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Home My WebLink About20083455.tiff 11111111111111111111111111111111 111111 III 11111 IT till 3534673 02/11/2008 03:50P Weld County, CO 1 of 39 R 196.00 0 0.00 Steve Moreno Clerk& Recorder DISTANT THUNDER COVENANTS ARTICLE I -PREAMBLE Declarant is the owner of that certain real property situate in Weld County, Colorado, described on Exhibit "A" hereof (the property). The Property has been platted as DISTANT THUNDER P.U.D. and the final plat recorded 3513 f`6' 7/ (recording information) simultaneously with this declaration. Declarant desires to develop the Property for residential purposes. Declarant deems it desirable to subject the Property to the covenants, conditions and restrictions set forth in this Declaration in order to preserve the values of the individual lots and to enhance the quality of life for all owners of such lots. Declarant therefore declares that all of the Property is and shall be held. transferred, sold, conveyed and occupied subject to the terms, restrictions, limitations, conditions, covenants, obligations, right of ways, and easements which are set forth in the Declaration, all of which shall run with the Property and shall inure to the benefit of, and be binding upon. all parties having and right, title, or interest in the Property or and portion thereof, and such person's heirs, grantees. legal representatives, successors and assigns. Any restrictions or regulations not addressed specifically shall be in accordance with Weld County Estate Zoning, i.e., number and type of animals allowed on each lot, home occupations, etc. "A" and owned by the "Owner", with the exception of any "Common Area". No Lot shall hereafter be subdivided except by Declarant. ARTICLE 2-DEFINITIONS 2.1 General: The words and terms defined in this Article shall have the meanings herein set forth unless the context clearly indicates otherwise. 2.2 Association: Shall mean and refer to DISTANT THUNDER P.U.D. Homeowner's Association, a Colorado Nonprofit Corporation established pursuant to Article IV of this Declaration. The members of the Association shall be Lot Owners as defined herein. 2.3 Common Areas: Shall refer to all real Property or interests therein owned by the Association and easements and rights of way for the common use and enjoyment of the Owners, together with and including, but not by way of limitation, the road Distant Thunder Road, utilities, and utility easements. 2.4 Declarant: Shall mean JZM, LLC., owner of the Property, their successors and assigns. 2.5 Declarant responsibilities: Shall refer to the road constructed pursuant to specifications required by Weld County known as Distant Thunder Road. Declarant shall install a paved road according to the specifications of Weld County The Association shall maintain, repair, and replace the road after the Developer has •installe such facility. 0,P f_ 3 75,5 69-mriZu p/d.. . .... .. .. ..... .. ......y �L }'I/� �o- � — a 11111111111111111111111111111111111111111111111 /III /III 3534673 02/11/2008 03:50P Weld County, CO 2 of 39 R 196.00 D 0.00 Steve Moreno Clerk& Recorder Declarant shall plant non-weed natural vegetation in the right of way adjacent to Distant Thunder Road.The Association shall maintain and replace non-weed vegetation after the Declarant has planted such vegetation and said Association has assumed responsibilities. 2.6 Lot: Shall mean and refer to any parcel or plot of land located within the exterior boundaries of the Property described on Exhibit"A"and owned by the"Owner", with the exception of any"Common Area".No Lot shall hereafter be subdivided except by Declarant. 2.7 Road and Utility Easements: Shall mean and refer to the road Distant Thunder Road and all utility easements presently existing on the Properly or subsequently constructed by the Declarant on the tracts or parcels of the property. "Roads"and "Utility Easements"shall not include privatedriveways or utility extensions constructed by individual Owners to provide access and utilities to dwellings or other structures located upon such Owner's lot of the Property. 2.8 Single Family Dwelling: Shall mean an independent structure designed and occupies as a residence for a single family. 2.9 75% Control period means a length of time seven(7) years after initial recording of the Declaration in Weld County, Colorado. However, the 76% Control Period shall expire earlier, upon the first to occur of the following events if any of the following occur within the time period that is that is specified in the first sentence of this section: a. sixty (60) days after conveyance of seventy-five percent (75%) of the Lots That May Be Included to Owners other than a Declarant or a builder; (b) two (2) years after that last conveyance of a Lot by the Declarant or a builder I n the ordinary coarse of business. 2.10 Subdivision: Shall mean and refer to DISTANT THUNDER P.U.D. 2.11 Member. Shall mean or be defined as one who owns one or more of the Distant Thunder PUD lots. 2.12 Voting Rights: Each Member shall be entitled, for each Lot owned, to one vote on each matter that comes to a vote of the Association; provided that the right to cast such vote is subject to this Declaration, the Articles of Incorporation and Bylaws of the Association. No votes allocated to a Lot owned by the Association may be cast. The maximum number of votes which may be cast in connection with any matter shall be equal to the denominator of the Allocated Interests at the time the vote is taken. 2.13 Design Guidelines: See Attached Distant Thunder Guidelines for building. Other terms may be defined in specific provisions contained in the Declaration and shall have the meaning assigned by each such definition. 2 1111111II!II hull 1111111111111111111111111111111111111 3534673 02/11/2008 03:50P Weld County, CO 3 of 39 R 196.00 0 0.00 Steve Moreno Clerk & Recorder ARTICLE 3. ASSOCIATION Section 3.1. Authority of Board of Directors. Except as provided in this Declaration, the Articles of Incorporation, or the Bylaws of the Association, the Board of Directors may act in all instances on behalf of the Association. Section 3.2. Election of Part of the Executive Board during the Period of Master Declarant Control. Not later than sixty (60) days after conveyance of twenty-five percent(25%) of the Lots that May Be Included to Owners other than a Declarant or a Builder, at least one (1) member and not less than twenty-five percent (25%) of the members of the Board of Directors must be elected by Members other than the Declarant or a Builder, provided that the Declarant reserves the right to appoint a majority of the Board. Not later than sixty (60) days after conveyance of fifty percent (50%) of the Lots that May Be Included to Owners other than the Declarant or a Builder, not less than thirty-three and one-third percent (33 1/3%) of the directors must be elected by Members other than the Declarant or a Builder, provided that the Declarant reserves the right to appoint a majority of the Board. Section 3.3. Authority of Declarant During 75% Control Period. Except as otherwise provided in this Article, during the 75% Control Period, the Declarant or Persons appointed by the Declarant may appoint all officers and Directors, and may remove all officers and Directors which have been appointed by the Declarant. The Declarant may voluntarily surrender the right to appoint and remove officers and Directors before termination of the 75% Control Period; but, in that event, the Declarant may require, for the duration of the 75% Control Period, 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. Termination of 75% Control Period. Not later than the termination of the 75% Control Period, the Members shall elect a Board of Directors, at least a majority of whom must be Owners other than the Declarant or designated representatives of Owners other than the Declarant. The Board of Directors shall elect the officers. Such members of the Board of Directors and officers shall take office upon election. Section 3.5. Delivery of Property by Declarant. After the Members other than the Declarant elect a majority of the members of the Board of Directors. the Declarant shall deliver to the Association all property of the Owners and of the Association held by or controlled by the Declarant, if and to the extent required by CCIOA. Section 3.6. Budget. Within thirty(30)days after adoption of any proposed budget for the Community.the Board of Directors shall mail, by ordinary first-class mail, or otherwise deliver a summary of the Association budget to all the Owners and shall set a date for a meeting of the Owners to consider ratification of the budget not less than fourteen(14) nor more than fifty(50)days after mailing or other delivery of the summary. Unless at that meeting the budget is rejected by the vote or agreement of Members to which at least eighty percent(80%)of the votes in the Association are 3 11111111111 11111111111111111 IIII 111111 III IIIII IIII 1111 3534673 02/11/2008 03:50P Weld County, CO 4 of 39 R 196.00 D 0.00 Steve Moreno Clerk& Recorder allocated, then the budget is ratified, whether or not a quorum is present. In the event that the proposed budget is rejected, the periodic budget last ratified by the Members must be continued until such time as the Owners ratify a subsequent budget proposed by the Directors. Any budget prepared with respect to Limited Common Elements shall be submitted in accordance with the requirements set forth above, but shall be sent only to those Owners against whose Lots the costs associated with certain Limited Common Elements are assessed and who shall be entitled to vote on such budget in accordance with the voting requirements set forth above. Section 3.7. Rules and Regulations. Rules and regulations concerning and governing the Lots, Common Elements, and/or this. Community may be adopted, amended or repealed from time to time by the Board of Directors, and the Board of Directors may establish and enforce penalties for the infraction thereof, including, without limitation, the levying and collecting of fines for the violation of any of such rules and regulations. The rules and regulations may state procedural requirements, interpretations and applications of the provisions of this Declaration, including without limitation, blanket requirements, blanket interpretations, and blanket applications. The Board has the authority to adopt or vary one or more rules and regulations that are different for different types of Lots, if any exist. Any rules and regulations that are adopted shall be in accordance with, and shall not be inconsistent with or contrary to, this Declaration, the Master Declaration, and all provisions thereof. Section 3.8. Association Books and Records. The Association shall make available to Owners, prospective purchasers, Security Interest Holders, and insurers or guarantors of any such Security Interest, current copies of this Declaration, and the Articles of Incorporation, Bylaws, rules and regulations, books, records and financial statements of the Association. "Available" shall mean available for inspection, upon request, during normal weekday business hours or under other reasonable circumstances. Section 3.9. Information Regarding Security Interests. Each Member shall, within twenty (20) days of encumbering such Member's Lot with a Security Interest, and at other times upon request of the Association, provide the Association with the name and address of such Security Interest Holder, a copy of the instrument(s) creating the Security Interest(s), and the loan number(s) (or other identifying number of such Security Interest(s)). Within twenty (20) days after any change in the name or address of a Security Interest Holder on a Member's Lot, and at other times upon request of the Association, such Member shall provide the aforesaid information to the Association with respect to each Security Interest held by such Security Interest Holder. Section 3.10. Management Agreements and Other Contracts. Any agreement for professional management of the Association's business or other contract providing for the services of the Declarant shall have a maximum term of three(3)years and any such agreement shall provide for termination by either party thereto, with or without cause and without payment of a termination fee, upon not more than ninety(90)days' prior written notice. 4 111111111111 11111111111 lilt 111111 III 11111 mu iii 3534673 02111/2008 03:50P Weld County, CO 5 of 39 R 196.00 D 0.00 Steve Moreno Clerk& Recorder ARTICLE 4. COVENANT FOR ASSESSMENTS Section 4.1. Personal Obligation for Assessments. Each Owner of a Lot, including Declarant and each Builder, by acceptance of a deed therefore, whether or not it shall be so expressed in such deed, covenants and agrees and shall be personally obligated to pay to the Association: annual Assessments or charges, special Assessments, and other charges, fines, fees, interest, late charges, and other amounts, all as provided in this Declaration: with such Assessments and other amounts to be established and collected as hereinafter provided. The obligation for such payments by each Owner to the Association is an independent covenant with all amounts due, from time to time, payable in full when due without notice or demand (except as otherwise expressly provided in this Declaration), and without set-off or deduction. All Owners of each Lot shall be jointly and Severally liable to the Association for the payment of all Assessments, fees, and charges and other amounts attributable to their Lot. Each amount, together with interest, late charges, costs, and reasonable attorney's fees, shall also be the personal obligation of the Person who was the Owner of such Lot at the time when the amount became due. The personal obligation for delinquent amounts (including Assessments) shall not pass to such Owner's successors in title unless expressly assumed by them. Section 4.2. Purpose of Assessments. The Assessments levied by the Association shall be used to promote the recreation, health, safety and welfare of the residents of the Lots, and for all of those purposes and activities which may be required of the Association or which the Association may be empowered to pursue pursuant to this Declaration, the Articles of Incorporation or Bylaws of the Association, or by law. Section 4.3. Amount of Annual Assessment. Until the effective date of an Association budget ratified by the Members with a different amount for annual Assessments, as provided above, the amount of the annual Assessment against each Lot shall not exceed Thirty-Five Dollars ($35.00) per month. However, the rate of annual and special Assessments paid by Initially Unoccupied Lots shall be less than that paid by other Lots, as provided in the next Section. 5 11111111111111111 Ilitti IIIII 1111111111 III 111111111 IIII 3534673 02/11/2008 03:50P Weld County, CO 6 of 39 R 196.00 D 0.00 Steve Moreno Clerk& Recorder Section 4.4. Rate of Assessment. 4.4.1. Annual and special Assessments shall be sufficient to meet the expected needs of the Association and shall be apportioned among the Lots in accordance with their Allocated Interest. Notwithstanding the foregoing, however, the amount of the annual Assessments and special Assessments against the Initially Unoccupied Lots shall be set at a lower rate than that charged against other Lots, because the Initially Unoccupied Lots receive and benefit from fewer services funded by the Assessments than the other Lots. Colorado Revised Statutes §38-33.3-315(3)(b) states that "Any common expense or portion thereof benefiting fewer than all of the units shall be assessed exclusively against the units benefited." Based on this provision, the Initially Unoccupied Lots shall pay annual and special Assessments at the rate of 40% of any annual Assessment or special Assessment charged to Lots other than Initially Unoccupied Lots. 4.4.2. The annual Assessments shall include an adequate reserve fund for the maintenance, repair, replacement and reconstruction of those items that must be maintained, repaired, replaced or reconstructed on a periodic basis, and for the payment of insurance deductibles. 4.4.3. During the 75% Control Period, the Declarant may in its discretion, but shall riot be required to, cover certain costs of the Association by payment of any amount(s), which shall be treated as an advance against future Assessments due from the Declarant; provided, however, that any such advances which have not been credited against Assessments due from the Declarant as of termination of the 75% Control Period shall 6 NlIII lilii 1111111IlMI IlMl lilt illlll III IIIII Lill IIII 3534673 02/11/2008 03:50P Weld County, CO 7 of 39 R 196.00 D 0.00 Steve Moreno Clerk& Recorder then be repaid by the Association to the Declarant, without interest, to the extent that the Association has funds in excess of its working capital funds, reserve funds, and operating expenses to date for the calendar year in which the 75% Control Period terminates; and provided further, however, that any of such advances which are not repaid to the Declarant shall continue to constitute advances against future Assessments due from the Declarant until conveyance by the Declarant of all of the property described on the attached Exhibits A and D. If the Declarant elects in its discretion to pay any amounts as provided in this subparagraph, Declarant shall not, under any circumstances, be obligated to continue payment or funding of any such amount(s)in the future. 4.5. Date of Commencement of Annual Assessments. Annual Assessments shall commence at such time as the Board of Directors may determine in its discretion. After any annual Assessment has been made by the Association, annual Assessments shall be based on a budget adopted by the Association. A budget shall be so adopted by the Association no less frequently than annually. The annual Assessments shall be due and payable in monthly installments, in advance, on the first day of such monthly period or on such other dates, and with such frequency (which may be other than monthly, but not less frequently than annually), as the Board of Directors determines in its discretion from time to time, provided that the first annual Assessment shall be adjusted to reflect the time remaining in the first Association fiscal year. Any Owner purchasing a Lot between installment due dates shall pay a pro rata share of the last payment due. 4.6. Special Assessments. In addition to the annual Assessments authorized in this Article, the Board of Directors may levy, in any fiscal year, with the approval of the votes of sixty-seven percent (67%) of a quorum of the Association votes cast by Members voting in person or by proxy at a meeting duly called for this purpose, a special Assessment applicable to that year only, for the purpose of defraying in whole or in part the cost of any construction, reconstruction, repair or replacement of a capital Improvement upon any portion of real property for which the Association has repair and/or reconstruction obligations, including fixtures and personal property related thereto, or for repair or reconstruction of any damaged or destroyed Improvements located on said real property, or for the funding of any expense or deficit incurred by the Association. Any such special Assessment shall be set against each Lot in accordance with the Allocated Interests set forth in this Declaration. 4.7. Assessments/Charges for Services to the Master Association and/or Separate Areas of the Community. The Association may, at any time from time to time, provide services to the Master Association and/or to any area(s) (containing less than all of the Lots) in the Community. If such services are not funded by the annual Assessments or special Assessments, then such services shall be provided, if at all, pursuant to an agreement in writing between the Association and the Master Association and/or the Owners of the Lots for which such service is to be provided, as applicable, with such agreement to include a statement and terms for payment of the costs, fees and expenses that are to be paid by such Owners for such services, and which amounts shall include overhead expenses of the Association. Services which may be provided by the 7 1111111111111111111111111111 IIII 11111111111111 lilt 1111 3534673 02/11/2008 03:50P Weld County, CO 8 of 39 R 196.00 D 0.00 Steve Moreno Clerk & Recorder Association pursuant to this Section include, without limitation, (a) the construction, care, operation, management. maintenance, repair, replacement, reconstruction and renovation of Improvements or property owned by such Owner(s); (b)the provision of any services or functions to such area, such as trash removal; (C) the maintenance and servicing of septic systems if fewer than all of the Lots contain septic systems; (d) the enforcement of the provisions of any Supplemental Declaration, Supplemental Covenants or any other document or agreement for, on behalf of, and in the name of the applicable Owners; (e)the collection of Assessments for, in the name of, and on behalf of the Master Association, or(f)the payment of taxes or other amounts for Owners with funds provided by such Owners; (g) the procurement of insurance for Owners; (h)the appointment and supervision of a manager(s)for area; and (I)the maintenance and servicing of septic systems if fewer than all of the Lots contain septic systems. 4.8. Lien for Assessments. 4.5.1. The Association has a statutory lien on a Lot for any amount levied against that Lot or the Owner thereof, including for fines imposed against the Lot's Owner. The amount of the lien shall include all those items set forth in this Section from the time such items become due. If an Assessment is payable in installments, each installment is a lien from the time it becomes due, including the due date set by any valid Association acceleration of installment obligations. 4.8.2. Recording of this Declaration constitutes record notice and perfection of the lien. No further recordation of any claim of lien for Assessments is required. However, the Board of Directors or managing agent of the Association may prepare, and record in the county in which the applicable Lot is located, a written notice setting forth the amount of the unpaid indebtedness, the name of the Owner of the Lot, and a description of the Lot. If a lien is filed, the costs and expenses thereof shall be added to the Assessment for the Lot against which it is filed and collected as part and parcel thereof. The Association's lien may be foreclosed in like manner as a mortgage on real estate. 4.9. Priority of Association Lien. 4.9.1. A lien under this Article 4 is prior to all other liens and encumbrances on a Lot accept: 4.9.1.1. Liens and encumbrances recorded before the recordation of the Declaration; 4.9.1.2. A Security Interest on the Lot which has priority over all other security interests on the Lot and which was recorded before the date on which the assessment sought to be enforced became delinquent; and 4.9.1.3. Liens for real estate taxes and other governmental Assessments or charges against the Lot. 4.9.2. A lien under this Section is also prior to the Security Interests described in the preceding subsection 4.9.1.2 to the extent, if any, provided in CCIOA. 8 11111111111111111111111 11111 liii 111111 lii 11111 liii liii 3534673 02/11/2008 03:50P Weld County, CO 9 of 39 R 196.00 D 0.00 Steve Moreno Clerk& Recorder 4.9.3. This Section does not affect the priority of mechanics' or materialmen's liens or the priority of liens for other Assessments made by the Association. 4.9.4. The Association's lien on a Lot for Assessments and other amounts shall be superior to any homestead exemption now or hereafter provided by the laws of the State of Colorado or any exemption now or hereafter provided by the laws of the United States. The acceptance of a deed to land subject to this Declaration shall constitute a waiver of the homestead and any other exemption as against said Association lien. 4.10. Certificate of Status of Assessments. The Association shall furnish to an Owner or such Owner's designee, or to a Security Interest Holder or its designee, upon written request delivered personally or by certified mail, first class postage prepaid, return receipt, to the Association's registered agent, a written statement setting forth the amount of unpaid Assessments currently levied against such Owner's Lot. The statement shall be furnished within fourteen (14) calendar days after receipt of the request and is binding on the Association, the Board of Directors, and every Owner. If no statement is furnished to the Owner or Security Interest Holder or their designee, delivered personally (including delivery by telefax)or by certified mail, first class postage prepaid, return receipt requested, to the inquiring party, then the Association shall have no right to assert a lien upon the Lot for unpaid Assessments which were due as of the date of the request. The Association shall have the right to charge a reasonable fee for the issuance of such certificates. 4.11. Effect of Non-Payment of Assessments; Remedies of the Association. Any Assessments not paid within ten (10)days after the due date thereof shall bear interest from the due date at the rate of twenty-one percent (21%) per annum, or at such lesser rate as may be set from time to time by the Board of Directors, and the Board of Directors may assess thereon a monthly late charge in such amount as may be determined by the Board of Directors in its discretion from time to time. The Association may bring an action at law against the Owner personally obligated to pay the same, or foreclose the lien against such Owner's Lot. If a judgment or decree is obtained, including, without limitation, in a foreclosure action, such judgment or decree shall include reasonable attorney's fees to be fixed by the court, together with the costs of the action, and may include interest and late charges, as above provided. No Owner may be exempt from liability for payment of any assessment by waiver of the use or enjoyment of any of the Common Elements or by abandonment of the Lot against which the Assessments are made, or because of dissatisfaction with the Association or its performance. This Article does not prohibit actions or suits to recover sums for which this Declaration creates a lien, nor does this Article prohibit the Association from taking a deed in lieu of foreclosure. 4.12. Surplus Funds. Any surplus funds of the Association remaining after payment of or provision for expenses of the Association, and any prepayment of or provision for reserves, shall be retained by the Association as reserves and need not be paid to the Owners or credited to them to reduce their future Assessments. 9 11111 111111 I!!II liii 111111 III 111111 III liii 3534673 02/11/2008 03:50P Weld County, CO 4.13. Working Capital Fund. 10 of 39 R 196.00 D 0.00 Steve Moreno Clerk& Recorder The Association shall require the first Owner (other than the Declarant or a Builder)of any Lot who purchases that Lot from the Declarant or a Builder to make a non- refundable contribution to the Association in an amount equal to two (2) months Assessments (regardless of whether or not annual Assessments have commenced as provided in Section 4.5 hereof)- Said contribution shall be collected and transferred to the Association at the time of closing of the sale by Declarant or a Builder of each Lot and shall, until use, be maintained for the use and benefit of the Association, including, without limitation, to meet unforeseen expenditures or to purchase additional equipment, property or services. Such contribution to the working capital fund shall not relieve an Owner from making regular payments of Assessments as the same become due. Upon the sale of his Lot, an Owner shall be entitled to reimbursement at closing (in the form of a credit on the closing settlement statement)from the purchaser of such Lot (but not from the Association)for the portion of the aforesaid contribution to working capital fund which has not been used by the Association at the time of conveyance of the Lot by such Owner. 4.14. Other Charges. The Association may levy and assess charges, costs and fees for matters such as, but not limited to, the following, in such reasonable amounts(s)as the Board of Directors may determine in its discretion at any time from time to time, including reimbursement of charges that are made to the Association by its managing agent or other Person: copying of Association or other documents; return check charges; charges for telefaxes; long distance telephone calls; transfer charges or fees upon transfer of ownership of a Lot; charges for notices and demand letters; and other charges incurred by the Association for or on behalf of any Owner(s). All such charges, costs and fees shall be in addition to the Assessments levied by the Association, but shall be subject to all of the Association's rights with respect to the collection and enforcement of Assessments. 4.15. Assessments for Misconduct. If any Association expense is caused by the misconduct of any Owner, as determined by the Board of Directors, the Association may assess that Association expense exclusively against such Owner and his Lot. ARTICLE 5. ARCHITECTURAL REVIEW COMMITTEE 5.1 Composition of Committee The Architectural Review Committee shall consist of two(2)or more persons appointed by the Board o Directors:provided,however,that until automatic termination of the Special Declarant Rights as provided,in Section 2.9 thereof.the Declarant may appoint the Architectural Review Committee. The power to"appoint"as provided herein, shall without limitation the power to: constitute the initial membership of the Architectural Review Committee;appoint member(s)to the Architectural Review Committee,neither with nor without cause,are any time,and appoint the successor thereof Each such appointment may he made for such term(s)of office,subject to the aforesaid power of removal,as may be sent from time to time in the discretion of the appointer. 5.2. Review by Committee R Requirement fir Approval by Governmental Entities. 5.2.1. Subject to Sections 5.10 and 5.13 of this Delaration,no Improvements shall 10 be constructed,erected,placed, planted,applied or installed upon any Lot unless plans and 0 specifications therefore(said plans and specifications to show exterior design, height, materials, color,and location of the Improvements,and type of landscaping, walls. P yP P b� windbreaks and grading plan,as well as such other materials and information as may be co, required by the Committee),shall have been first submitted to and approved in writing by o the Architectural Review Committee. The Architectural Review Committee shall exercise - ' o o its reasonable judgment to the end that all Improvements conform to and harmonize with c.3 -a the existing surroundings, residences, landscaping and structures and that such 3 Improvements are consistent with the Design Guidelines or design rules referenced in Po Section.5.4(Design Rules)of this Declaration. In its review of such plans,specifications s and other materials and information,the Architectural Review Committee may require that -cho o the applicant(s)reimburse the Committee for the actual expenses incurred by the -o Committee in the review and approval process. Such amounts,if any,shall be levied in addition to the assessment against the Lot for which the request for Architectural Review Committee approval was made,but shall be subject to the Association's lien for m o°C Assessments and subject to all other rights of the Association for the collection of such mum ise s, Assessments,as more fully provided in this Declaration. o 5.2.2. As more fully provided in the Master Declaration,no Improvement shall be constructed, erected,placed,planted,applied or installed on any Lot,until the same has been submitted to and approved by the design review committee of the Master Association in accordance with the Master Declaration and all guidelines,regulations,rules and requirements for submission and processing of requests for approval promulgated,enacted, adopted,amended, interpreted, repealed and reenacted by the Master Association or its design review committee, from time to time. 5.2.3. In addition to the foregoing review and approvals, the construction,erection, addition, deletion,change or installation of any Improvements shall also require the applicant to obtain the approval of all governmental entities with jurisdiction there over,and the issuance of all required permits, licenses and approvals by all such entities. Without limiting the generality of the preceding sentence, issuance of building permit(s)by Adams County,Colorado, if required shall be a pre-condition to commencement of any construction of,alteration of,addition to, or change in,any Improvement. 5.2.4. Absorption fields(prime or active absorption fields)or secondary absorption fields (secondary)or leach field areas must be protected.No permanent structures,permanent landscaping,dirt mounds,animal husbandry activities or other activities that would interfere with the construction,or maintenance or functions of the field shall be permitted. 5.3. Procedures. The Architectural Review Committee shall decide each request for approval within thirty(30)days after the complete submission of all plans, specifications and other materials and information which the Committee may require in conjunction therewith. If the Architectural Review Committee fails to decide any request within thirty (30)days after the complete 11 m 0 MIN V ct 4 Submission of all plans,specifications,materials and other information with respect thereto, then aia momo a) approval shall be deemed to have been denied. mim a c 5.4. Design Rules. ="� The Architectural Review Committee may,at any time from time to time with the advice of the ig Board of Directors.,enact issue, promulgate,modify,amend, repeal,re-enact,and enforce,Design mom 3 y Guidelines or design rules,to interpret and implement the provisions of this Article. Without sg limiting the generality of the. Foregoing, such provisions may contain guidelines to clarify the types of designs and materials that may be considered in design approval,may state requirements r■ for submissions in order to obtain review by the Committee,may state procedural requirements, r c o and/or may specify acceptable Improvement(s)that may be installed without the prior approval of r r g the Architectural Review Committee. Any architectural or design rules so adopted by the r o et Committee shall be consistent,and not in conflict, with this Article, the Declaration, the Design r g Guidelines or design rules. 0 5.5. Delegation (and Acceptance)of Design Review and Approval. MEME gFig The Declarant, during the time when the Declarant has the right to appoint the Architectural Review Committee,and the Board thereafter, may delegate any or all design review and/or approval functions pursuant to this Declaration to a design review committee appointed by the Master Association,and may accept from a design review committee appointed by the Master Association, delegation of any or all review and/or approval functions of such design review committee. The party with the right to appoint the Architectural Review Committee may, at any time, determine to reclaim the delegated rights. To reclaim the delegated rights, written notice must be given to the Board of Directors of the Master Association,the Board of Directors of the Association, to which such rights were delegated,that such right is being reclaimed by the Association,and the reclamation shall be effective upon receipt of the notice by the Board of Directors. Delegation of architectural review and/or approval to any Master Association shall not constitute a waiver of the Association's right of architectural review and/or approval as provided in this Declaration. 5.6. G'ote and Appeal. A majority vote of the Architectural Review Committee is required to approve a request for approval pursuant to this Article, unless the Committee has appointed a representative to act for it, in which case the decision of such representative shall control. In the event a representative acting on behalf of the Architectural Review Committee decides a request for architectural approval which is adverse to the applicant,then the applicant shall have the right to an appeal of such decision to the full Committee, upon a written request therefore submitted to the Committee within thirty(30)days after such decision by the Committee's representative. 5.7. Prosecution of Work Neer Approval. After approval of a request for architectural approval,the work to complete the same shall be accomplished as promptly and diligently as possible and in complete conformity with the approval. Either the failure to complete the proposed Improvement within one(1)year after the date of approval of the application therefore, except as to Builders (who shall not be subject to such 1-year limitation), or failure to complete the Improvement in accordance with the 12 I 111111111!!11111111111i 11111 liii 1111!1 III 1!1111 III 1111 3534673 02/11/2008 03:50P Weld County, CO 13 of 39 R 196.00 D 0.00 Steve Moreno Clerk& Recorder Description and materials furnished to the Committee and the conditions imposed with such approval, shall constitute a violation of this Article. 5.8. Inspection of IVork. The Architectural Review Committee, the Design Review Committee, or their duly authorized representative(s)shall have the right to inspect any Improvement prior to, during or after completion of the same, in order to determine whether or not the proposed Improvement is being completed or has been completed in compliance with this Article and any approval therefore granted by the Committee. However, unless the Committee expressly states, in a written document, that an Improvement is being completed or has been completed in conformance with the approval therefore, no such conformance shall be implied from inspection of the Improvement either during the work or after completion thereof. 5.9. Records. The Architectural Review Committee shall maintain written records of all applications submitted to it and all actions taken by it thereon and such records shall be available-to Members for inspection at reasonable hours of the business day. 5.10. Variance. The Architectural Review Committee may grant reasonable variances or adjustments from any conditions and restrictions imposed by this Article 5 or Article 10 hereof, in order to overcome practical difficulties or prevent unnecessary hardships arising by reason of the application of any such conditions and restrictions. Such variances or adjustments shall be granted only in case the granting thereof shall not be materially detrimental or injurious to the other property or Improvements in the neighborhood and shall not militate against the general intent and purpose hereof. 5.11. Waivers:No Precedent. The approval or consent of the Architectural Review Committee, or any representative thereof, to any application for architectural approval shall not be deemed to constitute a waiver of any right to withhold or deny approval or consent by the Committee or any representative thereof as to any application or other matters whatsoever as to which approval or consent may subsequently or additionally be required. Nor shall any such approval or consent be deemed to constitute a precedent as to any other matter. 5.12. Liability. The Architectural Review Committee, and any members thereof, shall not be liable in equity or damages to any person submitting requests for approval or to any Owner by reason of any action. failure to act,approval, disapproval, or failure to approve or disapprove in regard to any matter within their jurisdiction hereunder. In reviewing any matter, the Architectural Review Committee shall not he responsible for the safety, whether structural or otherwise of the Improvements submitted for review, nor the conformance with applicable building codes or other governmental. laws or regulations, and any approval of an Improvement by the Architectural Review Committee shall not be deemed an approval of any such matters.No Member or other 13 • Person shall be a third party beneficiary of any obligation imposed upon,rights accorded to, 12 — 0 action taken by, or approval granted by the Architectural Review Committee. Immo - od 5.13. Exemption for Declarant and Builders. I Y o (-1 c..1� 5.13.1. Notwithstanding anything to the contrary contained in this Declaration,until ga) automatic termination of the Special Declarant Rights as provided in Section 1.30 hereof, 0 the Declarant shall be exempt from the provisions of this Article except for the mom(-2WiZ-17r; y requirements to obtain approval from all governmental entities with jurisdiction there over 3 (as provided in Section 5.2.3 hereof). moms g, 5.13.2. Notwithstanding anything to the contrary contained in this Declaration, as i o e:; long as a Builder has received design approval from the Declarant,such Builder shall be 0 exempt from the provisions of this Article except for the requirements to obtain approval from all governmental entities with jurisdiction there over(as provided in Section 5.2.3 T r hereof).The exemption contained in this subsection shall expire upon the termination of o the Special Declarant Rights as provided in Section 1.30 hereof. o ARTICLE 6. INSURANCE 6.1. Insurance. The Association shall maintain insurance in connection with the Common Elements.The Association shall maintain insurance as required by applicable law or applicable regulation, including CCIOA(Colorado Common Interest Ownership Act), which insurance shall include, without limitation, property insurance, commercial general liability insurance,and fidelity coverage or fidelity bonds. In addition, the Association may maintain insurance on such other property,and/or against such other risks,as the Board of Directors may elect in its discretion from time to time, including,but not limited to, personal liability insurance to protect directors and officers of the Association from personal liability in relation to their duties and responsibilities in acting as directors and officers on behalf of the Association. 6?. General Provisions of Insurance Policies. All policies of insurance carried by the Association shall comply with this Section. All policies of insurance carried by the Association shall be carried in blanket policy form naming the Association as insured,or its designee as trustee and attorney-in-fact for all Owners,and each ' Owner shall be an insured person under such policies with respect to liability arising out of any Owner's membership in the Association. The policy or policies shall contain a standard non- contributory Security Interest Holder's clause in favor of each Security Interest Holder and a provision that it cannot be canceled or materially altered by either the insured or the insurance company until thirty(30)days prior written notice thereof is given to the insured and each Security Interest Holder, insurer or guarantor of a Security Interest.The Association shall furnish a certified copy or duplicate original of such policy or renewal thereof, with proof of premium payment and a certificate identifying the interest of the Owner in question, to any party in interest. including Security interest Holders, upon request. All policies of insurance carried by the Association shall also contain waivers of subrogation against any Owner or member of such Owner's household.Further, all policies of insurance carried by the Association shall contain 14 Wai 0 Noma Waivers of any defense based on invalidity arising from any acts or neglect of an Owner where .� such Owner is not under the control of the Association or Master Association. =mil 0 ir.3cs 6.3. Deductibles. -moo E The Association may adopt and establish written non-discriminatory policies and procedures o 2 relating to the submittal of claims, responsibility for deductibles,and any other matters of claims gadjustment. Any loss, or any portion thereof,which falls within the deductible portion of a policy y that is carried by the Association, may be borne by the Person who is responsible for the o maintenance, repair, replacement and reconstruction of the property which is damaged or -o o destroyed, may he apportioned among the Persons sharing in a joint duty of repair and maintenance,and/or may be partly or wholly borne by the Association,at the election of the Board oc of Directors. Notwithstanding the foregoing,after notice and hearing, the Association may rdetermine that a loss, either in the form of a deductible to be paid by the Association or an omor.- -1 uninsured loss resulted from the act or negligence of one or more Owners. Upon said cn determination by the Association, any such loss or portion thereof may be assessed to the p Owner(s) in question in such amount(s)as the Board of Directors deems appropriate, and the • Association may collect such amount(s) from said Owner(s) in the same manner as any assessment. 6.4. Payment of Insurance Proceeds. Any loss covered by an insurance policy described in Section 6.1 must be adjusted with the Association, but the insurance proceeds for that loss shall be payable to any insurance trustee designated for that purpose, or otherwise to the Association, and not to any Security Interest Holder. The insurance trustee or the Association shall hold any insurance proceeds in trust for the Association, Owners and Security Interest Holders as their interests may appear. Subject to the provisions of Section 7.1 of this Declaration, the proceeds must be disbursed first for the repair or restoration of the damaged property:and the Association, Owners and Security Interest Holders are not entitled to receive payment of any portion of the proceeds unless there is a surplus of proceeds after the property has been completely repaired or restored and any budget or reserve deficit funded, or unless the Community is terminated. 6.5. Association Insurance as Prinuny Coverage. If at the time of any loss under any policy which is in the name of the Association, there is other insurance in the name of any Owner and such Owner's policy covers the same property or loss,or any portion thereof, which is covered by such Association policy, such Association policy shall he primary insurance not contributing with any of such other insurance. An Owner shall be liable to the Association for the amount of any diminution of insurance proceeds to the Association as a result of policies of insurance of an Owner,and the Association may collect the amount from said Owner in the same manner as any assessment. Any such Owner's policy shall also contain waivers of subrogation. 6.6. Acceptable Insurance Companies. Each insurance policy purchased by the Association must he written by an insurance carrier which is authorized by law to do business in the State of Colorado. The Association shall not obtain any policy where(a)under the terms of the insurance company's charter,bylaws, or 15 L policy, contributions or Assessments may be made against the mortgagor or mortgagee's designee, or(b)under the terms of the carrier's charter.bylaws, or policy,loss payments are MINIMw contingent upon action by the carrier's board of directors,policy holders or members, or (c)the -a :1-1 policy includes any limiting clauses(other than insurance conditions)which could prevent o mortgagees or any Owner from collecting insurance proceeds. - � E g 6.7. Insurance to be Maintained by Owners. An insurance policy issued to the Association does not eliminate the need for Owners to obtain mom N omv' insurance for their own benefit. Insurance coverage on each Owner's Lot and the Improvements s o thereon, as well as on all the furnishings and personal property belonging to an Owner, and m000 c public liability insurance coverage on each Lot, shall be the responsibility of the Owner of such N om Imo co 8 Lot. Owners shall also be responsible for obtaining any policies of title insurance required in connection with any sale of a Lot other than the purchase by the initial Owner(s) from the Q= Declarant. In the event the homeowner's insurance policies held by different Owners of Lots or ao°C held by an Owner and the Association and which are underwritten by different insurers, the Owner shall be responsible for ensuring that such Owner's insurer agrees, in the event damage occurs to MEM the covered property,to facilitate payment of the insurance proceeds when two insurers are —" involved and that the insurer will pay all undisputed proceeds and one-half of any disputed proceeds (up to the amount of coverage provided by such insurance) subject to the right of such insurer to recover from the other insurer any such sums for which the other insurer is found to he liable. ARTICLE 7. DAMAGE OR DESTRUCTION 7.1. Damage or Destruction. 7.1.1. Any portion of the Community for which casualty insurance is required to be carried by the Association under this Declaration which is damaged or destroyed must be repaired or replaced promptly by the Association unless: 7.1.1.1. The Community is terminated; 7.1.1.2. Repair or replacement would he illegal under any state or local statute or ordinance governing health or safety; 7.1.1.3. Sixty-seven percent(67%)of the Members, including every Member whose Lot will not be rebuilt, vote not to rebuild;or 7.1.1.4. Prior to conveyance of any Lot to a Person other than the Declarant, a Security Interest Holder rightfully demands all or a substantial part of the insurance proceeds; 7.1.2. The cost of repair or replacement that is covered by insurance carried by the 'Association,but which is in excess of insurance proceeds and reserves, is an Association expense. If the entire Community is not repaired or replaced. the insurance proceeds attributable thereto must be used to restore the damaged area to a condition compatible with the remainder of the Community and,except to the extent that other Persons will,be 16 8. Residential Use. — owe Subject to Section 13.7 of this Declaration and Sections 8.5 and 8.6 of the Master Declaration, Lots shall be used for residential use only, including uses which are customarily incident thereto, c�a and shall not be used at any time for business, commercial or professional purposes. G Notwithstanding the foregoing,however, Owners may conduct business activities within their homes g o provided that the following conditions are satisfied: —(-32 —6 y 8.t The business conducted is clearly secondary to the residential use of the home and is conducted entirely within the home; --o o O 8.2 The existence or operation of the business is not apparent or detectable from =Elm outside of the home by sight,sound smell or otherwise,or by the existence of signs indicating that a business is being conducted; g?,{o ▪ oe 8.3 The business does not result in an undue volume of traffic or parking within the Community,which determination may be made by the Board of Directors in its sole mmi ti discretion from time to time; ▪ ~ 8.4 The business conforms to any rules and regulations that may be imposed by the Board of Directors from time to time on a uniform basis to protect the peace, tranquility and quality of the Community.The business conforms to all zoning requirements and is lawful in nature. 8.5. !Household Pets. No animals, livestock, birds, poultry,reptiles or insects of any kind shall be raised, bred, kept or boarded in or on a Lot;provided, however, that the Owners or tenants of each Lot may keep a reasonable number of dogs,cats,or other domestic animals which are bona fide household pets, so long as such pets are not kept for any commercial purpose and are not kept in such number or in such manner as to create a nuisance to any resident of the Lots.No Pitt Bulls dog will be allowed. The Association shall have,and is hereby given, the right and authority to: set a size or poundage limit on pets;regulate the type(s)of pets that are permitted to be kept; determine in its sole discretion that any dog(s),cat(s)or other household pet(s)are being kept for commercial purposes or are being kept in such number or in such manner as to be unreasonable or to create a nuisance; or that an Owner or tenant is in violation of the leash laws of the applicable jurisdiction or other applicable governmental laws,ordinances,or other provisions related to household pets; or determine that an Owner or tenant is otherwise in violation of the provisions of this Section, and to take such action or actions as it deems appropriate to correct the same. An Owner's or tenant's right to keep household pets shall be coupled with the responsibility to pay for any damage caused by such pets,as well as any costs incurred by the Association as a result of such pets,and any such costs and damages shall be subject to all of the Association's rights with respect to the collection and enforcement of Assessments as provided in Article 4 hereof. The number of animal units allowed must adhere to Sections 23-1-90 and 23-3440.11 of the Weld County Code for(Estate) zoning. 17 as • 8.6. Temporary.Structures. cc Except as hereinafter provided, no structure of a temporary character, including but not limited to, ac as a house, trailer,tent or shack shall he placed or erected on any Lot without the consent and =Mg approval of the Architectural Review Committee and in accordance with the Design Guidelines: co provided, however, that during the actual construction, alteration, repair or remodeling of a mom structure or a capital improvement,necessary temporary structures for storage of materials may be ~ erected and maintained by the person doing such work. Storage shed, play house, tree house, r; detached garage, or similar type of structure shall not be considered to be a "structure of a MIME CL c temporary character,"within the meaning of this section, subject to the Design Guidelines or �d o guide rules. The work of constructing, altering or remodeling any structure or other capital N improvement shall be prosecuted diligently from the commencement thereof until the completion c, thereof. Further, no unsightly conditions, structures, facilities, equipment or objects shall be as 4‘10 located on any Lot as to be visible from the street or from any other Lots. I~o� 2 M 8.7. Miscellaneous Improvements. au—no o No advertising or signs of any character shall be erected,placed. ~ cco permitted, or maintained on any Lot other than a name plate of the occupant and a street number,and except for a "For Sale,""Open House,""For Rent"or security sign(s)of not more than a total of five(5)square feet each.Notwithstanding the foregoing,reasonable signs,advertising,or billboards used by the Declarant and/or any Builder(with the written consent of the Declarant) in connection with the sale or rental of the Lots,or otherwise in connection with initial development of or construction on the Lots,shall he permissible. All signs in the subdivision must adhere to Chapter 23,Article IV,Division 2 of the Weld County Code. 8.7.1 Other than during initial construction,no construction materials, wood piles, or storage areas shall he as located on any Lot as to be visible from a street or from the ground level of any other Lot,after initial construction is complete, for more than thirty (30)days out of any calendar year. 8.7.1. Except for solar panels,which are regulated by law, no types of refrigerating,cooling or heating apparatus shall be permitted on a roof: 8.7.2. Except as may otherwise he permitted by the Architectural Review Committee,subject to any provisions of the Design Guidelines or guide rules,no exterior radio antenna, television antenna,or other antenna,satellite dish,or audio or visual reception device of any type shall be placed,erected or maintained on any Lot, except inside a residence or otherwise concealed from view: provided, however, that any such devices may be erected or installed by the Declarant during its sales or construction upon the Lots; and provided further, however,that the requirements of this subsection shall not apply to those"antenna"(includinge certain satellite dishes)which are specifically covered by the Telecommunications Act of 1996 or regulations adopted there under,as amended. As to "antenna" (including certain satellite dishes)which are specifically covered by the Telecommunications Act of 1996 or regulations adopted there under,as amended, the Association shall be empowered to adopt rules and regulations governing the types of "antennae" (including certain satellite dishes)that are permissible and,to the extent permitted by the Telecommunications Act of 1996 or regulations adopted there under,a 18 d Amended, establishing reasonable, non-discriminatory restrictions or requirements relating to appearance,safety,location and maintenance. somiNO "cv 8.75. Fences shall be permitted only in accordance with the prior, written c approval of the Architectural Review Committee;except such fences as may he constructed, 0 o installed or located by the Declarant or Builder in their development of,or construction of .1.4Improvements in,the Community. However,no fences or structures shall be allowed to a be built on or hinder the open space access between Lots 5 and 6. � y d 0 8.7.6. No wind generators,hanging articles(including without limitation rr o c clotheslines),drying yards, or service yards,shall be constructed, installed, erected or maintained on any Lot,except upon the approval of the Architectural Review Committee and subject mom 00© to the other restrictions in the Governing Documents and Master Declaration. 8.7.7. Dog runs shall be permitted on a Lot only with the prior written approval c co3 , of the Architectural Review Committee,subject to any provisions of the Design Guidelines o or guide rules. 2 co 8.7.8. All driveways must he installed,constructed,maintained repaired and replaced with a hard surface material such as concrete,asphalt or masonry pavers. 8.7.9. All structures must comply with applicable law and the requirements of the Architectural Review Committee. 8.8. Vehicular Parking. Storage and Repairs. 8.8.1. House trailers,camping trailers,boat trailers, hauling trailers,jet skis, boats,or accessories thereto,trucks(larger than one(1)ton),self-contained motorized recreational vehicles, or other similar types of recreational or commercial vehicles or equipment, may be parked on a driveway on a Lot or parked or stored elsewhere on a Lot if such vehicles or equipment are screened from view in accordance with the prior approval of the Architectural Review Committee. However,any such vehicle may be otherwise parked as a temporary expedient for loading, delivery, or emergency.This restriction, however, shall not restrict trucks or other commercial vehicles which are necessary for construction or maintenance of any portion of the Community or any Improvements located thereon. 8.8.2. Except as otherwise provided in this and the next sentence, no disassembled or partially disassembled vehicles of any type,shall he parked, stored, maintained,or used in the front yard or driveway of any Lot(unless such parking or storage will be within the fully enclosed garage of a Lot)nor shall any such vehicle he parked or stored on any property visible from the ground level of any other Lot. 8.8.3. Except as hereinabove provided, no abandoned or inoperable automobiles or vehicles of any kind shall he stored or parked in the Community. An "abandoned or inoperable vehicle"shall be defined as any automobile, truck.motorcycle,or other similar vehicle, which has not been driven under its own propulsion for a period one week (7 days),or which does not have an operable propulsion system installed therein,or which is not then currently registered and licensed;provided, however, that otherwise 19 EPermitted vehicles parked by Owners while on vacation(for a maximum of two(2)weeks)or during a period - 0 of illness shall not be deemed to be abandoned. a, 8.8.4. In the event the Association shall determine that a vehicle is parked or -o stored on any Lot in violation of subsections 10.8.1,10.8.2,or 10.8.3,then a written notice "a7,o describing said vehicle shall be personally delivered to the owner thereof(if such owner can be reasonably ascertained)or shall be conspicuously placed upon the vehicle(if the owner o g thereof cannot he reasonably ascertained),and if the vehicle is not removed within a = reasonable time thereafter,as determined by the Association in its discretion from time to — time,the Association shall have the right to remove the vehicle at the sole expense of the • owner thereof. -(h 0 0 8.8.5. No activity such as,but not limited to, maintenance,repair,replacement, M c reconstruction,rebuilding,dismantling,repainting or servicing of any kind of vehicles, c-7,(6 trailers or boats,may be performed or conducted in the Community unless it is done within _ cc- cc completely enclosed structure(s)which screen the sight and sound of the activity from the i ao street and from adjoining property.The foregoing restriction shall not be deemed to prevent mow cr, washing and polishing of any motor vehicle, boat,trailer,motor-driven cycle,or other vehicle,together with those activities normally incident and necessary to such washing and mom c.DN polishing. 8.9. Nuisances. No nuisance shall be permitted in the Community nor any use,activity or practice which is a source of annoyance or embarrassment to, or which offends or disturbs the resident of any Lot or which interferes with the peaceful enjoyment or possession and proper use of any Lot,or any portion thereof, by its residents. As used herein, the term"nuisance"shall not include any activities of Declarant which are reasonably necessary to the development and construction of,and sales activities in, the Community: provided, however,that such activities of the Declarant shall not unreasonably interfere with any Owner's use and enjoyment of his Lot,or with any Owner's ingress and egress to or from his Lot and a public way. No noxious or offensive activity shall be carried on in the Community nor shall anything be done or placed in the Community which is or may become a nuisance or cause embarrassment, disturbance or annoyance to others.Further, no improper,offensive or unlawful use shall be permitted in the Community or any portion thereof. All valid laws, ordinances and regulations of all governmental bodies having jurisdiction over the Community, or any portion thereof, shall be observed. 8.10. No Hazardous Activities;No Hazardous Materials or Chemicals. No activities shall be conducted on any Lot,or within Improvements constructed on any Lot, which are or might be unsafe or hazardous to any person or property.Without limiting the generality of the foregoing, no firearms shall be discharged upon any Lot and no open fires shall be lighted or permitted on any Lot except in a contained barbecue unit while attended and in use for cooking purposes or within an exterior fireplace, or except such campfires or picnic fires on property which may be designated for such use by the Association. Further,no hazardous materials or chemicals shall at any time be located,kept or stored in,on or at any Lot except such as may be contained in household products normally kept at homes for use of the residents 20 Thereof and in such limited quantities so as to not constitute a hazard or danger to person or property IIII C3 °C 8.11. No Annoying Light, Sounds or Odors. •tt e m No light shall be emitted from any Lot which is unreasonably bright or causes unreasonable glare;no -"( sound shall be emitted from any Lot which is unreasonably loud or annoying;and no odor shall be permitted from any Lot which is noxious or offensive to others.Any exterior lighting installed or 8 2o maintained on a Lot or Improvements(s)shall either be indirect or of such controlled focus and intensity so as not to disturb the residents of adjacent or nearby property. 8.12. Restrictions on Trash and Materials. 0 0 o No refuse,garbage,trash,lumber,grass,shrubs or tree clippings,plant waste,metal,bulk materials, io scrap or debris of any kind shall be kept, stored,or allowed to accumulate except inside the residence -co on any Lot, nor shall any such items be deposited on a street, unless placed in a suitable container suitably located solely for the purpose of garbage pickup.Notwithstanding the preceding,an Owner may accumulate such items in a compost pile or other similar fertilization system for their personal co home use. All equipment for the storage or disposal of such materials shall be kept in a clean and sanitary condition.No garbage or trash cans or receptacles shall be maintained in an exposed or - o Em. unsightly manner. 8.13. Lots to be Maintained. Each Lot shall at all times be kept in a clean, sightly and wholesome condition by the Owner thereof No trash,litter,junk, boxes,containers.bottles,cans,implements or machinery shall be permitted to remain upon any Lot except as necessary during the period of construction or as provided in Section 10.12 of this Declaration. 8.14. Leases. The term"lease",as used herein,shall include any agreement for the leasing or rental of a Lot,or any portion thereof,and shall specifically include, without limitation, month-to-month rentals and subleases. Any Owner shall have the right to lease his Lot,or any portion thereof, under the following conditions: 8.14.1. All leases shall be in writing. 8.14.2. All lenses shall provide that the terms of the lease and lessee's occupancy of the leased premises shall be subject in all respects to the provisions of this Declaration, and the Articles of Incorporation,Bylaws and rules and regulations of the Association;and that any failure by the lessee to comply with any of the aforesaid docuinents,in any respect, shall be a default under the lease. 8.15. Landscaping of'Lots. Within the time frames as hereinafter provided, the Owner(other than Declarant or a Builder)of each Lot shall install landscaping(which may include native grasses)on all of the Lot which is not covered by a building or building Improvement,and shall thereafter maintain such • 21 I IIIII 1111111111111111111111 1111 111111 Ill 1111111111111 3534673 02/11/2008 03:50P Weld County, CO 22 of 39 R 196.00 D 0.00 Steve Moreno Clerk& Recorder Landscaping in a neat and attractive condition, including periodic and horticultural correct pruning, removal of weeds, and replacement of landscaping. The Owner of each Lot (other than Declarant or a Builder)shall install landscaping (which may include native grasses) on such Lot within one hundred eighty (180)days after Certificate of Occupancy. Lot by such Owner if said time period occurs between April 1 and October 1; if said time period does not occur between such dates, then such landscaping shall be installed by such Owner by the following October 1. Landscaping plans and other required documents shall be professionally done, shall be in accordance with the Design Guidelines or guide rules (which may specify landscaping requirements), and shall be submitted to the Architectural Review Committee for review; and the approval prior to the installation of landscaping (which may include native grasses), except where installed by the Declarant or Builder. In addition, each Owner shall be responsible for revegetating landscaped areas of his Lot that are disturbed by construction. If any Owner fails to comply with this Section, or with the requirements of the Architectural Review Committee in installation of landscaping (which may include native grasses), the Association may, at the direction of the Board of Directors, enter upon such Lot and install or maintain landscaping (which may include native grasses)for which the Owner shall be obligated to pay, in accordance with and subject to the provisions of Section 8.2 of this Declaration. 8.16. Restrictions on Mining or Drilling. No property within the Community shall be used for the purpose of mining, quarrying, drilling, boring or exploring for or removing oil, gas or other hydrocarbons, minerals, rocks, stones, gravel or earth, except drilling or exploring for oil, gas or other hydrocarbons pursuant to oil and gas leases in effect on the date that this Declaration is recorded, as the same may be amended and supplemented from time to time. 8.17. Oil and Gas Well Disclosure. No building structures shall be located within the drill envelopes noted on the plat. Further it is recognized that Xcel Energy has an easement in the open space and that no buildings, trees or large scrubs shall be placed in the easement and access shall be granted. 8.l 7.i. Oil field Production: If Oil/Gas production facilities become present within the said subdivision, oil/gas vehicles have the right to access their facilities within the subdivision without any I interference by lot owners. 8.17.2. By acceptance of a deed to a Lot, each Owner recognizes the existence of oil and gas leases on the Community and Annexable Area and the surface activity associated with such oil and gas leases, and assumes the risk of owning property near or adjacent to an oil and gas well operation. Such risks include, without limitation, injury or damage to person and/or property arising out of or resulting from the drilling, operation and maintenance of an oil and gas well; noise associated with an oil and gas well operation; explosion and fire; leakage of oil and/or gas from drilling or production facilities; vehicles servicing the oil and gas site (collectively the "Oil and Gas Well Risks"). The waiver and release set out in Section 13.16 shall apply to this Section. 22 1 IIIlI IIIII 111111111111 IIIII III 111111 III 1111111 111111 3534673 02/11/2008 03:50P Weld County, CO ARTICLE 9. RIGHT TO FARM COVENAMT 23 of 39 R 196.00 D 0.00 Steve Moreno Clerk& Recorder 9.1. The Right to Farm Covenant: Weld County is thee most productive agricultural counties in the United States. The rural areas of Weld County may be open and spacious, but they are intensively used for agriculture. Persons moving into a rural area must recognize there are drawbacks, including conflicts with long-standing agricultural practices and lower level of services than in town. Agricultural users of the land should not be expected to change their long-established agricultural Practices to accommodate the intrusions of urban users into a rural area. Well run agricultural activities will generate off-site impacts, including noise from tractors and equipment; dust from animal pens, fields work, harvest, and gravel roads; odor from animal confinement, silage, and manure; smoke from ditch burning; flies and mosquitoes; the use of pesticides and fertilizers in the fields, including the use of aerial spraying. Ditches and reservoirs cannot simply be moved "out of the way" of residential • development without threatening the efficient delivery of irrigation to fields which is essential to farm production. Weld County covers a land area of over 4,000 square miles in size (twice the size of the state of Delaware)with more than 3,700 miles of state and county roads outside of municipalities. The sheer magnitude of the area to be served stretches available resources. Law enforcement is based on responses to complaints more than on patrols of the county and the distances which must be traveled may delay all emergency responses, including law enforcement, ambulance, and fire. Fire protection is usually provided by volunteers who must leave their jobs and families to respond to emergencies. County gravel roads, no matter how often the are waded, will not provide the same kind of surface expected for a paved road. Snow removal priorities mean that roads from subdivisions to artenals may not be cleared for several days after a major snowstorm. Snow removals for roads within subdivisions are of the lowest priority for the public works or may be the private responsibility for the homeowners. Services in rural areas, in many cases, will not be equivalent to municipal services. 23 m ARTICLE 10. PROPERTY RIGHTS IN THE COMMON ELEMENTS 8 °C 10.1. Owners'Easements rfErjovment. (The"Colorado Common Interest Ownership Act"shall apply to the Distant Thunder Covenants.) o �"c, o Subject to this Article,every Owner shall have a non-exclusive right and easement for the purpose E of access to their Lots and for use for all other purposes, in and to the Common Elements,and such easement shall be appurtenant to and shall pass with the title to every Lot, subject to the designation of certain Common Elements as Limited Common Elements. However: no use shall 3 be made of the Common Elements which will in any manner violate the statutes, rules, or n regulations of any governmental authority having jurisdiction over the Common Elements; no o s o Owner shall engage in any activity which will temporarily or permanently deny free access to any o o part of the Common Elements to all.Members, nor shall any Owner place any structure .Emu . in whatsoever upon the Common Elements;and no use shall ever be made of the Common Elements m,o which will deny ingress and egress to those Owners having access to their Lots only over r Common Elements,and the right of ingress and egress to said Lots is hereby expressly granted. mac 0,C 10.2. &tent o f Owners's'Easements. c Subject to the other provisions of this Article, the rights and easements of enjoyment created -Cn N hereby are subject to the following: the Common Elements may not be used in any manner which violates the statutes,rules, or regulations of any governmental authority with jurisdiction over the Common Elements;and no Owner may place any structure on the Common Elements, In addition, such rights and easements are subject to the following rights of the Association: 10.2.1. The right of the Association to borrow money for the purpose of improving the Common Elements and to mortgage said property as security for any such loan; provided,however,that the Association may not subject any portion of the Common Elements to a Security Interest except in accordance with CCIOA;and 10.2.2. The right of the Association to take such steps as are reasonably necessary to protect the Common Elements against foreclosure;and 10.2.3. The right of the Association to promulgate and publish standards, guidelines, rules and regulations,with which each Member shall strictly comply;and 10.2.4. The right of the Association to suspend the voting rights of a Member for any period during which any assessment against his Lot remains unpaid and, for a period not to exceed sixty(60)days, for any infraction of the Association Bylaws or the rules and regulations of the Association;and 10.2.5. The right of the Association to dedicate or transfer all or any part of the Common Elements owned by the Association to any public agency,authority,or utility for such purposes and subject to such conditions as may be agreed to by the Members,provided that no such dedication or transfer shall be effective unless the same is done in accordance with CCIOA.Notwithstanding the foregoing,the granting of permits,licenses and easements for public utilities,roads or for other purposes reasonably necessary or useful for the proper maintenance or operation of the community. 24 1 111111 11th 11111111111 11111 1111 111111 t 111111111 III n CO 3534673 02/11/2008 03:50P Weld Coa ty, ARTICLE li. 25 of 39 R 196.00 0 0.00 Steve Moreno Clerk& Recorder 1 1.3. Declarant's Use of Common Elements. An easement is hereby granted to the Declarant through the Common Elements as may be reasonably necessary for the purpose of discharging any of Deciarant's obligations or exercising any rights of the Declarant, including without limitation Special Declarant Rights. No Owner shall engage in any activity which will temporarily or permanently interfere with this easement through the Common Elements. No motorized vehicles allowed on common element. No Grazing of animals. 1 1.4. Limited Common Elements. Subject to the terms and provisions of this Declaration,every Owner shall have the right to use and enjoy the Limited Common Elements appurtenant to such Owner's Lot or which are otherwise designated for use by such Owner's Lot. Such right shall be exclusive except as to those Owners with a right to use such Limited Common Elements. 11.5. Delegation of Use. Any Owner may delegate his right of enjoyment to the Common Elements and facilities to the members of his family, his tenants, or contract purchasers who reside on his Lot. 11.6. Payment of Taxes or Insurance by Security Interest Holders. Security Interest Holders shall have the right,jointly or singly. to pay taxes or other charges or Assessments which are in default and which may or have become a lien against the Common Elements and may pay overdue premiums on hazard insurance policies or secure new hazard insurance coverage on the lapse of a policy for the Common Elements,and any Security Interest Holders making any such payments shall be owed immediate reimbursement therefore from the Association. 11.7. Conveyance or Encumbrance of Common Elements. Portions of the Common Elements may be conveyed or subjected to a Security Interest by the Association only in accordance with CCIOA and this Declaration. 1 1.8. Designation of Common Elements. Declarant in recording this Declaration has designated certain areas of land as Common Elements intended for the common use and enjoyment of Owners for recreation and other related 25 3 Activities, as provided in this Declaration and other applicable documents. The Common Elements owned by the Association is not dedicated hereby for use by the general public. o 11.9. Duty to Accept Property and Facilities Transferred by Declarant - e The Association shall accept title to any Common Elements, including Improvements thereon, as u o well as personal property,equipment,easements and any property on which the Association has or assumes maintenance responsibilities. transferred to the Association by the Declarant, together 3 41) with responsibility to perform all duties and functions of the Association which are set forth in mem `" this Declaration or otherwise assumed by the Association. As of the date of recording of this i!3 o Declaration, interests which are planned to be transferred by the Declarant to the Association are —-o c planned to consist only of fee simple title to Common Elements to be located in the property Nom Emom described on the attached Exhibit A and/or the Annexable Area and/or easements. WA" ti g ARTICLE 12. DISPUTE RESOLUTION cc mom mon 02 M 12.1. Intent q/Article;Applicability of Article; and Applicability. of;Statutes of `o Limitation. 12.1.1. Each Party(as defined below)agrees to encourage the amicable resolution of disputes,without the emotional and financial costs of litigation. Accordingly, each Party covenants and agrees to submit all Claims each alleges to have to the procedures set forth in this Article and not to a court of law. 12.1.2. By acceptance of a deed for a Lot, each Owner agrees to abide by the terms of this Article. 12.1.3. No Claim (as defined below) may he initiated after the date when institution of legal or equitable proceedings based on such Claim would be barred by the • applicable statute of limitation or statute of repose. Section 12.2. Definitions Applicable to this Article. For purposes of this Article only, the following terms have the meanings set-forth in this Section: 12.2A. "AAA" means the American Arbitration Association. 12.2.2. "Party" means each of the following:Declarant, its officers,directors, partners. members,employees and agents;the Association, its officers, directors and committee members; all persons subject to this Declaration;any builder, its officers, directors, partners,members,employees and agents;and any person not otherwise subject to this Declaration who agrees to submit to this Article. 12.2.3. "Claimant" means any Party having a Claim. 12 2.4. "Claim"means, except as exempted by the terms of this Article,any claim,grievance or dispute between one Party and another,regardless of how the same may have arisen or on what it might he based, including without limitation those arising out of or related to(i)the interpretation,application or enforcement of any of the Governing 26 i ,21 - oImmo Documents or the rights,obligations and duties of any Party under any of the Governing it Documents; (ii)the design or construction of improvements;(iii)any statements,representations, - •tt promises, warranties,or other communications made by or on behalf of any Party. Y o lo " 12.2.5. "Inspecting Party"means a Party causing an inspection of the Subject dProperty to be made. Imo 12.2.6. "Respondent"means any Party against whom a Claimant asserts a 3 Claim. a 0 12.2.7. "Subject Property" means the property being inspected pursuant to the C"�p fl inspection right provided in Section 12.7 of this Declaration. nom N El 12.2.8. "Termination of Mediation" means a period of time expiring thirty(30) r r days ailer a mediator has been agreed upon by the parties (however,a mediator shall be I c°C selected no later than 45 days after the Claimant has given notice to the Respondent of the Claim and if the parties are unable to agree on a mediator,one shall be chosen by the AAA) 4 o and the matter has been submitted to mediation(or within such other time as determined by mom r.; the mediator or agreed to by the Claimant and Respondent)and upon the expiration of which the Claimant and Respondent have not settled the Claim. 12.3. Approval Required for Association Actions. Except as provided in Section 12.6 below, the approval of seventy-five percent (75%) of a quorum (as provided in Section 12.4)of the Association votes cast by Members voting in person or by proxy at a meeting duly called for this purpose, or voting pursuant to written ballot, must be obtained before the Association shall have the power to institute action on any Claim pursuant to this Article, or to make any counterclaim or cross-claim in any lawsuit or other action brought against the Association. Such approval must be obtained in accordance with the requirements of Section 12.4. 12.4. Notice and Quorum fin-Association Actions. Written notice of any meeting of Members which includes a vote pursuant to Section 12.3 hereof shall be sent to all Members not less than thirty(30)days nor more than fifty(50)days in advance of the meeting. Such written notice, or if the vote is to be by written ballot then such written ballot, shall include the following information: 12.4.1. A statement regarding the nature of the Claim. Such statement shall include, without limitation,the name(s)of the proposed Respondent(s), the basis and reason for the Claim,and any other information necessary to adequately explain the nature of the proposed Claim;and 12.4.2. A good-faith estimate of the costs and fees, including the fees of consultants. expert witnesses and attorneys, reasonably anticipated to be incurred by or for the Association in prosecuting the Claim,with such estimate prepared by the primary attorney the Board proposes to have prosecute the Claim on its behalf;and 27 0 12.4.3. A statement advising Members that the costs and fees of prosecuting any c Claim may substantially increase the amount of Assessments payable by the Owners to the • Immo ,g Association;and OMENo "� .6 12.4.4. A good-faith estimate of the manner in which any moneys reasonably oanticipated to be recovered from the Claim will be distributed or paid to consultants. expert �.a z witnesses,the Association,its attorneys)and any others,prepared by the primary attorney the Board proposes to have prosecute the Claim on its behalf;and N a12.4.5. A good faith estimate of the projected time frame for resolution of the coo Claim; and NEED o0 o 0 12.4.6. All terms and provisions of the agreement between the Association and r Nthe attorney(s)the Board proposes to have prosecute the Claim. cp r r mom =Eno°C The presence of Members or of proxies, or if by ballot then receipt by the Association of written MEM C.) ballots,entitled to cast seventy-five percent(75%)of all of the Association votes,shall constitute a r wt o quorum at any meeting at which the Members vote on approval of any Claim the Association wishes mem N to bring. 12.5. Required Form of Proxy or Ballot. Each written proxy,and each ballot,which purports to vote on, or authorize a vote on,approval of the Association bringing a Claim shall contain the following statement: Despite the fact that my annual Assessments may be significantly increased by the costs and fees associated with the proposed claim, I/we APPROVE the authority of the Association to bring such claim. 1.2.6. b elusions from "Claim." Unless specifically exempted by this Article,all Claims between any of the Parties shall he subject to the provisions of this Article. Notwithstanding the foregoing, unless all Parties thereto otherwise agree, "Claim"does not include the following, whether such are brought by lawsuit, counterclaim or cross-claim and the same shall not he subject to the provisions of this Article: 12.6.1. An action by the Association to enforce the provisions of Article 4 of this Declaration(Covenant for Assessments);and 12.6.2. An action by the Association to obtain a temporary restraining order or injunction (or equivalent emergency equitable relief)and such other ancillary relief as the court may deem necessary in order to enforce any of the provisions of Article 10 of this Declaration(Restrictions)or of Article 5 of this Declaration(Architectural Review); and 12.6.3. any suit between or among Owners,which does not include Declarant,a Participating Builder or the Association as a party, if such suit asserts a Claim which would constitute a cause of action independent of the Governing Documents; and any suit in which any indispensable party is not a Party. 28 1111111 IIIII 111111111111 IIIII IIII 111111 III 1111111 M 1111 12.6.4 3534673 02/11/2008 03:50P Weld County, CO 29 of 39 R 196.00 D 0.00 Steve Moreno Clerk& Records 12.7. Right to Inspect. Prior to any Party commencing any proceeding to which another Party is a party, including but not limited ited to an alleged defect of any Improvement,the Respondent shall have the right to be heard by the Claimant and, if any Claimant is the Association, by the Members, and to access, inspect, correct the condition of or redesign any portion of any Improvement as to which a defect is alleged or otherwise correct the alleged dispute; provided, however,any correction to, or redesign of,an Improvement shall be made upon terms and conditions acceptable to all affected Parties. In the exercise of the inspection rights contained herein, the inspecting Party shall: 12.7.1. Be careful to avoid unreasonable intrusion upon, or harm,damage or costs to the affected Party including, without limitation,using its best efforts to avoid causing any damage to,or interference with,any Improvements to the Subject Property: 12.7.2. Minimize any disruption or inconvenience to any person who occupies the Subject Property; 12.7.3. Remove daily all debris caused by the inspection and located on the Subject Property;and 12.7.4. In a reasonable and timely manner,at the sole cost and expense of the Inspecting Party,promptly remove all equipment and materials from the Subject Property and repair and replace all damage, and restore the Subject Property to the condition of the Subject Property as of the date of the inspection unless the Subject Property is to be immediately repaired. The Inspecting Party shall not permit any lien, claim or other encumbrance arising from the exercise of its right to inspect to accrue against or attach to the Subject Property. The Inspecting Party shall indemnify, defend, and hold harmless the affected Owners and their tenants, guests. employees and agents,against any and all liability,claims,demands, losses,costs and damages incurred, including court costs and attorneys' fees, resulting from any breach of this Section by the Inspecting Party. Section 12.8. Mandutoty Procedures. 12.8.1. Good Faith Negotiations. The Parties shall make every reasonable effort to meet in person and confer for the purposes of resolving the Claim by good faith negotiation. Any Party may be represented by attorneys and independent consultants to assist such Party in negotiations and to attend meetings. 12.8.2. Notice. Prior to proceeding with any claim against a Respondent,each Claimant shall give a notice to each Respondent, which notice shall state plainly and concisely: 29 as jazi MIMI CD 12.8.2.1. the nature of the Claim,including all persons involved and cc Respondent's role in the Claim; �; 12.8.2.2. the legal or contractual basis of the Claim(i.e.,the specific authority out of which the Claim arises);and mom z 12.8.2.3. the specific relief and/or proposed remedy sought. arm— > mom ti 12.8.3. Mediation.-tg 12.8.3.1. lithe Parties do not resolve the Claim through negotiations own- c within thirty days after submission of the Claim to the Respondent(s),Claimant mom 02 -o shall have an additional thirty(30)days to submit the Claim to mediation.under the g auspices of the AAA in accordance with the AAA's Commercial or Construction Industry Mediation Rules,as appropriate. ~ _' 12.8.3.2. If Claimant does not submit the Claim to mediation within such. •••• e, time,or does not appear for the mediation,Claimant shall be deemed to have waived the Claim,and Respondent shall be released and discharged from any and all liability to Claimant on account of such Claim;provided,nothing herein shall release or discharge Respondent from any liability to any person other than the Claimant. 12 8.3.3. Any settlement of the Claim through mediation shall be - documented in writing by the mediator and signed by the Parties.If a Termination of Mediation occurs,the mediator shall issue a notice of Termination of Mediation. The Termination of Mediation notice shall set forth that the Parties are at an impasse and the date that mediation was terminated. 12.8.3.4. Each Party shall bear its own costs of the mediation,including attorneys' fees,and each Party shall share equally all charges rendered by the mediator. • 12.8.3.5. lithe Parties agree to a resolution of any Claim through negotiation or mediation in accordance with Section 12.8.3 and any Party thereafter fails to abide by the terms of such agreement,then any other Party may file suit or initiate arbitration proceedings to enforce such agnxu►ent without the need to again comply with the procedures set forth in Section 12.8. In such event,the Party taking action to enforce the agreement shall be entitled to recover from the non-complying Party(or if more than one non-complying Party, from all such Parties pro rata)all costs incurred in enforcing such agreement, including without limitation,attorneys' fees and court costs. 12.8.4. Binding Arbitration. • 12.8.4.1. Upon Termination of Mediation,if Claimant desires to pursue the Claim, Claimant shall thereafter be entitled to initiate final,binding arbitration 30 of the Claim under the auspices of the AAA in accordance with the AAA's Commercial or 0Immo Construction Industry Arbitration Rules,as appropriate,subject to any Federal arbitration miiimstatutes and State arbitration statutes as applicable. Any judgment upon the award rendered by the arbitrator may be entered in and enforced by any court having jurisdiction over such v Claim.Unless otherwise mutually agreed to by the parties to the Claim,there shall be one —'= arbitrator who;to the extent feasible,shall have expertise in the area(s)of dispute,which may include legal expertise if legal issues are involved. a12.8.4.3 Each Party shall bear its own costs and expenses and an equal `" share of the arbitrator's and administrative fees of arbitration.Notwithstanding the s o foregoing,if a Parry unsuccessfully contests the validity or scope of arbitration in a MM.I=)o court of law,the arbitrator or the court shall award reasonable attorneys'fees and expenses incurred in defending such contests,including those incurred in trial or on T.F.? appeal,to the non-contesting Party. All decisions respecting the arbitrability of any Claim shall be decided by the arbitrator. °C M c, 12.8.4.3 The award of the arbitrator shall be accompanied by detailed written -~o findings of fact and conclusions of law.Except as may be required by law - c or for confirmation of an award,neither a party nor an arbitrator may disclose the existence,content,or results of any arbitration without the prior written consent of all parties to the Claim. 12.9. Liability for Failure of Association to Maintain an Action No director or officer of the Association shall be liable to any person for failure to institute or maintain or bring to conclusion a cause of action,mediation or arbitration for a Claim if the following criteria are satisfied: (i)the director or officer was acting withal the scope of his or her duties; (ii)the director or officer was acting in good faith;and(iii)the act or omission was not willful,wanton or grossly negligent. 12.10. Severability. a. All provisions of this Article are severable. Invalidation of any of the provisions of this Article, by,judgment,court order or otherwise, shall in no way affect or limit any other provisions of this Article which shall remain in full force and effect. 12.11. Amendment. Notwithstanding anything to the contrary contained in.this Declaration,this Article 12 shall not be amended unless such amendment is approved by Members to which at least eighty percent (80%) of the votes in the Association are allocated. ARTICLE 13. GENERAL PROVISIONS i 3.1. Enforcement; Fines. 13.1.1.Enforcement of the covenants,conditions,restrictions,easements, reservations,rights-of-way,liens,charges and other provisions contained in this 31 Declaration.the Articles of Incorporation, Bylaws or rules and regulations of the Association,as oamended,may be by any proceeding at law or in equity against any Person(s)violating or attempting cc to violate any such provision.Except as otherwise provided in this Declaration,the Association and • Y any aggrieved Owner shall have the right to institute,maintain and prosecute any such proceedings - a+ subject to Article 12 of this Declaration(Dispute Resolution).For each claim, including, but not limited to,counterclaims,cross claims and third-party claims, in any proceeding to enforce the ~- c E provisions of CCIOA or of the Declaration,Articles of Incorporation,Bylaws or rules and regulations = g of the Association,the court shall award to the party prevailing on such claim the prevailing party's reasonable collection costs and attorney fees and costs incurred in asserting or defending the claim. moo H Failure by the Association or any Owner to enforce any covenant, restriction or other provision a. Immo oo herein contained,or any other provision of any of the aforesaid documents, shall in no event he o c deemed a waiver of the right to do so thereafter. amm aRo c 13.1.2. Subject to the following sentence, the Association shall have the right to levy and - rcollect fines(as provided in Article 4 of this Declaration(Assessments))for the violation of any EMI cc provision of any of the aforesaid documents. Prior to collection of any fines,the Association,the mma a3 Board of Directors, or an authorized management company of the Association, shall mail a notice of -p violation to the Person(s)alleged to be in violation of any such provision and such notified Person(s) co has a right to a hearing upon submission to the Board of Directors of a written request for hearing, which is properly signed by such Person(s)and dated, within ten(10)days after the notice of violation has been mailed or such other time as the Board of Directors may decide in its discretion from time to time; failure of a notified Person to request a hearing in writing within the required time period shall constitute a waiver of such right to a hearing. 13.2. Sevcrability. All provisions of this Declaration, the Articles of Incorporation and Bylaws of the Association, are severable. Invalidation of any of the provisions of any such documents, by judgment, court order or otherwise,shall in no way affect or limit any other provisions which shall remain in full force and effect. 13.3. Conflict of Provisions. In case of any conflict between this Declaration and the Master Declaration, the Master Declaration shall control. In case of any conflict between this Declaration and the Articles of Incorporation or Bylaws of the Association, this Declaration shall control. in case of any conflict between the Articles of Incorporation and the Bylaws of the Association, the Articles of Incorporation shall control. 13.4. Conflict with CCIOA. In the event that any of the terms or provisions of this Declaration are in conflict or inconsistent with CCIOA, the terms or provisions of CCIOA shall control and govern. In case of any such conflict or inconsistency, the applicable terms and provisions contained in this Declaration shall, to the extent possible. be construed in accordance with CCIOA,and any 32 a) 0 0 provisions regarding obligations to pay Assessments to the Association and any right to cast votes as ac .y Members,shall apply to annexed property immediately upon the effective date of the Annexation of Additional Land(which shall constitute the date of recording of the Annexation of Additional Land "� unless otherwise stated therein). The Declarant's right to annex the Anmexable Area without g approval shall terminate automatically when the Special Declarant Rights terminate,as provided in Section 1.30 of this Declaration. . 13.5.5. Subsequent to the date of recording hereof,each Person(except a MINN a. Builder)who purchases any portion of the property described on the attached Exhibit D ("Parcel"),will have agreed pursuant to applicable documents that such Parcel will be o ih o governed by this Declaration.The Declarant, therefore,reserves the right(but not the o 0 obligation)during the time period set forth in subsection 13.5.3 of this Section to annex the o tD Parcel to the Declaration without further authorization from the Person(except a Builder) who has purchased such Parcel, even if such annexation occurs subsequent to conveyance o°C of the Parcel by Declarant. g c 13.5.6. The property which is described on the attached Exhibit A and each portion of the Community which is annexed to this Declaration by the Declarant shall be subject to a right of withdrawal by the Declarant. Such withdrawal may be accomplished, if at all, in accordance with CCIOA. However, the Declarant's right to withdraw each such portion of the Community shall expire and terminate,as to each portion of the Community which has been annexed to this Declaration,upon the first conveyance of any Lot in such portion of the Community to any Person other than the Declarant.but in any event, no later than automatic termination of the Special Declarant Rights as provided in Section 1.30 hereof. Section 13.6. Subdivision or Replatting of Lots. There Declarant or the Association will not change the number of Lots in the Community. No Lot may he further subdivided from that existing at the time such Lot becomes subject to this Declaration.There will be no Replatting of the commons element. Section 13.7. Declarant's and Builder's Use. Notwithstanding anything to the contrary contained in this Declaration, it shall be expressly permissible and proper for Declarant, its employees,agents, and contractors,as well as any Builder (but only with the written consent of the Declarant), to perform such reasonable activities,and to maintain upon portions of the Lots and the Common Elements such facilities as Declarant deems reasonably necessary or incidental to the construction and sale of Lots and development and construction of Improvements. The foregoing includes, without limitation, locating, maintaining and relocating management offices, signs, model units and sales offices, in such numbers,of such sizes, and at such locations as it determines in its reasonable discretion 33 s.0 from time to time. Further,nothing contained in this Declaration shall limit the rights of rc se Declarant or require the Declarant to obtain approvals: 13.7.1.1. excavate,cut,fill or grade any property(with the consent of the Owner thereof)or to construct,alter, demolish or replace any Improvements; to use any Improvements on any property(with the consent of the Owner thereof)as a construction, management, model home or sales or leasing office in connection with the development, ma = construction or sale of any property;and/or y 13.7.1.2. to require Declarant to seek or obtain any approvals under this -g Declaration or any Supplemental Declaration fir any such activity. Any real estate mom °O used as a sales office,management office,or a model,shall he a Lot or part of a Lot. o 0 13.8. Duration. Revocation, and Amendment 13.8.1. Each and every provision of this Declaration shall run with and bind the g'' land perpetually. Except as otherwise provided in this Declaration,this Declaration may he amended by a vote or agreement of Owners holding more than sixty-seven percent(67%)of the Allocated Interests;provided,however,while Declarant owns any portion of the property described on Exhibits A and D, no amendment may be made to this Declaration except with the affirmative vote or agreement of Members holding ninety percent(90%)of the Allocated Interests. 13.8.2. Every amendment, if any, to the Declaration must be done in compliance with CCIOA. 13.8.3. Notwithstanding anything to the contrary contained in this Declaration. the Declaration may be amended in whole or in part,at any time from time to time, by the Declarant without the consent or approval of any other Owner,any Security Interest Holder, or any other Person, in order to comply with the requirements, standards,or guidelines of any of the Agencies or of recognized secondary mortgage markets. Such right of amendment shall terminate automatically when the Special Declarant Rights terminate.as provided in Section 1.30 hereof 13.8.4. Notwithstanding anything to the contrary contained in this Declaration, this Declaration,or any map or plat, may be amended in whole or in part,at any time from time to time,by the Declarant without the consent or approval of any other Owner, any Security Interest Holder, or any other Person, in order to correct clerical, typographical,or technical errors. Such right of amendment shall terminate automatically when the Special. Declarant Rights terminate,as provided in Section 1.30 hereof. • 13.8.5. Except as to amendments which may be made by the Declarant, amendments to the Declaration may be prepared,executed,recorded.and certified by any officer of the Association designated for that purpose or, in the absence of designation.by the president of the Association. Such certification shall, in the case of an amendment requiring the approval of Owners,certify that the Association has received the requisite 34 Approvals. Amendments to this Declaration which may be made by the Declarant pursuant to this — Declaration or as permitted by CCIOA, may be signed by the Declarant and shall require no other OC signatory. =0 13.8.6. Any amendments to this Declaration that could be a burden to Weld County for = maintaining any of the common elements must first be approved by the Weld County Board of 8 County Commissioners. 1 3.9. Registration qf Mailing Address. • s ti a Each Owner and each Security Interest Holder, insurer or guarantor of a Security Interest, shall c register his mailing address with the Association, and except for annual statements and other routine sow notices, all other notices or demands intended to be served upon an Owner, or upon a Security Interest oc , Holder, insurer or guarantor of a Security Interest, shall be sent by either registered or certified ►nail, M"2 o postage prepaid,addressed in the name of such Person at such registered mailing address. However, if cc any Owner fails to notify the Association of a registered address,then any notice or demand may be delivered or sent,as aforesaid,to such Owner at the address of such Owner's Lot. All notices, demands, sit mom.p or other notices intended to be served upon the Board of Directors or the Association during the 75% o Control Period shall be sent by registered or certified mail, postage prepaid, JZM LLC 4200 Weld mmot County Road 19, Fort Lupton CO. 80621,unless such address is changed by the Association during the 75%Control Period; subsequent to termination of the 75%Control Period,the Association shall notify the Owners of a different address for notices which may be done not less often than biannually with the office of the Colorado Secretary of State. 13..10. Termination and Renewal n f('ommunity. The Community may be terminated or renewed only in accordance with CCIOA. Any termination or renewal of the Community which has the effect of relieving the Owners from the duty of maintaining the common elements will require written consent from the Weld County Board of County Commissioners. 13.11. Transfer af Special Declarant Rights. • A Special Declarant Right created or reserved under this Declaration may be transferred only by an instrument evidencing the transfer recorded in every county in which any portion of the Community is located,and in accordance with CCIOA. 13.12. Eminent Domain. The taking by eminent domain of a Lots)or Common Element(s), or any portion thereof,shall be done in accordance with applicable law, including without limitation CCIOA. 13.13. Limitation on Liability. The Association, the Board of Directors, the Architectural Review Committee, the Declarant, any Builder,and the officers, directors, members, partners.agents and employees of the same, shall not he liable to any Person for any action or for any failure to act unless the action or failure to act was not in good faith and was done or withheld with malice. The release and waiver set forth in Section 13.16 shall apply to this Section. 13.14. No Representations, Guaranties or Warranties. No representations, guaranties or warranties of any kind, express or implied, shall be deemed to have been given or made by Declarant, the Association,the Board of Directors, the Architectural Review 35 Committee,any Builder,or by any of their officers,directors,members,partners,agents or employees, in connection with any portion of the Community,or any improvement, or their physical condition, structural ge integrity,freedom from defects,zoning,compliance with applicable laws, fitn(~ss for intended use, or view,or in connection with the subdivision, sale, operation, maintenance,cost of maintenance,taxes or v a regulation thereof, unless and except as shall be specifically set forth in writing. The release and waiver = g set forth in Section 13.16 shall apply to this Section. g Leo a y 13.15. Disclaimer Regarding Safety. �3n =a DECLARANT,THE BUILDERS,THE ASSONCIATION,THE BOARD OF DIRECTORS fi3 o AND THE ARCHITECTURAL REVIEW COMMIT TEE, AND THEIR OFFICERS, DIRECTORS, 0 MEMBERS,PARTNERS,AGENTS AND EMPLOYEES,HEREBY DISCLAIM ANY OBLIGATION =co REGARDING THE SECURITY OF ANY PERSONS OR PROPERTY WITHIN THE COMMUNITY. N BY ACCEPTING.A DEED OF PROPERY WITH THE COMMUNITY, EACH OWNER r' ACKNOWLEDGES THAT DECCLARANT,THE BUILDERS,THE ASSOCIATION,THE BOARD o°C OF DIRECTORS AND THE ARCHITECTURAL REVIEW COMMITTEE,AND THEIR OFFICERS, cY,g DIRECTORS,MEMBERS,PARTNERS,AGENTS AND EMPLOYEES,ARE ONLY OBLIGATED = `o TO DO THOSE ACTS SPECIFICALLY ENUMERATED HERIN,OR IN THE ARTICLES OF ice,,A' INCORPORATION,BYLAWS AND RULES AND REGULATION OF THE ASSOCIATION, AND ARE NOT OBLIGATED TO DO ANY OTHER ACTS WITH RESPEC TO THE SAFE 1Y OR PROTECTION OF PERSONS OR PROPERY WITHIN THE COMMUNITY. THE RELEASE AND WAIVER SET FORTH IN SECTION 13.16 SHALL APPLY TO THIS SECTION. 13.16. Waiver. By acceptance of a deed to a Lot, each Owner hereby releases,waives,and discharges the Declarant,the Association,The Board of Directors,each Builder,and their respective officers,directors, members,partners,agents and employees,heirs,personal representatives,successors and assigns, from all losses, claims, liabilities,costs,expenses,and damages,arising directly or indirectly from any hazards, disclosures or risks set forth in this Declaration, including without limitation, Sections 10.17, 1 3.14, 13.15, 13.16, 13.17. 13.17. Headingv. The Article, Section and subsection headings in this Declaration are inserted for convenience of reference only,and do not constitute a part of this Declaration, and in no way define, describe or limit the scope or intent of this Declaration or any of the provisions hereof.. 13.18. Gender. Unless the context requires a contrary construction, the singular shall include the plural and the plural the singular and the use of any gender shall he applicable to all genders. 13.19. Ran with Land: Binding Upon Successors. The benefits,burdens and all other provisions contained in this Declaration shall be covenants running with and binding upon this Community and all real property and Improvements which are not now or hereafter become a part thereof. The benefits,burdens and all other provisions contained in this 36 Declaration shall be binding upon,and inure to the benefit of the Declarant,The Association and all Owners,and upon and to their respective heirs, personal representatives, successors and assigns. Owner(s): JZM,LLC dosiJ �as se--e Manager cting L--19764,I-47 r-? relf-/ Mary Zadel as Acting Mdiager State of Colorado ) ) ss. County of Weld ) The foregoing certification was acknowledged before me this 3 day of _na CW\I A.D., 20 D C ,by Mary Zadel, as Acting Manager of JZM, 1 LLC and John W.Zadel, as acting Manager of JZM, LLC. My Commission Expires: ILA t 1\\z(11 1 Notary Public A\L.CM .4 �� 1_1)i0'C, Witness my Hand and Seal 1®Yp CoitescA M_44,_ Z :NOTAR ); 3 : p -C iiicref ,..n 0 11111111111111111111111111111IIII111111III11111IIII IIII 37 3534673 02/11/2008 03:50P Weld County, CO 37 of 39 R 196.00 D 0.00 Steve Moreno Clerk& Recorder I. iS 1 • li`141 E11 ' � � g�E S° �� "1 S_ Ell ill a''1y"y1P !IiHs11;1.9 a i oil 511. I • j'''`V j 0 id iii41"11.1lizia5111.gt li f9FlJiiiii11�);l�sl�'il;�+ F , 11 fail v ' flit Illy j j 7i f 1 ;!II ull $ S ! 1 .a_. ) i it 1 `l' 1 z , l lit I•I it lOlt i 1 {{ i)1 , �i 3) IlR71r l��`it 1i �� i ' lil I e"!� ,. S � ��` E ,l a °.11. ¢{ii �tI � !Iiii'l� l.11104 1 ; t fl 41i! 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AFl A 4 o iJYYYYYI11111YY11 ll 1 (((��/// Inllllllllllil i' p' 1, ; 11 ¢'-1 t• `11 i seal!! iy r r- 3 �Ilnnnuuiil III !Alt;iiiii 4,n :� fir AA a Y 1 -L- ' ` iL� i-.m—1' L— yF !i Z l lla ay..� .... ,.1 ,; 1*'•11 `ii4 _ lil J nu;II I It P• 111I1i.sl i "m. g a, 1 i +l', a i+ -: ° - Yal "— '},l p EYII:� sYiL'! ill ', ;,al Ae The l Li il SL tapJoaay '8>Iia10 oua�oW anai3 00'0 a 00'96i. II 6€ l0 68 S 03 'Liuno% PI M 409t0 800ZIWZ0 EL99E9E III 1111 111111111 111 11111111 11111111111 111111 1 JAN-21-2008 MON 11:25 AM FAX NO. P. 02 0 II Report Date:01/21/200811:23AM WELD COUNTY TREASURER Page:1 STATEMENT OF TAXES DUE SCHEDULE NO;R8813300 " ASSESSED TO: JZM LLC 4200 CR 19 FORT LUPTON, CO 80621 LEGAL DESCRIPTION: •- S210-1-57 EXC BEG W4 COR SEC S70' N89D48'E 2566.48'NODO5V/65'TH W TO BEG ALSO EXC 1 :8W4 (3.04R3D) SIMS:WELD PARCEL: 146910000012 SITUS ADD: WELD TAX YEAR CHARGE TAX AMOUNT INTEREST FEES PAID . TOTAL DUE 2007 TAX 208.32 0.00 0.00 0.00 208.32 TOTAL TAXES 208.32 GRAND TOTAL DUE GOOD THROUGH 01/21/2008 208.32 ORIGINAL TAX BILLING FOR 2007 TAX DISTRICT 2234- Authority u t orityD COUNTY Mill Levy Amount Values Acts. II Assessed W16.804' 58.98 AGRICULTURAL 12.0 .r 3,510 SCHOOL DIST RE8 23.784 83.48 _ NCW WATER 1.000 9.51 TOTAL 12,0 '' 3,510 CWC WATER 0.000 0.00 FORT LUPTON FIRE 8.201 28.79 AIMS JUNIOR COL 8,308 22.14 WELD LIBRARY 3.253 11.42 TAXES FOR 2007 59.350• 208.32 •Credit Levy AU.TAX SALE AMOUNTS ARE OR TO ADVERTISING AND DISTRAINT WARCT TO RANT FEES.NCH DUE TO MAY ENDORSEMENT AND THE TREASURER'S OFFIS BY CE WI I.NEED TO BE CONTACTED PRIOR TO REMITTANCE AFTER THE FOLLOWING DATES: PERSONAL PROPERTY AND MOBILE HOME; -AUGUST 1, REAL.PROPERTY•AUGUST 1. TAX LIEN SALE REDEMPTION AMOUNTS MUST BE PAID BY CASH OR CASNII I I CHECK. P.O.Box 458 Greeley,CO 80832 (970)353-3845 ext.3290 Weld County Treasurer Pursuant to the Weld County Subdivision Ordinance,the attached Statement(s)c °Taxes Due,issued by the Weld County Treasurer,aro evidence of the status as of this date of a I property taxes;special assessments and prior tax liens attached to this(these)account(s) Current year's taxes are due but not delinquent. Signed ,..3 ,..3-°.� _ r,Date: / P • Wee�°� * Administration Office www.ftlupton.k12.co.us 301 Reynolds Street Ph: 303-857-3200 • Fort Lupton, CO 80621 Fax: 303-857-3219 fort lupton,colorado January 18, 2008 Michelle Martin Weld County Planning Department 918 10th Street Greeley, CO 80631 RE: Weld County Referral Distant Thunder P.U.D. John Zadel The purpose of this letter is to inform you that John Zadel for Distant Thunder P.U.D. has satisfied the District's request for cash in-lieu of land dedication fee on the recorded exemption noted above. Weld County School District Re-8 has no objection to the approval of the recorded exemption to Mr. Zadel. We appreciate cooperation on this issue of great importance to the School District. If you have any questions or need additional information, please do not hesitate to give me a call at (303) 857-3200. Sincerely, e � 9rtett-aa----, Brenda S. Johnson S Business Manager ;a vv �a G 4200 WCR 19 Plebfrid a �^fl,JFort Lupton, CO 80621 ��, c p' A community united for student success...college ready! Una comunidad unida para el exito de sus estudiantes... iListos para la universidad! 41, Michelle Martin From: Michelle Martin Sent: Monday, November 26, 2007 3:32 PM To: 'ddg@ncconstructors.com' Subject: FW: PF-600, Distant Thunder Hi Doug, The following items still need to be addressed per the private Improvements agreement: Subdivision Sign, Mail Kiosk, landscaping in the outlots and the open space areas that are disturbed by the development. You will also need to attach a bid describing the above prices. Please see the attached email from the Department of Public Works regarding the improvements agreement. Please attach exhibit B to the second draft. Let me know if you have any other questions. Michelle Martin Planner II 4209 CR 24.5 Longmont, CO 80504 mmartin@co.weld.co.us PHONE: (720) 652-4210 x 8730 FAX: (720) 652-4211 Original Message From: Don Dunker Sent: Wednesday, November 21, 2007 7:48 AM To: Michelle Martin Subject: PF-600, Distant Thunder Hi Michelle, The Improvements agreement for this project needs to have the quantity for the Street Paving recalculated the number PW calculated is 2529 yds"2. Once this is updated the agreement should be acceptable. Let me know when the Kerr McGee gas line easement language is included on the plat. Let me know if there is anything else I need to do. Thanks, Don Dunker, P.E. Weld County Public Works 1111 H Street Greeley, CO 80631 phone: 970.304.6496 ext. 3749 fax: 970.304.6497 ddunker@co.weld.co.us 1 • Michelle Martin From: Bruce Barker Sent: Monday, October 22, 2007 5:00 PM To: Michelle Martin Cc: Don Dunker Subject: RE: Distant Thunder To me, that requirement is in keeping with what is reasonable, and could be considered that we are just stating what is required, anyway. So, no need to go back to the Board for reconsideration. Original Message From: Michelle Martin Sent: Monday, October 22, 2007 4:37 PM To: Bruce Barker Cc: Don Dunker Subject: FW: Distant Thunder Bruce, The Department of Public Works would like to add the following note to the plat for PF-600 Distant Thunder. Would this require us to go back to the BOCC for reconsideration? The Department of Public Works would also like to record a letter from KerrMcgee to the applicant regarding the crossing of a pipeline on the property. Please let me know your thoughts. Thanks in advance for all your help in this matter. Michelle Martin Planner II 4209 CR 24 .5 Longmont, CO 80504 mmartin@co.weld.co.us PHONE: (720) 652-4210 x 8730 FAX: (720) 652-4211 Original Message From: Don Dunker Sent: Monday, October 22, 2007 1:31 PM To: Michelle Martin Cc: David Bauer Subject: Distant Thunder Hi Michelle, Public Works would like this language in a note on the plat. Let me know if it is okay after you talk to Bruce. All utilities crossing the Gas Line Easement shall follow the Guidelines for Design and Construction Activities on or Near Kerr-McGee Gathering LLC and Kerr McGee Rocky Mountain Corporation Pipelines and Related Facilities revision 3/01/2004 or their successors, attached to the letter from Kerr-McGee dated September 19, 2007 to JZM, LLC. Thanks, Don Dunker, P.E. Weld County Public Works 1111 H Street Greeley, CO 80631 phone: 970.304.6496 ext. 3749 fax: 970.304.6497 ddunker@co.weld.co.us • 1 • Hello