run with the land and future conveyance of the respective Parcels, being a burden on Parcel D for the benefit of Parcel E.
Maintenance and
Repair of Access Easements.
Individual Parcel Access. Except as otherwise expressly provided in this Declaration, to the extent an Access Easement (or any portion thereof) serves an
individual Parcel (such as with respect to Parcels A, D and E) each Owner is responsible at the Owner’s cost for maintaining, repairing, replacing and insuring all Access Improvements
within such Owner’s Access Easement. Each Owner is further responsible for all costs of restoring utilities and other services and improvements within an easement situated within such
Owner’s Access Easement, including repair of underground utilities, if disturbed by such Owner. In the event that the responsible Owner fails to maintain or repair the Owner’s Access
Improvements, following written notice and an opportunity to cure, the Association shall have the right but not the obligation to make such needed repairs, and the cost thereof shall
be reimbursed by an assessment against such responsible Owner and shall be a lien against the Owner’s Parcel until paid, which assessment and lien may be collected and enforced in all
manners permitted by law.
Parcels D/E Access Drive. All costs of maintenance, repair, upgrade and insurance with respect to the Parcels D/E Access Drive shall be shared equally between
the Owners of Parcel D and E, unless otherwise agreed to by such Owners. The Board shall have the authority to collect from either Owner any unpaid costs of the shared obligations upon
the request of the Owner of Parcel D or Parcel E. In no event may either Owner limit, obstruct or otherwise impair the access of the other Owner over the shared portion of the driveway.
The main drainage facilities serving Briar Patch run within an easement under the Parcel D/E Access Drive. If the Owner of either Parcel shall cause an obstruction or other impairment
to the system, the Owner causing such obstruction or impairment shall be responsible for the cost of repairing the driveway facilities disturbed by the repair work. If the drainage
facilities shall require maintenance, repair or improvement for any other reason (other than the negligence of an Owner), the Association shall be responsible for such maintenance, repair
or improvement and for restoration of the driveway and all other disrupted improvements as a common expense of the Association to be borne by all Owners. From and after recording of
the Replat, the Owners of Parcels D and E shall each have the lien and enforcement rights to collect sums due as between the Owners of Parcels D and E with respect to the Parcels D/E
Access Drive. From and after the Replat, the Association and the Owners of Parcel D and Parcel E shall continue to share in the cost of maintaining the drainage easement running between
Parcel D and Parcel E, and benefitting the Briar Patch subdivision with respect to work or repairs required within the drainage easement within the boundaries of Parcels D and E. Work
and repairs to the drainage easement outside Parcels D and E shall be at the expense of the Association Owners.
Roadway Access. The cost for maintaining the Access Improvements for
the Roadway (including without limitation the asphlat, curbs, gutters, retaining walls and related improvements) shall be borne equally among Parcels 1, 2, 3 and B as a Limited Common
Element appurtenant to those Parcels. At such time as a building permit is issued for Parcel C and construction is commenced, the cost for maintaining the Access Improvements for the
Roadway shall be borne equally among Parcels 1, 2, 3, B and C as a Limited Common Element appurtenant to those Parcels. The shared expenses with respect to the Roadway under this Section
shall include the entire Roadway up to each Residence, including the area lying within each Parcel, as to the Townhome Parcels, or within each Parcel and Parcel Easement Area, as to
Parcels B and C, provided that the driveway and skirt or extension of the Roadway to Parcel C in conjunction with its development shall be installed at the sole cost of the Owner of
Parcel C.
Pedestrian Footpath and other Non Motorized Vehicle Access. Except with respect to the “Pedestrian Access Easement” reserved to the Town of Vail under the Plat, no pedestrian
or other access (including without limitation bicycle access) shall be permitted from the Common Parcel over any portion of any Residential Unit, including the Parcel Easement Area of
any Residential Unit, including from Parcels A, B, C, 1, 2 and 3 (being the upper Parcels) over Residential Units D and E (being the lower Parcels) or otherwise to Sandstone Road.
Parcel Easement Area.
Easement for Single-Family Parcels. Parcels A, B, C, D and E, as shown on the Plat, depict only the “building envelope” for those Residential Units, within
which the Residence for each of those Parcels was or is intended to be constructed. As a result, only the area designated as the “Parcel” is owned in fee by the respective Owner. The
remaining Parcel Improvements serving Parcels A through E lie outside the Parcel boundary, extending into the Common Parcel. In order to effect the intention of the developers, the
Owners and the Association with respect to the Single-Family Parcels, each Single-Family Parcel Owner shall have and enjoy an exclusive, perpetual easement over, under and across the
entire area within which the Owner’s Parcel Improvements serving the Parcel are contained, and it is hereby granted that each Single-Family Parcel Owner shall have such exclusive, perpetual
easement over, under and across the Parcel Easement Area pertaining to the Owner’s Single-Family Parcel for the purposes set forth in this Section and elsewhere in the Declaration.
Each Single-Family Parcel Owner’s Parcel Easement Area shall consist of the area as generally defined in Section 7.6(b); or as specifically depicted by the recording of an improvement
location certificate or survey either (i) as an attachment to Exhibit E of this Declaration, or (ii) in a subsequently
recorded improvement location certificate or survey depicting such area, provided that any subsequently recorded improvement location certificate or survey (x) shall be approved by the
Board in advance of recording, (y) shall contain an acknowledgment by the Board of its approval, and (z) shall otherwise be recorded in accordance with this Declaration. Each Owner shall
have the perpetual right to install, use, maintain, repair, upgrade and replace all Parcel Improvements serving such Owner’s Single-Family Parcel, at such Owner’s sole cost and expense,
and all such Parcel Improvements shall be insured and maintained by the Owner at the Owner’s cost and expense. Each Parcel Easement Area shall be a Limited Common Element appurtenant
to the respective Single-Family Parcel, and the Owner of each Parcel Easement Area shall enjoy exclusive use of and sole responsibility for all Parcel Improvements within the Parcel
Easement Area, except as otherwise expressly provided for in this Declaration.
Boundary of Parcel Easement Areas. The Parcel Area Easement for each Single-Family Parcel shall consist
of the area immediately surrounding the Parcel, and shall extend outward to a distance of five (5) feet beyond the outward lying boundary of all Parcel Improvements constructed or installed
to serve the Residence, as depicted on plans approved by the Town of Vail with respect to “original” Parcel Improvements, or as depicted in plans approved hereinafter by the Board and
the Town of Vail. For purposes of this Section, “original” Parcel Improvements shall mean those Parcel Improvements installed to date with respect to Parcels A, B, D and E, and those
Parcel Improvements as may be approved by the Town of Vail in conjunction with the development of Parcel C. All other future improvements to any Single-Family Parcel (excepting the
“original” Parcel Improvements to Parcel C, as previously discussed) require Board approval, and upon obtaining same shall thereafter qualify as Parcel Improvements. The recording
of each improvement location certificate or survey attached to Exhibit E to this Declaration shall be deemed to have established the actual and definitive Parcel Easement Area with respect
to the particular Single-Family Parcel. Subsequent to the recording of this Declaration, an Owner may establish the Owner’s specific Parcel Easement Area by recording a survey or improvement
location certificate depicting the actual location of the Parcel Improvements, provided that such survey or improvement location certificate strictly complies with the provisions of
Section 7.6(a). Any survey or improvement location certificate that does not strictly comply with the provisions of Section 7.6(a) shall be ineffective to establish a Parcel Easement
Area under this Declaration or any other matter under the Declaration. Absent a survey or improvement location certificate recorded in accordance with this Section and Section 7(a),
establishing the Parcel Easement Area, to the extent the Parcel Improvements belonging to adjacent Owners are too close to allow each Owner exclusive easement rights extending five
(5) feet beyond the outwardly boundary of the Parcel Improvements, the Parcel Easement Area as to each affected Parcel shall be reduced to one-half the distance between the Parcel Improvements
for the neighboring Parcels. To the extent there is a discrepancy among the Parcel Easement Areas as depicted in the public records, the document first recorded in accordance with this
Declaration shall govern.
Parcel C Relocation. At the time of recording this Declaration, Parcel C remains undeveloped. Parcel C is currently located as depicted in the Plat (the “Existing
Parcel C Envelope”). Parcel B has been developed and the Improvements serving Parcel B are in close proximity to the building envelope for Parcel C. To enable the Owner of Parcel C
to design an appropriate floor plan for the Residential Unit to be constructed on Parcel C, the Association and Owners have agreed to the relocation of Parcel C to the area shown on
the Replat, attached as
Exhibit __ to the Declaration (the “Revised Parcel C Envelope”). Notwithstanding anything to the contrary in the Existing Declaration or Plat, from after the recording of this Declaration,
Parcel C shall be deemed relocated to the area depicted on the Replat, which relocation shall be effective and enforceable against the Association and all Owners. From and after the
Replat, the relocation of Parcel C shall be legally binding for all purposes. Until such time as the Replat is approved by the Town of Vail and recorded in the public records, the area
depicted as the “Lot” or “Parcel Easement Area” around Parcel C on the attached Exhibit ___ (the “Parcel C Exhibit”) shall be deemed reserved as an established Parcel Easement Area
for Parcel Improvements serving Parcel C. The restriction noted on the Parcel C Exhibit with respect to “deck restricted” areas shall be limited to construction of decks in those area,
unless otherwise agreed by the Owner of Parcel B.
Use and Maintenance of Parcel Easement Areas. Each Owner shall have the perpetual, exclusive use of the Parcel Easement Area appurtenant
to such Owner’s Parcel, including access over the Common Parcel to install, repair, maintain, upgrade and replace all Parcel Improvements within the Parcel Easement Area. The Association
shall have and retain fee simple interest in the Common Parcel, including in each Owner’s Parcel Easement Area, but such interest shall be subject to the rights of the Parcel Owner as
set forth in this Declaration. Each Owner’s rights in any Parcel Easement Area shall be otherwise subject only to the rights of third parties under easements and agreements of record
as of the date hereof and the Owner having control over the Parcel Easement Area shall be responsible for any disruption within the easements caused by the Owner to utilities and services.
Each Owner(s) is responsible to maintain and insure all Parcel Improvements within the Owner’s Parcel Easement Area in reasonably good order and otherwise in accordance with the provisions
of the Declaration. In the event that an Owner fails to maintain or repair such Parcel Improvements, following written notice with a reasonable opportunity to cure, the Association
shall have the right but not the obligation to make such needed repairs in accordance with Section 11.6 below, and all costs incurred by the Association in undertaking such maintenance
or repairs shall be reimbursed by the responsible Owner. The Association shall have a lien against the Owner’s Residential Unit until such sums are repaid, which assessment and lien
may be collected and enforced in all manners permitted by law. To the extent the Plat is amended in the future to extend the lot lines to create fee simple owned Single-Family Parcels
the Parcel Easement Area interests shall be merged into the Parcel Owner’s title in the Single-Family Unit and the entire Parcel shall be thereinafter owned in fee.
Easements Surviving
Creation of the Legal Lots. From and after the recording of the Replat creating legal lots for Parcel A through E, all existing easements the Common Parcel or any other Parcel for purposes
of maintaining utilities or similar services to another Parcel or Unit, or otherwise as reflected on the Replat shall continue to exist for the purpose of accessing, maintaining, servicing,
replacing, repairing and upgrading utility services as they exist today serving any Unit or Parcel and an easement for the benefit of each Parcel or Unit Owner, and the Association as
the case may be, is hereby acknowledged to survive the Replat and pertain for such purposes into the future. Notwithstanding the foregoing, to the extent the service lines for Parcel
B lay within the area of Parcel C to be excavated for future development of Parcel C, to the extent the lines are within the area to be excavated, the lines serving Parcel B shall be
relocated to lie within the Roadway, or other easement are depicted on or created by the Replat, the cost of which, including the installation of a lift if necessary for
sewer lines, shall be borne equally by the Owners of Parcel B and Parcel C. The engineering for the relocated line shall be undertaken by the developer of Parcel C in accordance with
plans reasonably approved by the Owner of Parcel B.
Replat to Create Legal Lots and Parcel G.
Adjustments to Common Parcel. The Association is in the process of undertaking the Replat
of the Briar Patch subdivision: (i) to create Single-Family Parcels for the Single Family Units and (ii) to create Parcel G (consisting primarily of a rockfall hazard area) for conveyance
to the Town of Vail. Attached hereto as Exhibit ___ is a copy of the Replat dated as of July __, 2011, in its substantial final form (the “Replat”), which, subject to approval by the
Town of Vail shall be recorded in the Eagle County public records as the superseding and governing “plat” for all purposes of the Briar Patch subdivision, which Replat shall be read
and construed together with this Declaration as the governing documents of public record for the Briar Patch subdivision.
Creation of Single-Family Parcels. With respect to the creation
of the Single-Family Parcels, attached hereto as Exhibit __1-5 is a copy of the warranty deed from the Association to the respective Owners of each of Parcels A through E, conveying
to each such Owner the area of land comprising the Single-Family Parcel, which as of the date of the Replat shall serve solely the Owner of the Single Family Unit, subject to the terms
of this Declaration, and which shall hereinafter and forever, as to each, be a legal Single-Family Parcel owned by the respective Parcel Owner in fee. Upon creation of the Single-Family
Parcels by recording of the Replat, the Parcel Easement Area benefitting the respective Single-Family Unit owned by the Parcel Owner shall merge into title with the Parcel Owner’s fee
interest in the respective Single-Family Parcel. Once created, each Single-Family Parcel shall be deemed a part of the Residential Unit to which it pertains. The Association by this
Declaration is authorized to convey the portion of the Common Parcel within each of Parcels A through E, as depicted on the Replat, to the respective Owner of the existing Parcels A
through E (currently comprising the building envelope only), without further consent of the Owners and to undertake all necessary action in relation thereto to effect the transfer of
the Parcels depicted on the Replat to the respective Single-Family Unit Owner. No further consent of approval of Owners or Lenders shall be necessary for the Association to proceed with
conveyance of the portions of Parcel F lying within each Parcel created by the Replat to the respective Parcel owner.
Creation of Parcel G. From and after the Replat there shall
be created a legal lot know as “Parcel G” for the purpose of conveying such area to the Town of Vail by warranty deed from the Association to the Town of Vail. The conveyance to the
Town of Vail is discussed further in Section 7.8 below.
Conveyance to the Town of Parcel. The Association and Owners acknowledge that Briar Patch is in part situated along a ridge line
that the Town of Vail and other geological maps have identified to be a rockfall hazard area. The Town desires to access the rockfall hazard area to mitigate the risk of falling rocks
to protect the community and particularly the residences, roadway and other developments situated beneath the rockfall hazard area. The requisite Owners have approved the creation of
Parcel G for the purpose of conveying Parcel G to the Town of Vail, so to enable the Town of Vail to undertake and manage mitigation of the
rockfall hazard area into the future, without further approval of the Association or future liability to the Owners in the Briar Patch subdivision, on terms as agreed upon between the
Association and the Town of Vail by separate agreement. By approval of the requisite Owners and Lenders to this Declaration in accordance with the voting requirements set forth in the
Existing Declaration, as may be modified by the Act, the Association is authorized to enter into and perform all acts necessary and appropriate to consummate the conveyance of Parcel
G to the Town of Vail, including conveyance of Parcel G, once created by the Replat, to the Town of Vail by warranty deed. From and after the creation of Parcel G by recording of the
Replat, and conveyance of Parcel G to the Town of Vail, the Town of Vail shall be the owner in fee of Parcel G and the Town of Vail shall own Parcel G free and clear of the covenants,
conditions and restrictions created by this Declaration (and all prior declarations pertaining to Briar Patch), and the Town shall own Parcel G subject only to such restrictions as may
be set forth on the deed from the Association to the Town of Vail. No further consent of approval of Owners or Lenders shall be necessary for the Association to proceed with conveyance
of Parcel G to the Town of Vail.
Withdrawal from the Association. After Single-Family Parcels have been credited, Single-Family Parcel Owners (each a “Withdrawing Parcel Owner”)
may withdraw the Single-Family Parcel (together with all improvements within the Single-Family Parcel) (each a “Withdrawing Parcel”) from the Association by written notice to the Association
confirming the desire to withdraw from the Association. Within ten (10) business days after receiving written notice (the “Withdrawal Date”), the Association shall confirm all amounts
due for assessments or otherwise from the Withdrawing Parcel (as to each Parcel, the “Withdrawing Parcel Assessments”) to the Association through the Withdrawal Date and, upon receipt
of payment by the Association of the Withdrawing Parcel Assessments, the respective Withdrawing Parcel and respective Withdrawing Parcel Owner shall be deemed withdrawn from the Association,
and neither party shall have any further obligation to the other, except with respect to the following provisions of the Declaration, which shall survive withdrawal of the Withdrawing
Parcel as covenants encumbering the Withdrawing Parcel and Briar Patch Association and Owners into the future (the “Surviving Covenants”). The Surviving Covenants shall continue to run
with the Withdrawing Parcel and such portion of Briar Patch Subdivision as may be identified in the Surviving Covenants, where such surviving covenants are reciprocal or benefit or
burden either the Withdrawing Parcel or any remaining portion of the Briar Patch subdivision so identified. The provisions of this Section shall not pertain to Parcel G conveyed to
the Town of Vail.
LIST SURVIVING COVENANTS
MECHANIC’S LIENS; INDEMNIFICATION
Owner Liability. Each Owner shall be liable for any material furnished to his Residential Unit or any
labor performed therein or thereon, and no Owner of any other Residential Unit shall be liable under any circumstances for the payment of expenses incurred or for the value of any work
done or for any material furnished to any other Residential Unit. All such work shall be at the expense of the Owner causing the work, and such Owner shall be solely responsible to contractors,
laborers, materialmen and other persons furnishing labor or materials
to his Residential Unit or any improvements therein, including any work performed within any Parcel Easement Area. Nothing herein contained shall authorize any Owner or any person dealing
through, with or under any Owner to charge the Common Parcel or any other Residential Unit (other than that of such Owner), with any mechanic’s lien or other lien or encumbrance whatever.
Notice is hereby given that no Owner has the authority, power or right to incur any charge or any lien or encumbrance of any kind against the Common Parcel (including any part of Parcel
F lying within any Parcel Easement Area) or against any other Owner’s Residential Unit for work done or materials furnished to an Owner, and any authority so claimed by any Owner is
hereby expressly denied.
Owner Indemnity. If a mechanic’s or other lien or order for the payment of money shall be filed against all or any portion of the Common Parcel or against any
other Owner’s Residential Unit for any work at the request of or on behalf of another Owner, or against any other Owner (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 such Owner’s 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 and the affected Owner within twenty (20) days after the date of filing thereof, and the Owner responsible for such lien
shall further indemnify and hold harmless all the other Owners and the Association from and against any and all costs, expenses, claims, losses or damages of every nature, including
reasonable attorneys’ fees, resulting therefrom and the Association and any affected Owner shall have a lien against the responsible Owner’s Residential Unit until all sums due are paid
or reimbursed.
ADMINISTRATION AND MANAGEMENT
Association General Authority. The Residences at Briar Patch shall be administered and managed pursuant to this Declaration, the Articles
of Incorporation and the Bylaws of the Association, as each may be amended from time to time. Each Owner shall be a member of the Association and shall remain a member until he ceases
to be an Owner. Each member shall comply strictly with the provisions of this Declaration and of the Articles of Incorporation and Bylaws of the Association. Each member shall be bound
by and shall comply with rules, resolutions and decisions of the Association duly made or adopted in the manner set forth in the Articles of Incorporation or Bylaws, or otherwise in
accordance with the Act. Failure of any Owner to comply with such provisions, rules, resolutions or decisions shall be grounds for an action to recover damages or to obtain injunctive
relief, or both, maintainable by the Association on behalf of the other Owners or, in a proper case, by an aggrieved Owner. In addition, the Association’s Bylaws may authorize the Association,
during the period of any delinquency, (i) to revoke a delinquent Owner’s right to use Common Parcel (excluding any Parcel Easement Area) and (ii) to suspend a member’s voting privileges;
however, no such suspension shall affect the rights of First Mortgage Holders. An Owner shall be required to pay any costs and expenses associated with enforcement of any provision of
the Declaration, the Articles of Incorporation or the Bylaws, including reasonable attorneys fees, these costs being payable regardless of whether or not a civil action is commenced
to enforce any such violation.
Control Over Common Parcel. The Association shall manage and operate the Common Parcel for the benefit of the Owners and, with exclusion of the Parcel Easement Areas, is empowered to
encumber the Common Parcel by the grant of permits, licenses, and easements or rights-of-way, but in no event shall any such future encumbrance interfere with or be senior to the rights
of any Owner in the Owner’s Parcel Easement Area. The Board may also encumber the Common Parcel with a mortgage lien, provided that any such mortgage lien shall by operation of this
Declaration be subordinate to the Parcel Easement Area rights, Access Easement rights and Limited Common Element rights of each Owner and the Board shall cause such mortgagee to confirm
same in any such lien, provided that failure of the mortgagee to do so shall not impair the Owner’s right of priority as set forth in this Section.
Limitation of Association Acts. The
Association shall be bound by and shall comply with the provisions this Declaration, the Articles of Incorporation and Bylaws as well as other rules and regulations duly made or adopted
in accordance with the Declaration. Failure of the Association to comply with such provisions, rules and regulations shall be grounds for an action to recover damages or to obtain injunctive
relief, or both, maintainable by one or more aggrieved Owners, provided that any such proceeding shall be undertaken in accordance with Section 19.12 and in no event shall the Association
be subject to incidental, consequential or punitive damages.
Association Records. The Association shall keep current copies of the Declaration, the Articles of Incorporation for the
Association, the Bylaws, and any other rules and regulations concerning the Property as well as its own books, records and financial statements available for inspection during normal
working hours by Owners in accordance with the Act and as otherwise required by the Act.
Access to Records by First Mortgage Holders. Upon written request by any First Mortgage Holder,
the books and records of the Association shall be made available to allow an audited financial statement for the preceding fiscal year to be prepared at the requesting party’s sole expense
and otherwise as required by the Act.
Governance. The Briar Patch community shall be governed by such policies and procedures as the Board may adopt from time to time, and all Owners
shall comply with such policies and procedures consistent with the requirements of the Act.
MAINTENANCE AND REPAIRS
Generally. Each Owner shall be responsible for maintenance
and repair of his Residential Unit, including appurtenant Limited Common Elements and Parcel Easement Areas, as discussed in Section 7.6. Each Owner’s maintenance obligation includes
the surface of easements areas containing utility lines and services within the Owner Parcel Easement Area and with the Owner’s Limited Common Element area, so to not interfere with
same. No Owner shall do any act or work which impairs any utility line, service or another Owner’s easement area or improvements situated therein. Each Owner shall be responsible for
costs incurred by the Association or by another Owner resulting from the Owner’s violation of this Section.
Townhome Units. Facilities and improvements identified by the Board as benefitting more than one Townhome Unit shall be administered, conserved, managed, maintained, repaired and replaced
by the Association at the expense of the Townhome Unit Owners as a Common Townhome Expense and the Association shall have access to any Townhome Unit from time to time during reasonable
hours for the purpose of making such repairs and to prevent damage to the any Townhome Unit. The costs of repairing any damage to a Townhome Unit resulting from entry therein by the
Association shall be a Common Townhome Expense of all the Townhome Unit Owners. However, if the need to make such entry results from the negligence or intentional act of any Owner (including
guests or occupants), such Owner shall reimburse the Association for all the costs of repairing such damage and shall be liable to the Association for all additional losses or damages
suffered by the Association or any Owner, including reasonable attorneys’ fees.
Association Maintenance. The Association may undertake any maintenance benefiting all Parcels, as generally
undertaken by Associations of a planned community, as a Common Expense or, if such expense is applicable to the Townhomes only, as a Common Townhome Expense, such as removal of snow,
leaves and debris from Residential Units; provided that, if Board does not elect to have the Association undertake such maintenance, the Owner of each Residential Unit shall be responsible
for such maintenance. To the extent undertaken by the Association, the Parcels benefitting from the Association’s undertakings shall bear the cost of the expense in equal portions.
Limited Common Elements. Each Owner (if more than one) having an interest in a Limited Common Element shall pay the proportion of the costs and expenses of maintaining, repairing and
replacing same, based on a formula, the numerator of which is one and the denominator of which is total number of all Residential Units having use and enjoyment of the Limited Common
Element.
ASSESSMENTS FOR COMMON EXPENSES
Owner Liability. Each Owner by his execution and consent to this Declaration or by his acceptance of the deed or other conveyance vesting
in his interest in a Residential Unit (whether or not so expressed in any such deed or conveyance) shall be deemed to covenant and agree to pay to the Association annual assessments
and special assessments. The assessments by the Association shall be used for the purposes of promoting the general health, safety, and welfare of Briar Patch and for the regular repair
and maintenance of the Common Parcel and for such other purposes as set forth in this Declaration. Such assessments, including fees, charges, attorneys fees, fines and interest charged
by the Association shall be the personal obligation of the Owner at the time when the assessment or other charges become due. The Common Expenses and Common Townhome Expenses shall be
apportioned among the Owners as follows:
Sharing Ratio. Each Owner shall pay his pro rata share of the Common Expenses, which proration shall be made on the basis of the Sharing Ratios
in effect on the date such Common Expense is assessed.
Roadway Maintenance. Costs for maintenance of the Roadway, including without limitation the repair and plowing, shall be assessed and paid by the Owners of the three Townhome Units and
the Owners of Residential Units B and C, as indicated in Section 7.5.
Insurance. With regard to insurance purchased by the Association pursuant to Article 13, any policy or separate
coverage provided solely for the Triplex Building shall be assessed to and payable in equal shares solely by the Owners of the three Townhome Units in according with the Townhome Units
Sharing Ratio. Insurance maintained by the Association with respect to the Common Parcel shall be assessed and paid as a Common Expense.
Tri-Plex Maintenance. Unless otherwise approved
by the majority of the Townhome Unit Owners, the Association shall provide exterior maintenance for the Triplex Building as follows: paint, repair, replacement and care of roofs, gutters,
downspouts, exterior building surfaces, trees, shrubs, grass, walks, and other exterior improvements. The cost of such maintenance shall be assessed as part of the annual assessments
or as a special assessment, as determined by the Board, payable by the Townhome Unit Owners in accordance with the Townhome Units Sharing Ratio. Such exterior maintenance shall not include
glass surfaces. In the event that the need for maintenance or repair of the Triplex Building is caused through the willful or negligent acts of the Owner of any Townhome Unit, or through
the willful or negligent acts of the family, guests or invitees of the Owner of any Townhome Unit, the cost of such exterior maintenance shall be borne by that Owner, and the Owner’s
Townhome Unit shall be subject to a lien until paid.
Failure to Maintain. In the event an Owner of any Residential Unit shall fail to maintain the improvements situated thereon in a
manner satisfactory to the Board, the Association, after approval of two-thirds vote of the Board, shall have the right, through its agents and employees, to enter upon said Residential
Unit and to repair, maintain, and restore the Residential Unit and any other improvements erected thereon to a satisfactory condition in the Board’s discretion. The cost of such exterior
maintenance shall be assessed to the Owner’s Residential Unit, which shall be subject to a lien until paid. No action shall be taken by the Board under this Section until written notice
with an opportunity to cure of not less than thirty (30) days has been provided to the violating Owner, absent an emergency situation, as determined in the Board’s discretion, in which
event no notice shall be required.
Assessments. The Board of the Association shall fix, determine, levy and collect annual and special assessments to be paid by each of the Owners to
meet the Common Expenses. No contingency reserve shall be provided for with respect to the Single-Family Parcels. If elected by a majority of the Townhome Unit Owners, a reserve shall
be established by the Board and funded by assessments to the Townhome Unit Owners. Each assessment and special assessment (plus any late charges and accrued interest as described in
Article 11, section 16) shall be the personal obligation of the Owner so assessed, and shall constitute a lien on the Residential Unit as provided in § 316 of the Act and Article 11,
section 10 of this Declaration. Prior to the beginning of each fiscal year of the Association, the Board shall adopt a budget for that year. The budget shall include, but shall not be
limited to, an estimate of the costs of maintenance, of the Common Parcel, the cost of utilities and other services to be provided by the Association, the cost of insurance to be carried
by the Association, and proposed capital expenditures, if any. The budget shall contain a separate line item and detail with respect to
Common Townhome Expenses. Assessments for reserves, if any, shall not be considered an advance payment of regular assessments. Special assessments may be levied whenever in the opinion
of the Board it is necessary or advisable to do so (i) to meet increased operating or maintenance expenses or costs, (ii) to provide for additional capital expenses, or (iii) because
of emergencies; however, if any proposed additional capital expenses at any given time are in excess of ten percent of the maximum replacement value of such buildings, as determined
by the Association pursuant to Article 13, section 3 herein, such expenses may be incurred only after the Owners, by the vote of at least 66.66% of the Owners subject to the special
assessment, approve such expenses. All annual assessments shall be based upon an approved budget; all other assessments shall be in itemized statement form and shall set forth the detail
of the various expenses for which the assessments are being made.
Statement and Payment of Assessments. The Board shall prepare and provide to each Owner a statement for the annual assessment
and any special assessment against his Residential Unit. Annual assessments for the budgeted Common Expenses and Common Townhome Expenses shall be paid in quarterly installments, each
such installment due and payable in advance on the first day of each calendar quarter, or more frequent or seldom installments as may be determined by the Board. Special assessments
shall be due and payable as specified in the written notice of such assessment provided by the Board.
Unpaid Assessments. An action may be brought by the Association to recover unpaid
Common Expenses or Common Townhome Expenses from the Owner liable for payment thereof, with or without foreclosing or waiving the lien described in the following section.
Assessment
Liens. All sums assessed but unpaid for the share of expenses assessed to any Residential Unit shall constitute a lien on such unit in favor of the Association prior to all other liens
and encumbrances, except: (i) liens for taxes and special assessments; and (ii) the lien of any First Mortgage Holders, except that the lien of the Association shall be prior to all
mortgage liens to the extent of six (6) months of regular common expense assessments as provided by C.R.S. § 38-33.3-316. The Association’s lien shall attach from the date when the unpaid
assessment shall become due and may be foreclosed by the Association in like manner as a mortgage on real property upon the recording of a notice or claim thereof executed by the Association
setting forth the amount of the unpaid indebtedness, the name of the Owner of the Residential Unit, and a description of the Residential Unit. The Owner shall be required to pay the
costs and expenses of collecting any unpaid assessments, including accrued interest and, if applicable, the cost of the preparation and recording of the Association’s lien, including
reasonable attorneys’ fees, or $1,000.00, whichever is greater, these costs being payable regardless of whether or not a civil action is commenced to collect any unpaid assessment. During
the period of any foreclosure, the Owner of the Residential Unit subject to such action shall be required to pay a reasonable rental to the Association. The Association shall be entitled
to purchase the Residential Unit at the foreclosure sale, and to acquire, hold, lease, mortgage or convey the same.
Owner Liability. No Owner shall exempt himself from liability for
payment of his share of the Common Expenses or Common Townhome Expenses either by
waiver of the use or enjoyment of any portion of the Common Parcel (or commonly maintained areas) or by abandonment of his Residential Unit.
Liability on Transfer. In case of sale or
other transfer of a Residential Unit with respect to which sums assessed for Common Expenses or Common Townhome Expenses shall be unpaid, the purchaser or other transferee of an interest
in such unit shall be jointly and severally liable with the seller or transferor thereof for such unpaid assessments; provided, however, that in the case of a transfer to First Mortgage
Holders in connection with a foreclosure of its lien, the transferor shall not be liable for any unpaid assessments due before the foreclosure sale, other than the amount of six (6)
months of regular common expense assessments as provided by C.R.S. § 38-33.3-316.
Status of Assessments Due. Upon written request of any Owner, lender, mortgagee, prospective mortgagee,
purchaser or other prospective transferee of a Residential Unit (or any designee thereof), the Association shall issue a written statement setting forth the amount of the unpaid Common
Expenses (or Common Townhome Expenses), if any, with respect to such Residential Unit, the amount of the current monthly assessment, the date on which such assessment became or shall
become due and the amount of any credit for prepaid expenses. Such statement, for which a reasonable fee may be charged, is binding upon the Association in favor of any person who may
rely thereon in good faith. Unless a request for such statement shall be complied with within ten (10) days after receipt thereof, all unpaid Common Expenses (and Common Townhome Expenses,
as applicable) which became due prior to the date of making such request shall be subordinated to the lien or other interest of the person requesting such statement.
Third Party Payment.
Any party in favor of whom a lien on a Residential Unit has been created may but shall not be required to pay any unpaid assessment with respect to such Residential Unit, and upon such
payment such party shall have a lien on such Residential Unit for the amount so paid of the same rank as the lien theretofore existing.
Notice to Mortgagees. Mortgage holders may be
given written notice by the Association of any default by an Owner in the payment of any assessment hereunder, which default has remained uncured for at least 30 days.
Late Penalty.
In addition to any of the prior provisions herein, any assessment or special assessment not paid within 30 days shall give rise to a late penalty equal to 10% of the assessment or special
assessment, and the assessment or special assessment, plus this late charge, shall accrue interest at 18% per annum, or such lesser rate as may be required by law.
Surplus Funds. Any
surplus funds of the Association remaining after payment of or provision for Common Expenses and any prepayments of or provision for reserves shall be credited to the Residential Unit
Owners in proportion to their Common Expense liability. Any surplus funds of the Association remaining after payment of or provision for Common Townhome Expenses attributable solely
to Townhome Units and any prepayments of or provision for reserves for Townhome Unit expenditures shall be credited to the Owners of such Townhome Units in proportion to their liability
for Common Townhome Expense liability.
Assessment Records. The Association shall maintain such records, keep such accounts, and do such billings and collecting as is needed in connection with its activities and any requirements
under this Declaration. The cost and expense of such recordkeeping, accounting, billing and collecting (except for the collection of past due assessments) shall not be separately charged
to particular owners or guests, but shall be part of the costs and expenses to be covered by regular assessments.
PARTY WALL – TOWNHOUSE
Generally. Each wall being a part of the
original construction of each Townhome Unit in the Triplex Building placed on the dividing line between adjacent Townhome Units shall constitute a Party Wall, and, to the extent not
inconsistent with the provisions of this Article, the general rules of law regarding Party Walls and liability for property damage or negligence or willful acts or omissions shall apply
thereto.
Cost of Repairs and Maintenance. The cost of reasonable repair and maintenance of a Party Wall shall be shared by the Owners of the Townhome Units sharing the Party Wall in
proportion to the percentage of the wall as a part of each Unit.
Casualty. If a Party Wall is destroyed or damaged by fire or other casualty, the Association shall restore it, and the
Owners of the Townhome Units utilizing such Party Wall shall be responsible for the cost of restoration thereof in proportion to such use without prejudice to the right of any such Owner
to seek a larger contribution from the other Owners sharing the wall under any rule or law regarding liability for negligence or willful acts or omissions.
Owner Liability. Notwithstanding
any other provision of this Article, an Owner who by his negligence or willful act causes the Party Wall to be exposed to the elements shall bear the whole cost of furnishing the necessary
protection against such elements.
Right of Contribution. The right of any Owner to seek contribution from any other Owner under this Article shall be appurtenant to the land and shall
pass to such Owner’s successors in title.
Obligation to insure. The Association shall maintain insurance on the Tri-Plex Building, as further set forth in Article 13, the cost of which
shall be shared among the Townhome Units in accordance with the Townhome Units Sharing Ratios, unless otherwise elected by the Board. In addition to the requirements set forth in Article
13, the policy of insurance for the Tri-Plex Building and all Townhomes shall provide for coverage in the amount of not less than full replacement value of interior walls, including
each Party Wall.
INSURANCE
Tri-Plex Building. The Association shall, on behalf of the Owners of Townhome Units, keep the existing Triplex Building and all fixtures therein (excluding betterments, furniture, furnishings
or other personal property supplied or installed by the Townhome Unit Owners, which shall be insured by the respective Owner) insured against loss or damage by fire, flood and other
general hazard coverage with extended coverage (including insurance against loss or damage by vandalism or malicious mischief), in the amount of not less than the full replacement value
thereof determined in accordance with Article 13, Section 3 herein. Notwithstanding the foregoing, the Board may, in its discretion, elect to require all Townhome Unit Owners to insure
the interior of their Townhomes, in which case each Owner shall be required to maintain a policy of insurance for the full replacement value of the interior of the Owner’s Townhome
Unit (being all structural, non-structural and other components, fixtures, finishes and the like not insured by the Association, together with all contents and furnishings), in which
case the Association shall be named an additional insured on the Owner’s policy, the policy shall not be cancellable without thirty (30) days prior notice to the Association and the
Owner shall provide the Association with a certificate evidencing such coverage annually, failing which the Association may undertake insuring the Townhome Unit at the Owner’s cost and
the Association shall have a lien against such Owner’s unit for reimbursement of all costs associated with obtaining coverage. The provisions of Section 13 below shall further apply
to all policies required hereunder The Board may modify or increase insurance coverage requirements and obligations as may be customary for similar type communities from time to time.
General Insurance Requirements The Association with respect to the Owners of all Residential Units shall:
provide and keep in force, for the protection of the Association, its officers
and directors, and all the Owners and First Mortgage Holders, general public liability and property damage insurance against claims for bodily injury or death or property damage occurring
upon or in the Common Parcel or any other common areas, in limits of not less than $1,000,000 per accident or disaster and $2,000,000 in the aggregate, for death or bodily injury or
for damage to property, provided that if higher limits shall at any time be customary to protect against possible tort liability, such higher limits may be carried;
carry insurance in
such amounts as the Association may consider necessary or advisable against such other insurable hazards as may from time to time be commonly insured against in the case of similar property
in similar locations elsewhere;
carry directors and officers liability insurance in such amounts as the Association may consider necessary or advisable;
carry fidelity insurance on directors
and officers in such amounts as the Association may consider necessary or advisable, or otherwise as required by the Act or other statutes of the State of Colorado; and
carry any other
insurance coverage advisable or as may be required by the Act.
Form of Coverage. All insurance required to be carried by the Association under this Article shall be carried in favor of the Association, the Owners (as required) and all applicable
First Mortgage Holders, as their respective interests may appear. Each policy of insurance shall contain a standard mortgagee clause in favor of First Mortgage Holders of applicable
Residential Units, which shall provide that the loss, if any, thereunder shall be payable to such First Mortgage Holders, as its interest may appear, subject, however, to the loss payment
provisions in favor of the Association hereinafter set forth. All policies of insurance against damage to the Tri-Plex Building shall provide that losses shall be payable to and adjusted
with the Association, as attorney-in-fact for the Townhome Unit Owners. The Association shall hold and apply the proceeds of such insurance as set forth in this Declaration. Each insurance
policy shall provide that no cancellation thereof may be made by the insurance carrier without having first given 30 days’ prior written notice thereof to the Association, the Owners
and all applicable First Mortgage Holders. Each insurance policy shall also provide that in case of violation of any provision thereof by one or more (but less than all) of the Owners,
the coverage of such policy shall be suspended or invalidated only as to the interest of the Owner or Owners committing the violation and not as to the interest of any other Owner. All
policies of physical damage insurance shall contain waivers of subrogation and of any defense based on co-insurance. Duplicate originals of all policies of physical damage insurance
and of all renewals thereof, together with proof of payment of premiums, shall be delivered to all First Mortgage Holders upon request.
Tri-Plex Building Valuation. The maximum replacement
value of the Triplex Building (which shall indicate the maximum replacement value of each Townhome Unit contained therein), without deduction for depreciation, shall be determined by
the Association prior to obtaining any policy insuring against casualty or any renewal thereof by means of one or more written appraisals made by competent disinterested third parties
qualified to estimate replacement value; however, appraisals need not be obtained more frequently than at three-year intervals. Copies of such appraisals shall be furnished to each Townhome
Unit Owner.
Single-Family Parcels Coverage. The Owners of each Single-Family Unit shall be responsible for maintaining insurance on their Residence for the replacement value together
with all Parcel improvements. The costs of such insurance shall be the sole responsibility of each respective Owner.
Losses Within Residential Units. Each Owner shall be responsible
for all insurance covering loss or damage to personal property within the Owner’s Residential Unit and for maintaining liability coverage for injury, death or damage occurring within
the Owner’s Residential Unit. All such policies shall contain waivers of subrogation and shall be so written that the liability of the carriers issuing insurance obtained by the Association
shall not be affected or diminished thereby.
Allocation of Proceeds for Association Policies. Proceeds from any insurance policy maintained by the Association shall be allocated and
paid as required by the Act.
APPOINTMENT OF ATTORNEY-IN-FACT
With respect to the Tri-Plex Building and the Common Parcel (excepting matters affecting the Roadway and any Parcel Easement Area), each Owner by acceptance
of a deed to any Parcel or other conveyances vesting an interest in a Parcel does irrevocably constitute and appoint the Association (a) with full power of substitution as in such Owner’s
true and lawful attorney in his name, place and stead to deal with such interest upon damage to or destruction, obsolescence, or condemnation to represent the Owner in any related proceedings,
negotiations, settlements or agreements, and (b) with full power of substitution as his true and lawful attorney in such Owner’s name, place, and stead to deal with such interest as
required, each with full power, right and authorization to execute, acknowledge and deliver any contract, deed, proof of loss, release or other instrument affecting the interest of such
Owner, and to take any other action, which the Association may consider necessary or advisable to give effect to the provisions of this Declaration. If requested to do so by the Association,
each Owner shall execute and deliver a written instrument confirming such appointment. The action of the Association in settling any damage or condemnation claim shall be final and binding
on all Owners. No Owner shall have any rights against the Association or any of its officers or directors with respect thereto except in case of fraud or gross negligence.
DAMAGE OR
DESTRUCTION TO RESIDENTIAL UNITS
In case of damage or destruction, by any cause whatsoever, of the Tri-Plex Building (or any part thereof) for which the Association maintains insurance:
Restoration
From Insurance Proceeds. If in the reasonable judgment of the Association, the proceeds of insurance shall be sufficient to pay all the costs of repairing and restoring the Tri-Plex
Building, the Association (as attorney-in-fact for the Owners) shall cause the Tri-Plex Building to be repaired and restored, applying the proceeds of insurance for that purpose.
Restoration
Requiring Assessment. If in the reasonable judgment of the Association the anticipated proceeds of insurance are not sufficient to pay the costs of repairing and restoring the Tri-Plex
Building, and the estimated cost of repairing or restoring the Tri-Plex Building exceeds the anticipated insurance proceeds by less than 20% of the maximum replacement value last determined
under section 3 of Article 13 herein, then the Association (as attorney-in-fact for the Owners) shall promptly cause the Tri-Plex Building to be repaired and restored, and the difference
between the insurance proceeds and the costs of repair and restoration shall be a Common Townhome Expense, to be assessed and paid as provided in Article 11.
Proceeds Insufficient to
Restore Tri-Plex Building. If in the reasonable judgment of the Association the anticipated proceeds of insurance are not sufficient to pay the costs of repairing and restoring the Tri-Plex
Building, and the estimated cost of repairing or
restoring the Tri-Plex Building exceeds the anticipated insurance proceeds by 20% or more of the maximum replacement value last determined under section 3 of Article 13 herein, then,
unless within 100 days after the date of such damage or destruction a plan for repairing and restoring the building shall be approved by all Owners of Townhome Units, the Association
(as attorney-in-fact for the Owners of the Townhome Units) shall execute and record in the Eagle County, Colorado, real estate records a notice of such facts, and thereafter shall sell
the Tri-Plex Building, provided that this Declaration and the Plat shall remain in full force and effect with respect to the Property, and any sale of the Townhome Parcels shall remain
subject to the Declaration.
Tri-Plex Proceeds Allocations. Any payment from any settlement award or insurance claim obtained in relation to any condemnation, destruction, or liquidation
of any or all of the Tri-Plex Units or the Common Parcel shall he payable to the Association for the benefit of affected Owners and First Mortgage Holders.
Allocation of Proceeds Generally.
In the event the Association receives funds from the sale of property as discussed in Section 15.3, or any settlement award or insurance claim as discussed in Section 15.4, or if the
Association realizes any losses, awards or proceeds from any other source, these proceeds, awards or losses shall be allocated among the affected Owners in proportion to the relative
value of the Residential Units.
Destruction of Single-Family Units. In the event of loss from casualty to the exterior of any Single-Family Unit, repair or restoration shall be made
by the Owner within one year of such loss, provided that should an Owner elect not to rebuild, the Owner’s Parcel shall be fully landscaped within such period in a manner approved by
the Board. With respect to such casualty, the Owner shall at all times comply with all requirements of the Town of Vail with respect to maintenance of such Parcel during the interim
period and in no event shall any dangerous or unsightly conditions be permitted to exist on the Parcel, except as pertain during the normal course of demolition and restoration of a
residence. The Owners plans for reconstruction shall be subject to Board approval if varying from the original plans.
ARCHITECTURAL CONTROL
Required approval by Board. Except
as otherwise contained in this Article or the Declaration to the contrary, prior approval of exterior improvements to Residential Units and variances must be obtained from the Board.
Improvements
Defined. Improvements requiring approval of the Board, shall include all exterior alterations for any Residence or installation or alteration of any exterior improvements, including
Parcel Improvements, and the like, except as may be exempted in writing by the Board because of the minimal nature of the project.
Submission of Plans. Prior to commencement of work
the Owner shall submit to the Board such descriptions, surveys, plot plans, drainage plans, elevation drawings, construction plans, specifications and samples of materials and colors
showing the nature, kind,
shape, height, width, color, materials, and location of the proposed improvements (“Plans”). The Board may require submission of additional plans or other information prior to approving
or disapproving the proposed improvements.
Criteria for Approval. The Board shall approve any proposed improvements only if it deems in its reasonable discretion that the improvements
(i) as located, will not be detrimental to the appearance of Briar Patch, (ii) will not detract from the attractiveness of Briar Patch or the enjoyment thereof by Owners, and (iii)
will not become a burden on the Association or the Residences at Briar Patch. The Board may condition its approval of any proposed improvements upon the making of such changes therein
as the Board may deem appropriate.
Architectural Review Fee. The Board may provide for the payment of a fee to accompany each request for approval of any proposed improvements based
upon the cost of professional fees for aid in evaluating Plans.
Decision of Committee. The decision of the Board shall be made within thirty (30) days after receipt by the Board of all
materials required by the Board. The decision shall be in writing and, if the decision is not to approve a proposed improvements, the Board shall state the reasons for denying approval.
The decision of the Board shall be transmitted to the Owner at the address furnished by the Owner to the Board. Any request for approval of a proposed improvements shall be deemed approved,
unless disapproval or a request for additional information or materials is transmitted to the Owner by the Board within thirty (30) days after the date of receipt by the Board of all
required materials.
Appeal to Association Board. If the Board denies, imposes conditions on or refuses approval of proposed improvements, the Owner may appeal to the Board by giving
written notice of such appeal to the Board within twenty (20) days after such denial or refusal. The Board shall hear the appeal in accordance with the provisions of the Bylaws of the
Association for notice and hearing, and otherwise in accordance with the Act, and the Board shall decide whether or not the proposed improvements or the conditions imposed by the Board
shall be approved, disapproved or modified.
Obtaining Governmental Approvals. In addition to Board approval, each Owner shall obtain, prior to commencement of construction all permits,
licenses, certificates, consents and any other approvals required pursuant to any law, ordinance or otherwise by any governmental authority having jurisdiction over the Property (“Governmental
Approvals”).
Completion of Work After Approval. Improvements shall be accomplished as promptly and diligently as possible in complete conformity with materials submitted to the Board.
The Board shall have the right to inspect any improvements prior to or after completion. The Board may require removal of any improvements not in compliance with approved Plans, which
decision may be appealed by the Owner in the same manner as a denial of an initial request for approval. The Board reserves the right to remove noncomplying improvements at the cost
of the Owner and the Owner shall reimburse the Association for all expenses incurred in connection therewith, and the Association shall have a lien for such sums until repaid.
Compensation of Members. Members of the Board may receive reimbursement of out-of-pocket expenses incurred by them in the performance of their duties hereunder.
No Liability for Board
Action. There shall be no liability imposed on the Board or any member arising out of or in any way connected with the performance of the duties of the Board unless due to the willful
misconduct or bad faith of the party to be held liable.
Construction Period Exception. The provisions contained in this Declaration shall be suspended as to each Parcel to the extent
necessary to permit construction authorized under the Declaration, provided that during the course of any such construction the Owner shall comply with all applicable laws and ordinances,
and the site shall be maintained so to not constitute a nuisance or unreasonable interference with the use and enjoyment of other Owners.
Exception for Initial Development. Consistent
with the initial development of existing Residences, Parcel C shall be “grandfathered” with respect to its initial development of the Residence and all Parcel Improvements and Access
Improvements, and the Owner thereof shall not be required to obtain Board approval or Owner approval of plans for its initial development. Notwithstanding the foregoing, the Owner of
Parcel C shall obtain all required approvals, permits and certificates from the Town of Vail and other governing jurisdictions prior to construction. Parcel C may be developed at any
time in the future, provided that to the extent any law or statute requires that a deadline be stated in the Declaration for the development of Parcel C, the development rights of the
Owner of Parcel C shall be deemed reserved for a period of twenty years from the date of this Declaration and may be extended for an additional ten years by written notice to the Association.
REVOCATION AND AMENDMENT
Revocation or Termination. This Declaration shall not be revoked or terminated except in accordance with the Act.
Amended Declaration. This Declaration shall
not be amended (i) without the affirmative vote of Owners having 67% or more of the allocated votes in the Association and (ii) the consent of at least fifty-one percent (51%) of First
Mortgage Holders in accordance with the Act.
NOTICE TO MORTGAGE HOLDERS AND OTHER PARTIES
Notice. The Association shall provide written notice to First Mortgage Holders of the following
information:
any condemnation or casualty loss that affects a material portion of a Residential Unit securing the First Mortgage Holders mortgage;
a lapse, cancellation, or material modification of any insurance policy maintained by the Association for a Residential Unit; and
any proposed action that requires the consent of a specified
percentage of First Mortgage Holders.
Contact Information to be Provided. The Association shall have no obligation to provide any notice discussed in this Article 18 unless the Association
receives a written request stating both the name and address of the requesting party as well as the Parcel letter and number of the Residential Unit securing the mortgage.
MISCELLANEOUS
PROVISIONS
Notice. Any notice permitted or required to be given under this Declaration shall be in writing and may be given either personally or by mail, telefax or hand delivery. If
served by mail, each notice shall be sent postage prepaid, addressed to any Owner at the address given by such Owner to the Association for the purpose of service of such notice, or
to the Residential Unit of such Owner if no address has been given to the Association and shall be deemed given, if not actually received earlier, at 5:00 p.m. on the third business
day after it is deposited in a regular depository of the United States Postal Service. Such address may be changed from time to time by notice in writing to the Association.
Headings.
Headings in this Declaration are for convenience only and shall not be used to interpret or construe its provisions.
Governing Law. This Declaration shall be construed in accordance
with and governed by the laws of the State of Colorado.
Enforcement. The Association or any Owner shall have the right to enforce, by any proceedings at law or in equity, all restrictions,
conditions, covenants, reservations, liens, and charges now or hereafter imposed by the provisions of this Declaration. Failure by the Association or by any Owner to enforce any covenant
or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter.
Severability. Invalidation of any of these covenants or restrictions by judgment
or court order shall in no way affect or limit any other provision which shall remain in full force and effect.
Waiver. No provision contained in this Declaration shall be deemed to
have been abrogated or waived by reason of any failure to enforce the same, irrespective of the number of violations or breaches which may occur.
Conflicts of Provisions. In case of
any conflict between this Declaration, the Articles of Incorporation or the Bylaws of the Association, this Declaration shall control. In case of any conflict between the Articles of
Incorporation and Bylaws of the Association, the Articles of Incorporation shall control.
Owner’s Right to Examine. Each Owner shall have a right to examine the books and records of the Association at any reasonable time.
Remedies Cumulative. Each remedy provided under this
Declaration is cumulative and not exclusive.
Number and Gender. Unless the context requires a contrary construction, the singular shall include the plural and the plural the singular,
and the masculine, feminine or neuter shall each include the masculine, feminine and neuter.
Captions for Convenience. The titles, headings and captions used in this Declaration are
intended solely for convenience or reference and shall not be considered in construing any of the provisions of this Declaration.
Alternative Dispute Resolution.
Agreement to Avoid Litigation.
The Association, its officers, directors and committee members, all Owners or other persons subject to this Declaration, and any person not otherwise subject to this Declaration who
agrees to submit to this Article (each a “Party” and collectively, the “Parties”) agree to encourage the amicable resolution of disputes involving Briar Patch, without the emotional
and financial costs of litigation. Accordingly, the Party covenant and agree that all claims, grievances or disputes described herein (“Claims”) shall be resolved using the procedures
set forth below in lieu of filing suit in any court.
Claims. Unless specifically exempted below, all claims, grievances or disputes arising out of or relating to the interpretation,
application or enforcement of the Association Documents, or the rights, obligations and duties of any Party under the Association Documents or relating to the design or construction
of improvements on the Project shall be subject to the provisions of this Section. Notwithstanding the foregoing, unless all parties to any action otherwise agree, the following matters
shall not be deemed claims that are subject to the provisions of this Section: (i) any suit by the Association to collect assessments, including any foreclosure proceedings, collection
of judgment proceedings or other related proceedings, (ii) any suit by the Association to obtain a temporary restraining order, preliminary injunctive relief or other equivalent emergency
relief, (iii) any suit by the Association to obtain permanent injunctive relief, (iv) any ancillary relief as the court may deem necessary in order to preserve the Association's ability
to enforce the architectural standards and rules and regulations; (v) any suit between Owners, which does not include the Association as a party, if such suit asserts a Claim which would
constitute a cause of action independent of the Association Documents; (iv) any suit in which any indispensable party is not within the definition of the term Party; and (vii) any suit
in which an applicable statute of limitations would expire within 180 days of giving the notice required below. With the consent of all parties to any suit, any of the foregoing may
be submitted to the alternative dispute resolution procedures set forth below.
Mandatory Procedures. Any Party having a Claim (“Claimant”) against any other Party (“Respondent”) shall
notify each Respondent in writing (the “Notice”), stating plainly and concisely: the nature of the Claim, including the Persons involved and Respondent's role in the Claim; the legal
basis of the Claim (i.e., the specific authority out of which the Claim
arises); the Claimant's proposed remedy; and proposed times that the Claimant will meet with Respondent(s) to discuss in good faith ways to resolve the Claim.
Negotiation and Mediation.
The Parties shall make every reasonable effort to meet in person and confer for the purpose of resolving the Claim by good faith negotiation. If the Parties do not resolve the Claim
within thirty (30) days of the date of the Notice (or within such other period as may be agreed upon by the Parties) (“Termination of Negotiations”), Claimant shall have thirty (30)
additional days to submit the Claim to mediation under the auspices of a reputable and knowledgeable mediator agreeable to the Parties providing dispute resolution services in Eagle
County, Colorado. If Claimant does not submit a claim to mediation within thirty (30) days after Termination of Negotiations, or does not appear for the mediation, Claimant shall be
deemed to have waived the Claim, and 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. Any settlement of the Claim through mediation shall be documented in writing by the mediator. If the
Parties do not settle the Claim within thirty (30) days after submission of the matter to the mediation process, unless otherwise agreed by the Parties, the mediation proceeding shall
be deemed terminated (“Termination of Mediation”). Within ten (10) days of the Termination of Mediation, the Claimant shall make a final written settlement demand (“Settlement Demand”)
to the Respondent and the Respondent shall make a final written settlement offer (“Settlement Offer”) to the Claimant. If the Claimant fails to make a Settlement Demand, Claimant's
original Notice shall constitute the Settlement Demand. If the Respondent fails to make a Settlement Offer, Respondent shall be deemed to have made a “zero” or “take nothing” Settlement
Offer.
Final and Binding Arbitration. If the Parties do not agree in writing to a settlement of the Claim within twenty (20) days of the Termination of Mediation, the Claimant shall
have thirty (30) additional days to submit the Claim to arbitration. The arbitrator shall be a single arbitrator to be appointed by the Parties. If the Parties are unable to agree upon
an arbitrator within thirty (30) days of the Claim being submitted to arbitration, the presiding judge of Eagle County, Colorado shall appoint a qualified arbitrator upon application
of a Party. If not timely submitted to arbitration or if the Claimant fails to appear for the arbitration proceeding, the Claim shall be deemed abandoned, and Respondent shall be
released and discharged from any and all liability to Claimant arising out of such Claim; provided, nothing herein shall release or discharge Respondent from any liability to persons
other than Claimant. This subsection is an agreement to arbitrate and is specifically enforceable under the applicable arbitration laws of the State of Colorado. The arbitration award
(the “Award”) shall be final and binding, and judgment may be entered upon it in any court of competent jurisdiction to the fullest extent permitted under the laws of the State of Colorado.
All deadlines falling on holidays or weekends shall be extended until the next business day.
Allocation of Costs of Resolving Claims. Each Party shall bear its own costs, including
any attorneys' fees incurred, with respect to and during the pre-mediation negotiations and mediation proceedings, except that the Parties shall share equally in the costs incurred for
the services of the mediator(s) and the conducting of the mediation. The Parties shall further share equally in all filing fees and the costs of conducting the arbitration proceedings,
including attorneys’ fees incurred for arbitration proceedings (“Post Mediation Costs”). Any
Award, which is equal to or more favorable to Claimant than Claimant's settlement demand, if any, shall add Claimant's Post Mediation Costs to the Award, with such costs to be borne
equally by all Respondents. Any Award, which is equal to or less favorable to Claimant than any Respondent's settlement offer, shall award to such Respondent its Post Mediation Costs,
with such costs to be borne equally by all Claimants.
Enforcement of Resolution. After resolution of any Claim, if any Party fails to abide by the terms of any agreement or Award, then
any other Party may file suit or initiate proceedings to enforce such agreement or Award without the need to again comply with the procedures set forth in this Section. In such event,
the Party taking action to enforce the agreement or Award shall be entitled to recover from the non-complying Party (or if more than one non-complying Party, from all such Parties pro
rata) all costs incurred in enforcing such agreement or Award including, without limitation, attorneys' fees and court costs.
Claim for Damages. Damages alleged or awarded in connection
with a Claim shall be limited to actual damages. No punitive, incidental, consequential or other damages shall be claimed or awarded.
[Signature Page Follows]
IN WITNESS WHEREOF, the undersigned hereby executes, approves and adopts this Second Restated Declaration as of the date first set forth above.
BRIAR PATCH ASSOCIATION,
a Colorado nonprofit
corporation
By:
Name: Thomas Bogard
Title: President
Attest
Secretary
Certificate of Association President:
I, Thomas Bogard, as President of the Association,
hereby certify that the requisite number of Owner votes and Lender consents required to record this amending Declaration, as set forth in Recital H, have been obtained.
By:
Name:
Thomas Bogard
Title: President
EXHIBITS TO BRIAR PATCH DECLARATION
Exhibit A Legal Description
Exhibit B Deed from Briar Patch, LLC to Association (Parcel F Conveyance)
Exhibit C1 Owners Consents
Exhibit C2
Certificate of First Mortgage Holder Consents
Exhibit D Townhome Units Sharing Ratio
Exhibit E Parcel Easement Areas for Specific Parcels (as depicted)
Exhibit F Replat
Exhibit
G Parcel C Exhibit
Exhibit H Association Deeds
EXHIBIT A
Legal Description
PARCELS A THOUGH F AND UNITS 1 THROUGH 3 OF THE RESIDENCES AT BRIAR PATCH, ACCORDING TO THE FOURTH AMENDMENT TO THE RESIDENCES AT BRIAR PATCH PLAT,
RECORDED JULY 26, 2005, AT RECEPTION NO. 923884, AND AS DEFINED AND DESCRIBED IN THE RESTATED DECLARATION OF PROTECTIVE COVENANTS FOR THE RESIDENCES AT BRIAR PATCH DATED SEPTEMBER 16,
1994, RECORDED ON OCTOBER 6, 1994, AT BOOK 651, PAGE 821, UNDER RECEPTION NO. 547859, AS AMENDED AND RESTATED BY THE SECOND AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS
AND RESTRICTIONS DATED AS OF MAY 1, 2009, AND RECORDED _________, 2009 IN BOOK ____ AT PAGE ______, COUNTY OF EAGLE, STATE OF COLORADO.
EXHIBIT B
Deed from Briar Patch, LLC to Association (Parcel F Conveyance)
(Attached)
EXHIBIT C1
Owner Consents
(Attached)
EXHIBIT C2
First Mortgage Holder Consents
(Attached)
EXHIBIT D
Townhome Units Sharing Ratio
Parcel No. Square Footage Townhome Units Sharing Ratio (Percent)
Parcel 1 2,552 28.25%
Parcel 2 2,821 31.25%
Parcel 3 3,659 40.50%
Total: 9,032 100%
EXHIBIT E
Parcel Easement Areas for Specific Parcels
(Attached)