DECLARATION OF COVENANTS,
CONDITIONS AND RESTRICTIONS
OF
DAKOTA WEST TOWNHOMES
THIS DECLARATION, is made on the date hereinafter set forth, by Dakota West, LLC, a Colorado limited liability company, with an office at P.O. Box 2721, Durango, Colorado 81302 (referred to herein as "Declarant").
RECITALS
1. Dakota West, LLC, a Colorado limited liability company is the Owner of real property located in the City of Durango, County of La Plata, State of Colorado, which is more particularly described as Lots 1-A & 1-B of WESTWOOD MANOR II, MINOR EXEMPTION SUBDIVISION, PROJECT NO. 95-24, according to the plat thereof filed for record May 5, 1995 as Reception No. 686716 (the “Property”);
2. Declarant desires to create on the Property a mixed use, commercial and residential common interest community pursuant to the Colorado Common Interest Ownership Act (CCIOA,) as set forth in Colorado Revised Statute 38-33.3-101 et. seq., consisting of up to 35 town home units, (12 work-live units and 23 residential units) and general and limited common elements for the benefit of the community, the name of which is the "Dakota West Townhomes;”
3. Declarant states that all of the Property and the Dakota West Townhomes shall be held, transferred, sold, conveyed and occupied subject to the terms and conditions of this Declaration and the provisions of CCIOA.
4. The common interest community created by this Declaration shall be a phased Community pursuant to C.R.S. 38-33.3-103 (21.5) in which the Declarant retains development rights.
ARTICLE 1
SUBMISSION; DEFINED TERMS
Section 1.1 Submission of Property.
(a) Declarant hereby declares that all of the Property shall be held or sold, and conveyed subject to the easements, restrictions, covenants, and conditions which are set forth herein and as described on the Plat for the purpose of protecting the value and desirability of, and which shall run with, the Property and be binding on all parties having any rights, title or interest in the Property or any part thereof, their heirs, legal representatives, successors, and assigns and shall inure to the benefit of each Owner thereof. Additionally, Declarant hereby submits the Property to the provisions of the Colorado Common Interest Ownership Act ("CCIOA"), C.R.S. §38-33.3-101, et seq., as it may be amended from time to time. In the event the CCIOA is repealed, the CCIOA, on the effective date of this Declaration, shall remain applicable.
Section 1.2 Defined Terms. Each capitalized term not otherwise defined in this Declaration or in the Plat or map shall have the meanings specified or used in the CCIOA.
(a) Common Elements shall mean all portions of the Project except the Units and shall consist of both General Common Elements and Limited Common Elements.
(b) First Lienor shall mean any person named as a mortgagee or beneficiary in any first mortgage, or any successor to the interest of any such person under such first mortgage.
(c) General Common Elements. All General Common Elements shall be owned by the Association and shall, at all times, be owned, managed, operated and maintained by the Association consistent with the provisions of this Declaration and in trust for the use, benefit, and enjoyment of all or some of the Owners of Units, together with their family members, permitted guests and permitted invitees. Conveyancing or encumbrance of Association property can only occur consistent with the provisions of Section 312 of CCIOA.
(d) Limited Common Elements. The Limited Common Elements described on the Plat and in this Declaration, shall be owned by the Association consistent with the provisions of this Declaration and in trust for the use, benefit, and enjoyment of the benefited Owners, together with their family members, permitted guests, and permitted invitees, and permitted licensees. Except as otherwise provided in this Declaration, specifically Section 6.6, all costs associated with maintaining these Limited Common Elements shall be paid for by the Association and shall be a Common Expense.
(e) Lot shall mean the subdivided parcels of land designated by number/letter on the Plat and designated for separate ownership or occupancy. Lot shall include the townhome and any balconies and decks attached thereto and located within the perimeters of the Lot. “Lot” shall further have the same meaning as “Unit” under CCIOA.
(f) Plat shall mean, collectively, each as-built plat, depicting phases of the Project, and the Units located therein, which are recorded with the La Plata County Clerk and Recorder and any amendments or supplements thereto.
(g) Project shall mean the common interest community created by this Declaration and as shown on the Plat, comprised of up to thirty-five units to be located on the Property, otherwise known as the "Dakota West Townhomes” in which the units will be designated for separate ownership; and
(h) Unit shall mean the subdivided parcel of land designated by number/letter on the Plat and designated for separate ownership or occupancy. Unit shall include the townhome and any balconies and decks attached thereto located within the perimeter of the subdivided parcel of land.”
NAMES
Section 2.1 Names.
(a) The name of the development shall be the Dakota West Townhomes.
(b) The name of the Association is Dakota West Townhomes Owners Association, Inc. (hereinafter the "Association").
ARTICLE 3
THE ASSOCIATION
Section 3.1 Authority. The business affairs of the Dakota West Townhomes shall be managed by the Association. The Association shall be governed by its Bylaws, as amended from time to time.
Section 3.2 Powers.
(a) The Association shall have all of the powers, authority and duties permitted pursuant to the CCIOA necessary and proper to manage the business and affairs of Dakota West Townhomes. Each Owner agrees that the Association has all the powers granted to it by the Colorado Revised Nonprofit Corporation Act and CCIOA, and any amendments thereto or replacements thereof. Such powers shall include, without limitation, levying Assessments against Owners, imposing a lien on Units for any unpaid or uncollected Assessments or penalties, and foreclosing any such liens, enforcing any deed restrictions and this Declaration, acquiring, holding, owning, leasing, mortgaging and disposing of property (except as such disposition of property may be otherwise limited herein), the adoption of rules and regulations, the defending, prosecuting or intervention in litigation on behalf of all members, the borrowing of monies for Association purposes and the right to pledge future income in order to secure such borrowings. The term "pledge of future income" shall include the right to impose a Special Assessment for repayment of such borrowings and to assign such Special Assessment (and all lien and collection rights appurtenant thereto) to the lender as security for repayment thereof. The Association may exercise any other right, power or privilege, given to it by this Declaration, the Articles and Bylaws of the Association, or by law.
(b) The Association may assign its future income, including its rights to receive Common Expense assessments, only by the affirmative vote of the Unit Owners of Units to which at least 51 percent of the votes in the Association are allocated, at a meeting called for that purpose.
(c) Each and every Owner hereby irrevocably constitutes and appoints the Association as such Owner's true and lawful attorney-in-fact in such Owner's name, place, and stead for the purpose of dealing with the improvements. Acceptance by any grantee of a deed or other instrument of conveyance from Declarant or form any Owner shall constitute appointment of the Association as attorney-in-fact as provided in this Article. As attorney-in-fact, the Association shall have full and complete authorization, right, and power to make, execute, and deliver any contract, assignment, deed, waiver, to other instrument with respect to the interest of any Owner which may be necessary or appropriate to exercise the powers granted to the Association as attorney-in-fact.
Section 3.3 Declarant Control. The Declarant shall have all the powers reserved in C.R.S. §38-33.3-303(5) of the CCIOA to appoint and remove officers and members of the Executive Board (also referred to herein as the "Board of Directors") during the period of Declarant Control. The period of Declarant control terminates no later than the earlier of: (1) Sixty days after conveyance of 75 percent of the Units that may be created (on the Property) to Unit Owners other than a Declarant; (2) Two years after Declarant has last conveyed a Unit in the ordinary course of business; or (3) Two years after any right to add new Units was last exercised. A Declarant may voluntarily surrender the right to appoint and remove officers and Board of Directors before termination of the periods of Declarant control, but in that event, the Declarant may require, for the duration of the period of Declarant control, that specified actions of the Association or Board of Directors, as described in a recorded instrument executed by the Declarant, be approved by the Declarant before they become effective.
Section 3.4 Memberships. Every Owner, by virtue of being an Owner, and for so long as he or she is an Owner, shall be a Member of the Association. Membership shall be appurtenant to and may not be separated from Ownership of any Unit. No Owner, whether one or more persons, shall have more than one membership per Unit owned, but all of the persons owning each Unit shall be entitled to rights of membership and of use and enjoyment appurtenant to such Ownership. An Owner shall not transfer, pledge or alienate his or her membership in the Association in any way except upon the sale or encumbrance of a Unit, and then only to the purchaser or First Lienor of the Unit.
Section 3.5 Other Association Functions. The Association shall undertake those functions and provide those services to the Project as described in this section or otherwise set forth in this Declaration. Further, the Association may undertake, to the extent the Executive Board in its sole discretion so elects, to provide the Project certain other functions or services for the benefit of its members on such bases as the Executive Board may reasonably determine. Such functions may be provided by the Association's employees or an independent contractor retained by the Association. With respect to any of the Project functions or services, the Executive Board shall have the authority to make common expense Assessments consistent with the provisions of Section 315 of CCIOA.
The Association shall provide, but shall not be limited to providing, the following functions or services: (i) the maintenance, and repair of the parking areas; (ii) maintenance, repair, and operation of all utilities on, in, or consisting of, a Common Element; (iii) snow removal within parking areas; (iv) the installation, maintenance, repair and replacement of all improvements and landscaping, including the pedestrian path, located within or on the General Common Elements; and (v) all powers and functions permitted by the Act.
Section 3.6 Owner and Board Member Education. The Association shall provide, or cause to be provided, education to Owners at no cost on at least an annual basis as to the general operations of the Association and the rights and responsibilities of Owner, the Association and the Executive Board under Colorado law. The criteria for compliance with this Section shall be determined by the Executive Board. In addition, the Board may authorize and account for as a Common Expense, reimbursement of Board members for their actual and necessary expenses incurred in attending education meetings and seminars on responsible governance of the Association. Such educational meetings or seminars must involve the Colorado Common Interest and Ownership Act.
Section 3.7 Responsible Governance Policies. Pursuant to Section 209.5 of the Act, the Executive Board, to promote responsible governance, shall:
3.7.1 Maintain accurate and complete accounting records and adopt policies, procedures and rules and regulations concerning:
3.7.1.1 Collection of unpaid Assessments;
3.7.1.2 Handling of conflicts of interest involving Board members;
3. 7.1.3 Conduct of meetings which may refer to applicable provisions of the nonprofit code or other recognized rules and principles;
3.7.1.4 Enforcement of covenants and rules including notice and hearing procedures and the schedule of fines;
3.7.1.5 Inspection and copying of Association records by Unit Owners;
3.7.1.6 Investment of reserve funds;
3.7.1.7 Procedures for the adoption and amendment of policies, procedures and rules; and
3.7.1.8 Procedures for addressing disputes arising between the Association and Unit Owners.
The foregoing policies may be embodied in this Declaration, the Bylaws or the Rules and Regulations of the Association.
ARTICLE 4
UNITS
Section 4.1 Number of Units. The maximum number of Units in the Project is thirty-five (35). Declarant hereby reserves the right to construct up to the maximum number of Units indicated herein.
Section 4.2 Identification of Units. The identification number or letter of each Unit is shown on the Plat. The Project shall consist of 6 buildings. Building A shall consist of Units A1 through A-6; Building B shall consist of Units B1 through B5, Building C shall consist of Units C-1 through C-6; Building D shall consist of Units D-1 through D-6; Building E shall consist of Units E-1 through E-6; and Building F shall consist of Units F-1 through F-6. All Units shall consist of 2 stories.
Section 4.3 Description of Units.
(a) A Unit is the subdivided parcel of land designated by number/letter on the Plat and designated for separate ownership or occupancy.
(b) Any contract for sale, deed, lease, mortgage, will or other instrument affecting a dwelling Unit may describe it by its dwelling Unit number, Dakota West Townhomes, County of La Plata, State of Colorado, according to the plat thereof recorded on ____________ at Reception No. ______________and the Declaration recorded on ___________ at Reception No. _______________in the records of the Clerk and Recorder of La Plata County, State of Colorado, as amended from time to time.
(c) Each owner is entitled to exclusive ownership and possession of his Unit.
(d) Units within Buildings A through D are designated as residential Units.
(e) Units within Building E and Building F are designated as work-live units in which the Unit may be used jointly for commercial and residential purposes. The commercial portion of a Unit may be subject to specific restrictions as described in Section 11.2 below.
(f) Each Unit is a stand-alone structure with its own access. There are no “common or shared walls” between Units.
Section 4.4 Non-Partitionability. No Unit may be partitioned, separated or subdivided into two or more parcels, tracts, or Units.
ARTICLE 5
COVENANT FOR COMMON EXPENSE ASSESSMENTS
Section 5.1 Creation of Association Lien and Personal Obligation for Assessments. Declarant, for each Unit, shall be deemed to covenant and agree, and each Unit Owner, by acceptance of a deed therefore whether or not it shall be so expressed in any such deed or other conveyance, shall be deemed to covenant and agree, to pay to the Association (i) Annual Assessments or charges as provided in this Declaration to generally carry out the functions of the Association (referred to herein as the “Association Dues”); (ii) Special Assessments for capital improvements and other purposes as stated in this Declaration and (iii) Default Assessments. Such assessments, together with fees, charges, late charges, attorney fees, fines and interest charged by the Association, shall be the personal obligation of the Unit Owner at the time when the assessment or other charges became or fell due. The personal obligation to pay any past due sums due the Association shall not pass to a successor in title unless expressly assumed by them. No Owner may exempt himself/herself from liability for any assessment by abandonment of his or her Unit or by waiver of the use and enjoyment of the Common Area.
The assessments of the Association shall be a continuing lien upon the Unit against which each such assessment is made. A lien under this Section is prior to all other liens and encumbrances on a Unit except: (i) liens and encumbrances recorded before the recordation of the Declaration; (ii) a first lien Security Interest on the Unit recorded before the date on which the assessment sought to be enforced became delinquent; and (iii) liens for real estate taxes and other governmental assessments or charges against the Unit. This Section does not prohibit an action to recover sums for which this Section creates a lien or prohibit the Association from taking a deed in lieu of foreclosure. Sale or transfer of any Unit shall not affect the Associations' lien except that sale or transfer of any Unit pursuant to foreclosure of any first Security Interest, or any proceeding in lieu thereof, including deed in lieu of foreclosure, or cancellation or forfeiture shall only extinguish the Association's lien as provided in the CCIOA. No such sale, transfer, foreclosure, or any proceeding in lieu thereof, including deed in lieu of foreclosure, nor cancellation or forfeiture shall relieve any Unit from continuing liability for any assessments thereafter becoming due, nor from the lien thereof.
Section 5.2 Apportionment of Common Expenses. Common Expenses are expenditures made, or liabilities incurred by, or on behalf of, the Association together with any allocations or reserves. Common Expenses shall be assessed against all Units for the upkeep, repair and replacement of all Common Elements, with each Unit to pay a prorata percentage according to the allocated percentage share as described in Article 10.
Section 5.3 Purpose of Assessments. The assessments levied by the Association through its Board of Directors shall be used generally for the purposes of promoting the recreation, health, safety, and welfare of the residents in the Common Interest Community and for the maintenance, repair, and replacement of Common Elements. Without limitation, said assessments may be used for the following purposes:
(a) Maintenance, repair, replacement and improvement of sidewalks, common parking areas, and related facilities, mailboxes, entrance signage, trash dumpsters and signage within the Property;
(b) Weed control, and maintenance, including cutting, trimming, mowing, fertilizing and general upkeep of the pedestrian path, any common lawns, trees, shrubbery and other common landscaped areas;
(c) Maintenance and provision of common area lighting, underground irrigation sprinkler system for the purpose of watering of common landscaping, and provision of snow removal expenses from common sidewalks, driveways, and parking areas;
(d) All costs and expenses pertaining to the operation of the Association;
(e) Obtaining and maintaining insurance, establishing and maintaining reserves for maintenance of Common Elements that must be replaced or repaired on a periodic basis, taxes, capital improvements, and satisfying unpaid assessments;
(f) Legal and accounting fees, management fees; and
(g) Any other purpose approved by a majority vote of all of the Members of the Association.
Section 5.4 Assessment of Utilities. Electricity, gas, water and sewer, cable, and telephone services are separately metered for each Unit and the charges for such utilities shall be paid by the Unit Owner directly to the utility company providing such service. Trash pick up and water and electricity used in connection with the Association’s General Common Elements shall be separately metered and billed by the Association as a Common Expense in accordance with each Unit Owner's percentage share as described in Article 10.
Section 5.5 Association Dues. The Board of Directors shall prepare a budget before the closing of each fiscal year to the Association and submit the budget to the Association. Association Dues for Common Expenses shall be based upon the Association's estimated advance budget of the cash requirements needed by it to provide for the administration and performance of its duties during such assessment year. The Association shall establish the first assessment year by the action of adopting a budget and the levying of the first Association Dues in accordance with its Bylaws.
Within thirty (30) days after adopting a proposed Budget, the Board shall deliver a summary of the proposed Budget to the Owners and set a date for a meeting of the Owners to consider ratification of the proposed budget. The date of such meeting shall not be less than fourteen (14) days nor more than sixty (60) days after the delivery of the summary of the proposed budget to the Owners. Unless at that meeting, 67% of the votes allocated to all Owners, whether or not a quorum is present, rejects the proposed budget, the proposed budget shall be deemed ratified. If the proposed budget is rejected, the annual budget last ratified by the Owners shall be deemed renewed for the next calendar year and shall remain in full force and effect until such time as the Owners ratify a subsequent budget proposed by the Board.
If the Board deems it necessary or advisable to amend an annual budget that has been ratified by the Owners under this Section 5.5, the Board may adopt a proposed amendment to the annual budget, deliver a summary of the proposed amendment to all Owners and set a date for a meeting of the Owners to consider ratification of the proposed amendment. The date of such meeting shall not be less than fourteen (14) days nor more than sixty (60) days after the delivery of the summary of the proposed amendment. Unless at that meeting a majority of the votes allocated to all Memberships, whether or not a quorum is present, rejects the proposed amendment, the proposed amendment shall be deemed ratified.
Section 5.6 Commencement of Common Expense Assessments. Association Dues may be collected in the manner as determined by the Board of Directors i.e., annually, quarterly or monthly. Association Dues shall begin at such time as the Executive Board deems it advisable to begin the collection of assessments, which may be at the time of the initial sale of the first Unit, or at such later date as determined by the Executive Board. The Declarant may determine that assessments shall begin upon the completion of a phase within the Project. Notwithstanding the foregoing, Unit Owners should be prepared to commence payment of annual assessments upon purchase of a Unit. Until the commencement of the collection of assessments, the Declarant shall pay all of the expenses incurred and paid for by the Association. Declarant, however, shall be entitled to a reimbursement out of Association Dues for costs incurred by Declarant in obtaining HOA insurance if such insurance is obtained for the benefit of the Association prior to the commencement of assessments. Assessments shall be made only against those Units which have been completed and approved for occupancy by the Building Department of the City of Durango. Declarant shall be obligated to pay assessments for each completed Unit owned by it which has been approved for occupancy.
Section 5.7 Special Assessments. In addition to the Association Dues authorized above, the Association may levy, a Special Assessment for the purpose of defraying, in whole or in part, the cost of any construction, reconstruction, repair or replacement of a capital improvement, or for other extraordinary expenses; provided that any Special Assessment in excess of Five Thousand Dollars ($5,000.00) per Unit shall (except in the event of an emergency where there shall be no such limit) require a majority approval of those voting in person or by proxy at a meeting duly called for such purpose at which a quorum is present pursuant to the Bylaws of the Association. Special Assessments shall be allocated with the same formula as utilized for Annual Assessments.
Section 5.8 Default Assessments. If any assessment is caused by the misconduct of any Unit Owner, the Association, at its discretion, may assess that expense exclusively against such Owner's Unit. All monetary fines assessed against an Owner pursuant to this Declaration, the Bylaws or any Rules and Regulations (the Association Documents), or any expense of the Association which is the obligation of an Owner or which is incurred by the Association on behalf of the Owner pursuant to the Association Documents, shall be a Default Assessment and shall become a lien against such Owner’s Unit which may be foreclosed or otherwise collected as provided in this Declaration. Notice of the amount and due date of such Default Assessment shall be sent to the Owner according to the procedures set forth in the Bylaws.
Section 5.9 Effect of Non-Payment of Assessments. Any assessment, charge or fee provided in this Declaration, or any monthly or other installment thereof, which is not fully paid within ten (10) days after the date due thereof shall bear interest at the rate of 18% per annum and the Association, at its option, may assess a late charge thereon and suspend the voting rights of the Unit Owner during the period of delinquency. Further, the Association may bring an action at law or in equity, or both, against any Owner personally obligated to pay such overdue assessments, charges or fees, or monthly or other installments thereof, and may also proceed to foreclose its lien against such Owner's Unit. An action at law or in equity by the Association against an Owner to recover a money judgment for unpaid assessments, charges or fees, or monthly or other installments thereof, may be commenced and pursued by the Association without foreclosing, or in any way waiving, the Association's lien therefore. The Association shall be entitled to all reasonable attorneys fees and costs of collection.
Section 5.10 Failure to Assess. The omission or failure of the Board to fix the Association Dues amounts or rates or to deliver or mail to each Owner an assessment notice shall not be deemed a waiver, modification, or a release of any Owner from the obligation to pay Assessments. In such event, each Owner shall continue to pay Association Dues on the same basis as for the last year for which an Assessment was made until a new assessment is made, at which time any shortfalls in collections may be assessed retroactively by the Association.
Section 5.11. Owner Caused Damage. If, due to the act or neglect of an Owner, or such Owner’s guests, loss or damage shall be caused to any person or property within the Dakota West Townhomes common interest community, such Owner shall be liable and responsible for the payment of same. The amount of such loss or damage, together with the costs of collection and reasonable attorney’s fees, may be collected by the Board of Directors, at their sole discretion, exclusively from such Owner as a Default Assessment against such Owner.
Section 5.12. Agreement in Advance Regarding Surpluses. The Board shall establish an adequate reserve fund for the maintenance repair and replacement of those Common Elements that must be periodically maintained, repaired or replaced. To the extent possible, such reserve fund shall be funded through the monthly installments of the annual Common Expense Assessments. Any surplus funds derived from assessments shall be transferred to the reserve fund or used for Association operations during the next fiscal year, in the Executive Board’s sole discretion. In no event shall any surplus funds be distributed to Owners. Each Owner by acceptance of the deed to the Owner’s Unit, for each fiscal year of the Association in which such Unit is owned, hereby authorizes the Executive Board, in its sole discretion, to either use such surplus during the next fiscal year or to transfer to the reserve fund.
Section 5.13 Working Fund Contribution. For the purposes of capitalization of the Association, the Declarant shall establish an initial working capital fund, which amount shall be reimbursed to the Declarant upon the transfer of title to a Unit when that Unit Owner makes the required working capital contribution set forth in this section. Upon acquisition of record title to a Unit from Declarant or any seller after Declarant, each Owner shall contribute to the working capital fund, the amount of $500.00 at the closing of the sale of the Unit. Said working fund shall be collected and transferred to the Association at the time of closing and shall be maintained for the use and benefit of the Association. Such payment shall not relieve an Owner from making regular payments of assessments as such assessments become due and such payment shall not be considered an advance payment of regular assessments. The working capital fund shall be used by the Association, and/or Declarant, for acquisition of insurance, insurance deductibles, capital expenditures for repair or replacement of Common Elements, emergencies, and such other expenses which do not occur on a regular and on-going basis. The working capital fund must be maintained by the Association in a segregated account, and may not be used by the Declarant to defray any of its expenses or construction costs, nor to make up any budget deficits during the period of Declarant Control. The initial working fund capital account shall be established upon the conveyance of the first Unit of the Project by Declarant to a bona fide purchaser. The working capital deposit shall be credited to each Owner, including Declarant, upon the sale of his/her Unit, provided that the new purchaser of the Unit has deposited the required working capital deposit with the Association at closing.
Section 5.14 Procedure for Collection of Assessments.
Section 5.14.1. Due Date: All monthly installments of Annual Assessments are due on the 1st day of each month and become delinquent if not paid by the thirty (30th) day of each month. Interest accrues on delinquent amounts as stated in Section 5.8 of the Declaration. All payments are payable to the Association and are mailed as directed by the Executive Board or Manager.
Section 5.14.2. Delinquency. When an Owner fails to pay an Association assessment within sixty (60) days of the due date, the Executive Board or the Manager, acting on behalf of the Board, will notify such Owner that his voting rights in the Association have been suspended until the delinquent Assessment has been paid. The Association may also, at any time after expiration of sixty (60) days after the due date, file a Statement of Lien with the La Plata County Clerk and Recorder. Further, the Association may attempt to send a written notification to the Mortgagee or holder of the first deed of trust, if any on the delinquent Owner’s Unit.
Section 5.14.3. Application of Payment; Definition of Assessment. Any fine, late charge or other monetary charge or penalty levied by the Association pursuant to the Declaration, the Act, including attorney’s fees and costs incurred by the Association and for which the Owner is liable, shall be collectible as an Assessment as that term is defined by the Act.
Payments received from an Owner shall be applied to the Owner’s account in the following order:
a. Attorney’s fees and costs incurred by the Association and for which the Owner is responsible pursuant to the Act or the Declarations;
b. Interest which has accrued on all unpaid charges;
c. Fines, late charges or other monetary charges or penalties;
d. Past due Default Assessments;
e. Past due Special Assessments;
f. Past due monthly installments of Annual Assessments;
g. Current Special Assessments; and
h. Current monthly installment for Annual Assessments.
LIMITED COMMON ELEMENTS
Section 6.1 Limited Common Elements.
(a) A "Limited Common Element" means a portion of the Common Elements, designated in this Declaration, or on the Plat, or by the CCIOA, for the exclusive use of one or more but fewer than all of the Units.
(b) The following are designated as Limited Common Elements:
(i) the parking space(s) allocated to a Unit as shown on the as-built Plats and the diagram attached hereto;
(ii) backyard and side yard areas which are designated as L.C.E. on the Plat; and
(iii) marquee sign identifying business of Units in Building E and F shall be an LCE as to Units in Building E and F.
Section 6.2 Expense Allocation for Limited Common Elements. Any Common Expense (including those expenses which require a special assessment) associated with the maintenance, repair or replacement of a Limited Common Element assigned to more than one Unit shall be assessed equally against the Units to which the Limited Common Element is assigned. Any expense associated with the maintenance, repair or replacement of a Limited Common Element assigned to one Unit shall be assessed only against that Unit.
Section 6.3 Allocation of Reserved Limited Common Elements.
(a) Portions of the Common Elements may be allocated as Limited Common Elements. These portions of the Common Elements may include, without limitation, vehicle parking areas and other areas.
(b) The Declarant reserves the right to allocate specified areas which constitute a part of these Common Elements as Limited Common Elements for the exclusive use of the Owners of Units to which these specified areas shall become appurtenant. The Declarant may assign such Common Elements as Limited Common Element areas pursuant to the provisions of C.R.S. §38-33.3-208 of the CCIOA (i) by making such an allocation in a recorded instrument or (ii) in the deed to the Unit to which such Limited Common Element area shall be appurtenant or (iii) by recording an appropriate amendment or supplement to this Declaration. Such allocations by the Declarant may be to Units owned by the Declarant. Subsequent to the Declarant control period, the right of allocation pursuant to this Section shall pass from the Declarant to the Board of Directors and the Declarant may not thereafter exercise any such right.
Section 6.4 Allocation of Specified Common Elements. The Board of Directors may designate parts of the Common Elements from time to time for use by less than all of the Unit Owners or by non-Owners for specified periods of time or by only those persons paying fees or satisfying other reasonable conditions for use as may be established by the Board of Directors. Any such designation by the Board of Directors shall not be a sale or disposition of such portions of the Common Elements.
Section 6.6 Maintenance of Limited Common Elements. The Owner of a Unit shall be responsible for and shall pay for the costs incurred in the maintenance of all LCEs allocated or belonging to that Unit with the exception of the repair and repaving of the LCE parking areas which shall be the responsibility of the Association.
ARTICLE 7
COMMON ELEMENTS
Section 7.1 General Common Elements.
(a) A "General Common Element' means a portion of the Common Elements, designated in this Declaration, or on the plat or map, or by the CCIOA, for the general use of all of the Owners.
(b) The following portions of the Property, not platted as individual Units and conveyed to Owners in fee title, are designated as General Common Elements:
(i) the utility easements identified as belonging to the Association as designated on the Plat;
(ii) all driveways, sidewalks, curbs, gutters, light poles, entrance signage, drainage and sewage systems, common trash receptacles and mailboxes;
(iii) all common parking areas (those parking stalls which are not designated as LCE and allocated to a Unit as shown on the Plat and parking diagram attached hereto);
(iv) all common landscaped areas (not including LCE landscaped areas); and
(v) any areas expressly indicated as G.C.E. on the plat.
(c) Subject to the limitations contained in this Declaration, each Unit Owner shall have the non-exclusive right, with all other Unit Owners, to use and enjoy the General Common Elements in accordance with the purpose for which they are intended without hindering or encroaching upon the lawful rights of the other Owners. There shall be no obstruction of the General Common Elements, nor shall anything be kept or stored on any part of the General Common Elements without the prior written consent of the Association, except as specifically provided herein. No restriction, impairment or interference with any right of ingress or egress provided for in this Declaration shall be permitted at any time without the prior written consent of the Owner thereof. Nothing shall be altered on, constructed in, or removed from, the General Common Elements except upon the prior written consent of the Board of Directors.
Section 7.2 Neither an Owner, group of Owners, nor the Association shall bring any action for partition or division of the Common Elements, nor by act or omission, seek to abandon, encumber, sell or transfer any of the Common Elements. If any Unit Owner, or group of Unit Owners, violates this paragraph, such Owner or Owners agree that this paragraph may be pleaded as a bar to maintenance of such an action for a partition, and further that the Association shall be entitled to personally collect, jointly and severally, from the parties violating this paragraph, the actual attorneys fees, costs and other damages the Association sustains in connection therewith.
ARTICLE 8
MAINTENANCE
Section 8.1 Maintenance By Owners. Each Owner shall maintain and keep in repair the interior and exterior of his townhome, including but not limited to, the trim, siding, roofs, eaves, gutters, decks, balconies, garage doors, doors and windows. In performing such maintenance or repairs, or in improving or altering his townhome, no Owner shall do any act or work which impairs the structural soundness of any other townhome or Unit. The Owner of a Unit shall be responsible for removal of leaves and debris, and snow removal from decks and balconies. Unit Owners shall also be responsible for the upkeep and maintenance (including mowing and trimming) of their designated backyard and/or sideyard areas and the staining, repair and replacement of any fencing within the backyard or sideyard of a Unit. In addition, Owners shall be responsible for any improvements added to the Unit exterior by that Owner (i.e., gutters).
Section 8.2 Owner’s Failure To Maintain or Repair. In the event that a Unit, and/or townhome thereon, is not properly maintained and repaired, and if the maintenance responsibility for the unmaintained portion of the Unit lies with the Owner of that Unit, or in the event the Unit is damaged or destroyed by an event of casualty and the Owner does not take reasonable measures to diligently pursue the repair and reconstruction of those portions of the damaged or destroyed Unit for which the Owner is responsible to substantially restore those portions damaged or destroyed to the same condition on which they existed prior to the damage or destruction, then the Association, after notice to Owner and with the approval of the Executive Board shall have the right to enter upon the Unit to perform such work as is reasonably required to restore the Unit and/or townhome to a condition of good order and repair. All costs incurred by the Association in connection with such restoration shall be reimbursed to the Association by the Owner of such Unit, upon demand. All unreimbursed costs shall be a lien upon the Unit until reimbursement is made. The lien may be enforced in the same manner as a lien for an unpaid assessment levied in accordance with Article 6 of this Declaration.
Section 8.3 Maintenance By Association. The Association shall be responsible for the maintenance and repair of all General Common Elements (unless necessitated by damage caused by the negligence, misuse or tortious act of an Owner or Owner’s agent), and such maintenance and repairs shall be the Common Expense of all Owners. The maintenance shall include, but shall not be limited to, upkeep, repair and replacement, subject to any insurance then in effect, of all roads (which shall include without limitation snow removal services), utilities, easements, landscaping, signage, irrigation systems, sidewalks, and improvements, if any). In addition to the General Common Elements, the Association shall be responsible for the repair and repaving of the parking stalls which have been designated LCE. The Association shall have no responsibility for upkeep or maintenance of any yard area LCEs or fencing. The Association shall have no obligation to repair, replace or maintain the structural or exterior, or roofing components of any Unit..
Section 8.4 Easement For Maintenance. Each Owner in the Association shall have the irrevocable right, to be exercised by the Manager, the Executive Board or officers or employees of the Association, to have access to each Unit from time to time during reasonable hours as may be necessary for the maintenance, repair or replacement of any of the General Common Elements or Limited Common Elements therein or accessible therefrom, or at any hour, for making emergency repairs, maintenance or inspection therein necessary to prevent damage to the General Common Elements, Limited Common Elements, or another Unit. In the event insurance proceeds under Article 7 are payable to an Owner, but the maintenance responsibility of the area to which such proceeds relate is the Association’s, the Association shall complete any such repair or replacement at the Owner’s cost.
Section 8.5 Damage to Shared Roofing and Fencing. In the event of damage or destruction of an improvement or element of a Unit (for example, roofing or fencing) which is shared between two or more Unit Owners, the then Owners of the Units to which the shared element is attributable shall bear equally the expense to repair or rebuild the shared element to its previous condition. In the event that damage or destruction of the shared element is caused as a result of the negligence or tortious acts of a single Owner or Owner’s agents, then that Owner shall bear the cost of such damage to the extent of such Owner’s or Owner’s agent’s negligence. If the Owner of one Unit fails to pay his proportionate share of the cost of repair or maintenance, then the other Owner may cause the repair or maintenance to be performed and shall be entitled to assess the cost attributable against the non-paying Owner Unit, and the same shall become and remain a lien against such Unit until paid. The lien may be foreclosed in the manner provided by law for the foreclosure of a mortgage on real property. The right of any Owner to contribution from any other Owner under this Section 8.5 shall be appurtenant to and shall run with the land and shall pass to such Owner’s successor’s in title.
Notwithstanding any other provision of this Section 8.5, the Association may, in its sole discretion, make any repairs to the shared elements which the Association deems necessary and the cost for such repairs shall be assessed equally against the Units benefited by such repairs unless the repairs are necessitated by willful acts or omissions or negligence of one or more Owner(s) in which case the Owner(s) causing the damage shall pay for all costs of repairs.
Section 8.6 Association Power. The Association shall have the right and power to prohibit storage or other activities deemed unsafe, unsightly, unreasonably noisy or otherwise offensive to the senses and perceptibility from another Unit, the General Common Elements or Limited Common Elements. No Owner shall make any addition or other alteration to any portion of the General Common Elements or Limited Common Elements without the express consent of Executive Board unless otherwise permitted in this Declaration.
ARTICLE 9
DEVELOPMENT RIGHTS AND OTHER SPECIAL DECLARANT RIGHTS
Section 9.1 Development Rights and Special Declarant Rights. The Declarant reserves the following Development Rights and other Special Declarant Rights for a period of 10 years after the recording of this Declaration:
(a) the right to complete or make improvements indicated on the Plat as provided by ;
(b) the right to maintain upon any one of the Units, a sales office and/or model as provided in C.R.S. 28-33.3-215;
(c) the right to maintain signs on the Property to advertise the sale or rental of the Units;
(d) the right to use, and to permit others to use, easements through the Common Elements as may be reasonably necessary for the purpose of discharging the Declarant's obligations under the CCIOA and this Declaration;
(e) the right to appoint or remove any officer of the Association or any Director during the Declarant Control Period consistent with the CCIOA;
(f) the right to amend these Declarations and/or the Plat in connection with the exercise of any Declarant Rights;
(g) the right to develop the Project in phases, and in any order of phasing, to include up to 35 town home units and to expand the Common Elements in connection with same; and,
(h) the right to modify the configuration of the Units and Project site plan for a particular phase of the Project; provided, however, Declarant has the prior approval of the City of Durango Planning Department.
No assurances are made by Declarant as to whether Declarant will exercise its Development Rights or the order in which such Development Rights will be exercised. The exercise of Development Rights as to some portions of the Property will not obligate Declarant to exercise them as to other portions. The exercise of the above reference special Declarant rights or rights reserved to Declarant shall not require the consent or approval of the Association or its member.
Section 9.2 Termination of Rights Reserved. Except as otherwise expressly reserved in this Declaration, all rights reserved by and to the Declarant terminate 10 years after the date upon which this Declaration is recorded or upon the sale of all of the Units which are within the Project up to the maximum number of Units, whichever shall first occur; provided, however, such reserved rights may be: (i) reinstated or extended by mutual agreement of the Association and Declarant, subject to whatever terms, (ii) extended as allowed by law; or (iii) terminated in whole or in part by a written instrument executed by the Declarant in such manner as provided in the Act.
Section 9.3. Declarant’s Right To Amend. Without the consent of the Association or Owners, Declarant reserves the right to amend these Declarations, as granted the Declarant under the Act, C.R.S. 38-33.3-217 (1)(a) for conforming same to the requirements of the Federal Home Loan Mortgage Company, Veterans Administration, or any other institution involved in the purchase and sale of home loan mortgages, or any institutional mortgage lender, or any title insurance e company of the County of La Plata, state of Colorado or the United States of America, or any other governmental agency or political subdivision; (b) for perfecting, clarifying or making internally consistent the provision of the Declaration; (c) for perfecting, clarifying or making the provisions of the Declaration consistent with the plat; and (d) for including provisions, as may be necessary, to effect Declarant’s exercise and implementation of Special Declarant Rights as set forth above. The Declarant shall also have the right to amend the Plat as necessary in order to conform the Plat notes, restrictions, identification of LCE and GCE with this Declaration. The Declarant may amend this Declaration and Plat, in its sole discretion, until the time of the sale of the initial Unit on the Property.
ARTICLE 10
ALLOCATED INTERESTS
Section 10.1 Allocated Interests. Each completed Unit shall be entitled to one vote in the Association irrespective of the size of the Unit. Each completed Unit shall have the same Common Expense liability. A completed Unit is a Unit for which a certificate of occupancy has been obtained.
Section 10.2 Determination of Allocated Interest. Each Owner shall be responsible for that Owner's share of the Common Expenses, which, except as specifically provided in this declaration, shall be divided equally among the Units included in the Property under this Declaration from time to time. Accordingly, at any given time, an Owner's share of Common Expenses shall be determined as a fraction, the numerator of which is the number of Units owned by Owner and the denominator of which is the total number of Units within Dakota West Townhomes. For example, if, after the completion of Phase 1, there are a total of 12 completed Units on the Property, a single Owner will be responsible for 1/12 of the Common Expenses. If there are a total of 35 units on the Property, a single Owner will be responsible for 1/35 of the Common Expenses. Any Common Expenses or portion thereof benefiting fewer than all of the Units shall be assessed exclusively against the Units benefited as provided in Section 6.2.
If Units are added to or withdrawn from the Common Interest Community, (i) the Common Expenses liability for each Unit shall be reallocated on the same basis as set forth above, and (ii) one vote in the Association shall continue to be allocated to each Unit in the Common Interest Community following the addition or withdrawal of such Unit.
ARTICLE 11
RESTRICTIONS ON USE, ALIENATION AND
OCCUPANCY
Section 11.1 Use and Occupancy Restrictions. Subject to the Development Rights and Special Declarant Rights reserved by the Declarant, the following use restrictions apply to all Units and to Owners, their tenants, guests, customers, clients, invitees, and licensees:
(a) Residential Use. Units within Buildings A through D shall be used exclusively for single family residential purposes only and shall not be used for any business, manufacturing, or commercial purpose whatsoever; provided, however, if the appropriate zoning or land use approval so allows and if prior written approval of the Association is obtained, an Owner may use a specifically designated portion of his or her Unit as a home business or office. A home occupation may be carried on provided:
(i) that the business or commercial usage does not interfere with the residential character of the dwelling or neighborhood, and is secondary to use as a dwelling place;
(ii) that the proposed usage causes no undue parking, traffic or telephone problems; and
(iii) that such usage exhibits no outward appearance of business or commercial use.
(b) Improvements. No improvements or structural alterations, including changing the exterior color, configuration or facade constructed on any Unit, shall be made except only as approved by the Board of Directors, and shall be consistent with any applicable zoning rules and regulations. For purposes of this Declaration, improvements shall mean any changes, alterations, modifications or improvements to buildings, structures, fencing, parking areas, walls, plantings, driveways, walkways, signs, balconies, and any change in exterior color of the Unit. Any proposed improvements, landscaping or alterations to any Unit (including alteration and replacement of garage doors, doors and windows) shall match the appearance, color, and materials of the other Units and landscaping within the Property. The Board of Directors shall be obligated to answer any written request by an Owner for approval of a proposed structural addition, alteration or improvement within 60 days after such request, and failure to do so within the stipulated time shall constitute approval by the Board of Directors of such proposed structural addition, alteration, or improvement.
(c) Residential Signs. No signs, billboards, posterboards, or other advertising structure of any kind shall be erected or maintained for any purpose whatsoever except such signs as have been approved by the Association and are in compliance with the applicable restrictions imposed by the sign code of the City of Durango. Declarant, at its discretion, may erect promotional signs and ordinary real estate "For Sale" and “For Rent” signs. Notwithstanding the foregoing restriction on signs, the Association shall not prohibit the display of a political sign in the window of the Owner’s Unit so long such sign is displayed no earlier than 45 days before the day of an election and no later than seven days after an election day.
(d) Completion of Construction. All construction, reconstruction, alterations or improvements, approved by the Board of Directors, shall be prosecuted diligently through completion and shall be completed within six months of the commencement thereof.
(e) Abandoned or Inoperable Vehicles. Abandoned or inoperable automobiles, recreational vehicles, or motor vehicles of any kind, shall not be stored or parked within the Property. Abandoned or inoperable vehicles shall be defined as any vehicle which either is incapable of legal operation upon a public highway or has not been driven under its own propulsion for a period of 14 days or longer. No vehicle may be used for temporary or permanent sleeping or living purposes. The Association shall have the right to remove or tow away any vehicle that is parked in violation of this paragraph. The cost for any removal or towing shall be charged to the responsible Owner.
(f) Noise. No exterior horns, whistles, bells, wind chimes, or other sound devices, except security devices used exclusively to protect the security the improvements on any Unit, shall be placed or used on any Unit.
(g) Nuisance. No obnoxious, offensive or illegal activity shall be carried on within the property comprising Dakota West Townhomes, nor shall anything be done or permitted which shall constitute a public nuisance. No noise, lights, sounds, odors or other nuisance shall be permitted to exist or operate upon the property so as to be offensive or detrimental to any other part of the property or its Owners, tenants, guests or occupants.
(h) Hazardous Activities. No activities shall be allowed or conducted on the property which are or might be unsafe or hazardous to any person or property, nor shall any inherently unsafe or hazardous materials be stored on the property.
(i) Maintenance and Repair. The Owner of any Unit shall keep his or her Unit in a clean and sanitary condition, and shall maintain the good appearance and condition of the Unit. If the Unit Owner fails to keep the Limited Common Elements of his or her Unit in a sanitary and clean condition, the Board of Directors may give the Owner written notice of the needed maintenance or repair. If said maintenance or repair is not completed by Owner within 30 days of the mailing of such notice, the Board of Directors, at its option, may obtain an injunction against the Owner to force completion of the needed work. In the alternative, the Board of Directors may contract with a third party for the needed work and assess the cost of same against the Owner pursuant to the assessment provisions contained herein.
(j) Animals. Except for common household pets, no livestock, poultry, or exotic animals may be kept on the property unless with the permission of the Board of Directors and the rules and regulations of the City of Durango. All applicable municipal leash laws shall be followed. There shall be no more than two cats or two dogs No pets shall be bred for commercial purposes, or maintained for commercial purposes. No animals shall be allowed to run free, or to otherwise constitute a nuisance to any other Unit Owners, and Owners shall "clean up" after their pet at all times and in all places within the Project. The Owner of any animal shall at all times be personally liable and responsible for all actions of such animals and any damage caused by such animal.
(k) Trash. All garbage and trash shall be dealt with consistent with the applicable codes of the City of Durango. Trash removal shall be managed by the Association and the cost thereof shall be a Common Expense. Each Owner shall store trash in accordance with the rules and regulations promulgated by the Association, if any. The Owner of any Unit subject to these covenants shall keep the Units, including balconies and LCE yard areas, free of trash, refuse, or debris of any kind, whether said Unit is vacant or occupied.
(l) Antennae. No exterior radio, television, microwave or other antennae or antennae dish or signal capture or distribution device shall be permitted or installed on the Property. Installation of a satellite dish of no more than 18 inches in diameter shall be permitted within the backyard LCE area of a Unit. Location of satellite dishes in any other location shall require prior approval of the Board.
(m) Balconies and Decks. Balconies and decks shall be used only for the purposes intended and shall in no event be used for hanging garments, or used for storage of unsightly material or trash. No grills of any kind shall be permitted on the balconies; however, grills shall be permitted on decks or patios or within LCE yard areas of the Units.
(n) Residential Rentals. Nothing shall be construed as preventing the renting or leasing of an entire Unit as a single residence. The Association may, in its discretion, adopt specific rules and regulations pertaining to leases and lease terms. Owners must comply with City of Durango ordinances pertaining to short-term or vacation rentals of a Unit. Owners shall be responsible for the actions of their tenants and shall be fined or assessed for any violations which are the result of actions or omissions of tenants.
(p) Landscaping. All landscaping and landscaping improvements shall be constructed and installed within the Dakota West Townhomes Project pursuant to a landscaping plan adopted by Declarant and approved by the City of Durango. All landscaping shall be installed within the General Common Elements. After the initial landscaping plan has been fully implemented by the Declarant, all landscaping maintenance and repair except those areas that are designated the responsibility of the unit owner herein shall be undertaken by the Association. Owners shall be permitted to put plantings in their designated backyard L.C.E.s without prior approval of the Executive Board.
(q) Mechanic’s Liens. Each Owner of a Unit shall indemnify and hold harmless Declarant, the Association and other Owners from and against all liability arising from any claim or lien, including mechanic’s lien regarding construction performed, or for labor, materials, services or supplies incorporated into such Owner’s Unit.
(r) Association Rules. The Association may, by a majority vote of the Executive Board, adopt, amend and repeal rules and regulations to be known as the Dakota West Townhomes "Association Rules". Association Rules, for example, may be created for the purpose of further regulating use of parking areas. The purpose of the Association Rules shall be to implement, supplement or otherwise carry out the purposes and intentions of this Declaration; provided such Association Rules must be consistent with this Declaration.
(s) Fencing. Privacy fencing around the perimeter of the backyard L.C.E. shall be permitted only with the prior approval of the Executive Board. No fencing shall be more than six feet in height and fencing materials shall be limited to wood fencing in a style which has been pre-approved by Board.. Fencing must be constructed within the perimeter boundary lines of a Unit as set according to the Declarant. In addition to the boundary fencing, privacy patio fencing and invisible dog fences shall be permitted. No wire or chainlink fencing shall be allowed.
Section 11.2 Work/Live Unit Restrictions. Units in Buildings E and F have been designated as work-live units which shall be subject to the restrictions described in 11.1 above (with the exception of 11.1(a) and the following additional restrictions:
(a) Signage: All proposed
signage for commercial units shall be submitted to the Declarant and/or Board
of Directors for approval prior to the Owner’s (or tenant’s) submittal of the
sign permit application with the City of Durango. Uniform commercial
signage measuring 1 foot by 2 foot shall be allowed between the Unit and the
Unit’s garage door advertising the business and indicating the doorway as the
general entrance to the business. Signage, as approved by the Declarant (or
the Board as the case may be), shall also be permitted within the window of a
Unit. No other signage shall be allowed unless pre-approved by the Association
Board. In no event shall neon signage be allowed.
(b) Lighting: Work-Live Units shall be permitted to have low-level interior lighting after the close of business for security purposes so long as such lighting is in compliance with the applicable regulations of the City of Durango.
(c) Rentals. Work/Live Units may be rented so long as the Board of Directors is notified of the lease and provided with the name and contact information of the tenants. The Association Documents and the restrictions set forth herein must be adhered to by all tenants and guests of Owners. Fines may be assessed to Owners as a result of tenant violations of the Association Documents.
(d) Commercial Uses. Work-Live Units may be utilized for the following commercial purposes: professional occupations and services, including but not limited to, real estate, legal, government, physical therapy, engineering and surveying, medical, financial, public relations or other such professional services. In no event shall manufacturing or industrial purposes of any kind be permitted. Tattoo parlors, pawn shops, beauty and nail salons, liquor stores, food service or restaurant establishments, coffee shops, retail businesses, or veterinary clinics shall be prohibited.
Section 11.3. Restrictions on Alienation. A Unit shall not be conveyed pursuant to a time-sharing arrangement described in C.R.S. §§38-33-110 to 113 of the CCIOA.
MORTGAGE
FIRST MORTGAGE PROVISIONS
Section 12.1 The following provisions are for the benefit of holders, insurers, or guarantors of holders of first mortgages recorded against Units within the Common Interest Community who qualify as an Eligible Mortgagee. To the extent applicable, necessary, or proper, the provisions of this Article apply to both this Declaration and to the Articles and Bylaws of the Association. “Eligible Mortgagee” or “First Lienor” means a holder, insurer or guarantor of a First Security Interest who has delivered a written request to the Association containing its name, address, the legal description and the address of the Unit encumbered by its First Security Interest.
Section. 12.2 Notices of Action. An Eligible Mortgagee shall be entitled to timely written notice of:
(a) any material condemnation loss or any casualty loss which affects a material portion of the Common Interest Community or any Unit in which there is a First Mortgage held, insured, or guaranteed by such Eligible Mortgagee;
(b) any default in the performance by an individual borrower of any obligation under the Common Interest Community constituent documents not cured within sixty (60) days;
(c) any lapse, cancellation or material modification of any mandatory insurance policy or fidelity bond maintained by the Association;
(d) any proposed action which would require the consent of a specified mortgage of Eligible Mortgages; and
(e) any material judgment rendered against the Association.
Section 12.3 Action by Mortgagee. If this Declaration or any Association documents require the approval of Mortgagees to any action, then, if any Mortgagee fails to respond to any written request for such approval within 30 days after such Mortgage receives notice of the request, such Mortgagee shall be deemed to have approved such request. Notification to Mortgagee shall consist of sending a dated, written notice and copy of any proposed amendment by certified mail to each First Mortgagee at its most recent address as shown on the recorded deed of trust or recorded assignment thereof.
Section 13.1 Enforcement. These covenants, conditions and restrictions may be enforced as provided hereinafter by the Association, or by separate action by any individual Owner after notification to the Board. In the event that any covenant shall be violated, the offending party shall be notified in writing by certified mail, return receipt request, by any enforcing party as defined above. Such notification shall identify the covenant which has been violated and shall notify the offending party that he shall have a maximum of five (5) days to remedy such violation, or alternatively, in the event such violation cannot be remedied within five (5) days, he shall have a period of five (5) days within which to initiate procedures reasonably calculated to remedy such violation, and shall thereafter be required to diligently pursue such action until the violation has been remedied. In the event the violation continues and no action is taken to remedy such violation within the aforementioned five (5) day period, enforcement may be by any proceeding at law or in equity, and the Association or Owner may seek an order to restrain the violation or recover damages, inclusive of reasonable attorney's fees. Failure by the Association or any Owner to enforce any covenant or restriction contained herein shall not be deemed a waiver of the right to do so thereafter. Notwithstanding the foregoing, the Board has the discretion to follow alternate notification procedures as may be adopted in its Bylaws and which shall govern.
Section 13.2 Amendment. This Declaration may, except as limited by Section 12.3, be amended with the approval of a 67% of the votes entitled to be cast by members of the Association; provided that such amendment shall not adversely affect marketable title to any Unit. During the period of Declarant control, any amendment to this Declaration must also receive the approval of Declarant. Consent of First Lienors shall not be required; provided, however, that no such amendment may substantively and adversely affect such First Lienor’s security interest. The Declaration shall be amended at a meeting called for that purpose, and within 6 months of such meeting there shall be recorded in the real estate records of the County an instrument evidencing such amendment. Any instrument amending this Declaration shall be duly executed by the Declarant or President and Secretary of the Association, as the case may be. Notwithstanding the preceding, no amendment shall be permitted that is inconsistent with any of the rights granted, retained or reserved to Declarant hereunder or which attempts to enlarge or expand any obligation of Declarant hereunder unless such amendment is consented to in writing by Declarant.
Section 13.3 Revocation. This Declaration shall not be revoked unless the Owners representing an aggregate interest of 67% or more consent and agree to such revocation by instrument(s) duly recorded.
Section 13.4 Term of Declaration. The term of this Declaration shall be perpetual.
INSURANCE
Section 14.1 Association Insurance. The Association shall, on behalf of the Owners: provide and keep in force, for the protection of the Association, its officers and directors, and all the Owners and First Lienors, (i) Commercial General Liability insurance against claim for bodily injury or death or property damage occurring upon or in the General Common Elements and Limited Common Elements, in an amount of not less than $1,000,000.00 in respect to bodily injury and/or property damage arising out of one accident or disaster, and if higher limits shall at any time be customary to protect against possible tort liability, such higher limits shall be carried; (ii) carry insurance required by CCIOA and such other insurance as the Executive Board may, within its discretion, determine desirable for the protection of the General Common Elements and Limited Common Elements, if any; and (iii) assure that all such insurance shall conform with the requirements set forth in Section 313 of CCIOA. The loss payable shall be in favor of the Association as a trustee for each Owner and each such Owner’s mortgagee. Such policy shall contain a standard mortgage clause or equivalent endorsement (without contribution) which is commonly accepted by private institutional mortgage investors.
Association insurance policies (including hazard and liability) may be carried in blanket policy form naming the Association as the insured, for the use and benefit of and as attorney-in-fact for the Unit Owners. Each Unit Owner shall be an insured person under the policy with respect to liability arising out of such Unit Owner’s interest in the Common Elements or membership in the Association. Each First Lienor and its successors or assign shall be a beneficiary of the policy in the percentage of Common Expenses for the Unit which the First Lienor encumbers. No act or omission by any Unit Owner, unless acting within the scope of such Unit Owner’s authority on behalf of the Association, shall void the insurance policy or be a condition to recovery under the insurance policy. If, at the time of a loss under an insurance policy described above there is other insurance in the name of the Unit Owner covering the same risk covered by the policy, the Association’s policy shall provide primary insurance.
Section 14.2 Common Expenses. Premiums for insurance that the Association acquires and other expenses connected with acquiring such insurance are Common Expenses, notwithstanding the fact that the Owners may have disproportionate liability or that some units may have greater risk of loss than others. All insurance required to be carried under this paragraph shall be carried in favor of the Association, the Owners and all First Lienors, as their respective interests may appear.
Section 14.3 Owner Insurance. An insurance policy issued to the Association does not obviate the need for Owners to obtain insurance for their own benefit.
14.3.1 Casualty Insurance. Each Owner shall obtain and maintain casualty insurance for all insurable improvements on an Owner’s Unit, including but not limited to, the townhome, the walls (exterior and interior), the roof, balconies, decks and patios, backyard areas and all other structural elements comprising the Unit. Such insurance shall, to the extent reasonably possible, be for the full insurable value based on the current replacement cost of the Owner’s Unit. The casualty insurance that Owner shall obtain and maintain, as provided above, shall be for the duration of the Owner’s ownership of the Unit, shall designate the Association as an additional named insured, and shall contain a provision that the Association shall be given thirty (30) days prior written notice regarding any cancellation of such casualty insurance policy. A copy of such casualty insurance policy shall be furnished to the Association. Additionally, each Owner shall be responsible for obtaining and maintaining any casualty insurance for fixtures, furnishings and equipment located within the interior of the Unit.
14.3.2. Liability Insurance. Each Owner shall obtain and maintain general public liability and property damage insurance insuring against claim for bodily injury, death, or property damage occurring as a result of each such Owner’s tortuous act or omission upon their Unit in amounts of not less than five hundred thousand dollars ($500,000) in respect to bodily injury or death to any one person, and not less than one million dollars ($1,000,000) for bodily injury or death to any number of persons arising out of one accident or disaster, and in limits of not less than five hundred thousand dollars ($500,000.00) for damage to property. The foregoing insurance shall be maintained for the duration of the Owner’s ownership of the Unit and shall designate the Declarant and the Association as additional named insured, and shall contain a provision that the Association be given 30 days prior written notice regarding any cancellation of such insurance policy. A copy of such liability insurance policy shall be furnished to the Association.
In the event an Owner fails to obtain and maintain the insurance described in 14.3.1 and 14.3.2 above, the Association may elect to obtain such insurance and assess the Owner for the costs of same in the manner provided above for default assessments.
Section 14.4 Fidelity Insurance. In addition, if responsibility for handling funds is delegated to a Manager, fidelity insurance or fidelity bonds may be obtained by or for the Manager, and its officers, employees and agents, as applicable, if such fidelity insurance or bond is available at a reasonable cost. Any such fidelity insurance or bond shall name the Association as insured and shall contain waivers of all defenses based upon the exclusion of persons serving without compensation from the definition of “employees” or similar terms or expressions.
Section 14.5 Workmen’s Compensation Insurance. The Executive Board shall obtain worker’s compensation or similar insurance with respect to its employees, if applicable, in the amounts and forms as may now or hereafter be required by law.
DAMAGE OR DESTRUCTION
Section 15.1 The Role of the Association Executive Board. In the event of damage or destruction to all or any part of any General Common Elements, Limited Common Elements and any improvements existing thereon, or other property covered by insurance written in the name of the Association (the “Association-Insured Property”), the Executive Board shall arrange for and supervise the prompt repair and restoration of the damaged property unless any of the provisions of Section 313(9)(a) of CCIOA are met.
Section 15.2 Estimate of Damages or Destruction. As soon as practicable after an event causing damage to or destruction of any part of the Association-Insured Property, the Executive Board shall, unless such damage or destruction shall be minor, obtain an estimate or estimates that it deems reliable and complete of the costs of repair and reconstruction. “Repair and reconstruction” as used in this Article shall mean restoring the damaged or destroyed improvements to substantially the same condition in which they existed prior to the damage or destruction. Such costs may also include professional fees and premiums for such bonds as the Executive Board or the Insurance Trustee, if any, determines to be necessary.
Section 15.3 Repair and Reconstruction. As soon as practical after the damage occurs and any required estimates have been obtained, the Association shall diligently pursue to completion the repair and reconstruction of the damaged or destroyed Association-Insured Property. As attorney-in-fact for the Owners, the Association may take any and all necessary or appropriate action to effect repair and reconstruction of any damage to the Association-Insured Property, and no consent or other action by any Owner shall be necessary. Assessments of the Association shall not be abated during the period of insurance adjustments and repair and reconstruction.
Section 15.4 Funds for Repair and Reconstruction. The proceeds received by the Association from any hazard insurance carried by the Association shall be used for the purpose of repair, replacement and reconstruction of the Association-Insured Property for the benefit of Owners and First Lienors.
If the proceeds of the Association’s insurance are insufficient to pay the estimated or actual cost of such repair, replacement or reconstruction, or if upon completion of such work the insurance proceeds for the payment of such work are insufficient, the Association may, pursuant to Section 15.5, if permitted under the Act, levy, assess and collect in advance from the Owners, without the necessity of a special vote of the Owners, a Special Assessment sufficient to provide funds to pay such estimated or actual costs of repair and reconstruction. Further levies may be made in like manner if the amounts collected prove insufficient to complete the repair, replacement or reconstruction.
Section 15.5 Disbursement of Funds for Repair and Reconstruction. The insurance held by the Association and the amounts received from the Special Assessments provided for above, constitute a fund for the payment of the costs of repair and reconstruction after casualty. It shall be deemed that the first money disbursed in payment for the costs of repair and reconstruction shall be made from insurance proceeds, and the balance from the Special Assessments. If there is a balance remaining after payment of all costs of such repair and reconstruction, such balance shall be distributed to the Owners in proportion to the contribution such Owner made as Special Assessments, the remainder to be divided among the Units, first to the First Lienors, and then to the Owners, as their interests appear.
EASEMENTS
Section 16.1 Recording Data. All easements, and licenses of record to which Dakota West Townhomes is presently subject are described herein or on the Plat. In addition, Dakota West Townhomes may be subject to other easements or licenses granted by the Declarant pursuant to Section 9.1 in this Declaration.
All necessary easements are hereby declared for maintenance and snow removal upon the driveways, and parking areas within the Property. Such maintenance and snow removal shall be deemed a Common Expense.
Section 16.2 Development Rights. Declarant reserves for itself, its agents, employees and contractors, to enter upon the Property to do what is necessary and advisable in connection with the development of access, utilities, sidewalks and other general improvements necessary for Declarant to successfully complete the development of the Property. This general development right reserved by Declarant shall not extend to any Unit after the closing of the Unit to an Owner.
Section 16.3 Owner's Easements of Access and Enjoyment. Every Owner has, and the Declarant hereby grants, a perpetual, non-exclusive easement for access and utilities to and from his or her Unit for the purpose of access to the main entrance road. Every Owner shall have, and the Declarant hereby grants, a perpetual, non-exclusive right and easement in common with all of the other Owners to reasonable use and enjoyment of the General Common Elements, subject to regulation by the Board and restrictions as stated in Article 11. The easements granted hereunder are appurtenant to and shall pass with the title to every Unit, subject to the provisions set forth in this Article. Nothing in this Declaration or the other Association Documents shall be construed as a dedication of the General Common Elements or Utility Easements to public use, or a grant to any public municipal or quasi-municipal authority or utility, or an assumption of responsibility for the maintenance of any by such authority or utility, absent and express written agreement to that effect. The General Common Elements and Utility Easements are private amenities that are for the common use, benefit, and enjoyment or the Owners and their permitted guests only.
Section 16.4 Association's Easement. Declarant hereby grants the Board of Directors of the Association an easement over, across, and under each Unit to exercise any right held by the Association under this Declaration. Notwithstanding the foregoing, the Association shall not enter upon any Unit without reasonable prior notice to the Owner except in cases of emergency.
Section 16.5 Easement for Encroachments. To the extent that any Unit, Limited Common Element, or Common Element encroaches on any other Unit, Limited Common Element, or Common Element, a valid easement for the encroachment exists. In particular, there is an easement for encroachment to the extent a roof line or balcony of a Unit extends into the platted boundaries of another Unit. This easement does not relieve a Unit Owner of liability in the case of willful misconduct.
Section 16.6 Construction; Declarant's Easement. The Declarant reserves the right to perform warranty work, repairs and construction work in Units and Common Elements, to store materials in secure areas, and to control and have the right of access to work and repairs until completion. All work may be performed by the Declarant without the consent or approval of the Association. The Declarant has an easement through the Common Elements as may be reasonably necessary for the purpose of discharging the Declarant's obligations or exercising Special Declarant Rights, whether arising under the Act or reserved in this Declaration. This easement includes the right to convey access, utility and drainage easements to the City of Durango, the Association or the State of Colorado.
Section 16.7 Reservation of Easements, Exceptions and Exclusions. The Association is hereby granted the right to establish from time to time, by declaration or otherwise, utility, road or other easements, permits or licenses over the General Common Elements for the best interest of all Owners, members and future members of the Association.
Section 16.8 Easement for Utilities. The Declarant hereby grants and establishes a permanent utility easement to the Association and public utility providers, for the provision of electrical, gas and water and sewer utilities in, on, over and under all parking areas within the Project and other areas designated as GCE on the Plat which easement shall include the right to maintain, replace and repair any such utilities located therein. Notwithstanding anything to the contrary, all installation, maintenance, removal and replacement of utilities within the easement shall be with the consent of the Association.
Section 16.9 Easement in Units for Repairs, Maintenance and Emergencies. If a Common Element is located within a Unit, Owners shall permit a right of entry to the Board of Directors or any other person authorized by the Board of Directors, whether the Owner is present or not, for access through each Unit to all Common Elements, from time to time, as authorized by the Board of Directors, whether the Owner is present or not, as may be necessary for the routine maintenance, repair, or replacement of any of the Common Elements located thereon or accessible therefrom or for making emergency repairs necessary to prevent damage to the Common Elements or to another Unit.
For routine maintenance and non-emergency repairs, entry shall be made only on a regular business day during regular business hours, after service of at least one day’s notice in writing to the Owner. In case of emergency, entry shall be made at any time provided that a reasonable effort according to the circumstances is made to give notice of entry.
CONDEMNATION
Section 17.1 Rights of Owners. When all or any part of the General Common Elements shall be taken by any authority having power of condemnation or eminent domain or whenever all or any part of the General Common Elements is conveyed in lieu of a taking under threat of condemnation by the Executive Board acting as attorney-in-fact for all Owners under instructions from any authority having the power of condemnation or eminent domain, each Owner shall be entitled to notice of the taking or conveying. The Association shall act as attorney-in-fact for all Owners in the proceedings incident to the condemnation proceeding, unless otherwise prohibited by law.
Section 17.2 Partial Condemnation; Distribution of Award; Reconstruction. The award made for such a taking shall be payable to the Association for the benefit of the Owners and First Lienors and, unless otherwise required under the Act, the award shall be disbursed as follows:
If the taking involves a portion of the General Common Elements on which improvements have been constructed, then, unless within 60 days after such taking Declarant and Owners who represent at least 67% of the votes of all the Owners shall otherwise agree, the Association shall restore or replace such General Common Elements so taken on the remaining land included in the General Common Elements to the extent lands are available for such restoration or replacement in accordance with plans approved by the Association. If such General Common Elements are to be repaired or restored, the provisions in Articles 14 and 15 above regarding the disbursement of funds in respect to casualty damage or destruction which is to be repaired shall apply. If the taking does not involve any General Common Elements, or if there is a decision made not to repair or restore, or if there are net funds remaining after any such restoration or replacement is completed, then such award or net funds shall be distributed equally among the Units, first to the First Lienor and then to the Owners, as their interests appear.
Section 17.3 Complete Condemnation. If all of the Property is taken, condemned, sold or otherwise disposed of in lieu of or in avoidance of condemnation, then the regime created by this Declaration shall terminate provided that the approval is first obtained of 51% of all First Lienors of Units (which percentage is measured by votes allocated to such Units), and the portion of the condemnation award attributable to the General Common Elements shall be distributed as provided in Section 17.2 above.
Section 18.1 Alternative Dispute Resolution. The purpose of the Declaration is to establish a harmonious Common Interest Community. Because the prompt, efficient, fair and non-belligerent resolution of any disputes is desirable, any controversy arising out of or relating to this Declaration, the Bylaws, Rules and Regulations (the “Governing Documents”), or a breach thereof, or any other dispute between (1) the Declarant and (2) the Association or any Owner shall be resolved as set forth in this Article. This Article 18 shall satisfy the requirement for an alternative dispute resolution (ADR) policy set forth in CCIOA, Section 38-33.3-124(b).
Section 18.2. Prerequisite. The parties to a dispute shall exhaust all remedies and procedures required by the Governing Documents prior to resolving the dispute through this ADR policy. Moreover, this ADR policy and compliance with the procedures set forth herein, is a prerequisite to the filing of a complaint or other court action, in any applicable court of competent jurisdiction.
Section 18.3 Direct Communication. If the dispute is not governed by a procedure for resolution as provided in the Governing Documents, the parties to the disagreement shall set forth their respective positions in the dispute in correspondence. Each party shall respond within seven days after receipt of a letter from the other until agreement is reached.
Section 18.4 Mediation. If the dispute cannot be resolved through direct communication of the parties, either party may request appointment of a neutral and properly credentialed mediator. Both parties shall participate in the mediation in good faith until the dispute is resolved for a period not to exceed thirty days with the consent of all parties. The cost of the mediation shall be divided equally among the parties.
Section 18.5 Arbitration.
(a) Method. If the dispute cannot be resolved through mediation, either party may request appointment of one or more neutral and properly credentialed arbitrators with expert knowledge and experience regarding the subject in dispute. The initiating person shall give written notice of its decision to arbitrate by providing a specific statement setting forth the nature of the dispute, the amount involved and the remedy sought. The initiating person shall be responsible for all filing requirements and the payment of any fees according to the rules of the Uniform Arbitration Act, Part 2 of Articles 22 of Title 13, C.R.S. The parties shall have an equal and fair opportunity to present their respective positions to the arbitrators, orally or in writing, as the arbitrators may specify depending on the nature of the dispute. The arbitrators may require such testimony, materials and documentation as they may determine to be appropriate. The arbitrators shall provide a written resolution within thirty days after the conclusion of the presentations of the parties and receipt of requested materials and documents. Any dispute shall be settled by binding arbitration administered according to the Uniform Arbitration Act, Part 2 of Articles 22 of Title 13, C.R.S.
(b) Costs. The arbitrator shall award to the prevailing party, if any, as determined by the arbitrator, all of its costs and expenses including any attorney’s fees, arbitrator’s fees and out-of-pocket expenses of any kind. The term “prevailing party” shall mean the party whose position is most nearly upheld in arbitration. (For example, the prevailing party would be the party who is required to pay $1,000.00 in the arbitration proceeding where such party had, prior to the commencement of the arbitration, offered $500.00 by way of settlement and the opposing party, refusing such offer, had claimed entitlement to $10,000.00.)
(c) Binding Nature; Applicable Law. The consideration of the parties to be bound by arbitration is not only the waiver of access to determination by a court and/or jury, but also the waiver of any rights to appeal the arbitration finding. A judgment upon an award rendered by the arbitrator may be entered in any court having jurisdiction.
(d) Location. The alternative dispute resolution proceeding shall be held within La Plata County, Colorado unless otherwise mutually agreed by the parties.
(e) Sole Remedy; Waiver of Judicial Rights. The Declarant, the Association, and each Owner of a Unit expressly consent to these procedures established in this Article as their sole and exclusive remedy, and expressly waive any right they may have to seek resolution of any dispute contemplated by this Article in any court of law or equity, and any right to trial by judge or jury. If a dispute involves the Declarant or the Association, no person shall file a memorandum of lis pendens or similar instrument that would encumber or create a lien upon the land owned either by the Declarant or the Association.
(f) No Agreement by Association. Notwithstanding any provision in this Article 18 to the contrary, the Association shall have the right to enforce all covenants set forth herein, as provided in this Declaration, the Governing Documents and the Act, and the Association does not agree to mediate or arbitrate its claims against Owners in such enforcement actions.
(g) This ADR Policy is not intended to modify or alter any portion of the Declaration or any “notice and hearing procedure” established for the resolution of covenant violations. If any part of this alternative dispute resolution conflicts with any provision of the Governing Documents, the provisions of the Governing Documents shall be controlling.
ARTICLE 19
PARKING
Section 19.1 Parking. One parking space is available within the garage of each Unit. Each residential unit shall have one (and in some cases, two) outside parking space(s) exclusively allocated to it as designated on the Plat and as further shown in the parking diagram attached hereto as Exhibit A. It is intended that each Owner endeavor to utilize those parking spaces located directly in front of its Unit to the extent feasible. All unallocated spaces shall be general common parking for use by all Unit Owners and their family, guests or tenants.
Unit Owners within Building E and F shall endeavor to use the common parking area situated on that portion of the Project which is closest to Buildings E and F. Unit Owners within Building A through D shall endeavor to use the common parking areas situated across Buildings A and B. It is intended that the common parking area located near Building E and F be available for use by customers or clients of the live-work Units within Buildings E and F.
ARTICLE 20
GENERAL PROVISIONS
Section 20.1 Severability. Invalidation of any one of these covenants by judgment or court decree shall not affect or impair the terms, provisions and conditions of any other covenants contained herein, which covenants shall remain in full force and effect.
Section 20.2 Covenants Running with the Land. All provisions of this Declaration and Exhibits attached hereto and amendments thereof shall be construed as covenants running with the land, and or every part hereof and interest therein, including but not limited to every Unit and appurtenances thereto, and every Unit Owner and occupant of the Property, or any part thereof, or of any interest therein, and his or her heirs, executors, administrators, successors and assigns, shall be bound by all of the provisions of said Declaration and Exhibits annexed hereto and any amendments thereof. The subjection of the Property or surrounding properties to zoning laws and regulations shall not then or thereafter cause any provisions of this Declaration to terminate.
Section 20.3 Conflict Between Documents. In the event of any conflict between the provisions of this Declaration, or the Articles of Incorporation or the Bylaws of the Association, the provisions of the Articles of Incorporation shall control. In the event of any conflict between the Declarations and the Bylaws of the Association, the Declarations shall control. In the event of any conflict between the Declarations and the Plat and plat notes, this Declaration shall be automatically amended, but only to the extent necessary to conform the conflicting provisions hereof with the provisions of the Plat.
Section 20.4 Waiver. No failure on the part of the Association or the Board to give notice of default or to exercise or to delay in exercising any right or remedy shall operate as a waiver, except as specifically provided above in the event the Board fails to respond to certain requests. No waiver shall be effective unless it is in writing and signed by the President or Vice President of the Board on behalf of the Association.
Section 20.5 Notices. Any notice permitted or required to be delivered as provided in this Declaration shall be in writing and may be delivered either personally or by mail. If delivery is made by mail, it shall be deemed to have been delivered three (3) days after a copy of the same has been posted in the United States mail, postage prepaid for first class mail and addressed to the receiving party at the address last given by such party to the Association. Any notice to the Association shall be sent to such address as it may from time to time designate in writing to each Owner.
Section 20.6 No Representations or Warranties. Except as otherwise required under Colorado law, no representations or warranties of any kind, express or implied, shall be deemed to have been given or made by Declarant or its officers, directors, agents or employees in connection with any portion of the Property, or any improvement thereon, as to its or their physical condition, zoning, compliance with applicable laws, or fitness for intended use, or in connection with the subdivision, sale, operation, maintenance, costs of maintenance, taxes or regulation thereof, unless and except as shall be specifically set forth in a writing signed by Declarant.
Section 20.7 Binding Effect. Declarant, Owners, lessees, First Lienors, permitted guests and invitees, and their heirs, personal and legal representatives, successors and assigns, or any other person using or occupying Dakota West Townhomes, shall be bound by, and shall strictly comply with the provisions of this Declaration, the Bylaws, the Articles, any deed restrictions, and all rules, regulations and agreements lawfully made by the Association.
IN WITNESS WHEREOF, the Declarant has caused this Declaration of Covenants, Conditions and Restrictions of the Dakota West Townhomes to be executed this day of _____ , 2007.
DAKOTA WEST, LLC
By: _____
James L. Nelson, Manager