AMENDED AND RESTATED DECLARATION
OF
SILVERJACK SUBDIVISION
The Colorado Common Interest Ownership Act, C.R.S. 38-33-3-101, et seq. provides that a Declaration is “any recorded instruments however denominated, that create a common interest community, including any amendments to those instruments and also including, but not limited to, plats and maps.” Silverjack Subdivision was created by the filing of a plat and protective covenants as described in Section 1.1 below. This Amended and Restated Declaration of Silverjack Subdivision, a common interest community, is adopted this 16th day of July, 2022, by the Lot Owners of Silverjack Subdivision.
ARTICLE I
PURPOSES
Section 1.1 Ownership and Authority. Silverjack Subdivision was created in 1973 pursuant to the Plat of Silverjack Subdivision recorded in Gunnison County, Colorado, on March 22, 1973, at Reception No. 293494, as amended by an Amended Plat recorded in Gunnison County, Colorado on September 6, 1974, at Reception No. 302062 (collectively, the “Plat”) and the Protective Covenants for Silver Jack Subdivision recorded in Gunnison County, Colorado on March 22, 1973, at Reception No. 293495, as amended (the “Protective Covenants”).
Section 1.2 Statement of Purpose. This Amended and Restated Declaration is adopted for the benefit of all owners and future owners of Lots within the Property and to provide for the preservation of values of the Property and to preserve the covenants, easements, restrictions, assessments, and liens hereinafter set forth, all of which are for the benefit of the Property.
Section 1.2 Statement of Purpose. This Amended and Restated Declaration is adopted for the benefit of all owners and future owners of Lots within the Property and to provide for the preservation of values of the Property and to preserve the covenants, easements, restrictions, assessments, and liens hereinafter set forth, all of which are for the benefit of the Property.
ARTICLE II
DEFINITIONS
The following definitions shall apply in this Declaration and to the other governing documents unless the context shall expressly provide otherwise.
Section 2.1 “Act” - means the Colorado Common Interest Ownership Act, Article 33.3 of Title 38, Colorado Revised States, as now in force and as may be amended from time to time.
Section 2.2 “Allocated Interests” - means the interest allocated to each Lot in the Common Areas, the common expense liability and votes in the Association. The Allocated Interests are divided equally between the Lot Owners.
Section 2.3 “Articles” - means the Articles of Incorporation of the Silverjack Homeowners Association, Inc., adopted April 5, 1973, as the same have been or may be amended from time to time.
Section 2.4 “Association” - means Silverjack Homeowners Association, Inc., a Colorado nonprofit corporation.
Section 2.5 “Board” - means the Board of Directors of the Association, which is designated to act on behalf of the Association.
Section 2.6 “Building” or “Structure” - means anything constructed or erected with a fixed location on the ground and having a roof supported by columns or walls located within the Property.
Section 2.7 “Bylaws” - means the Bylaws for the Association, adopted on April 30, 1973, as the same have been or may be amended from time to time.
Section 2.8 “Common Areas” - means the roads and utility easements shown on the Plat providing access for ingress and egress and utilities to each Lot, any shared service lines providing water, electrical, telephone services and other utilities to any of the Lots, the water system, the pond and the easements for access as identified on the Plat or created in the Plat of Easements pertaining to Lot 23 of the Huff Replat recorded in Gunnison County, Colorado on May 26, 2017 at reception number 646665.
Section 2.9 “Common Expenses” - means expenditures made or liabilities incurred by or on behalf of the Association, together with any allocations to reserves, including but not limited to:
Section 2.1 “Act” - means the Colorado Common Interest Ownership Act, Article 33.3 of Title 38, Colorado Revised States, as now in force and as may be amended from time to time.
Section 2.2 “Allocated Interests” - means the interest allocated to each Lot in the Common Areas, the common expense liability and votes in the Association. The Allocated Interests are divided equally between the Lot Owners.
Section 2.3 “Articles” - means the Articles of Incorporation of the Silverjack Homeowners Association, Inc., adopted April 5, 1973, as the same have been or may be amended from time to time.
Section 2.4 “Association” - means Silverjack Homeowners Association, Inc., a Colorado nonprofit corporation.
Section 2.5 “Board” - means the Board of Directors of the Association, which is designated to act on behalf of the Association.
Section 2.6 “Building” or “Structure” - means anything constructed or erected with a fixed location on the ground and having a roof supported by columns or walls located within the Property.
Section 2.7 “Bylaws” - means the Bylaws for the Association, adopted on April 30, 1973, as the same have been or may be amended from time to time.
Section 2.8 “Common Areas” - means the roads and utility easements shown on the Plat providing access for ingress and egress and utilities to each Lot, any shared service lines providing water, electrical, telephone services and other utilities to any of the Lots, the water system, the pond and the easements for access as identified on the Plat or created in the Plat of Easements pertaining to Lot 23 of the Huff Replat recorded in Gunnison County, Colorado on May 26, 2017 at reception number 646665.
Section 2.9 “Common Expenses” - means expenditures made or liabilities incurred by or on behalf of the Association, together with any allocations to reserves, including but not limited to:
2.9.1 all expenses expressly declared to be common expenses by this Declaration or the or the other Governing Documents of the Association;
2.9.2 all other expenses of administering, servicing, conserving, managing, maintaining, repairing or replacing the Common Areas; 2.9.3 expenses incurred for the benefit of more than one Lot; 2.9.4 insurance premiums for the insurance carried under Section XV below; and 2.9.5 all expenses lawfully determined to be common expenses by the Board. |
The Common Expenses may include, but shall not be limited to, road maintenance, maintenance of the water system and the filter house, maintenance of the pond and adjoining easement area, snow removal if needed to effect repairs to the water system during the winter, maintenance or repairs to common utilities and common facilities, liability insurance, legal and accounting fees, management fees and all Association dues and expenses and liabilities incurred under or by reason of this Declaration or the other Governing Documents.
Section 2.10 “Declaration” - means this Amended and Restated Declaration of Silverjack Homeowners Association, and any and all duly adopted amendments to this Declaration.
Section 2.11 “Director” - means a member of the Board of Directors.
Section 2.12 “Good Standing” - means that a Lot Owner is no more than thirty (30) days late in the payment of any Annual, Special or Default Assessments, and who has none of his, her or its membership privileges suspended.
Section 2.13 “Governing Documents” – means the Plat, this Declaration, and the Articles, Bylaws, Responsible Governance Policies, and Rules and Regulations together with any amendments of these documents.
Section 2.14 “Home Occupation” - means any home activity carried on within a dwelling which is:
Section 2.10 “Declaration” - means this Amended and Restated Declaration of Silverjack Homeowners Association, and any and all duly adopted amendments to this Declaration.
Section 2.11 “Director” - means a member of the Board of Directors.
Section 2.12 “Good Standing” - means that a Lot Owner is no more than thirty (30) days late in the payment of any Annual, Special or Default Assessments, and who has none of his, her or its membership privileges suspended.
Section 2.13 “Governing Documents” – means the Plat, this Declaration, and the Articles, Bylaws, Responsible Governance Policies, and Rules and Regulations together with any amendments of these documents.
Section 2.14 “Home Occupation” - means any home activity carried on within a dwelling which is:
2.14.1 Customarily conducted entirely within a dwelling unit by the occupants of the dwelling unit;
2.14.2 Incidental and secondary to the use of the subject parcel for residential purposes;
2.14.3 Conducted in such a fashion as not to change the manner or character of use of the dwelling;
2.14.4 Conducted in such a fashion that the commercial noises and activities do not interfere with the quiet and dignity of the neighborhood;
2.14.5 Conducted without the employment of individuals other than the occupants of the dwelling unit; and
2.14.6 Does not require persons who are not Lot Owners to come into the Subdivision.
2.14.2 Incidental and secondary to the use of the subject parcel for residential purposes;
2.14.3 Conducted in such a fashion as not to change the manner or character of use of the dwelling;
2.14.4 Conducted in such a fashion that the commercial noises and activities do not interfere with the quiet and dignity of the neighborhood;
2.14.5 Conducted without the employment of individuals other than the occupants of the dwelling unit; and
2.14.6 Does not require persons who are not Lot Owners to come into the Subdivision.
Section 2.15 "Improvements" - means all Buildings, Structures, parking areas, fences, walls, driveways, signs, changes in exterior color or shape, excavation, site work, grading, road construction, utilities and any exterior construction or exterior improvement constructed or completed within the Subdivision.
Section 2.16 “Lot” - means a parcel of land designated as a lot on the Plat.
Section 2.17 “Lot Owner” - means a Person who has an ownership interest in a Lot but does not include a Person having a Security Interest in a Lot.
Section 2.18 “Member”- means a Person who has an ownership interest in a Lot, but does not include a Person having a Security Interest in a Lot.
Section 2.19 “Officer” - the President, Vice President, Secretary, or Treasurer of the Association.
Section 2.20 “Person” - means a natural person, a corporation, a partnership, an association, a limited liability company, a trust or any other entity or any combination thereof.
Section 2.21 “Property” - means any lands within the Plat including Common Areas.
Section 2.22 “Quorum” - the quorum for annual and special meetings of Lot Owners is a majority of the Lots in Good Standing. .
Section 2.23 “Responsible Governance Policies” - means the Governance Policies for Silverjack Subdivision adopted March 2, 2015, as the same have been or may be amended from time to time.
Section 2.24 “Rules and Regulations” - means the Rules and Regulations of the Association, as the same have been or may be amended from time to time.
Section 2.25 “Subdivision” - means Silverjack Subdivision, a common interest community, including all of the real property, buildings, improvements, and structures pertaining thereto, together with all rights, easements, and appurtenances belonging thereto, declared to be a part of Silverjack Subdivision by this Declaration.
Section 2.26 “67% of Lot Owners” - means the Owners of 26 or more of the Lots.
Section 2.27 “Owners of 20 or more of the Lots” – means the majority required to amend the Governing Documents, with the exception of the Declaration.
Section 2.16 “Lot” - means a parcel of land designated as a lot on the Plat.
Section 2.17 “Lot Owner” - means a Person who has an ownership interest in a Lot but does not include a Person having a Security Interest in a Lot.
Section 2.18 “Member”- means a Person who has an ownership interest in a Lot, but does not include a Person having a Security Interest in a Lot.
Section 2.19 “Officer” - the President, Vice President, Secretary, or Treasurer of the Association.
Section 2.20 “Person” - means a natural person, a corporation, a partnership, an association, a limited liability company, a trust or any other entity or any combination thereof.
Section 2.21 “Property” - means any lands within the Plat including Common Areas.
Section 2.22 “Quorum” - the quorum for annual and special meetings of Lot Owners is a majority of the Lots in Good Standing. .
Section 2.23 “Responsible Governance Policies” - means the Governance Policies for Silverjack Subdivision adopted March 2, 2015, as the same have been or may be amended from time to time.
Section 2.24 “Rules and Regulations” - means the Rules and Regulations of the Association, as the same have been or may be amended from time to time.
Section 2.25 “Subdivision” - means Silverjack Subdivision, a common interest community, including all of the real property, buildings, improvements, and structures pertaining thereto, together with all rights, easements, and appurtenances belonging thereto, declared to be a part of Silverjack Subdivision by this Declaration.
Section 2.26 “67% of Lot Owners” - means the Owners of 26 or more of the Lots.
Section 2.27 “Owners of 20 or more of the Lots” – means the majority required to amend the Governing Documents, with the exception of the Declaration.
ARTICLE III
SILVERJACK SUBDIVISION
The Lots of the Subdivision consist of the following:
Section 3.1 Number of Lots. The Subdivision consists of 38 Lots together with the shared interest in the Common Areas.
Section 3.2 Use and Enjoyment. Every Lot Owner shall have the exclusive right to use his or her Lot and the non-exclusive right to use and enjoy the Common Areas.
Section 3.3 Owners’ Easement. Every Lot Owner shall have a nonexclusive right and easement in and to the Common Areas for the purpose of providing access and utilities to their Lot and for use for all other purposes allowed by this Declaration and such easement shall be appurtenant to and pass with the title to every Lot.
Section 3.4 Non-partitionability and Transfer of Common Areas. The Common Areas shall be owned in common by the Lot Owners and shall remain undivided. By the acceptance of a deed or other instrument of conveyance or assignment, each Lot Owner specifically waives any right to institute and/or maintain a partition action or any other action designed to cause a division of the Common Areas.
Section 3.1 Number of Lots. The Subdivision consists of 38 Lots together with the shared interest in the Common Areas.
Section 3.2 Use and Enjoyment. Every Lot Owner shall have the exclusive right to use his or her Lot and the non-exclusive right to use and enjoy the Common Areas.
Section 3.3 Owners’ Easement. Every Lot Owner shall have a nonexclusive right and easement in and to the Common Areas for the purpose of providing access and utilities to their Lot and for use for all other purposes allowed by this Declaration and such easement shall be appurtenant to and pass with the title to every Lot.
Section 3.4 Non-partitionability and Transfer of Common Areas. The Common Areas shall be owned in common by the Lot Owners and shall remain undivided. By the acceptance of a deed or other instrument of conveyance or assignment, each Lot Owner specifically waives any right to institute and/or maintain a partition action or any other action designed to cause a division of the Common Areas.
ARTICLE IV
COMMON AREAS
Section 4.1 Roads.
4.1.1 Roads Owned by the Association. The following roads are owned and maintained by the Association: Hampton Road; Columbine Trail; Aspen Drive; Balsam Trail; and Spruce Trail.
4.1.2 Width of Roads and Cul-de-Sacs. All roads are 60 feet wide, and all cul-de-sacs have a radius of 50 feet (100 feet in diameter). |
Section 4.2 Easements. Easements have been created in the Plat and in the Plat of Easements pertaining to Lot 23 of the Huff Replat recorded in Gunnison County, Colorado on May 26, 2017, at reception number 646665 (hereafter “Plat of Easements”). Easements 1 and 2 of the Plat of Easements provide easements for the water system and Easements 3 and 4 of the Plat of Easements provide easements for the pond and for access to U.S. Forest Service Land. The Agreement of Understanding that was attached to and part of the Plat of Easements provides for the management and maintenance of the easements. Among other provisions, it provides, “8) Other than the existing pumphouse [filterhouse] built in 2001, no temporary or permanent structures will be constructed on the easements by the SJHOA [the Subdivision] without written permission from the owner of Lot #23.” The Agreement of Understanding is incorporated into this Declaration by reference.
Section 4.3 Water System. The Association owns and maintains the following water system:
Section 4.3 Water System. The Association owns and maintains the following water system:
4.3.1 The water system currently consists of a water right for a spring on U.S. Forest Service land; three storage tanks also on U.S. Forest Service land; and a filter house which contains chlorine tanks, pumps, pressure gauges, and filters required to treat the water, together with the required storage, drain lines, water lines, curb stops, and other appurtenances required to transport and distribute the water. The filter house and some of the water lines are located on Easement 1 of the Plat of Easements. 4.3.2 The Board of Directors shall create a policy for the maintenance and management of the water system. This policy shall require that the Association maintain and repair the water system and lines up to and including the curb stop of each individual Lot and that the Lot Owners maintain and repair the lines from the curb stop to the Lot Owner’s Building. This policy shall also give the Association the right to shut off a curb stop until such time as any leaks on the Owner’s side of the curb stop and, in the Building, have been fixed. |
Section 4.4 Pond and Easement for its Use and Enjoyment and Access to Forest Service Land.
4.4.1 Pond and Easement for its Access, Use and Enjoyment. The Association maintains a pond which is adjacent to Hampton Road at the west side of the Subdivision. A portion of this pond is on land designated as Park on the original and amended plats of Silverjack Subdivision. The remainder of the pond is on a portion of Lot 23. The owner of Lot 23 granted a nonexclusive easement to the Association and the Lot Owners for use and enjoyment of the portion of the pond that is on Lot 23 and for access to south side of the pond in Easements 3 and 4 of the Plat of Easements
4.4.2 Access to U.S. Forest Service Land. U.S. Forest Service land adjoins the western border of the Subdivision. Easement 3 of the Plat of Easements provides the Association and the Lot Owners with a nonexclusive easement across Lot 23 for equestrian and pedestrian access to the gate opening onto U.S. Forest Service land on the south side of the pond. |
ARTICLE V
USE AND MAINTENANCE OF LOTS
Section 5.1 Use of Lots. The Lots shall be used and occupied solely for residential purposes. A Home Occupation may be operated as long as all of the conditions of Section II.N are met.
Section 5.2 Use of Common Areas. Each Lot Owner may use the Common Areas in accordance with the purpose for which they are intended, without hindering or encroaching upon the lawful rights of the other Owners or encroaching upon the lawful rights of the Lot Owner with respect to easements upon such Lot Owner’s property. The Board or the Association may adopt rules, regulations, restrictions or policies governing or restricting the use of the Lots and the Common Areas. Each Lot Owner, by the Owner’s acceptance of a deed or other instrument of conveyance or assignment to his or her Lot, agrees to be bound by any such adopted rules, regulations, restrictions or policies.
Section 5.3 Restrictions on Use. All uses of the Lots or Common Areas are subject to all restrictions contained in this Declaration, the Bylaws, the Responsible Governance Policies, the Rules and Regulations and all easements as shown on the Plat.
Section 5.4 Changes to Common Areas. No Lot Owner may construct any Improvements or make any changes to the any Common Element without the prior written consent of the Board or approval of the Association.
Section 5.5 Time-sharing, Short Term or Long Term Rentals Prohibited. A Lot may not be conveyed or converted to a time-sharing estate or rented under a short term or long term rental agreement. “Time-sharing estate” shall have the meaning set forth in C.R.S. §§ 38-33-110 to 113. “Short term or long term rental agreement” shall mean the rental of any Lot or Building on a Lot for any period of time.
Section 5.6 Landscaping. The Lot and all landscaping thereon shall be maintained in its natural condition to the extent possible with the exception that all Lot Owners are encouraged to create defensible space around their buildings in accordance with the recommendations of the Colorado State Forest Service.
Section 5.7 Trash. No trash, ashes, garbage, or other refuse shall be allowed to accumulate or placed on the Lot.
Section 5.8 Nuisance. A nuisance shall include any obnoxious or offensive activity. No nuisance shall be allowed on the Property, nor shall anything be done or permitted which shall constitute a public nuisance. No noise or other nuisance shall be permitted to exist or operate upon the Property that would be offensive or detrimental to any other Lot or its Owners or occupants; provided, however, that this Section shall not apply to any noise or other activity for the construction of any Improvements.
Section 5.9 Hazardous Activities. No activities shall be allowed or conducted on the Property that are or might be unsafe or hazardous to any person or property. Such hazardous activities include, but are not limited to, fireworks, discharge of firearms, detonation of explosives, or any similar type devices except in accordance with Rules and Regulations adopted by the Board or the Lot Owners. No outside open fires shall be permitted on any Lot unless contained within a cooking or barbecue type unit or grill or within a fire pit.
Section 5.10 Violations Deemed a Nuisance. Every violation of the Governing Documents shall be deemed to be a nuisance and is subject to all the remedies provided for the abatement of the nuisance.
Section 5.11 Failure to Comply. The failure to comply with this Declaration shall be grounds for an action to recover fines, damages, for injunctive relief, for specific performance, or for any other relief in law or at equity.
Section 5.12 Amendments. The restrictions in this Declaration are general in nature, and the Lot Owners shall have the power and duty to adopt, amend, and enforce more specific and restrictive, rules, regulations, restrictions and policies as the Lot Owners deem to be reasonable and necessary to carry out the intent of this Declaration.
Section 5.2 Use of Common Areas. Each Lot Owner may use the Common Areas in accordance with the purpose for which they are intended, without hindering or encroaching upon the lawful rights of the other Owners or encroaching upon the lawful rights of the Lot Owner with respect to easements upon such Lot Owner’s property. The Board or the Association may adopt rules, regulations, restrictions or policies governing or restricting the use of the Lots and the Common Areas. Each Lot Owner, by the Owner’s acceptance of a deed or other instrument of conveyance or assignment to his or her Lot, agrees to be bound by any such adopted rules, regulations, restrictions or policies.
Section 5.3 Restrictions on Use. All uses of the Lots or Common Areas are subject to all restrictions contained in this Declaration, the Bylaws, the Responsible Governance Policies, the Rules and Regulations and all easements as shown on the Plat.
Section 5.4 Changes to Common Areas. No Lot Owner may construct any Improvements or make any changes to the any Common Element without the prior written consent of the Board or approval of the Association.
Section 5.5 Time-sharing, Short Term or Long Term Rentals Prohibited. A Lot may not be conveyed or converted to a time-sharing estate or rented under a short term or long term rental agreement. “Time-sharing estate” shall have the meaning set forth in C.R.S. §§ 38-33-110 to 113. “Short term or long term rental agreement” shall mean the rental of any Lot or Building on a Lot for any period of time.
Section 5.6 Landscaping. The Lot and all landscaping thereon shall be maintained in its natural condition to the extent possible with the exception that all Lot Owners are encouraged to create defensible space around their buildings in accordance with the recommendations of the Colorado State Forest Service.
Section 5.7 Trash. No trash, ashes, garbage, or other refuse shall be allowed to accumulate or placed on the Lot.
Section 5.8 Nuisance. A nuisance shall include any obnoxious or offensive activity. No nuisance shall be allowed on the Property, nor shall anything be done or permitted which shall constitute a public nuisance. No noise or other nuisance shall be permitted to exist or operate upon the Property that would be offensive or detrimental to any other Lot or its Owners or occupants; provided, however, that this Section shall not apply to any noise or other activity for the construction of any Improvements.
Section 5.9 Hazardous Activities. No activities shall be allowed or conducted on the Property that are or might be unsafe or hazardous to any person or property. Such hazardous activities include, but are not limited to, fireworks, discharge of firearms, detonation of explosives, or any similar type devices except in accordance with Rules and Regulations adopted by the Board or the Lot Owners. No outside open fires shall be permitted on any Lot unless contained within a cooking or barbecue type unit or grill or within a fire pit.
Section 5.10 Violations Deemed a Nuisance. Every violation of the Governing Documents shall be deemed to be a nuisance and is subject to all the remedies provided for the abatement of the nuisance.
Section 5.11 Failure to Comply. The failure to comply with this Declaration shall be grounds for an action to recover fines, damages, for injunctive relief, for specific performance, or for any other relief in law or at equity.
Section 5.12 Amendments. The restrictions in this Declaration are general in nature, and the Lot Owners shall have the power and duty to adopt, amend, and enforce more specific and restrictive, rules, regulations, restrictions and policies as the Lot Owners deem to be reasonable and necessary to carry out the intent of this Declaration.
ARTICLE VI
ACCESS FOR MAINTENANCE, REPAIR AND EMERGENCIES
Section 6.1 Right of Access. The Board or its authorized representatives shall have the right to have access to each Lot and all Common Areas from time to time during reasonable hours as may be necessary for the operation, maintenance, repair or replacement of any of the Common Areas or at any hour for making emergency repairs, maintenance or inspection necessary to prevent damage to the Common Areas or to another Lot. The Board or its authorized representatives shall use its best efforts to give notice to a Lot Owner by text or email prior to entering onto any Lot for such purpose.
Section 6.2 Common Expense. All maintenance, repairs and replacement of the Common Areas (unless caused by the negligence, misuse or deliberate act of a Lot Owner) shall be an expense of the Association. Any maintenance, repair or replacement of a Common Area caused by the negligence, misuse or deliberate act of a Lot Owner shall be charged to such Lot Owner.
Section 6.2 Common Expense. All maintenance, repairs and replacement of the Common Areas (unless caused by the negligence, misuse or deliberate act of a Lot Owner) shall be an expense of the Association. Any maintenance, repair or replacement of a Common Area caused by the negligence, misuse or deliberate act of a Lot Owner shall be charged to such Lot Owner.
ARTICLE VII
POWERS AND DUTIES OF ASSOCIATION
These powers and duties shall be exercised by the Board unless the Governing Documents expressly provide for the exercise of these powers and duties by the Lot Owners.
Section 7.1 Powers. The Association shall have the following powers and duties:
Section 7.1 Powers. The Association shall have the following powers and duties:
7.1.1 Approve the Declaration, Bylaws, Responsible Governance Policies, and Rules and Regulations, and restrictions and policies.
7.1.2 Adopt and amend budgets for revenues, expenditures, and reserves and collect and determine assessments for Common Expenses from the Lot Owners. 7.1.3 Hire and terminate managing agents and other employees, agents and independent contractors. 7.1.4 Institute, defend or intervene in litigation or administrative proceedings in its own name on behalf of itself and one or more of the Lot Owners on matters affecting Silverjack Subdivision or Silverjack Homeowners Association. 7.1.5 Make contracts and incur liabilities. 7.1.6 Regulate the use, maintenance, repair, replacement and modification of Common Areas. 7.1.7 Cause additional improvements to be made as a part of the Common Areas. 7.1.8 Acquire, hold, encumber and convey in its own name any right, title, or interest or real or personal property; provided, however, that the Association may not convey or subject to a security interest all or any portion of the Common Areas except upon the affirmative vote 67% of the Lot Owners. 7.1.9 Impose charges (including without limitation, late charges and default interest) for late payment of assessments, recover reasonable attorney fees and other legal costs for collection of assessments and other action to enforce the power of the Association, regardless of whether suit was initiated, and, after the notice and opportunity to be heard, levy reasonable fines for violations of the Governing Documents, or otherwise suspend other membership privileges (except that notice and opportunity to be heard shall not be required before suspension of membership privileges for failure to pay assessments within 30 days after they become due). 7.1.10 Impose reasonable charges for the preparation and recording of Amendments to the Declaration and the Plat or statement of unpaid assessments. 7.1.11 Provide for the indemnification of its Officers and the Board of the Association. 7.1.12 Maintain directors’ and officers’ liability insurance. 7.1.13 Exercise the powers conferred upon the Association by the Governing Documents. 7.1.14 Exercise all other powers that may be exercised in this state by legal entities of the same type as the Association. 7.1.15 Obtain and maintain all required insurance as provided by this Declaration. |
7.2 Other Powers. In addition, the Association may exercise any other powers necessary and proper for the governance and operation of the Association.
ARTICLE VIII
ADMINISTRATION AND MANAGEMENT BY THE ASSOCIATION
Section 8.1 Lot Owner’s Compliance. Each Lot Owner shall comply strictly with the provisions of this Declaration and any other Governing Documents. Failure to comply with any of the same shall be grounds for an action to recover any amounts due, for damages or injunctive relief or both, together with reasonable attorneys’ fees and costs, incurred in connection therewith, brought by the Association on behalf of the Lot Owners, or, in a proper case, by any aggrieved Lot Owner.
Section 8.2 Construction and Validity. The administration and management of Silverjack Subdivision shall be governed by the Governing Documents. In construing the Governing Documents, the following shall control:
Section 8.2 Construction and Validity. The administration and management of Silverjack Subdivision shall be governed by the Governing Documents. In construing the Governing Documents, the following shall control:
8.2.1 All provisions of the Governing Documents shall be given effect to the extent possible and shall be liberally construed for the benefit of all Lot Owners and future Lot Owners and to provide for the preservation of values of the Property and to preserve the covenants, easements and restrictions, assessments, and liens hereinafter set forth, all of which are for the benefit of the Property.
8.2.2 All provisions of the Governing Documents are severable. 8.2.3 Resolution of a conflict between or among the provisions in the Governing Documents shall be determined by considering the documents in the following order: this Declaration, the Articles, the Bylaws, the Responsible Governance Policies, and the Rules and Regulations. |
Section 8.3 Membership. The Lot Owner, upon becoming a Lot Owner, shall be entitled and required to be a Member of the Association and shall remain a Member for the period of ownership of the Lot.
Section 8.4 Appurtenant Right. There shall be one membership in the Association for each Lot. Such membership shall be appurtenant to the Lot and shall be transferred automatically by a conveyance of the Lot to a new Lot Owner.
Section 8.5 Voting. Each Lot Owner in Good Standing shall be entitled to vote on behalf of that Lot. If the ownership in a Lot is held by more than one Lot Owner, the vote must be cast only as a single vote for that Lot, and split or divided votes or membership shall not be allowed.
Section 8.6 Transfer. No person other than a Lot Owner may be a Member of the Association and a membership may not be transferred except in connection with the conveyance or transfer of the Lot.
Section 8.4 Appurtenant Right. There shall be one membership in the Association for each Lot. Such membership shall be appurtenant to the Lot and shall be transferred automatically by a conveyance of the Lot to a new Lot Owner.
Section 8.5 Voting. Each Lot Owner in Good Standing shall be entitled to vote on behalf of that Lot. If the ownership in a Lot is held by more than one Lot Owner, the vote must be cast only as a single vote for that Lot, and split or divided votes or membership shall not be allowed.
Section 8.6 Transfer. No person other than a Lot Owner may be a Member of the Association and a membership may not be transferred except in connection with the conveyance or transfer of the Lot.
ARTICLE IX
ASSESSMENT FOR COMMON EXPENSES BY THE ASSOCIATION
Section 9.1 Payment of Assessments. Each Lot Owner by the acceptance of a deed therefor shall be obligated to pay to the Association all assessments made by the Association for the purposes provided in this Declaration.
Section 9.2 Special Apportionment of Certain Assessments and Expenses. The following expenses shall be assessed and allocated as follows:
Section 9.2 Special Apportionment of Certain Assessments and Expenses. The following expenses shall be assessed and allocated as follows:
9.2.1 Any Common Expenses or portion thereof benefitting fewer than all of the Lots shall be assessed exclusively against the Lots so benefitted.
9.2.2 If any Common Expenses are caused by the misconduct of any Lot Owner, the Association may assess that expense exclusively against such Lot Owner. |
Section 9.3 Determination of Assessments. The annual assessments made for the Common Expenses shall be based upon the budget adopted by the Association.
Section 9.4 Budget. The Board shall prepare a proposed budget for the Association which shall be submitted to the Lot Owners at the Annual Meeting. Unless a majority of the Lot Owners attending in person or by proxy rejects the budget at the Annual Meeting, the budget is ratified. If the proposed budget is rejected, the budget last approved by the Lot Owners shall continue until such time as the Lot Owners approve a subsequent budget proposed by the Board.
Section 9.5 Liability for Assessments. Each Lot Owner is jointly and severally liable for the assessments made against the Lot during the period of ownership of such Lot. No Lot Owner may be exempt from liability for payment of the assessments by waiver of the use or enjoyment of any of the Common Areas or by abandonment of the Lot against which the assessments are made.
Section 9.6 No Waiver. The omission or failure of the Association to fix such assessment for any period shall not be deemed a waiver, modification or release of the Lot Owners from their obligation to pay the same.
Section 9.7 Special Assessments. In addition to assessments for Common Expenses as above set forth, the Association may at any time and from time to time determine, levy and assess any special assessment for the purpose of paying, in whole or in part, the costs, fees or expenses of any construction, reconstruction, restoration or repair, replacement or maintenance of the Common Areas, or any other lawful purpose contemplated by this the Governing Documents. Such special assessment shall be assessed to each Lot Owner and shall be due and payable in the manner set forth in the notice of such special assessment. Notice in writing of the amount of such special assessment and time for payment of the special assessment shall be given promptly to the Lot Owners, and no payment shall be due less than thirty (30) days after such notice shall have been given.
Section 9.4 Budget. The Board shall prepare a proposed budget for the Association which shall be submitted to the Lot Owners at the Annual Meeting. Unless a majority of the Lot Owners attending in person or by proxy rejects the budget at the Annual Meeting, the budget is ratified. If the proposed budget is rejected, the budget last approved by the Lot Owners shall continue until such time as the Lot Owners approve a subsequent budget proposed by the Board.
Section 9.5 Liability for Assessments. Each Lot Owner is jointly and severally liable for the assessments made against the Lot during the period of ownership of such Lot. No Lot Owner may be exempt from liability for payment of the assessments by waiver of the use or enjoyment of any of the Common Areas or by abandonment of the Lot against which the assessments are made.
Section 9.6 No Waiver. The omission or failure of the Association to fix such assessment for any period shall not be deemed a waiver, modification or release of the Lot Owners from their obligation to pay the same.
Section 9.7 Special Assessments. In addition to assessments for Common Expenses as above set forth, the Association may at any time and from time to time determine, levy and assess any special assessment for the purpose of paying, in whole or in part, the costs, fees or expenses of any construction, reconstruction, restoration or repair, replacement or maintenance of the Common Areas, or any other lawful purpose contemplated by this the Governing Documents. Such special assessment shall be assessed to each Lot Owner and shall be due and payable in the manner set forth in the notice of such special assessment. Notice in writing of the amount of such special assessment and time for payment of the special assessment shall be given promptly to the Lot Owners, and no payment shall be due less than thirty (30) days after such notice shall have been given.
ARTICLE X
TIME OF PAYMENTS OF ASSESSMENTS FOR COMMON EXPENSES
Section 10.1 Fiscal Year. The assessments of the Association shall be computed and determined on a fiscal year basis.
Section 10.2 Due Dates. Regular assessments are levied annually and are payable 30 days after the Annual Meeting of each fiscal year, unless a different date is provided in the Written Notice. Special assessments are due on the date designated by the Board.
Section 10.3 Written Notice. The Association shall give written notice to the Lot Owners of the annual assessment.
Section 10.2 Due Dates. Regular assessments are levied annually and are payable 30 days after the Annual Meeting of each fiscal year, unless a different date is provided in the Written Notice. Special assessments are due on the date designated by the Board.
Section 10.3 Written Notice. The Association shall give written notice to the Lot Owners of the annual assessment.
ARTICLE XI
LIEN FOR NONPAYMENT OF ASSESSMENTS
Section 11.1 Lien for Assessment. Pursuant to Colorado law, the Association shall have a lien on any Lot for any assessment levied against that Lot or fines imposed against that Lot Owner. All fees, charges, late charges, attorneys’ fees, fines and interest as provided by the Governing Documents are enforceable as assessments.
Section 11.2 Priority of Lien. The lien for assessments by the Association is prior to all other liens and encumbrances on a Lot except:
Section 11.2 Priority of Lien. The lien for assessments by the Association is prior to all other liens and encumbrances on a Lot except:
11.2.1 Tax and assessment liens on the Lot, or any liens of any governmental authority; and
11.2.2 All sums unpaid on a first mortgage or Deed of Trust of Record |
Section 11.3 Enforcement of Lien. Pursuant to Colorado law, the lien for assessments of the Association may be enforced by foreclosure by the Association in the same manner as a foreclosure of a mortgage. In such foreclosure, the Lot Owner shall be required to pay the costs and expenses for such proceedings, the cost and expenses for filing the notice of claim of lien and all reasonable attorneys’ fees. The Lot Owner shall also be required to pay to the Association the assessments for the Lot during the period of foreclosure, and the Association shall be entitled to a receiver to collect the same.
Section 11.4 Payment by Holder of Security Interest. Any holder of a security interest on a Lot may pay, but shall not be required to pay, the amount secured by such lien, and upon such payment the holder of such security interest shall have a lien on such Lot for the amounts paid of the same rank as the lien of its Security Interest.
Section 11.4 Payment by Holder of Security Interest. Any holder of a security interest on a Lot may pay, but shall not be required to pay, the amount secured by such lien, and upon such payment the holder of such security interest shall have a lien on such Lot for the amounts paid of the same rank as the lien of its Security Interest.
ARTICLE XII
LOT OWNER’S OBLIGATIONS FOR PAYMENT OF ASSESSMENTS
The amount of any unpaid assessments against a Lot shall be the personal and individual debt of the Lot Owner(s). The Association shall have the right to maintain judicial proceedings to recover a money judgment for all unpaid assessments without foreclosing or waiving the lien for such assessments. In any legal action for a money judgment, the Association may recover all late charges and interest to the date of payment, all costs of collection and reasonable attorneys’ fees.
ARTICLE XIII
STATEMENT OF ASSESSMENT
Section 13.1 Written Statement of Assessments. The Association shall furnish to the Lot Owner, or to the holder of a Security Interest in the Lot or its designee, upon written request to the Association, a written statement setting forth the amount of unpaid assessments currently levied against that Lot. The statement of assessment shall be furnished within 14 calendar days after receipt of the request and shall be binding upon the Association. If no statement of assessments is furnished to the Lot Owner, or the holder of a Security Interest in the Lot or its designee, then the Association shall have no right to assert a lien upon the Lot for unpaid assessments which were due as of the date of the request.
Section 13.2 Joint Liability. The person to whom a Lot is sold or conveyed (“grantee”) shall be jointly and severally liable with the seller or conveyor (“grantor”) for all unpaid assessments due and owing by the grantor for the Common Expenses up to the time of the sale or conveyance of the Lot, without prejudice to the grantee’s right to recover from the grantor the amounts paid by the grantee therefore, subject only to the limitations set forth in Section 13.1 above. The term “grantee” as used in this section shall not apply to the holder of a First Security Interest on a Lot which First Security Interest was recorded prior to the date upon which any assessment against the Lot became a lien as provided in this Declaration.
Section 13.2 Joint Liability. The person to whom a Lot is sold or conveyed (“grantee”) shall be jointly and severally liable with the seller or conveyor (“grantor”) for all unpaid assessments due and owing by the grantor for the Common Expenses up to the time of the sale or conveyance of the Lot, without prejudice to the grantee’s right to recover from the grantor the amounts paid by the grantee therefore, subject only to the limitations set forth in Section 13.1 above. The term “grantee” as used in this section shall not apply to the holder of a First Security Interest on a Lot which First Security Interest was recorded prior to the date upon which any assessment against the Lot became a lien as provided in this Declaration.
ARTICLE XIV
DEFAULT ASSESSMENT
All monetary fines and other enforcement costs assessed against a Lot Owner pursuant to the Governing Documents, or any expense of the Association which is the obligation of any Lot Owner or which is incurred by the Association on behalf of the Lot Owner pursuant to the Governing Documents, including without limitation attorney fees incurred by the Association, shall be a Default Assessment and shall become a lien against such Lot Owner’s Lot which may be foreclosed or otherwise collection as provided in this Declaration. Notice of the amount and due date of such Default Assessment shall be sent to the Lot Owner subject to such assessment at least five (5) days prior to the due date.
ARTICLE XV
INSURANCE
Section 15.1 Required Insurance by Association. The Association shall obtain and maintain at all times, to the extent reasonably available, insurance coverage as hereafter set forth. All such insurance shall be written and issued by insurance companies licensed to do business in the State of Colorado and with an acceptable insurance rating.
Section 15.2 Property Insurance. The Association shall obtain and maintain property insurance for broad form covered causes of loss, including fire and extended coverage with standard risk endorsements including vandalism and malicious mischief. The property insurance shall insure the water system, the filter house, the water filter system, and the water tanks.
Section 15.3 General Liability Insurance. The Association shall obtain and maintain commercial general liability insurance against claims and liabilities arising in connection with the ownership, existence, use or management of the Common Areas in an amount deemed sufficient in the judgment of the Board of the Association but in any event not less than $1,000,000.00 per injury, per person, per occurrence and umbrella liability limits of $1,000,000.00 per occurrence, covering claims for bodily injury and property damage. Coverage shall include, without limitation, liability for personal injuries, operation of motor vehicles, including ATVs on behalf of the Association, and activities in connection with the ownership, operation, maintenance and other use of the Common Areas and shall provide insurance coverage insuring the Board, the Association, the managing agent and their respective employees, agents and all persons acting as agents. Lot Owners shall be included as additional insureds but only for claims and liability arising in connection with the ownership, existence, use or management of the Common Areas. Such insurance policies shall cover claims of one or more insured parties against other insured parties.
Section 15.4 Fidelity Insurance. The Association may purchase adequate fidelity coverage against dishonesty of employees, destruction or disappearance of money or securities and forgery. The policy shall also contain endorsements covering any persons who serve the Association without compensation.
Section 15.5 Insurance Not Available. If the insurance as described in Sections 15.2 and 15.3 above is not reasonably available or if any policy of such insurance is cancelled or not renewed without a replacement policy therefor having been obtained, the Association shall promptly give written notice of such fact to all Lot Owners.
Section 15.2 Property Insurance. The Association shall obtain and maintain property insurance for broad form covered causes of loss, including fire and extended coverage with standard risk endorsements including vandalism and malicious mischief. The property insurance shall insure the water system, the filter house, the water filter system, and the water tanks.
Section 15.3 General Liability Insurance. The Association shall obtain and maintain commercial general liability insurance against claims and liabilities arising in connection with the ownership, existence, use or management of the Common Areas in an amount deemed sufficient in the judgment of the Board of the Association but in any event not less than $1,000,000.00 per injury, per person, per occurrence and umbrella liability limits of $1,000,000.00 per occurrence, covering claims for bodily injury and property damage. Coverage shall include, without limitation, liability for personal injuries, operation of motor vehicles, including ATVs on behalf of the Association, and activities in connection with the ownership, operation, maintenance and other use of the Common Areas and shall provide insurance coverage insuring the Board, the Association, the managing agent and their respective employees, agents and all persons acting as agents. Lot Owners shall be included as additional insureds but only for claims and liability arising in connection with the ownership, existence, use or management of the Common Areas. Such insurance policies shall cover claims of one or more insured parties against other insured parties.
Section 15.4 Fidelity Insurance. The Association may purchase adequate fidelity coverage against dishonesty of employees, destruction or disappearance of money or securities and forgery. The policy shall also contain endorsements covering any persons who serve the Association without compensation.
Section 15.5 Insurance Not Available. If the insurance as described in Sections 15.2 and 15.3 above is not reasonably available or if any policy of such insurance is cancelled or not renewed without a replacement policy therefor having been obtained, the Association shall promptly give written notice of such fact to all Lot Owners.
ARTICLE XVI
DAMAGE OR DESTRUCTION TO COMMON AREAS
Section 16.1 Mandatory Repair or Replacement. If all or any portion of the Common Areas for which insurance is required to be maintained as provided in Section XV is damaged or destroyed, such damage or destruction must be promptly repaired and/or replaced by the Association unless a 67% majority of the Lot Owners votes not to rebuild, repair or replace the Common Area.
Section 16.2 Insurance Proceeds. The Association shall utilize all insurance proceeds payable as a result of such damage or destruction to the repair and replacement of such damaged portions of the Common Areas.
Section 16.3 Insurance Proceeds Insufficient. If the cost of repair or replacement is in excess of the insurance proceeds and reserves payable as a result of such damage or destruction, then any additional costs of such repair or replacement shall be a Common Expense of the Association and assessed in the manner provided by Section IX of this Declaration. The Association shall levy and assess a special assessment for such repairs and replacement as provided in Section IX.G of this Declaration.
Section 16.4 Assessments Not Abated. The assessments of the Association shall not be abated during the period of repair and replacement unless otherwise provided by the Association.
Section 16.2 Insurance Proceeds. The Association shall utilize all insurance proceeds payable as a result of such damage or destruction to the repair and replacement of such damaged portions of the Common Areas.
Section 16.3 Insurance Proceeds Insufficient. If the cost of repair or replacement is in excess of the insurance proceeds and reserves payable as a result of such damage or destruction, then any additional costs of such repair or replacement shall be a Common Expense of the Association and assessed in the manner provided by Section IX of this Declaration. The Association shall levy and assess a special assessment for such repairs and replacement as provided in Section IX.G of this Declaration.
Section 16.4 Assessments Not Abated. The assessments of the Association shall not be abated during the period of repair and replacement unless otherwise provided by the Association.
ARTILE XVII
GENERAL PROVISIONS
Section 17.1 Validity. If any of the provisions of the Governing Documents or any paragraph, sentence, clause, phrase or work or the application thereof in any circumstances be invalidated, such invalidity shall not affect the validity of the remainder of this Declaration, and the application of any such provision, paragraph, sentence, clause, phrase or work in any other circumstances shall not be affected thereby.
Section 17.2 Context of Words. Whenever used herein, unless the context shall otherwise provide, the singular number shall include the plural, the plural the singular, and the use of any gender shall include all genders.
Section 17.3 Additional Provisions. The provisions of the Governing Documents shall be in addition and supplemental to the Act and to all other provisions of law.
Section 17.4 Enforcement. The Association, on behalf of itself and any aggrieved Lot Owner shall have a right of action against any and all Lot Owners for failure to comply with the provisions of the Governing Documents or with decisions of the Board made pursuant to authority granted to the Association in the Governing Documents. In any action covered by this section, the Association or any Lot Owner shall have the right but not the obligation to enforce the Governing Documents by any proceeding at law or in equity, or as set forth in therein, or by mediation or binding arbitration if the parties so agree.
Section 17.5 Waiver. Failure of the Association or any Lot Owner to enforce compliance with any provision of the Governing Documents shall not be deemed a waiver of the right to enforce any provision thereafter.
Section 17.6 Implied Rights and Obligations. The Association may exercise any right or privilege expressly granted to the Association in the Governing Documents, by the Act and by the Colorado Revised Nonprofit Corporation Act.
Section 17.7 Applicable Law. This Declaration shall be filed in the records of Gunnison County, Colorado and it is agreed that the proper jurisdiction and venue of any action pertaining to the interpretation or enforcement of this Declaration shall be in the District Court of Gunnison County, Colorado.
Section 17.8 Attorneys’ Fees. If any action is brought in a court of law by any Lot Owner or the Association as to the enforcement, interpretation or construction of the Governing Documents or any document provided for herein, the prevailing party in such action shall be entitled to reasonable attorneys’ fees as well as all costs incurred in the prosecution or defense of such action.
Section 17.9 Successors. This Declaration shall be binding upon the heirs, personal representatives, administrators and assigns of the Lot Owners.
ARTICLE XVIII
AMENDMENT OF DECLARATION
Section 18.1 Amendment. Except as otherwise provided in the Act, this Declaration, including the Plat, may be amended only by a vote or agreement of the 67% of the Lot Owners.
Section 18.2 Recording. Any Amendment to the Declaration, including the Plat, shall be effective upon recording in the same in the records of Gunnison County, Colorado.
Section 18.3 Execution of Amendment. Any amendment to the Declaration, or the Plat, shall be prepared and executed by the Association and signed by the President of the Association or any other Officer of the Association designated for such purpose. The Association shall certify that the Amendment was adopted and approved in accordance with the provisions of Article XVIII and such certification shall be conclusive proof that the Amendment was duly adopted in proper form.
The signers below hereby (1) certify and attest that the foregoing Amended and Restated Declaration of the Silverjack Subdivision was duly adopted and approved at the annual meeting of the Association held on July 16, 2022, by an affirmative vote of 67% of the Lot Owners in accordance with the provisions of Article XVIII, and (2) acknowledge that the original Protective Covenants required an affirmative vote of 80% of the Lot Owners to amend those Protective Covenants. Such requirement was abrogated by C.R.S. § 38-33.3-217 which declares the 80% requirement void and provides that the 80% requirement is deemed to mean 67%.
SILVERJACK HOMEOWNERS ASSOCIATION
a Colorado nonprofit corporation
Section 18.2 Recording. Any Amendment to the Declaration, including the Plat, shall be effective upon recording in the same in the records of Gunnison County, Colorado.
Section 18.3 Execution of Amendment. Any amendment to the Declaration, or the Plat, shall be prepared and executed by the Association and signed by the President of the Association or any other Officer of the Association designated for such purpose. The Association shall certify that the Amendment was adopted and approved in accordance with the provisions of Article XVIII and such certification shall be conclusive proof that the Amendment was duly adopted in proper form.
The signers below hereby (1) certify and attest that the foregoing Amended and Restated Declaration of the Silverjack Subdivision was duly adopted and approved at the annual meeting of the Association held on July 16, 2022, by an affirmative vote of 67% of the Lot Owners in accordance with the provisions of Article XVIII, and (2) acknowledge that the original Protective Covenants required an affirmative vote of 80% of the Lot Owners to amend those Protective Covenants. Such requirement was abrogated by C.R.S. § 38-33.3-217 which declares the 80% requirement void and provides that the 80% requirement is deemed to mean 67%.
SILVERJACK HOMEOWNERS ASSOCIATION
a Colorado nonprofit corporation