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Home My WebLink About20082281.tiff • • • PLANNED UNIT DEVELOPMENT(PUD) FINAL PLAT APPLICATION FOR PLANNING DEPARTMENT USE DATE RECEIVED: RECEIPT#/AMOUNT# Is CASE#ASSIGNED: APPLICATION RECEIVED BY PLANNER ASSIGNED: Parcel Number 0 'J or{ - O 6 - 2- D O - D O ( ¢ 0709 oG voonoZ (12 digit number-found on Tax I.D.information,obtainable at the Weld County Assessor's Office,or www.co.weld.co.us.) (Include all lots being included in the application area.If additional space is required,attach an additional sheet.) Legal Description L• e aZ / L.,*A JEG-a?57Section t , Township '7 North, RangejWest Property Address(If Applicable) '-Ii &i/ `41680 41(.9 O 4(6'(7/ 416111 n..ri `116C1 S L&A,-21 r1 LtJ j Existing Zone District: ?itc> Proposed Zone District: Total Acreage: aZ7 Proposed#/Lots 6 Average Lot Size: 4,I I Minimum Lot Size: et,(I Proposed Subdivision Name: lift,L et cp t)t, Proposed Area (Acres)Open Space: IN/A Are you applying for Conceptual or Specific Guide? Conceptual Specific FEE OWNER(S)OF THE PROPERTY(If additional space is required,attach an additional sheet) • Name: pc,_z U;LLCf '& f orJ Aa-- Jrtn.nr�e— M�ti�e.v( Work Phone#9`7D bL tilfl0/Home Phone#6770- Email Address I%LntotAv1€ ln.:t, r(.i m� Address: 6°nor} Anl "Lxiv- — City/State/Zip Code Enr} („lt.&c / GolorzJ D toe, 2-4 APPLICANT OR AUTHORIZED AGENT(see Below:Authorization must accompany applications signed by Authorized Agent) Name: Work Phone# Home Phone# Email Address Address: City/State/Zip Code UTILITIES: Water: Noc tt-c-1-,,4- Sewer: ` z, Gas: Xc- EElectric: r-iX'Y;cac� _ Phone: pest'' DISTRICTS: School: Air - '1 Post: �≥c, l-\- ARM** I(We)hereby depose and state under penalties of perjury that all statements,proposals,and/or plans submitted with or contained within the application are true and correct to the best of my(our)knowledge. Signatures of all fee owners of property must sign this application. If an Authorized Agent signs,a letter of authorization from all fee owners must be included with the application. If a corporation is the fee owner, notarized evidence must be included indicating the signatory has the legal authority to sign for the corporation. I(we),the undersigned,hereby request e Department of Planning Services to review this PUD Final Plat or request hearings before the Weld County Planning Commission and h and of County Commis 'oners concerning the PUD Final Plat for the above desc bed unincorporated area of Weld County,Colorado: • GSV ignatujk: Owner or r Autho zed Agent Date Signature: er or Authori Agent p Date 63 ' o8 �tl�` v JC 1 1O 2008-2281 • Mackey Circle Planned Unit Development Specific Development Guide Final Plat Application Prepared by: Gary and Vicky Mackey Bryon and Jamie Mackey 6804 Aaron Drive Fort Collins, CO 80524 Submitted: June 5, 2008 Mackey Circle Planned Unit Development Table of Contents Final Plat Application 1. PUD Final Plat Checklist from Weld County Procedural Guide 2. Original Application Form 3. Response to Change of Zone Staff and Referral Agency Comments 4. Final Plat Narrative 5. Specific Development Guide 6. Weld County Road Access Information Form 7. Deed 8. Title Commitment 9. Surrounding Property Owner Lists 10. Treasurer Statements 11. Covenants 12. Recorded Water Service Agreement 13. Post office standards • 14. School District Payment 15. Fire District Letter 16. Sheriff Correspondence 17. Recorded Change of Zone Plat, Attached 18. Final Plat, Attached 19. Improvements Agreement and bids (4 copies attached) 20. Engineering Documents, (4 copies Attached) 21. Final Subsurface Exploration and Geologic Hazards Report, (4 copies attached) 22. Application Fee, Attached to Original application • • Mackey Circle PUD Response to Staff Comments from Change of Zone This portion of the application materials for the aforementioned Final Plat will respond to staff direction to provide information at the time of Final Plat. North Weld County Water District A copy of the recorded Water Service Agreement was a condition of approval prior to submitting the Final Plat application. Please find a copy of such included herein. Subdivision Internal Street Name The proposed Street Name list as provided by Weld County is included in application materials. The applicant has selected Laney Way as the internal street name designation and illustrated on the Final Plat submitted herewith. Information is included regarding the mail box specifications. The street name and addresses were reviewed prior to recording the Change of Zone plat and are included on the Change of Zone plat. The internal street name has been reviewed by the Weld County Sheriff's Office, Weld County Ambulance Services, and the U.S. Post Office prior to recording the Change of Zone plat. The internal street name and the addressing have been approved by these entities. The Change of zone plat includes • the approved name and addressing. Weld County Public Works All Engineering documents submitted with this application have been made in accordance with Weld County Public Works and the project Engineer. • 1 Mackey Circle PUD/Non Urban PUD Final Plat Narrative 27-7-30.A. A copy of the recorded Change of Zone Plat is included in submitted application materials. 27-7-30.B. A Certificate of Title is included in submitted application materials. 27-7-30.C. A Certificate of Title covering all public dedications is not applicable to this application. 27-7-30.D. A Deed is included in application materials. 27-7-30.E. A tax statement from the Weld County Treasurer's office is included in submitted application materials. 27-7-30.F. A Certificate from a qualified engineer in the State responsible for the design of the utilities is included in submitted application materials. 27-7-30.G. Decd restrictions are not applicable to this application. 27-7-30.H. An improvements agreement according policy regarding is included in • application materials. 27-7-30.I. Review of this proposal by Weld County Public Works has insured the street system serving this PUD is adequate. 27-7-30.J. A separate off-site road improvements agreement proposal is not applicable to this application. 27-7-30.K. An on-site improvements agreement according policy regarding collateral, including the construction schedule is included in application materials. 27-7-30.L. A Letter of Credit in the amount of the improvements will be presented for acceptance to the Board of County Commissioners. 27-7-30.M. A certified list of surrounding property owners is included herein. 27-7-30.N. Mineral notice was provided at the Change of Zone. 27-7-30.O Mackey Circle PUD is in compliance and meets criteria as set forth in the Change of Zone application materials and Board of County Commissioner's Change of Zone Resolution. This proposal has been reviewed under the specific guide. 27-7-30.P-R The Final Plan, and utility maps are included in application materials. A landscape plan is not applicable to this development. • Mackey Circle Planned Unit Development Specific Development Guide Introduction The Mackey Circle Planned Unit Development (PUD) proposes six estate single-family residential units on 4.1 acre lots. The property is located south of and adjacent to Weld County Road 86 and east of and adjacent to Weld County Road 37. This Development Guide is submitted with this application through the Specific Development Guide option. It is our intent to commence this Final Plat and use the property for uses compatible with surrounding land uses, permitting 6 single family Estate lots. Referral Agencies and Weld County Staff raised questions at the Change of Zone phase of this development review. These questions have been answered with support materials and evidence preceding this Specific Development Guide. The development of the site will be compatible with the architectural style of the surrounding land uses and with the overall character of the area. This development proposes the ability of each lot to have Auxiliary Quarters as defined by Weld County Code Section 23-1-90. Proposed land uses within this property include those allowed by right in both the Estate Zone Districts. The following Development Guide has been prepared in accordance with Section 27-4-20, Weld County Code. Section 27-4-20.E.14. Initial impact plan addressing all impacts this use will have on the proposed • site and surrounding land uses. A listing of potential impacts is cited in Section 27-6-30 of this Chapter. (SPECIFIC DEVELOPMENT GUIDE) Section 27-6-40. Component One—environmental impacts 1. Noise and vibration 2. Smoke, dust and odors 3. Heat, light and glare 4. Visual/aesthetic impacts 5. Electrical interference 6. Water pollution Development of this proposal should not result in any negative environmental impacts, including the above listed environmental concerns. The end use of the site will be residential. 7. Wastewater disposal All wastewater disposal on the site will be through the use of Individual Septic Disposal Systems. 8. Wetland removal To the applicant's knowledge, this proposal does not remove wetlands. 9. Erosion and sedimentation 10. Excavating,filling and grading 11. Drilling, ditching and dredging • Any on-site grading, drilling, ditching or dredging will be done sympathetically. Erosion will be kept to a minimum. A Drainage Report prepared by Stewart and Associates is included herein. 12. Air pollution 1 13. Solid waste 14. Wildlife removal • 15. Natural vegetation removal This proposal will not result in negative impacts to the above listed concerns. 16. Radiation/radioactive material To the applicant's knowledge, there are no radioactive materials located on this site. 17. Drinking water source The drinking water source is through North Weld County Water District. Support documentation is included herein. 18. Traffic impacts The internal roadway in the PUD is designed to meet the requirements of Chapters 24 and 26 of the Weld County Code. The primary access to the subdivision is from Weld County Road 37. No loading zones are proposed as the use will be residential. Additionally, no off-street parking areas have been depicted as the ample lot size will adequately accommodate residential parking needs. Each building permit issued on the property shall conform to the Weld County Road Impact Fee Program. The project engineer has worked closely with the Weld County Public Works Department. Section 27-6-50 Component Two—service provision impacts 1. Schools 2. Law enforcement • 3. Fire protection 4. Ambulance Service providers for this Planned Unit Development include the Ault School District, Weld County law enforcement, and the Ault Fire Protection District. Various correspondence is included in application materials. 5. Transportation (including circulation and roadways) 6. Traffic impact analysis by registered professional engineer Access will be provided by an internal roadway "Laney Way". A traffic study is not applicable to this proposal. 7. Storm drainage A Drainage Report prepared by Stewart and Associates is included herein. 8. Utility provisions 9. Water provisions 10. Sewage disposal provisions The drinking water source is proposed through North Weld County Water District. The water service agreement has been recorded, a copy is provided herein. All wastewater disposal will be handled through an Individual Sewage Disposal System. Section 276-60 Component Three—landccapike elements 1. Landscape plan • 2. Treatment, buffering or screening and perimeter treatment 3. Maintenance schedule for landscaping elements 4. On-site improvements agreement 2 5. Evidence of adequate water Landscaping improvements are not proposed. Water service is provided by North Weld Water District. • A recorded copy of the agreement has been provided for staff review. Section 27-6-70 Component Four—site design 1. Unique site features There are no site features unique to this particular property. 2. PUD rezoning consistent with Chapter 22 of Weld County Code Section 22-2-190.D.2.a PUD.Policy 4.1 states, "The design of a planned unit development should ensure compatibility and harmony with existing and planned uses on adjacent properties and within the planned unit development." The applicant has carefully considered the uses on-site, adjacent properties and the existing use of the property. The result is consistent with the existing and planned uses on adjacent properties. The applicant contacted surrounding property owners to discuss this application. Goal 3 "Discourage urban-scale residential, commercial and industrial development, which is not located adjacent to existing incorporated municipalities." Chapter 23 of the Weld County Code defines urban scale development as developments exceeding nine (9) lots and/or located in close proximity to existing PUDs, subdivisions, municipal boundaries or urban growth corridors and boundaries. This application is not located adjacent to a municipality or other PUD's, subdivisions, municipal boundaries or an urban growth corridor or boundary. The site is located approximately 2 miles northeast of Ault and just northeast of the Town's Intergovernmental Agreement Urban Growth Boundary area. As this proposal is for nonurban scale development, it is consistent with the Ault IGA. • 3. Compatibility within PUD zone district 4. Compatibility with surrounding land uses The existing design of the subdivision takes into consideration the existing uses of the surrounding properties and the existing irrigation practices of the area. All recorded plats will include the Weld County Right to Farm, found in Appendix 22-E of the County Code. The lots will have the opportunity for Auxiliary Quarters as defined in Section 23-1-90 of the Weld County Code. Animal Units listed in the Weld County Code will serve as a maximum number. Additional animal restrictions are specified in Covenants. 5. Overlay districts Upon review of the geological hazard and airport influence maps, as well as the I-25 Mixed Use Development Area Map and Chapter 19 of the Weld County Code, this proposal is not located within these overlay districts. Portions of the property are located within the flood hazard overlay district. Section 27-6-80 Component Five—common open space usage The common open space areas within this subdivision are designed and proposed to be consistent with the requirements of Section 27-6-80 of the Weld County Code. 1. Permanent common open space restrictions 2. Establishment of homeowners organization 3. Mandatory membership in homeowners organization 4. Homeowners organization responsibilities • 5. Homeowners organization powers 6 Ownership and maintenance of common open space 7. 15% common open space allocation 3 Common Open Space is not a requirement for this particular proposal per Weld County Section 27-2- 140. Future uses on site will be required to establish a Homeowners Association to govern the • maintenance and ownership of the common elements. Section 27-6-90 Component Six—signage All signage within this PUD will comply with the sign standards set forth in the Weld County Code. Future signs require a Building Permit. The Final Plat application will designate a location and design. Section 27-6-100 Component Seven—MUD impact This proposal is not located within the Mixed Use Development Boundary as delineated by Weld County. Section 27-6-110 Component Eizht—interzovernmental axreement impacts This proposal is not located within an Intergovernmental Agreement Urban Growth Boundary area. • 4111 • • POSTMASTER LANA COZAD • 122 1 st Ave. Ault, Co. 80610-9998 ��'' UNITED STATES POS AL SERVICE Gary Mackey 18508 County Road 86 Ault, Co. 80610 Date: February 16, 2007 Mr. Gary Mackey, The Postal Service's recommendation for placement of mail receptacles for the lots being developed at "Mackey Circle" on County Road 37 are as follows: Provide a pull off area on the east shoulder of the road, sufficient enough for the carrier's vehicle to be completely out of traffic. Positioning all mail boxes on one long "shelf" style support. Maintenance of the pull off area will be the developers responsibility so carrier will have safe access to the boxes. • If you have any questions or concerns please contact me at (970) 834-2840. Sincerely, Lana Cozad Postmaster Ault, Co. 80610-9998 P.S. Enclosed is a Form 4056 (Instructions on Box Placement). • 122 1ST AVE AULT,CO. 80610-9998 (970)834-2840 FAx: (970) 834-2393 • INSTRUCTIONS Whenever possible, boxes must be located so that carrier's vehicle is off pavement when serving them. Box number must be painted on box in numerals not less than one inch high. Post must be neat and of adequate strength and size. Approach to box should be a hard level surface (gravel, cinders, stone) Boxes must be placed to conform with state laws and highway regulations. r' .ci33 ' 'A__ cc^ IJAt) 1 (P gitc.0 °m s'me fe-ii p, t k4 c(C P/rU!a t 61 CAAJwW9 ✓lam Suggested s Ilation Suggested ihitallat n where snow removal of a single box. is a problem. • ��-O 155 155 fifre cti I V Extend box beyond end of post. Attach board holding box to post with screws or doublehead nails, permitting easy removal if necessary to adjust box height. PS Form 4056, sep. 1987 (Reverce) Y U.S.GPO:1989-242-531/85388 • * Highland Schools Weld Re-9 210 W. Fist Street ?O. Hot 68 Ault Colorado 80610 [970)834-1345 Educational April 16, 2007 Excellence Weld County Planning Department Through Gary Mackey GREELEY OFFICE Community Unification 6804 Aaron Drive APR 1 82007 Fort Collins CO 80524 RE: PZ-1130 RECEIVED Dear Mr. Mackey, Weld RE-9 School District with district offices located in Ault, Colorado has adopted a methodology to determine an in-lieu of land payment for potentially new residential dwelling units which off sets the cost of purchasing school land that will be used for the education of children living in these residences. The school district methodology has been developed in a manner so as to fairly apportion the cost of acquiring school sites made necessary by residential development. The total in-lieu of land payment per parcel of land that potentially may contain new residences is $759. Therefore, your obligation to thg Weld RE9 • School District is $3,795 for five parcels of land that is in a$dition to the original unit. Payment can be hand delivered to: Weld RE-9 School District Administration Office 0. 210 West First Street Ault, Colorado or mailed to: Weld RE-9 School District P.O. Box 68 Ault, Colorado 80610 Please include your Recorded Exemption (RE) number for reference. A receipt will be mailed to the party requesting the exemption. Please direct any questions to Dennis Scheer, Superintendent of Schools, 210 West First Street, Ault CO 80610,or by calling(970) 834-1345. Sincerely, 4' Dennis M. Scheer, Ed. D p k O j S? 76-964) • Superintendent of Schools C4 Weld RE-9 School District 7z,r,tt- nt C� • • d� i o NO. 1313 ' 31 RECEIVED FROM 9 ADDRESS 1!?2Q� JJ r � im •L^- �I � p4LIARS !& fy v O o b0 g cr cao� F9aaEr7 -IIf? e=) N. ACCOUNT CC� HOW PAID Q ACCTOUONT ']J 5q boo CASH 'x �N19AMT PAD SSL) y CHECK I BALANCE n� MONEV _ DUE �// ORDER • • • • Ault-Pierce Fire Department P.O. Box 1069 Ault, Co. 80610 Gary Mackey, Per our phone conversation 148-2007, where you agree to supply two fire hydrants off of a 8 inch north weld water for the proposed sub division on weld county road 37 and 86 ( Mackey Circle) we find no issues. A review of the proposed hydrant locations should be conducted before the installation is completed. Sincerely Larry Sheets Fire Chief Ault-Pierce Fire aj / ( CO') _. • ( / • C/1.2IE,00 ii�( L Mx: • • tinge I of.1 • Ken Poncelow To: Hannah Hippoly sub)eet:Pla 1130 All of the recommendations set forth by the Sheriffs Office on this prooeot have been met, • 3/12/2007 03-12-2007 10:23 NESARAD0 CONSTRUCTION 970 482 6317 PAGES • www.xcelcnergy.com Xcel Energy Xcel Energy- John C.Schulte Designer PUBLIC SERVICE COMPANY 15006th Avenue Greeley,Colorado 80631-4130 Phone:970.395.1237 Fax:970.395.1224 john.schulte @xcelenergy.com Mr. Gary Mackey 6804 Arron Drive Fort Collins,Colorado 80524 Subject: Request For New Electric Distribution at 41689 WCR 37 Dear Mr. Mackey: I have completed the engineering design and cost estimate to provide Electric service based upon infonnation you have provided and the service requirements that you requested. The cost to provide the requested Distribution is $20,811.02, of which $20,811.02 may be refundable and is the amount indicated on the Extension Agreement. The remaining amount of$0.00 is non-refundable. Two Electric Extension Agreements are enclosed, each reflecting the amount subject to possible refund. The Construction Payment may be refundable in part or in its entirety during a ten-year period commencing with the Extension Completion Date and in accordance with the terms and conditions of this agreement. After our discussion and the explanation of the two options in Section 3 c) of the Extension Agreement, it was decided that option 2 is best for your situation. When signing the agreements,please initial next to the checked box in Section 3 c)indicating • your concurrence and agreement with your choice. If you fail to initial next to the checked box,the Agreements will be returned to you. If you need further explanation of Option 1 and/or Option 2 or want to change your selection, please contact me at the number listed below. Service lateral installations for this project will be billed separately. Additional payments greater than this estimate may be required if customer associated delays, obstructions, permit fees, or design changes in the field are encountered which are not included in the original job estimate. If this quote has not been signed and returned within 60 days from the date on this letter, the job will be re-estimated at the time of acceptance and you will be billed for the new amount. NOTE: You must personally contact the local telephone company, the local cable TV company and/or any other utility company to arrange for the installation and payment of any costs of their facilities if they are to be installed along with the Xcel Energy facilities. If there is a possibility that this project will be constructed during frost conditions and you agree to pay Frost Charges, you must sign and return the enclosed Frost Agreement. You will be billed for frost of 7 inches deep or more that is encountered, snow removal and/or any additional costs incurred while providing service. If you choose not to pay for the additional costs that may be incurred for construction during frost conditions, your project may be delayed until frost conditions have ceased and there is no further chance of encountering frost. If you accept the above costs and system design,please sign the Extension Agreements,which are enclosed,sign and date the second page of this letter and return all the documents to me along with the payment made out to Public Service Company of Colorado, at the address shown below.We are unable to accept checks with any sort of Lien Waiver because our Tariffs do not make an allowance for PSCo to accept checks printed or stamped with a lien waiver. After the signed and dated documents and total payment of$20,811.02 are received, a work order will be issued and released to construction so your project can be scheduled. Our current lead-time to begin construction after receiving the payment and signed documents is approximately 5-7 weeks. You will be notified of which week that your construction is scheduled to begin as soon as it is available. If you have any questions regarding this project,please call me at(970)-395-1237. • • • ----;---Weld County Treasurer PROPERTY TAX RECEIPT Account: R4700107 Receipt Date: 05-JUN-2008 Print Date: 05-JUN-2008 Page: 1 Parcel Nb: 070906200009 Receipt No: 278373 TransNo: 6080605152556 Owner Name and Address Information Property Location: MACKEY GARY L & 6804 AARON DR FORT COLLINS CO 80524 Legal Description PT NW4 6-7-65 LOT B REC EXEMPT RE-4589 EXC OG&M Valuation Actual Assessed ,-` Year Areaid Mill Levy Credit Net Levy AGRICULTURAL L 6,017 1,760 2007 0919 68.675 5.234 63.441 Payor MOP Reference Amount Paid KEY GARY L& Check N $113.89 Year Applied as Tax Paid 1nt Paid Fee Paid Other Paid == Total Paid 2007 TAX Whole 111.66 2.23 0.00 0.00 113.89 Year Tax Due Int Due Other Due Total Due Payments Balance Due 2007 111.66 2.23 0.00 113.89 113.89 0.00 BALANCE AS OF 06/05/2008 0.00 WELD COUNTY TREASUR; Pursuant to the Weld County Subdivision Ordinance, the attached Statement(s) of Taxes Due, issued by the Weld County Treasurer, are Evidence that, as of this date, all property taxes, special assessments and Prior tax liens currently due and payable connected with the parcel(s) • identified therein have been paid in full. Signed _ Date b -- S--dca BYLAWS . OF MACKEY CIRCLE HOMEOWNERS ASSOCIATION INC. ARTICLE I GENERAL Section 1. Association. the Mackey Circle Homeowners Association (the "Association") is a nonprofit corporation organized under the Colorado Nonprofit Corporation Act. Section 2. Purpose. The purpose of the Association is set forth in the Articles of Incorporation (" the Articles"). The general purpose for which the Association is formed is to govern the property(the Property")which has been submitted to the provisions of the Declaration of Covenants, Conditions, Easements and Restrictions for Mackey Circle P.U.D.recorded on 2008 at Reception No. ,of Weld County, Colorado records,as the same may be further amended from time to time(the Declaration"). Section 3. Definitions. Unless the content shall otherwise require or unless otherwise defined herein, all terms used in these Bylaws shall have the same definitions as set forth in the Declaration, the terms of which are incorporated herein. Section 4. Owners Subject to Bylaws. All present or future Owners or any other person who might use in any manner the Property shall be subject to the provisions of the Declaration,the Articles and these Bylaws ARTICLE II LAND USE Section 1.Land Use and Building Type. Lots 1 -6 shall be used for single-family residential purposes and • for any home occupation which is in compliance with Article I of the Declaration. The exception to this, during construction an office may be maintained by the Declarant. No building,other than approved out buildings,shall be erected, altered, placed or permitted to remain on any Lot other than I detached single-family dwelling and a private attached garage. One Auxiliary Quarter may occur as long as it complies with the Declaration. Before any additional structures can be added to the lot plans must be submitted to the Architectural Control Committee(the"ACC"), The placement of the subdivision sign,mailbox kiosk and school shelter shall be permitted on Outlot 1. Section 2 .Dwelling Quality and Size. Unless specifically approved by the ACC dwelling must be built on- site and not prefabricated,no modular homes,no off-site manufactured,or previously build homes shall be permitted upon any Lot. All buildings must meet the specifications in Article I, Section 1.02 of the Declaration. Section 3. Building Location and Easements. No building or other structure shall be placed in any area shown on the Plat as an easement. No septic system facility shall be placed with in the setback areas delineated on the Plat. All structures are subject to the "no build area" as delineated on the Plat. Easement for installation and maintenance of utilities and various other purposes are reserved as shown on the Plat, within these easements no structures,plantings,or other material,other than any fencing or landscaping approved by the ACC shall be placed or permitted to remain. The surface of the easements area of each Lot and all landscaping and improvements on it shall be maintained continuously by the Owner of the Lot. A general easement is hereby granted to all police,sheriff,fire protection,ambulance and all other similar emergency agencies or persons to enter upon all streets and upon the Real Estate in proper performance of their duties. Section 4. Time for Construction and Repair. The construction of a dwelling, structure, landscaping. or other improvements approved by the ACC, shall commence within six (6) months of approval of the plans and be fully completed within twelve (12) months after the date of commencement of the construction. In event any structure is destroyed either wholly or partially by fire or other casualty, all debris and remaining portions of the structure shall be promptly removed from the Lot and the structure shall be promptly rebuilt or remodeled to conform to the Declaration. • Section 5. Nuisance. Each Lot shall at all times be maintained in a clean and tidy condition and shall not be used for any purpose or storage of anything that will cause such Lot to appear in an unclean or unsightly condition. No Lot shall be used in such a manner as to obstruct or interfere with the enjoyment of other Lots,or annoy them by • • unreasonable traffic, noises, lights, odors, or otherwise, nor shall any nuisance or illegal activity be committed or • permitted to occur on any Lot. Section 6. Animals. Specific provisions are stated in the Declaration regarding the keeping of household pets and large animals,no other animals will be allowed on any Lot. Section 7. Commercial Uses. Other than the activities of the Declarant and Dealers, no Lot shall be used for any business, trade, or commercial use, except such home occupations as are otherwise in compliance with the Declaration and permissible under the zoning regulations which from time to time are in effect. The ACC must give approval before the business can start operation. Section 8. Signs. No signs of any kind shall be displayed to the public view on any Lot except signs erected by Declarant to identify the Property during the construction and sales period,or if approved by the ACC. Section 9. Fences. Except those installed by Declarant,no fence, wall, hedge or other planting which will act as a screen or divider shall be installed or maintained without first being approved by the ACC. Section 10. Vehicles. Except those of Declarant or while reasonably necessary during construction of improvement,no busses,large commercial or construction type vehicles shall be parked on the common streets of the subdivision. Recreational vehicles, utility trailers, horse trailers, boats, and boat trailers or recreation or other equipment shall not be parked on the common streets.All vehicles must be registered by homeowner. Section 11. Fires and Firearms. There shall be no exterior fires permitted on any Lot except barbeque fire contained within receptacles specifically designed for such purposes. No Owner shall permit any conditions on his Lot,which create a fire hazard or are in violation of fire prevention regulations.No firearm shall be discharged within or on any Lot. Section 12.Towers,Masts,Antennas,Solar Panels,Mechanical Units,and Satellite Dishes. No devices for transmission of reception of microwave, optical, radio, television, or other communication signals, and no heating • ventilating, or air conditioning units, shall be placed on the roof or exterior of any building or otherwise on a Lot, unless first approved by the ACC. Solar panels and satellite dishes also are included under this and must meet ACC approval on their location. Section 13. Clothes lines. No clothes line shall be installed or maintained on any Lot unless approved by the ACC,and no clothesline shall be approved unless it is retractable. Section 14. Prohibited Ilabitation. No partially completed dwelling, trailer, recreational vehicle, shack, garage, tent, or outbuilding or other structure or improvement on a Lot shall at any time be used for human habitation,temporarily or permanently. Section 15. Auxiliary Ouarters. One or more interconnected rooms permanently attached to or located within the single-family dwelling which are arranged, designed, used or intended for use as a complete independent living facility for one family. The auxiliary quarters may not he used as a rental and must conform to all other specifications in the Declaration. Section 16. Sewage Disposal Systems. Sewage disposal shall be accomplished by individual sewage disposal systems designed and installed to meet County and State regulations. All septic systems shall be inspected once per year and pumped every four years by a common company at a common date selected by the Homeowner's Association. The assessment for such inspection and pumping service shall be billed to each individual homeowner and it will be the homeowners responsibility for correction of any issues found at such inspection. Section 17. Compliance With Laws. Nothing shall be done or kept in or on any Lot which would be in violation of any statue, rule, ordinance, regulation, permit or validly imposed requirement of any governmental authority having jurisdiction. • • • ARTICLE III • MEMBERSHIP,VOTING,QUORUM, MAJORITY OF OWNERS,PROXIES Section I. Membership. Ownership of a Lot is required to qualify for membership in this Association. Any person or entity, on becoming an Owner of a Lot, shall automatically become a member ("Member") of this Association and be subject to these Bylaws; provided, however, that if more than one person or entity owns a Lot, such persons and/or entities shall aggregately be considered one member for the purposes hereof. Membership shall terminate without any formal Association action whenever any such person or entity ceases to own a Lot, but such termination shall not relieve or release any such former Owner from any liability or obligation to the Association or impair any rights or remedies which the Association may have against such former Owner arising out of or in any way connected with ownership of a Lot and membership in the Association. No certificates of stock or membership shall be issued by the Association. Section 2.Voting. The Association shall have two(2)classes of voting members,as follows: a. Class A:Each Lot owned by Declarant shall be allocated four(4)votes in the Association. b. Class B:Each Lot owned by an Owner, other than Declarant, shall be allocated one(1) vote in the Association. When more than one person or entity owns an interest in a Lot, all such persons and/or entities shall aggregately be considered one member of the Association. The vote for such Lot shall be exercised as the Owners thereof among themselves determine,but in no event shall more than one vote be cast with respect to any one Lot(in the event that the multiple Owners of a Lot cannot determine among themselves which Owner may cast the vote for the applicable Lot, the Association shall be entitled to rely on the vote of the first Owner listed on the current deed relating to the applicable Lot, or in the event of current multiple deeds, the Association may rely on the vote of the first Owner listed on the first of such multiple deeds). • c. Members shall be entitled to vote on all matter submitted to a vote of the membership of the Association. Cumulative voting shall not be permitted. Voting by mail shall be allowed in the manner provided in the Colorado Non-Profit Corporation Act. Votes by mail shall have the same effect as votes by written proxy. Section 3. Quorum. Except as otherwise provided in these Bylaws,the presence, in person or by proxy,of Members holding 1/2 of the votes entitled to be cast on the matter to be voted upon shall constitute a quorum at a meeting of the Members. Section 4. Majority of Owners. Unless otherwise required by law, the Declaration, the Articles, or these Bylaws,the affirmative vote of a simple majority of the votes of those Members present at a meeting where a quorum is in attendance, whether in person or by proxy, shall be necessary to transact business, take actions, and adopt decisions binding on all Owners. Section 5. Proxies. Votes may be cast in person or by written proxy. Proxies must be filed with the Secretary of the Association before or at the appointed time of each meeting. All proxies must be in writing and may be either general or for a particular meeting. A proxy holder need not be an Owner. The Association shall be allowed to rely on a facsimile copy or photocopy of a proxy submitted by an Owner. ARTICLE IV MEETINGS Section 1. Place of Meeting. Annual and special meeting of the Members shall be held as such suitable place or places within the State of Colorado which are convenient for the Members, as determined by the Board. Section 2. Annual Meetings. The annual meeting of the Association shall be held at a time designated by the Board on the first Monday in October of each year. At such meetings,the Members shall transact such business • of the Association as shall properly come before the meeting. Section 3. Special Meetings. The President or the Board may call a special meeting of the members at any time; and it shall be the duty of the President to call a special meeting within thirty(30) days after the receipt of • written request(s)therefore signed by Declarant or by Owners representing at least fifty(50%)of the total votes of the members. No business shall be transacted at a special meeting except as stated in the notice without the consent of the Owners representing at least a majority of the total votes of the Association. Section 4.Notice of meetings; Waiver of Notice. Written or printed notice of each annual or special meeting of the members shall be given to each Owner of record, which notice shall state the day, place, and hour of the meeting, and in the case of a special meeting, the purpose or put poses for which the meeting is called. A written waiver of notice signed before,at,or after any meeting of the Members shall be the equivalent to giving notice. The certificate of the Secretary that notice was properly given as provided in these Bylaws shall be prima facie evidence thereof. Notices shall be given at least ten (10) but not more than thirty (30) days in advance of any meeting. Notices shall be deemed given and received upon deposit thereof in regular United States mail, postage prepaid, addressed to the members at their addresses appearing in the membership records of the Association. Section 5. Adjourned Meetings. If any meeting of members cannot be convened because a quorum has not attended,or if the business of the meeting cannot be concluded,the Members who are present, either in person or by proxy, may adjourn the meeting from time to time without further notice, until a quorum is present or the business of the meeting is concluded, for a period not to exceed ten (10) days for any one adjournment. At such adjourned meeting at which a quorum is present or represented, any business may be transacted which might have been transacted at the meeting as to which notice was originally given. Section 6. Action Without Meeting. Any action required or permitted to be taken at a meeting of the members may be taken without a meeting if a consent in writing setting forth the action so taken shall be signed by all the members of the Association entitled to vote with respect to the subject matter thereof. Such consent shall have the same force and effect as a unanimous vote of the members and may be stated as such in any Articles or documents filed with the Secretary of State of Colorado under the Colorado Nonprofit Cot µnation Act. ARTICLE V • BOARD OF DIRECTORS Section I.Association Responsibilities. The Owners of the Lots will constitute the Association,which will have the responsibility of administering the Association property through a Board of Directors. Section 2. Performance of Functions by Declarant. Anything in these Bylaws to the contrary notwithstanding, until Declarant sells or otherwise transfers all Lots owned by Declarant,the board will be managed and governed by directors named by Declarant from time to time who need not be Owners, unless Declarant sooner relinquishes this right by means of a an instrument recorded in the records of the Clerk and Recorder of the County in which the Property is located. Section 3. Number and Qualification. The affairs of the Association shall he managed and governed by a Board composed of not less than three (3) directors. The number of directors may be increased or decreased by amendment to these Bylaws. Except as otherwise herein provided, all directors elected by a vote of the Members shall be Owners of Lots or an agent of Owners that are entities. Section 4. Powers and Duties. The board shall have the powers and duties necessary or convenient for the administration and management of the affairs of the Association and its property and for the operation and maintenance of the Property. The Board may do and perform all such acts and things as are not by law, the Declaration, the Articles, or these Bylaws either specifically prohibited or directed to be exercised and done by the Members. In the event there develops a conflict in interpreting under the law, the Declaration, the Articles, these Bylaws or otherwise as to whether the Board or the Members may do or perform any act or thing,such matter shall be interpreted,as may reasonable be possible,to authorize the Board to do or perform such act or thing. Section 5.Other Powers and Duties. The Board,on behalf of the Association, shall have the rights,powers, and duties described below, which are in addition to and not in limitation of any other power and duties of the directors: • (a) To administer and enforce the covenants, conditions, restrictions, easement, uses, limitations, obligations,and all other provisions set forth in the Declaration applicable to the Lot; • (b) To establish, make, and enforce compliance with such reasonable Rules and Regulations as may be necessary for the operation, use, and occupancy of the Property, with the right to amend the same from time to time. Such Rules and Regulations shall be adopted,amended,or repealed upon an affirmative vote of a majority of the members of the Board. A copy of such rules and regulations shall be available for inspection by each Member; (c) To provide for the indemnification of its officers and executive board and executive committees, and maintain directors'and officers'liability insurance; (d) To obtain and maintain to the extent possible all policies of insurance required or reasonable with respect to the Common Area or property of the Association; (e) To periodically fix, determine, levy,and collect the prorated assessments to be paid by each of the Lot Owners toward the gross expenses of the Association; to adjust, decrease, or increase the amount of the assessments; to credit any excess of assessments over expenses and cash reserves to the Owners against the next succeeding assessment period; and to levy and collect special assessments. All assessments shall be made and Owners notified in the manner as provided in the Declaration, shall be in statement form, and shall set forth in reasonable detail the various expenses for which the assessments are being made; (0 To levy penalty assessments by imposing penalties and fines on an Owner for each violation of,or act of non-compliance with, the Declaration, Articles, Bylaws, or Rules and Regulations by such Owner, to collect delinquent assessments and interest charges thereon by suit or otherwise and to enjoin or seek damages from an Owner as is provided in the Declaration and these Bylaws; and to assess and collect attorneys' fees and court costs expended or incurred by this Association in enforcing the provisions of the Declaration, the Articles, these Bylaws, and the Rules and Regulations,if any; (g) To protect and defend the Association and common Areas from loss and damage by suit or otherwise; (h) To borrow funds and to give security therefore in order to pay for any expenditure or outlay • required pursuant to the authority granted by the Declaration, the Articles, or these Bylaws and to execute any instruments creating or evidencing such indebtedness or security therefore as the Board may deem necessary or desirable; (i) To enter into contracts within the scope of their duties and powers; (j) To establish bank accounts which are interest bearing or non-interest bearing, as may be deemed advisable by the Board; (k) To keep and maintain detailed, complete, and accurate books and records showing in chronological order all the receipts, expenses or disbursements of the Association in appropriate specificity and itemization; to permit inspection thereof during convenient weekday business hours by any of the Owners, their Mortgages or their respective authorized representatives; and, upon affirmative vote of Members representing a majority of the Lots,to cause a complete audit to be made of the books and accounts by a competent certified public accountant; (I) To prepare and deliver to each Owner at least ten (10) days prior to each annual meeting of Members,a statement showing all receipts,expenses,and disbursements since the last such statement; (m) To hire, designate, and remove the personnel necessary for this operation, maintenance, repair, and replace of the Association property or common Area; (n) In general, to carry on the administration of the Association and to further the purposes of the Association as stated in the Declaration and the Articles, and to do all of those things necessary, convenient, or desirable in order to carry out the governing and operating of the Property; (o) To create executive committees to assist the Board and the Association in the performance of their duties and to appoint and remove representative of such executive committees. • Section 6. The Board may employ a Managing Agent or Agents for the Association(at such compensation established by the Board) to perform such duties and services as it shall authorize. Such Managing Agent(s)may be either an individual or a professional management company,whichever the Board determines to be able to best serve • the interests of the Association. The Board may delegate to the Managing Agent(s) all or any of the powers and duties granted to the Board but,notwithstanding such delegation,the Board shall not be relieved of any responsibility under the Declaration. A Managing Agent under contract with the Association may be required to post a fidelity bond in such amount as determined by the Board as a condition of such management contract, if such contract requires handling of funds of the Association. Section 7.Election and Term of Office. Except as provided in Section 2 of this Article V,members of the Board shall be elected from among the Owners by a majority of the Owners voting at the annual meetings of the Members. The term of each director's service shall extend until his successor is duly elected and qualified or until he is removed in the manner hereinafter provided. Section 8. Vacancies. Except as provide in Section 2 of this Article V,vacancies in the Board caused by any reason other than an increase in the number of directors or the removal of directors by a vote of the members shall be filled by a vote of the remaining directors, even though they may constitute less than a quorum. Each director so elected shall serve for the unexpired term of his predecessor in office. Any directorship to be filled by reason of an increase in the number of directors may be filled by a vote of the majority of the Board for a term of office continuing only until the next election of directors by the Members. Section 9.Removal of Directors. Subject to the right to the Declarant to remove directors form time to time consistent with, and during the time period described in Section 2 of the Article V,at any duly called annual or special meeting of the Association any one or more of the directors may be removed, with or without cause, by Members representing a majority of Lots and a successor may then and thereby be elected to fill the vacancy thus created. Any director whose removal has been proposed by the Members shall be given an opportunity to be heard at the meeting. Section 10. Annual Meeting. The annual meeting of the Board shall be held within ten (10) days after each annual meeting of the Members for the purpose of electing officers and conducting such other business as may come before the meeting. Notice of the time and place of each annual meeting shall be given to each director • personally or by mail,telephone,or e-mail at least three(3)days prior to the meeting. Section II. Regular Meetings. Regular meetings of the Board may be held at such time and place as shall be determined, from time to time, by a majority of the directors but at least two such meetings shall be held each year. Notice of a regular meeting of the Board need not be given. Section 12. Special Meetings. Special Meetings of the Board may be called by the President on his own initiative upon three (3) days prior notice given personally, or by mail, telephone, or e-mail to the address of each director appearing on the books of the association, which notice shall be for the time, place, and purpose of the meeting. A special meeting of the Board shall be called by the President or Secretary in like manner and on like notice upon receipt of a written request to call such a special meeting signed by at least one-third (1{3) of the directors. Section 13. Waiver of Notice. Any director may in writing waive notice of any meeting of the Board.either before, at, or after such meeting, and such waiver shall be deemed equivalent to the giving of such notice. Attendance by a director at any meeting of the board shall constitute a waiver of notice by him of the time and place thereof unless attendance is for the express purpose of objecting to the transaction of business because the meeting was not lawfully called or convened. If all the directors are present at any meeting of the Board,no notice shall be required and nay business may be transacted at such. Section. 14. Board of Directors Quorum. At all meetings of the Board, a majority of the directors shall constitute a quorum for the transaction of business,and the acts of the majority of the directors present at a meeting at which a quorum is present shall be the acts of the Board. If less than a quorum is present at any meeting of the Board, a majority of those present may adjourn the meeting. At any such adjourned meeting at which a quorum is present,any business which might have been transacted at the meeting as originally called may be transacted without further notice. Section 15. Compensation and Fidelity bonds. The members of the board shall serve without salary or • compensation, provided that directors shall be reimbursed for all expenses incurred in their capacity as such which have been authorized by the Board. The Board may require that all officers and employees of the Association handling or responsible for Association funds shall furnish adequate fidelity bonds;the premiums and other costs for such bonds shall be paid by the Association. All actions of members of the Board taken in good faith and using • reasonable care shall be without recourse by the Association or any Owner. Section 16. Action Without Meeting. Any action required or permitted to be taken at a meeting of the Board may be taken without a meeting if a consent in writing setting forth the action so taken shall be signed by all the members of the Board. Such consent shall have the same force and effect as a unanimous vote of the Board and may be stated as such in any articles or documents filed with the Secretary of State of Colorado under the Colorado Nonprofit Corporation Act. Section 17. Telephonic Meetings. members of the Board or any committee designated by the board may participate in any regular or special meeting of the Board or committee by means of a telephone conference or similar communications equipment, by which all persons participating in the meeting can hear each other at the same time. Such participation shall constitute presence in person at the meeting. ARTICLE VI ARCHITECTURAL CONTROL COMMITTEE Section 1. Appointment of Committee. The Declarant shall appoint the Architectural Control Committee (the "ACC") which will remain in place until fifty (50%) of all the Lots within the property have been sold to purchasers and homes have been built and occupied. The committee may consist of one (I) or more persons as determined by the Declarant. At such time fifty (50%) of the Lots have been sold to purchasers and homes have been built and occupied the Board may increase the number of committee members and appoint a new committee. Section 2. Architectural Control. No improvement shall be erected, placed, maintained, or altered on any Lot until the construction plans and specifications and a plan showing the location of the improvements have been approved by the ACC. Section 3. Rules, Procedures and Guidelines. The ACC may. but is not required to adopt development • standards, guidelines, rules and regulations from time to time establishing procedures and design standards, criteria and guidelines in furtherance of the Declaration. Any other duties of the ACC are defined in the Declaration in greater detail. ARTICLE VII OFFICERS Section I. Designation. The officers of the Association, all of whom must be Members (or an agent of members that are entities) except for those elected by the Board during the period of time that the Declarant is in control of the Board pursuant to Section 2 of Article V,shall be a President, a Vice President, A Secretary, and a Treasurer,all of whom shall be elected annually. Any two or more offices may be held by the same person except the offices of President and Secretary. Section 2.Election of Officers. The officers of the Association shall be elected annually by the Board at the annual meeting of the board and shall hold office at the pleasure of the Board. Section 3. Removal of Officers. Upon an affirmative vote of a majority of the members of the Board any officer may be removed, either with or without cause, and his/her successor elected at any regular meeting of the Board or at any special meeting of the Board called for such purposes. Section 4. President. The President shall be the chief executive officer of the Association. The President shall preside at all meetings of the Association and of the Board. The President shall have all of the general powers and duties which are usually vested in the office of the president of a nonprofit corporation including,but not limited to,the power to appoint, from time to time, committees from among the Members,as may be deemed appropriate to assist in the conduct of the affairs of the Association or as may be established by the Board or by the Members of the Association at any regular or special meetings. The President must be elected by and from the Board. • Section 5. Vice President. The Vice President, if any, shall have all the powers and authority and shall perform all the functions and duties of the President in the absence of the President or in the event of the President's • • inability for any reason to exercise such powers and functions or to perform such duties. If neither the President nor the vice President is able to act, the Board shall appoint some other member of the Board to do so on an interim basis. The Vice President shall also perform such duties as are imposed upon him/her by the President or the Board. Section 6. Secretary. The Secretary shall keep the minutes of all meetings of the Board and of all meetings of the Association. The Secretary shall have charge of such books and papers as the Board may direct and shall, in general,perform all the duties incident to the office of Secretary. The Secretary shall compile and keep up-to-date at the principal office of the Association a complete list of Members and their last known addresses as shown on the records of the Association. Such list shall be open to inspection by Members and other persons lawfully entitled to inspect the same at reasonable times during regular business hours. Section 7. Treasurer. The Treasurer shall have the responsibility for Association funds and securities,shall keep the financial records and books of account of the Association, and shall be responsible for keeping full and accurate accounts of all receipts and disbursements of money and other valuable effects in the name and to the credit of the Association in such depositories as may from time to time be designated by the Board. ARTICLE VIII AMENDMENTS Section 1.Amendment to Bylaws.These Bylaws may be amended from time to time by the Members of the Association, but no amendment shall be effective unless approved, at a duly authorized meeting called for such purpose, by Members representing at least a majority of the votes present in person or by proxy and entitled to be cast, and each notice of any meeting therefore shall specify the nature and text of any proposed amendment or amendments; provided further, however, that until Declarant sells all Lots owned by Declarant in the Property, and amendment to these Bylaws shall require the consent of Declarant. Section 2. Governmental Approval to Dissolution of the Association. Notwithstanding any provision to the contrary,the Association may not be dissolved without the consent of Weld County,or such other governmental entity • having jurisdiction over the Property. ARTICLE IX MISCELLANEOUS Section 1. Proof of Ownership. Every person or entity becoming an Owner shall immediately furnish to the board or its Managing Agent the address of such person or entity for the purpose of receiving notices and a photocopy or a certified copy of the recorded instrument vesting in that person such ownership,which instrument shall remain in the files of this Association. A Member shall not be deemed to be in good standing nor shall he/she be entitled to vote at any annual or special meeting of the Members unless these requirements are first met. Section 2. Character of Association. This Association is not organized for profit. No Member, member of the board, officer, or person from whom the Association may receive any property or funds shall receive any pecuniary profit from the operation thereof;and in no event shall any part of the funds or assets of the Association be paid as salary or compensation, be distributed to, or inure to the benefit of any of the directors, officers, committee members, or Members, except upon a dissolution of the Association; always provided, however (i) that reasonable compensation may be paid to any Member, director, committee member, or officer while acting as an agent or employee of the Association for service rendered in effecting one or more of the purposes of the Association,and(ii) that any Member, director, committee member, or officer may from time to time be reimbursed for his actual and reasonable expenses incurred in connection with the administration of the affairs of the Association. Section 3. Conveyances and Encumbrances. Association property may be purchased, conveyed, or encumbered for security of monies borrowed by authority of the Association or the Board. Conveyances or encumbrances shall be by instrument executed by the President or Vice President, and by the Secretary, the Treasurer,or executed by such other person or persons to whom such authority may be delegated by the Board. • Section 4. Inspection of Records. Any Owner or Mortgage of a Lot may inspect the I cwrds of receipts and expenditures of the Association at convenient weekday business hours and upon ten(10)days notice to the Board,or Managing Agent if any. Upon payment of a reasonable fee,not to exceed Fifty Dollars($50.00),any Owner shall be • furnished with a statement of his account setting forth the amount of any unpaid assessments or other charges due and owning form such Owner. Section 5. Notices. Any notices, demands, or other communications required or permitted under these Bylaws shall be given in writing, delivered personally or sent by U.S. mail, postage prepaid, addressed to the person for whom intended at the address then appearing in the records of the Association for such person. Notice shall be considered given when personally delivered or upon deposit in the mail. IN WITNESS WHEREOF,the undersigned have hereunto set their hands effective as of the day of ,2008. BOARD OF DIRECTORS; Bryon Mackey KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned Secretary of the Association does hereby certify that the above and foregoing Bylaws were duly adopted by the Board of Directors of the Association as the Bylaws of the Association effective as of the day of , 2008 and that they do now constitute the Bylaws of the Association. • Secretary • • • NOTICE TO CLOSING AGENTS: THIS IS A FEE-ASSESSED SUBDIVISION. CHECK WITH THE HOMEOWNERS ASSOCIATION FOR FEE SCHEDULE. • DECLARATION OF PROTECTIVE COVENANTS OF MACKEY CIRCLE PLANNED UNIT DEVELOPMENT WELD COUNTY,COLORADO RECITALS: Declarant is the owner in fee of all the lands according to and identified in the recorded Final Plat Map for Mackey Circle Planned Unit Development, Lot 8, Recorded Exemption No: 4589 and Lot A, Recorded Exemption No:2792,being a portion of the Northwest Quarter of Section 6, Township 7, Range 65 west of the 6th P.M., Weld County,Colorado. 2. It is the intention and desire of the Declarant to set forth this Declaration of Protective Covenants in order to promote the harmonious and attractive development of the Property(as that term is hereinafter defined), to provide for the preservation of the values in the Property, and to provide for the health,comfort, safety, convenience, and general welfare of the present and subsequent Owners of the Property and each portion thereof. NOW THEREFORE, Declarant hereby declares that all of the Property is and shall be held, transferred,sold conveyed and occupied subject to the following terms,restrictions,limitations,uses,liens, charges, covenants, conditions, obligations and easements, which are for the above said purposes of protecting the value and desirability of, and which shall run with the property,and shall inure to the benefit of and be binding upon all parties having any right,title or interest in the Property or any part thereof,and their heirs,grantees, personal representatives, executors, administrators, devisees, successors, and assigns, and shall inure to the benefit of each present and subsequent Owner of all or any portion thereof. DEFINITION OF TERMS As used in this Declaration,the following terms shall have the meaning indicated: • Architectural Control Committee. The committee described in Article II of this Declaration. Articles of Incorporation. The Articles of Incorporation of the Association as the same may be amended from time to time. Association.A Colorado nonprofit corporation formed or to be formed by Declarant,the members of which shall be all of the several Owners of the Lots within the Property. Board. The duly elected Board of Directors of the Association Bylaws. The duly adopted Bylaws of the Association as the same may be amended from time to time. Colorado Common Interest Ownership Act. The Colorado statutes know as the "Colorado Common Interest Ownership Act". which is now codified as Article 33.3 of Title 38, Colorado Revised Statutes, as may from time to time hereafter be amended. Common Elements. The Common Elements to be maintained by the Association are:The road identified on the Plat as Laney Way;Outlot 1;and any addition to the Common Elements that may hereafter be made. Dealer. Means a person in the business of constructing homes or selling Lots for such person's own account. Declarant. The Owner of Property whose signature is affixed to this Declaration, and any successor of assign to Declarant's Rights hereunder with respect to Declarant Control. Declarant Control. Rights reserved to the Declarant to control the Association,and the Architectural • • • Control Committee. Declarant's Dealer's Facilities. Facilities as in the sole opinion of the Declarant may be reasonably required, convenient,or incidental to the construction,management and sale of the Lots and residences thereon by Declarant or Dealers, including but not limited to, business offices, storage areas, construction yards, model homes, signs, and sales offices. Declarant's Rights.Rights reserved to the Declarant by this Declaration. Declaration.This Declaration as amended,changed,or modified from time to time. Dwelling.Means and refers to a single-family residential dwelling constructed on a Lot. Improvement.Means and refers to any dwelling,outbuildings,shed,garage,fence,wall,pad,driveway, walkway,parking area,curb,clothesline,berm,deck,patio or other structure or improvement of any kind. Lot.Lot shall mean and refer to the Lots identified on the Plat as Lots 1 through 6 inclusive. Outlot.Means and refers to Outlot as shown upon the Plat. Plat. The Final Plat of Mackey Circle Planned Unit Development, County of Weld, State of Colorado as recorded in the records of the Weld County Clerk and Recorder. If additional lands are hereafter added to the Property and made subject to this Declaration,the term shall also include the plat(s)of such additional lands. Property. All of the real property shown on the Plat. The term shall also include any other real property hereafter added and made subject to this Declaration. Purchaser. Purchaser means a person, other than a Declarant or a Dealer who by means of a transfer • acquires a legal or equitable interest as an Owner in a Lot. Single-Family. Means and refers to an individual, or a group of persons related by blood or marriage, a group of not more than three persons who are not all related to each other by blood or marriage living together. Successor. When used in connection with the Declarant, means one or more persons (other than a purchaser)who have been assigned or otherwise succeeded to all or a portion of Declarant's Rights. Whether or not specifically so stated, any right exercisable by Declarant shall also be exercisable by a Successor to who Declarant has assigned such right. ARTICLE I LAND USE CONTROL 1.00 Land Use And Building Type. Except as may be expressly provided otherwise in this Declaration, Lots I - 6 shall be used for single-family residential purposes and for any home occupation which is in compliance with this Article I and is permitted by applicable zoning regulations. Except for Declarant's Facilities or Dealers' Facilities approved by Declarant, no building, other than approved out buildings, shall be erected, altered, placed or permitted to remain on any Lot other than 1 detached single-family dwelling and a private attached garage. In addition,one Auxiliary Quarter as defined in Section 1.25 below may occur. In addition,the Architectural Control Committee may approve placement of out buildings on Lots 1.6 in accordance with paragraph 1.03 below, if the Committee finds that such structure is compatible with the harmonious and attractive appearance of the Lot and is of satisfactory design and quality. No restrictions of any kind regarding use are created by this Declaration. The placement of the subdivision sign,mailbox kiosk and school shelter shall be permitted on Outlot 1. Notwithstanding any provisions herein contained to the contrary, it shall be expressly permissible for the Declarant and its builders, agents,employee's successors and assigns to maintain Declarants Facilities,and for Declarant to authorize Dealers to maintain Dealers' Facilities,on the Property during the period of construction and sale of the Lots. -2- • 1.01 Architectural Control Committee Approval Required. Except for Declarant's Facilities or • Dealers' Facilities Approved by Declarant, no improvements shall be erected, placed, maintained, or altered on any Lot unless they are in compliance with this Declaration and all required plans and specifications related thereto have been first submitted to and approved by Architectural Control Committee in accordance with the provisions of the Article II. All dwellings and other buildings should have finished exteriors and roofs of a type and of a material and slope approved by the Architectural Control Committee. It is the intent of the Declaration to allow the Architectural Control Committee to exercise full discretion in the approval and denial of any improvement as to create a development that compliments the character of the Property, and to foster compatible designs, which are harmonious with the development of the Property. Therefore, in addition to, and notwithstanding, the other provisions of this Article L and those set forth in Article 11, the Architectural Control Committee, shall have the absolute and unfettered authority and discretion to approve or deny any improvements so as to provide, in the view of the Architectural Control Committee, the best use and the most appropriate development and improvement of each Lot so as to protect the Owners of building sights and against inappropriate use of surrounding Lots as will depreciate the value of the Lots;to guard against the erection of poorly designed structures and structures built of improper or unsuitable materials;to obtain harmonious color schemes; to provide the highest and best development of said Property;to encourage and secure the erection of attractive homes and other permitted structures thereon, with appropriate locations thereof on Lots; to prevent haphazard and inharmonious improvements of Lots;to secure and maintain proper setbacks and in general to provide adequately for an appropriate type and quality of improvements on said Lots and thereby enhance the value of improvements on the Lots. In furtherance of these powers, the Architectural Control Committee may, but is not required to, adopt from time to time, guidelines for development, including, but not limited too,construction materials, exterior finishes and colors, landscapes and fence design and materials, exterior lighting and ornaments, and architectural style; and may amend,revoke,and modify in whole or in part all or any part thereof from time to time. 1.02 Dwelling Quality and Size. Dwellings must be built on-site and no prefabricated, off-site manufactured, previously built, or modular home shall be permitted upon any Lot. A dwelling may include as a part thereof a private garage integrated into the structure capable of housing no less that three(3) passenger cars. The • Architectural Control Committee may approve a detached garage as an outbuilding on a Lot. The Architectural Control committee is vested with the authority to adopt from time to time minimum and maximum permissible area of dwellings and the apportionment of area between the first floor and other floors or basement areas;provided that in no event shall the first floor of a single story dwelling have less than 1,700 square feet of living space, and a multi- story dwelling shall have no less than 2,400 square feet of living space. The determination of what constitutes living space within a dwelling for such area calculations shall be within the sole discretion of the Architectural Control Committee. The Architectural Control Committee shall be vested with a sole determination as to what constitutes the first floor of a dwelling and what constitutes a story and basement for purposes of this Article I, and such determination with regard to any proposed dwelling shall be final and binding upon the Owner. For purposes of this Section, unless a different standard is adopted by the Architectural Control Committee,the square footage of finished living area shall be calculated by the exterior measurement of living area only, excluding basement and garden level areas, (whether or not there is a basement or garden level walkout)and attic area,garage, porches, balconies, decks, lofts,patios,and open spaces. 1.03 Outbuildings. All outbuildings are subject to the prior approval of the Architectural Control Committee in accordance with the provisions of this Declaration. In addition to a single-family dwelling, the Architectural Control Committee may,but is not required to,approve the following outbuildings for a Lot. 1.03.1 Detached Buildings. If approved by the Architectural Control Committee, each Lot may have(I) one(1)detached utility outbuilding which, unless otherwise approved by the Architectural Control Committee,shall not exceed 1,000 square feet and a height not to exceed eighteen(18) feet at the roof peak which may be used for storage or other use permitted by this Declaration; and (II) one structure such as a gazebo, pool house, or hot tub enclosure; (III) a detached garage; and(IV)a barn or loafing shed not to exceed 2,000 square feet and a height not to exceed twenty-six (26) feet at the peak. The approval or denial of any such building, including the number, size, location, design, materials, grade and landscaping shall remain within the discretion of the Architectural Control Committee. -3- • 1.04 Building Location.Except for Declarants facilities and except for fences approved by the Architectural • Control Committee,no building or other structure shall be placed in any area shown on the Plat as an easement. No septic system facility shall be place within the setback areas delineated on the Plat.All structures are subject to the "no build area"as delineated on the Plat. Except for Declarant's Facilities and fences approved by the Architectural Control Committee, all structures located on any Lot shall not be within the setback area. 1.05 Easements. Easements for installation and maintenance of utilities and various other purposes are reserved as shown on the Plat. Within these easements no structures, planting, or other material, other than any fencing or landscaping approved by the Architectural Control Committee,shall be placed or permitted to remain. Any such fences and landscaping are subject to removal or damage as may occur in the course of use of such easements for the purposes identified,and the Owner of each Lot accepts the risk of such removal and damage. The surface of the easements area of each Lot and all landscaping and improvements on it shall be maintained continuously by the Owner of the Lot. 1.05.1 Emergency Easement. A general easement is hereby granted to all police, sheriff, fire protection, ambulance and all other similar emergency agencies or Persons to enter upon all streets and upon the Real Estate in proper performance of their duties. 1.06 Time for Construction and Repair. The construction of a dwelling, structure, landscaping, or other improvements approved by the Architectural Control Committee, shall commence within six(6) months of approval of the plans by the Architectural Control Committee and Owner shall diligently proceed with construction. The improvement shall be fully completed within twelve(12)months after the date of commencement of the construction. The Architectural Control Committee may grant extension of this forgoing time period upon a showing by Owner of good cause,as determined in the sole discretion of the Architectural Control Committee. In the event any structure is destroyed either wholly or partially by fire or other casualty, all debris and remaining portions of the structure shall be promptly removed from the Lot and the structure shall be promptly rebuilt or remodeled to conform to the Declaration. All repairs and or reconstruction of dwelling, fence,or other structure or other improvements,whether due to wear and tear or other causes shall be subject to and in accordance with the covenants herein, and repair and reconstruction thereof shall be completed no later than one (1) year from the date of damage. If required by the Architectural Control Committee, the Owner of a Lot upon which construction, or repair or reconstruction, of any • dwelling, structure or other improvements, is to be performed shall deliver to the association a deposit ("the Deposit") in an amount to be determined by the Architectural Control Committee from time to time. The Deposit shall be returned to the Owner within thirty(30)days after the improvement has been timely completed in conformity with the approved plans and specifications. and all debris has been removed from the Lot,then the Association shall have the right,but not the obligation,to enter upon the Lot if it deems appropriate and complete the improvements in conformity with the approved plans and specifications and remove debris and deduct the cost thereof from the Deposit, and to apply the balance of the Deposit, if any, shall be returned to the Owner within thirty (30) days following attainment of compliance. If the Deposit is not sufficient to cover the costs of completing the improvements or removing the debris or the costs and expenses of enforcement of this Declaration due to the Owner's breach,the amounts not so satisfied by the Deposit shall be recoverable as a special assessment against the owner and the Lot. 1.07 Nuisance. Each Lot shall at all times be maintained in a clean and tidy condition and shall not be used for any purpose or storage of anything that will cause such Lot to appear in an unclean or unsightly condition. No Lot shall be used in such a manner as to obstruct or interfere with the enjoyment of other 1 nts, or annoy them by unreasonable traffic, noises, lights, odors, or otherwise, nor shall any nuisance or illegal activity be committed or permitted to occur on any Lot. No exterior horn, whistle, bell, or other sound devices except security devices used exclusively to protect the security of the Lot and the Owners or occupants thereof shall be placed or used on any part of the Lot. All power and motorized equipment, including mowers, snow blowers,tractors, and any other motorized equipment used on any Lot must be properly equipped with mufflers so as to reduce to the degree practicable the noise of operation. 1.08 Animals Except for the specific provisions below regarding the keeping of household pets and large animals,no animals will be kept on any Lot. -4- • • • 1.08.1 Household Pets. Household pets such as dogs, cats, and such other household pets which may be • specifically approved from time to time by the Architectural Control Committee hereafter, may be kept on a Lot provided that, unless otherwise authorized by the Architectural Control Committee, no more than a total of six (6) such household pets,and their offspring may be kept on any Lot. Household Pets include no venomous species of reptile, any domestic dog, domestic cat, rodent, or bird over the age of six(6)months. A household pet shall not include members of the order crocodilian (e.g. crocodiles, alligators, etc.), large primates including gorillas, orangutans, baboons, chimpanzees,members of the class Ayes,order falcons(e.g. hawks, eagles vultures,etc.);and animals defined as large Animals. No such household pets may be kept, bred, or maintained for any commercial purposes and the manner of keeping such animals shall not be allowed to result in any unsanitary conditions or nuisance or annoyance to the occupants of other Lots. The Architectural Control committee may adopt from time to time such rules and regulations as it deems appropriate regarding the type, quantity and requirements for keeping such household pets on any Lot. Any decision by the Architectural Control committee regarding the type and number of animals which may be kept upon any Lot, shall not be effective unless and until it has been reduced to writing. My such decision may be later rescinded or modified by the Architectural Control Committee, and any owner affected by such rescission or modification shall have a reasonable time,not to exceed forty-five(45)days,to comply with such rescission or modification. Household pets shall be properly housed and penned or fenced in enclosures approved by the Architectural Control Committee to confine them to the Lot and shall not be allowed to roam. The Architectural Control Committee may grant special permission for the keeping of rabbits, ducks, chickens, turkeys, poultry or swine, only if these animals are to be used for a 4-H project and after the completion of said project the animals will be removed. 1.08.2 Large Animals—Management Plan. Large animals(as defined in this paragraph 1.08.2)may be kept on a Lot subject to the terms of this paragraph 1.08.2. Subject to the prior approval of the Architectural Control Committee, four large animal units may be kept on each Lot. A large animal unit is one horse, or as defined in Table23-IB, Weld County Zoning, or animals hereafter designated and approved from time to time by the Architectural Control Committee as a permissible large animal. No such large animals may be kept, bred, or maintained for any commercial purposes and the manner of keeping such animals shall not be allowed to result in any unsanitary conditions or a nuisance or annoyance to the occupants of other Lots. Large animals will be allowed for 4- H projects, but must not exceed the maximum number of animals per lot and must be approved by the Architectural Control Committee prior to placement of the animal upon the Lot. All 4-H animals must be removed after the • completion of the project. The Architectural Control Committee may adopt from time to time such land management plans and rules and regulations as it deems appropriate regarding the type, quantity, and requirements for keeping such large animals on any Lot, and in doing so may take into consideration the vegetation and type of irrigation available, the carrying capacity of the Lot, the type and necessity of shelter for the animals,the manner in which the owner has maintained the vegetation cover and control of the weeds on the Lot, erosion and dust control measures, manure handling measures, and such other considerations as the Architectural Control Committee may from time to time deem germane. Any decision by the Architectural Control Committee regarding the type and number of animals which may be kept upon any Lot, shall not be effective unless and until it has been reduced to writing. Any such decision may be later rescinded or modified by the Architectural Control Committee,and any Owner affected by such rescission or modification shall have a reasonable time, not exceed forty-five (45) days, to comply with such rescission or modification. All animals shall be properly housed and penned or fenced in enclosures approved by the Architectural Control Committee to confine them to the Lot and shall not be allowed to roam. 108.2.1 Each homeowner shall supply the Architectural Control Committee with a Lot Management Plan to include management of dust, flies, manure, vegetation, and waste management for approval prior to placement of the animal unit upon the Lot. 108.3 Nuisance Animals. In the event that any dog, cat,or other animal which is allowed to be kept on any Lot becomes a nuisance due to excessive noise or other behavior or conditions, an Owner may file a complaint with the Association, which complaint shall be forwarded to the Owner of the Lot upon which the nuisance animal is located. The Board may establish from time to time procedures for handling such complaints,and if the complaining party is not satisfied with the outcome at completion of the Board established procedure,the complaining party may request the Association to direct the Owner of the Lot to take specific remedial action;in which event,by a majority vote of the Board of the Association,the Board may direct an Owner to take specific remedial action to be completed within a reasonable time as the Association deems proper, and at the expiration of such time provided for remedial action, the Association shall have the right to require the Owner to remove the nuisance animal if by a vote of the Board,it is determined that the situation has not been properly corrected. • -5- • • 108.3.1 Barking Dogs. It is recognized that barking or howling dogs may be a primary source of nuisance • and notwithstanding the foregoing,the provisions of this paragraph 1.08.3.1 shall apply to complaints regarding noisy dogs. My dog which has barked and/or howled continuously for a period in excess of 10 minutes between the hours of 9:00 p.m. and 7:00 a.m., or in excess of 20 minutes between the hours of 7:00 a.m. and 9:00 p.m., shall be deemed to be a nuisance animal if such noise is audible at the boundary of the Lot upon which the animal is kept. If a Lot Owner has been given two written notices of violation of this paragraph 1.08.3.1 within any twelve month period, upon the third such violation within any 12 month period the Owner shall be required to either remove the dog form the Lot or keep the dog in a completely enclosed structure on the Lot from which such noise shall not be audible at the boundary of the Lot. 1.9 Commercial Uses. Other than the activities of Declarant and Dealers, no Lot shall be used for any business, trade, or commercial use, except such home occupations as are otherwise in compliance with this Declaration and permissible under the zoning regulations which from time to time are in effect. My such home occupation must meet any policy or decision adopted by the Architectural Control Committee regarding home occupation,must be fully carried out within the dwelling unit on the Lot,and may not be conducted in such fashion as to constitute a nuisance or violate any provision of this Declaration. My such decision or policy adopted by the Architectural Control committee may be later rescinded or modified by the committee,and any Lot Owner affected by such rescission or modification shall have a reasonable time, not to exceed forty-five (45) days, within which to comply with such rescission or modification. 1.10 Maintenance Of Lots and Improvements. Owners of Lots shall keep or cause to be kept all buildings, fences, structures, landscaping, and other improvements in good repair. Rubbish,refuse,trash, litter, lumber,junk, boxes, bottles, cans, garbage, and other solid, semi-solid, and liquid waste shall be kept within sealed sanitary containers, shall not be allowed to accumulate, and shall be disposed of in a sanitary manner. All such containers shall be maintained in a good,clean condition and no such containers shall be stored outside unless the Architectural Control Committee first approves appropriate screening, and each Lot Owner shall arrange for the removal, no less than weekly,of all such waste. No lumber or other building materials shall be stored or permitted to remain on any Lot unless screened from view in a manner approved by the Architectural Control Committee, except for those materials reasonably necessary to be stored on the Lot during construction of improvements. • 1.11 Signs. No sign of any kind shall be displayed to the public view on any Lot except signs erected by Declarant to identify the Property,except(I)one sign of not more than five(5)square feet advertising the Lot for sale ore for rent; (II) signs used by Declarant or those of Dealers or a builder approved by a Declarant to advertise the Property of Lot(s) during the construction in sales period; and (IQ) such other signs as the Architectural Control Committee may,from time to time approve. 1.12 Fences.Except those installed by Declarant, no fence, wall,hedge or other plantings which will act as a screen or divider shall be installed or maintained without first being approved by the Architectural Control Committee. The acceptable height, style, material design and color of fencing shall be as the Architectural Control Committee may from time-to-time determine. All fences,walls,hedges,and plantings adjacent to public roads shall be in compliance with any applicable sight line requirements established by the governmental authority having jurisdiction. All fences,walls,hedges,and shrub plantings shall be maintained in a clean,neat and orderly condition at all times. In the exercise of its discretion,the Architectural Control Committee may require fencing on any Lot. 1.12.1 Each individual homeowner shall have the option of fencing their entire Lot perimeter with a fence as approved by the Architectural Control Committee. Mesh wire such as hog wire may be used as an attachment to this particular fence for greater containment security. 1.13 Vehicles. Except those of Declarant or while reasonably necessary during construction of improvement, no busses, large commercial or construction type vehicles (including by way of example and not in limitation, dump truck, cement mixer truck, oil or gas truck, delivery truck, backhoe, bulldozer, or semi-tractor or trailer) shall be parked on the common streets of the Property and shall not be parked, stored, or kept on any Lot, unless specifically approved by the Architectural Control Committee, or in accordance with any policies hereafter adopted by the Architectural Control committee from time-to-time. Recreational vehicles, utility or recreational trailer of horse trailer, boats and boat trailers,or recreational or other equipment("Accessory Vehicle") shall not be parked on the common street. All vehicles must be registered by the homeowner. • -6- • • No more than three(3)Accessory Vehicles shall be kept on any Lot. The Architectural Control Committee can at any time modify or rescind its policies regarding such storage and any Lot Owner shall comply with such rescissions or modifications within forty-five(45)days of notice Gma the Architectural Control Committee of the change in policy. No junk or inoperative vehicles shall be stored or permitted to remain on any Lot unless within fully enclosed garages. For purposes of this provision, any unlicensed vehicle, or any disassembled or partially disassembled car, truck, or other vehicle, or any vehicle which has not been moved under its own power for more than one(1) week, shall be considered an inoperable vehicle. No work of automobile repair or maintenance shall be performed except such work as is performed by the occupant of such Lot upon the occupant's vehicles and all such work shall be performed within the confines of an Owners garage or other detached building. 1.14 Fires and Firearms. There shall be no exterior fires permitted on any Lot except barbeque fire contained within receptacles specifically designed for such purposes. No Owner shall permit any conditions on his Lot, which create a fire hazard or are in violation of fire prevention regulations. No firearm shall be discharged within or on any Lot. 1.15 Towers, Masts, Antennas, Solar Panels, Mechanical Units, and Satellite Dishes. No devices for transmission or reception or microwave, optical, radio, television, or other communication signals, including by way of example and not in limitation, antennas,masts,towers;and no heating,ventilating,or air conditioning units,solar panels or other similar objects, shall be placed on the roof or exterior of any building or otherwise on a Lot, unless first approved by the Architectural Control Committee. Solar panels and satellite dishes also are included under this and must meet Architectural Control Committee approval on their location. 1.16 Storage of Dangerous Materials. No underground or above ground storage tanks of any character shall be allowed on any Lot. No gasoline, paint or any other toxic, hazardous or inflammable material shall be stored on any Lot in quantities in excess of IS gallons, unless written approval thereof is obtained from the Architectural Control Committee and such storage in compliance with all applicable safety standards and regulations. 1.17 Maintenance of Easements and Landscaping. The Owner of each Lot shall be responsible for at all • times properly maintaining the landscaping and to control and eradicate weeds on such Lot, including without limitation, all utility and other easements. If the Owner of any Lot shall fail to so maintain such areas of their respective Lots, the Association shall be empowered but is not required to enter onto such Lots and undertake such steps as necessary to maintain or restore the same, and the cost thereof shall be charged against the Owner of the respective Lot and shall be recoverable as a special assessment against the Owner and the Lot. Each Lot shall be required to have established ground cover of a type approved by the Architectural Control Committee within such times as may from time to time be set forth in the applicable governmental ordinance, and/or guidelines adopted by the Architectural Control Committee,whichever requires the earliest installation;provided,that,if no such ordinance or guidelines are adopted or in effect, each Lot shall have the front yard established in approved ground cover and plant materials within nine(9)months of issuance of a certificate of occupancy for the dwelling. For good cause,the Architectural Control Committee may approve an extension of such time period. In the case a residential structure is more than 90%completed but remains unsold, the builder shall be required to landscape the front yard within nine (9)months of attaining this 90%completion status. The Association shall maintain landscaping on Outlot 1. 1.18 No Subdivision of Lots. Lots I -6 shall not be further subdivided. 1.19 Drainage and Soil Conditions. Many soils within the state of Colorado consist of both expansive soils and low-density soils which may adversely affect structures if the structure is not properly designed and maintained and appropriate drainage provided and maintained. The soils may swell and shrink. Engineered foundations for all construction on the Property are recommended. Soils may also contain substances producing radon gas. Radon mitigation is the responsibility of the individual owner of such Lot. -7- • 1.19.1 Action by Owner. The Owner of each Lot agrees to obtain plans and specifications from a qualified • engineer for the foundation of any structures, and for grading and other methods to control water flow on and across the Lot in compliance with any grading and drainage plan for the Property approved by the County of Weld. Each Owner of any Lot is required to comply with the recommendations of such engineer and to at all time take appropriate action to not impede or hinder waters falling upon or flowing across the Lot in the manner intended by the applicable grading and drainage plans and recommendations for the entire Lot and the grading and any drainage plan approved by the County of Weld for the entire Property. Each Owner of a Lot shall use his or her best efforts to assure that the moisture content of those soils supporting the foundation and the concrete slabs forming a part of the dwelling construction thereon remains stable and shall not introduce excessive waters into the soils. Each Owner of a Lot covenants and agrees,among other things: (A) Not to install Improvements, including, but not limited to landscaping, items related to landscaping, walls,walks,driveways,parking pads, patios, fences,additions to the dwelling,outbuildings,or any other items or improvements which will change the grading of the Lot. (B) To fill with additional soil any back-filled areas adjacent to the foundation of the dwelling and in or about the utility trenches on the Lot in which settling occurs to the extent necessary from time to time to maintain the grading and drainage patterns of the Lot. (C) Not to water the lawn or other landscaping on the Lot excessively. (D) Not to plant flower beds(especially annuals)and vegetable gardens adjacent to or within three(3)feet of the foundation and slabs of the dwelling. (E) If evergreen shrubbery and grass is used within five(5)feet of the foundation walls,to water the shrubbery and grass by controlled hand watering and to avoid excessive watering. (F) To minimize or eliminate the installation of piping and heads for sprinkler systems within five(5)feet of foundation walls and slabs. • (G) to install any gravel beds in a manner which will assure that water will not pond in the gravel areas, whether due to non perforated edging or due to installation of the base of the gravel bed at a level lower than the adjacent land. (H) To install moisture barrier(such as polyethylene)under gravel beds. (I) To maintain the gutters and down spouts which discharge water into extensions or splash blocks by assuring that(I)the gutters and down spouts remain free and clear of all obstructions and debris;(B) the water that flows from the extension or the splash block is allowed to flow rapidly away from the foundation and/or slabs;and(III)the splash blocks are maintained under sill ranks. (J) To re-caulk construction joints opening up between portions of the exterior slabs and garage slabs in order to thereby seal out moisture. 1.19.2 Declarant Not Liable. The Declarant shall not be liable for any loss or damage arising from or in any way connected with soil conditions on any Lot, including by way of example and not in limitation, radon gas, expansive or shrinking soils,subsurface water conditions or the flow of waters on,across,through or under any Lot. 1.20 Driveways and Parking Areas. Appropriately surfaced private driveways and parking areas are required. Materials approved by the Architectural Control Committee shall be used for such surfacing. Except for those installed by Declarant, no driveways, parking pad, patio, or other graveled, or hard surfaced area shall be placed on any Lot,or altered,unless first approved by the Architectural Control Committee. 1.21 Exterior Lighting and Utilities. No street lights shall be placed within the Property. Exterior lighting shall be designed so as not to unreasonably interfere with the use and enjoyment of other Lots. All exterior lighting shall be subject to approval by the Architectural Control Committee and shall be designed and located so as to be compatible with and integrated into the structure on any Lot and the character of the development of the Property. • g • • The Architectural Control Committee shall have full discretion to approve and deny exterior lighting to minimize impact on adjacent Lots in the Property and minimize the impact of exterior lighting on viewing the night sky and avoiding the appearance of a brightly lit complex. Unless previously approved in writhing by the Architectural Control Committee, no Owner shall install mercury vapor or sodium or high-wattage incandescent or similar type of bright, broad-area or flood or spot lighting on a Lot,and no Owner shall allow exterior lighting to be on continuously or during significant portions of the evening hours other than low wattage porch, patio, walkway or other similar lighting which has been specifically approved for the Lot for that purpose by the Architectural Control Committee. All electric, telephone, and other utility lines are to be placed underground. Each Lot Owner is responsible for design, approved by health officials,construction and maintenance of adequate individual septic system,the location of which are subject to the prior approval of the Architectural Control Committee. Each dwelling shall have an operating garbage disposal unit connected to the waste water/septic. No domestic wastewater shall be allowed to run upon or remain upon any Lot except through the properly operating septic system approved by the health officials having jurisdiction. Each Lot Owner shall at all time keep and maintain the septic system and appurtenant leach fields or other facilities related thereto in proper and sanitary operating conditions. See 1.26 added below. 1.22 Mining. No exploration for or extraction of any sand, gravel, oil gas, mineral or other subsurface material shall be performed on any part of any Lot and no part of any Lot shall be used for the storage processing or refining of any such substance. 1.23 Clotheslines. No clothesline shall be installed or maintained on any Lot unless approved by the Architectural Control Committee,and no clothesline shall be approved unless it is retractable. 1.24 Prohibited Habitation. No partially completed dwelling, trailer, recreational vehicle, shack, garage, tent, or outbuilding or other structure or improvement on a Lot shall at any time be used for human habitation, temporarily or permanently. The only place where habitation may occur is within a completed dwelling complying with the plans and specification by the Architectural Control Committee and having all necessary governmental approvals and occupancy permits. No habitation shall occur in any dwelling which has been damaged, or whose wastewater,or other utility system has failed or inadequate,so as to render such habitation inappropriate. 1.25 Auxiliary Quarters. Lots 1 -6 shall have the ability to have Auxiliary Quarters. • 1.25.1 Auxiliary quarters are defined as one (I) or more interconnected rooms permanently attached to or located within the single-family dwelling which are arranged,designed,used or intended for use as a complete independent living facility for one(I) family. All auxiliary quarters shall comply with the following requirements: (A) The auxiliary quarters may not be used on any basis as a rental. (B) The use of the auxiliary quarters is subordinate in purpose,area and intensity and the occupants contribute to the needs of the occupants of the primary residence. (C) The gross floor area of the primary residence shall be no less than 1,700 square feet in size. (D) The minimum gross floor area of the auxiliary quarters shall be no less than three hundred(300) square feet in size,and the maximum shall not exceed filly(50)percent in size of the gross floor area of the primary residence. The gross floor area of the auxiliary quarters shall not exceed one- thousand(1,000)square feet in size. (E) The auxiliary quarters shall be attached by common roof and foundation to the primary residence. (F) The auxiliary quarters and the primary residence shall be connected by a party wall or shall not be separated by more than twice the width of the projected view of the shortest exterior wall of the auxiliary quarters. 1.26 Sewage Disposal Systems. Sewage disposal shall be accomplished by individual sewage disposal systems designed and installed to meet County and State regulations. 126.01 The primary and secondary septic fields and the septic infrastructure are to be protected and preserved. 126.02 Activities such as permanent landscaping,structures,dirt mounds,or other items are expressly prohibited in the absorption field site. Parking of vehicles in these areas is not acceptable. -9- • 126.03 All septic systems shall be inspected once per year and pumped every four years by a common • company at a common date selected by the Homeowner's Association. The assessment for such inspection and pumping service shall be billed to each individual homeowner. The individual homeowner shall be responsible for correction of any issues found at such inspection. 1.27 Compliance With Laws. Nothing shall be done or kept in or on any Lot which would be in violation of any statue, rule, ordinance, regulation, permit or validly imposed requirement of any governmental authority having jurisdiction. ATRICLE H ARCHITECTURAL CONTROL COMMITTEE 2.01 Appointment of Committee. The Declarant has established an Architectural Control Committee. Until 50%of all the Lots within the property have been sold to purchasers and homes have been built and occupied at which time the Declarant shall appoint the Architectural Control Committee, which may consist of (1)or more persons as determined by the Declarant. At such time as all Lots have been sold to purchasers and homes have been built and occupied thereon,the number of members of the Architectural Control Committee and their appointment as provided in the paragraph below entitled "Termination of Declarant Control". No member of the Architectural Control Committee shall be entitled to any compensation for services as a member of the Committee. The initial address of the Architectural Control Committee shall be 6804 Aaron Drive, Fort Collins, CO, 80524, and hereafter may be changed from time to time by the members of the Architectural Control Committee. The members of the Architectural Control Committee can engage the services of architects,engineers, attorneys and such other persons as they deem from time to time appropriate, and may pay the cost thereof from the filing fees required to be paid by those seeking Architectural Control Committee review. 2.02 Architectural Control. No improvement shall be erected, placed, maintained, or altered on any Lot until the construction plans and specifications and a plan showing the location of the improvements have been approved by the Architectural Control Committee including quality of workmanship, quality and color and type of materials, the aesthetics and harmony of exterior design with the character of the community and the existing structures, and as to location of improvements and finished grade elevation, and compliance with this Declaration. Unless the Architectural Control Committee approves a longer time for submission of a landscape plan, at,or within sixty(60)days of, the time of submission of plans for the dwelling on any Lot,the Owner shall also submit a final landscape plan. If a final landscape plan is not submitted with the plans for the dwellings, a preliminary landscape sketch shall be included with the submission of dwelling plans. Each plan submitted to the Architectural Control Committee shall bear the stamp or certification of an architect or engineer licensed in the State of Colorado;provided, that, the Architectural Control committee may waive this requirement if in the exercise of its discretion it determines such certification is not reasonably appropriate for the plan to be reviewed, and such determination is evidenced by a written waiver of the requirement signed by the members of the Architectural Control Committee. Notwithstanding the waiver of requirement of the certification by an architect or engineer,the Architectural Control committee may at any time, before or after submission of the plan,determine that the plan submitted without certification should be so certified, and may require the party submitting such plan to obtain such certification before any further action by the Architectural Control Committee. 2.03 Rules of procedures and Guidelines. The Architectural Control committee may,but is not required to adopt development standards and guidelines and rules and regulations from time to time establishing procedures and design standards, criteria and guidelines in furtherance of this Declaration. The Architectural Control Committee shall meet at the convenience of the members thereof as often as necessary to transact its business. Request for approval of design shall be made to the Committee in writing, accompanied by two (2) complete sets of plans and specifications for any and all proposed improvements to be constructed on any Lot. Such plans shall include plot plans and showing drainage and grading plans, the location on the Lot of dwelling, building, wall, fence, or other improvements proposed to be constructed, altered, placed, or maintained thereof, together with the proposed construction materials, color scheme for roofs and exteriors thereof,architectural renderings,and proposed landscape planting. The Architectural Control committee may require submission of additional plans specifications, and of samples of materials and colors prior to approving or disproving the proposed improvement. Until receipt by the Architectural Control Committee of all the required materials in connection with the proposed improvement to the Lot,the committee may postpone review of any material submitted for approval. • -10- • • Notwithstanding any other provisions of this Declaration,the guidelines,criteria or rules adopted by the Architectural • Control Committee may specify circumstances under which a variance to the strict application of the provisions of this Declaration to a proposed improvement may be granted where strict applications would be in the opinion of the Architectural Control committee unreasonable or unduly harsh under the circumstances. If such a variance is granted, no violation of this Declaration shall be deemed to have occurred with respect to the matter for which the variance is granted. The granting of such a variance shall not operate to waive any of the terms and provisions of the Declaration for any purpose except as to the particular Lot and particular provision in the particular instance covered by the variance. Nothing herein shall authorize the Architectural Control committee to make any variance with respect to provisions of this Declaration which restrict the character of uses to which Lots may be placed, such as, without limitations, provisions restricting animals, commercial activities and other restrictions of this Declaration regarding use,and the ability to grant variances is solely restricted to the location and construction of improvements. The guidelines or rules adopted by the Architectural Control Committee may elaborate or expand upon the provisions of this Declaration relating to procedures and criteria for approval and may also specify rules, and restrictions pertaining to the construction of improvements, including for example, the storage of construction material and hours of construction operations. Such guidelines and rules adopted by the Architectural Control Committee shall have the same effect as if they were set forth in and were part of this Declaration. 2.04 Approval of Plans. The Architectural Control Committee shall approve or disapprove plans,provide specifications, and details within (30) days from the receipt of all materials requested by the Committee and shall notify the Owners submitting them of such approval or disapproval in writing. If all samples, plans, specification, and details requested by the Committee have been submitted and are not approved or disapproved with such thirty (30)day period they shall be deemed approved as submitted. One set of plans and specifications and details with the approval or disapproval of the Architectural Control committee endorsed thereon shall be returned to the Owner submitting them and the other copy thereof shall be retained by the Architectural control committee for its permanent file. Applicants for Architectural control Committee action may,but need not,be given the opportunity to be hear in support of their application. Refusal of approval of plans, location, or specifications may be based by the Architectural Control Committee upon any reasonable grounds, including purely aesthetic considerations, which in the sole and unfettered discretion of the Architectural Control Committee shall seem sufficient, reasonable, and not capricious. The Committee may condition its approval of any proposed improvements to property upon the making of • such changes therein as the Committee may deem appropriate. All applications to the County of Weld for issuance of building permits must be accompanied by a letter from the Architectural Control Committee evidencing review and approval of the plans by the Architectural Control Committee. 2.05 Filing fees. As a means of defraying its expenses,the Architectural Control Committee may require a reasonable filing fee to accompany the submission of plans to it in an amount to be fixed by the Architectural Control Committee from time to time. No additional fees shall be required for one (1) resubmission of plans revised in accordance with Architectural Control Committee recommendations if such resubmission is made with twenty(20) days of the Architectural Control Committee response to the initial plans submitted. Additional resubmissions shall require payment of additional fees, unless waived by the Architectural Control Committee for such reasons, as the Architectural Control Committee in the exercise of its sole discretion deems appropriate. 2.06 Completion of Improvements. Any improvement approved by the Architectural Control Committee shall be timely commenced and completed within the times provided in paragraph 1.06. If not commenced within such time, the approval of the Committee shall automatically expire unless extended by the committee, and the applicant must thereafter resubmit all plans to the committee for reconsideration. The fact that a proposed improvement has previously been approved by the Committee shall not require the Committee to again approve such proposed improvement if the approval has expired pursuant to the terms of this paragraph. 2.07 Governmental Approvals. Each Owner shall obtain, prior to commencement of construction of any improvements, all permits, licenses, certificates,consents,and other approvals necessary or required pursuant to any law, ordinance,resolution,order,rule or regulation of any governmental authority having jurisdiction in order for the Owner to construct, operate and maintain the improvements; and before commencing work on any such improvements, the Owner shall provide to the Architectural Control Committee a copy of such governmental approval. The Owner shall also furnish the Architectural Control Committee on a timely basis with copies of permits or certifications showing that the work being performed has, where required, been inspected and approved by the governmental authority having jurisdiction and a copy of the certificate of occupancy or final inspection or • -11- • • certification shall be timely provided to the Architectural Control Committee. • 2.08 Inspection of Work and Notice of Completion. The members of the Architectural Control Committee and any agent or representative thereof', shall have the right to inspect any improvements to any Lot prior to and after completion, provided that the right of inspections shall terminate three (3) days after the Committee has received from the applicant a notice of completion. 2.09 Estoppel Certificates. Upon the reasonable request of any interested party,and after confirming any necessary facts, the Architectural Control Committee, shall furnish a certificate with respect to the approval or disapproval of any improvement to any Lot or with respect to whether any improvement to a Lot is made in compliance herewith. My person without actual notice to the contrary shall be entitled to rely on said certificate with respect to all matter set forth therein. 2.10 Non-Liability. No member of the Architectural Control Committee, or any other agent of the Architectural Control Committee,shall be liable for any loss,damage or injury arising out of or in any way connected with the performance or nonperformance of the Architectural Control Committee. In reviewing any matter, the Architectural Control Committee is not responsible for reviewing,nor shall its approval of any improvements to a Lot be deem to be,an approval of the improvement to a Lot from the standpoint of safety,whether structural or otherwise, or conformance with any building,zoning or other codes or governmental laws or regulation. 2.11 No Implied Waiver or Estoppels, No action or failure to act by the Architectural Control Committee shall constitute a waiver or estoppels with respect to future action by the Architectural control committee, or the Association or its members with respect to any improvement. By example, and not in any way a limitation, the approval by the Architectural Control Committee of any improvement shall not be deemed a waiver of any right or an estoppels to withhold approval or consent for any similar improvement or any similar proposals, plans, specification or other materials submitted with respect to any other improvement. ARTICLE III EASEMENTS • 3.01 Easements. The plat reserves certain easements for drainage.Declarant shall have full rights of usage of such easements, as Declarant deems appropriate for the initial construction and installation of the improvements and facilities related to such easements. The Association is vested with the right and responsibility for maintenance of the Common Elements. 3.02 Usage of Easements. The rights and easements of enjoyment of the Owners of the Lots in the easement and the Common Elements,shall be subject to the following: 3.02.1 No use shall be made of the areas which interferes with its respective primary purpose such as its irrigation facilities, drainage-way, utilities, or access. Notwithstanding any other provision of the Declaration to the contrary, no permanent structure shall be placed in Common Element areas unless Declarant has consented;provided that Declarant's consent shall not be required if Declarant does not own any Lot. 3.02.2 With the consent of the Declarant, the Association shall have the right to adopt and enforce rules and regulations for usage and to prohibit or limit the use of Common Elements; provided that Declarant's consent shall not be required if Declarant does not own any Lot. 3.02.3 The Association shall not have any right to encumber, pledge, assign or transfer its ownership or easement right unless written approval for the same is given by the Owner of every Lot. 3.03.4 The rights of the Association and Owners are subject to the rights reserved in this Declaration of the Declarant. ARTICLE IV OWNERS ASSOCIATION 4.01 Formation of the Association. The Declarant has formed,or will form after the recording of this • -12- Declaration, a Colorado non-profit corporation ("the Association"). Each Owner of each Lot within the property • shall be a member of the Association. Status as an Owner of a Lot is the sole qualification for membership, such membership being deemed an incident of Ownership of a Lot. Individuals who jointly own a Lot,shall be deemed to constitute a single Owner of the Lot. An Owner's membership in the Association shall commence as of the date that fee title to a Lot is conveyed to the Owner and shall terminate on the date of termination of Ownership of a Lot. 4.02 Classes of Membership and Voting Rights, The Association shall have two(2) classes of voting membership. Class A shall be composed of the Declarant. Class B shall be composed of the Owners of Lots other than Declarant. For matters upon which Owners of Lots are entitled to vote,the Class A member shall be entitled to cast four (4) votes for each Lot owned by the Class A member, and Class B members shall each be entitled to cast one(I)vote for each Lot owned by the member. In the event a Lot is owned by two(2)or more persons,whether by joint tenancy, tenancy in common, or otherwise,the vote for such Lot shall be exercised as the Owners thereof shall determine but the vote attributable to such Lot shall be cast by only one(I)of the Owners of such Lot who shall be designated by the several Owners of such Lot in writing prior to or at the time the vote is cast. In the absence of such designation by such multiple Owners the vote for such Lot may be cast in accordance with the agreement of a majority in interest of the persons having ownership interest in the Lot. There shall be deemed to be a majority agreement if any one of the multiple Owners casts the vote allocated to the Lot without protest being made promptly to the person presiding over the meeting by any of the other Owners of the Lot. No vote may be cast or counted for any Lot for which assessments,fees,dues,or other monies are in default of payment at the time votes are counted. 4.03 Board of Directors. The affairs of the Association shall be conducted by a Board of Directors( the `Board"). The powers and duties of the Board shall include,but not limited to the following: (A) To enforce all of the applicable provisions of this Declaration. (B) To maintain the Common Elements. (C) To contract for and pay for the cost of providing the functions of the Association out of funds collected by the Board. • (D) To levy and collect assessments to pay the costs of maintenance as provided in this Declaration and to make or authorize the expenditures therefrom. (E) To receive and process complaints form Owners with respect to any provisions of this Declaration. (F) To adopt such rules and regulations as the Board from time to time may deem necessary or appropriate to carry out the provisions of this Declaration. (G) To render such discretionary decisions as are vested in the Board pursuant to this Declaration. (H) To impose charges for late payment of assessments,recover costs of enforcement including reasonable attorney fees and other legal costs for collection of assessments and other actions to enforce the power of the Association,regardless of whether or not suit was initiated,and after notice and an opportunity to be heard,levy reasonable fines for violations of the Declaration, Bylaws,and Rules and Regulations of the Association,and to establish the rate of interest to be assessed for all sums which may be payable to the Association. (I) To obtain and keep in force such insurance as the Board may from time to time deem appropriate including,but not limited to,casualty and liability,worker's compensation,errors and omissions coverage for officers,directors and members of the Association and the Architectural Control committee and agents and other acting on behalf of and for the benefit of the Association,and such other insurance that the Board may deem appropriate. (I) Subject to the other provisions of this Declaration,to exercise all powers and right granted to the Association by the provisions of any applicable law. -13- • • (K) To take such other action or to incur such other obligations whether or not herein expressly • specified as shall be reasonably necessary to perform the Association's obligations hereunder. (L) To adopt Bylaws for the Association,and to amend or repeal or otherwise modify such Bylaws from time to time;provided,that during the period of Declarant Control no bylaws or amendments or repeal thereof shall be adopted or effective unless first approved by Declarant. 4.04 Number and Election of Board Members, Declarant Control. The initial Board of Directors shall consist of one (1) or more persons appointed by the Declarant, each of who shall serve at the pleasure of the Declarant or until his or her successor(s) is appointed by the Declarant. The Declarant shall, for a period of time hereafter provided, retain the right to appoint and remove the members of the Board of Directors and the officers of the Association and the members of the Architectural Control Committee and to fill any vacancy occurring in any such position and to make amendments to this Declaration(Declarant Control"). 4.04.1 Period of Declarant Control. The period of Declarant Control shall continue until no Lot in the Property is owned by Declarant or any successor to Declarant(other than a purchaser)to whom the right to exercise Declarant Control has been assigned and dwellings have been built upon each Lot and occupied. Declarant may at any time voluntarily surrender the right to appoint and remove the members of the Board of Directors,or the Officers of the Association,or the Architectural Control Committee and may do so by written instrument. In the event of such early voluntary surrender, the Declarant may require that specified events, conditions, or action of the Board, the Officers, and the Architectural Control Committee, occur and/or be approved by Declarant before they become effective. 4.04.2 Termination of Declarant Control. Unless otherwise provided in the Bylaws,upon termination of the period of Declarant Control with respect to the Board or Officers of the Association, the Owners shall elect a Board of Directors of at least three (3)members initially, and the Board Members so elected shall elect the Officers of the Association. The Board members and Officers, unless otherwise required by applicable law shall take office upon election. Thereafter, the number, term and qualifications of the Directors and Officers shall be provided in the Bylaws. Upon termination of the period of Declarant Control with respect to the Architectural Control committee, the board shall establish the number of members of such Committee and appoint such members. • 4.05 Meeting of the Association and Officers. Meetings of the Association shall be held at least once each year. Special meetings of the Association may be called by the President,by a majority of the Board,or by Owners having fifty percent(50%)of the votes in the Association. Not less than ten (10) nor more that thirty(30) days in advance of any meeting,the Secretary or other Officer specified in the Bylaws shall cause notice to be hand delivered or sent prepaid by the United States Mail to the mailing address of each Lot or to any other mailing address designated in writhing by the Lot Owner. The notice of any meeting shall state the time and place of the meeting and the times on the agenda. The number and type of Officers,and the provisions for regular and special meeting of the Association not inconsistent with the foregoing shall be as provided from time to time by the Bylaws and the Articles of Incorporation of the association. 4.06 Quorum. Unless the Bylaws provide otherwise, a quorum is deemed present throughout any meeting of the Association if persons entitled to cast fifty percent (50%) of the votes which may be cast for election of the Board are present, in person or by proxy, at the beginning of the meeting. Unless the Bylaws specify a larger percentage,a quorum is deemed present throughout any meeting of the Board if persons entitled to cast fifty percent (50%)of the votes on that Board are present at the beginning of the meeting. 4.07 Coordination with Bylaws and Rules and Regulations. Except as may be otherwise provided herein for action of the Board regarding interest upon unpaid assessments, the provision of the Declaration provide the minimum substantive terms for the enforcement of this Declaration by the Board and the Architectural Control Committee. Further and additional provisions for the operation of the Board and the Architectural Control committee may in the future be set forth by the Bylaws of the Association, and by appropriate resolutions or rules and regulations adopted by the Board or the Architectural Control committee which supplement and further the intent and purposes of the Declaration. In the event any conflict occurs between the provisions of this Declaration and such Bylaws or resolutions, then this Declaration shall control and to the extent possible, the confliction Bylaws, resolutions or rules and regulations shall be construed to be effective where it promotes the interest of the provisions of this Declaration and invalid where in derogation of these Declarations. • -14- • • 4.08 Transfer. The membership held by an Owner shall not be transferred, pledged or alienated in any • way, except upon the sale of the Owner's Lot, and then only to the purchaser of such Lot. A prohibited transfer is void and will not be reflected upon the books and records of the Association. 4.09 Delegation of Use. The Board may from time to time establish rules and regulations regarding the delegation by an Owner of rights of use and enjoyment of the Common Elements to such Owner's guest, tenants or purchasers. 4.10 Notices. Notices of matters affecting the Property may be given to Owners by the Association,or by other Owners, by personal delivery or by mailing with postage prepaid to the mailing address of each Lot,or to any other mailing address designated by the Owner in writing.Notice will be deemed given when delivered in person,or when placed in the United States mail with sufficient postage prepaid. ARTICLE V MAINTENANCE,BUDGET AND ASSESSMENTS 5.01 Maintenance of Common Elements. The Association shall be responsible for the maintenance of the Common elements until and unless such maintenance obligation is assumed by the County of Weld, or by any other governmental or quasi-governmental body. The Association shall have the rights elsewhere provided to take corrective actions as appropriate if any Lot Owner fails to maintain the surface of the easements on the Owner's Lot, or causes or allows interference with the intended purposes of such easements or the common Elements. 5.02 Allocation of Common Expenses to Lots. The expenses of functions imposed on the Association pursuant to this Declaration, together with the expenses of administration and operation of the Association and its Boards and Committees and the Architectural Control committee (including any appropriate indemnity to members and agents of the foregoing),and such other items of expense as contained in the budgets adopted by the Association, shall be assessed against the Lots owned by Purchasers as set forth in paragraph 5.02.1 below, subject however,to the limitation on assessments set forth in paragraph 5.05 below. Each Owner who is a Purchaser,by the acceptance • of a conveyance of a Lot shall be personally obligated to pay such assessments. An Owner who is a purchaser shall be responsible for payment of the full share of any assessments for a Lot whether or not the Lot has improvements. The Declarant shall not be assessed or liable for assessment for common expenses until the Lot is conveyed to a Purchaser. The liability of any Lot and its Owner for such common expense assessments shall first commence on the date that fee title to a Lot is conveyed to the Owner. 5.02.1 Allocation of Specific Expenses. The Board shall adopt a budget which categorizes the various expected expenses into the following categories: (I) "General Administrative Expenses" such as insurance, office expenses,legal and accounting fees; (II)"Roadway Expenses"for maintenance of the road. 5.02.2 Assessments. The Common Expense allocation and the specific expense allocation shall be combined and assessed uniformly against all Lots that have been transferred to a purchaser. The assessment will be equal on each lot. 5.03 Establishments of Expense Budget. The Board shall establish periodic budgets for the Association. Appropriate notice of such budget and meetings concerning such budget shall be provided to the Owners. The amount of each budget shall be assessed against the Lots as provided in the paragraph above entitled"Allocation of Common Expenses to Lots", and shall be payable in semi-annual or annual payments. In the event a Lot is transferred between assessment periods the amount due will be pro-rated. Should the Board fail to adopt a budget for any budget period, the periodic budget last adopted shall be continued until such time as the Board adopts a subsequent budget. Without in any way limiting the nature and type of expenses upon which the budget may be based, the budget may include anticipated expenses for reasonable contingency reserve and working capital and sinking funds, legal and other professional expenses, premiums for casualty and liability insurance for the Common elements and for fidelity and for errors and omission or other insurance protection designed to provide defense and insurance coverage to the Board members, members of the Architectural Control Committee, Officers, agents, and employees of the Association in connection with any matters arising from Association or Architectural Control Committee business and the performance by such persons of their duties or related to their status as Board members, Officers,employees or agents of the Association or Architectural control committee. • -15- 5.04 Default Reserve Fund. Upon the conveyance of a Lot,other than by Declarant to a Dealer,the board • may require the Purchaser or transferee of the Lot to deposit with the Association as a reserve fund an amount equal to one-third (1/3)of the annual assessment established by the Board for the year in which the transfer occurs. If,at any time,an Owner is in default in the payment of any assessments due to the Association,the Association shall have the right to use said reserve, or as much thereof as may be necessary, to pay any delinquent amount owed to the Association and to reimburse the Association for any expenses incurred by the Association in collecting delinquent assessments from the Owner. In such event, the Owner shall, upon written demand of the Association, promptly remit to the Association a sufficient amount of cash to restore the reserve to its original amount. In the event the reserve account is not used,to make delinquent payments,then is shall be refunded to the Owner upon the sale of the Owner's Lot without interest. The Association shall have the right to comingle the reserve account with other funds of the Association and shall have no obligation to retain the reserve funds in a separate account or pay interest on the reserve funds. The reserve account shall not be deemed to be liquidated damages, and if claims of the Association against an Owner exceed the reserve account, the Owner shall remain liable for the payment of the balance of such claims to the Association. 5.05 Limitation on Assessments. In no event shall the annual average common expense liability allocated to any Lot in the Property,exclusive of optional user fees and any insurance premium paid by the Association,exceed the maximum amount allowable by then applicable Colorado law for exception of the Property and the Association from the general application of the provisions of the Colorado Common Interests Ownership Act. The current Maximum Annual Assessment is$400.00 per Lot,pursuant to Section 38-33.3-116 C.P.S. , and such amount may be periodically adjusted without requiring general application of the Colorado Common Interest Ownership Act. In no event shall the Board adopt any budget which will result in assessment of more than the said then permissible Maximum Annual Assessment. This limitation shall not affect,and does not include deposits for the Default Reserve Fund provided for above,or any special assessments assessed against a Lot as a result of default by an Owner of the Owner's obligations under this Declaration. 5.06 Special Assessments.Acceleration of Payments on Default. In addition to the common expenses to be assessed against each Lot, the Board may, from time to time, levy and collect special assessments to remedy any default by an Owner or the Owner's obligations under this Declaration. Such costs and expenses for an Owner's default may be assessed against such Owner with establishments of any supplemental budget, and may be collected • from such Owner in the same manner as provided in the paragraph entitled"Creation of Lien and Foreclosure",and "Owner's Obligation for Payment of Assessments"below. Any charges imposed for late payment,attorney fees and costs, and fines shall be deemed to be assessments against the Owner's Lot and recoverable and subject to the same rights and remedies available to the Association for all other assessments. In addition to all other penalties, fines, costs, fees,expenses,and charges which may be assessed, if an Owner is in default of payment of assessments as due, the Officers of the Association may elect to accelerate and call due and payable in full all installment payments of assessments to be paid by such defaulting Owner, for the budget period for which the default exists. Such assessments are not subject to the limitation contained in the paragraph above entitled"Limitation on Assessments" and are not a part of the common expense liability of each lot. But are special and in addition to such common expense liability. 5.07 Account and Surplus Funds. All funds collected by the Association shall be promptly deposited into a commercial bank account and/or a savings and loan account in an institution to be selected by the Board. No withdrawal shall be made from said account except to pay the obligations of the Association. The Board shall maintain complete and accurate books and records of its income and expenses in accordance with generally accepted accounting principles consistently applied and shall file such tax returns and other reports as shall be required by any government entity. The books and records shall be kept at the office of the Association and shall be open for inspection by any Owner or by the holder of any first deed of trust or mortgage of record at any time during normal business hours following reasonable advance notice of the request for inspection. In no event shall surplus funds be distributed to Owners. If surplus funds remain after payment of the Association's expenses the same shall, at the Board's discretion, be used for the next fiscal year operations, or for prepayment of future expenses or applied to sinking funds and reserves. 5.08 Creation of Lien and Foreclosure. The common Expenses Assessment, together with any special assessment or other penalty, cost or charges which an Owner is obligated to pay("assessments"), shall be a debt of such Owner to the Association on the date when each installment thereof becomes due. In the event of the default of any Owner in the payment of any installment of assessments, such amount,any accelerated payments called due,and • 16- • • any subsequently accruing unpaid assessments,together with interest thereon at the rate of twelve percent(12%)per • annum,or such other rate as may hereafter from time to time be established by the Board,and together with all costs which may be incurred by the Association in the collection of such amount,together with reasonable attorneys' fees shall be and become a lien on the interest of the defaulting Owner in his Lot. The Association may, but is not required to, execute and record in the Weld county Recorder's Office a Notice of Assessment Default setting forth the name of the defaulting Owner as indicated by association records, the amount of the delinquency and the fact that additional delinquencies my accrue and increase such amount, and the legal description of the Lot or Lots affected. The lack of recording any such notice shall not in anyway affect the priority,validity and enforceability of the lien in favor of the Association or it rights with respect thereto. Such lien shall attach and be effective from the due date of the assessment, and may be enforced by foreclosure by the Association of the defaulting Owner's interest in the Property. The lien provided herein shall be in favor of the Association for the benefit of all Owners who are Association members. In any such foreclosure, the defaulting Owner shall be required to pay the costs and expenses of such proceedings, the costs and expenses for filing notice or claim of lien, and all reasonable attorneys' fees in connection with such foreclosure. The lien shall include, and the defaulting Owner shall also be required to pay to the Association, the assessments for the Lot whose payment comes due during the period of foreclosure, and the Association shall be entitled to a receiver to collect the assessments so coming due. The Association,on behalf of the member Owners, shall have the power to bid on the Lot at foreclosure sale and acquire, hold, lease, mortgage, and sell the same. Such lien provided herein shall have the same priority, date of attachment, period of time for enforcement and other aspects as set forth in Section 38-33.3-316, C.R.S. as amended regarding liens arising under the Colorado Common Interest Ownership Act. Reference to such Act, and reference to the aforesaid statue do not constitute an election to make applicable the provisions of the Colorado Common Interest Ownership Act, and it is hereby specifically stated that application of the Colorado Common Interest Ownership Act is specifically rejected. Reference is made to Section 38-33.3-316, C.R.S. as amended solely for the purpose of clarity in describing the lien in favor of the Association. The Association may, but is not required to send a notice of default to an Owner, and a copy of such notice may, but is not required to be mailed to the holder of any deed of trust or mortgage of record constituting a lien on such Lot. The lack of provision of such notice shall not in anyway affect the priority, validity and enforceability of the lien or obligation of the Owner, or the Association's right with respect thereto. Upon the payment of the amounts due, if the Association recorded a Notice of Assessment Default,the Association shall cause to be recorded a certificate setting forth the satisfaction of such lien, the cost of preparation and recording of which shall be paid by the Owner. The remedies of the Association for recovery by foreclosure of its lien rights, and by • action against the persons personally liable for payment or for any other remedy available by law or in equity are cumulative and independent of each other. Pursuit of one does not waive or restrict pursuit of another remedy,and such remedies may be undertaken by the Association in any sequence and without the necessity for joinder of any claims or remedies. The lien of the Association shall not expire for the greater of six(6)years,or such longer period as may be provided by any applicable statue, from the last date upon which the full amount of assessments become due and if proceedings to enforce the lien are instituted with such period of time, the lien shall continue until completion of such proceedings. The lien in favor of the Association provided herein is not subject to any claim for homestead exemption or any other exemption, right to elective share, allowances or other provisions of testate or intestacy laws providing preferential treatment or exemptions, and each Lot Owner and that Lot Owner's spouse, heirs, successors, representatives and assigns by acceptance by the Lot Owner of ownership of a Lot hereby waives with respect to the lien of the Association all claims for such exemptions of preferential treatment otherwise provided by state or federal laws. 5.09 Owner's Obligation for Payment of Assessments. The amounts assessed by the Association against each Lot and any interest,costs,and attorney fees in connection with default in payment thereof,shall be the personal and individual debt of the Owner thereof at the time the assessment is made. Each person, if more than (1), composing the Owner shall be jointly and severally liable therefore. Suit to recover a money judgment for unpaid expenses shall be maintainable without foreclosing or waiving the lien securing the same. No Owner may be exempted from liability for assessments by a waiver of the use or enjoyment of the Common Elements or by abandonment of the Lot against which the assessment is made. 5.10 Statement of Assessment Status. upon payment to the association of a reasonable fee, as may from time to time be established by the Board, accompanied by the written request of the Owner or any mortgagee or prospective Owner of a Lot, the Association shall issue a written statement setting forth the amount of the unpaid assessments and any other charges outstanding with respect to the subject Lot, and the date when the same became due. Such statement shall also include credit for any advanced payments of assessments,but no credit shall be given for any accumulated amounts for reserves or sinking funds,if any. The statement issued by the Association shall be • -17- • • binding upon the Association and its officers and each Owner in favor of persons who rely thereon in good faith. The • manner and time for providing such statements shall be as provided by the terms of the bylaws of the Association,as from time to time amended. 5.11 Liability Upon Transfer. Any Owner who sells a Lot in good faith for value shall be relieved of the obligation for payment of assessments thereafter attributable to the Lot, as of the date of the recordation of the deed transferring such Lot to the subsequent purchaser. The Owner transferring,and the purchaser of the transferred Lot, shall be jointly liable for payment of all assessments and any related interest, costs and attorney fees attributable to the Lot accrued from the date of execution of the deed through the date of such r cwrdation,and the lien for recovery of the same shall remain in force against such Lot. ARTICLE VI GENERAL PROVISIONS 6.01 Term. Subject to amendments hereafter duly made,this Declaration as set forth in the Declaration are to run with the land and shall be binding on all parties and all persons claiming under them for a period of twenty- five (25) years from the date it is recorded after which time said Declaration shall be automatically extended for successive periods of ten(10)years unless an instrument signed by sixty-seven percent(67%)of the then Owners of the Lots has been recorded agreeing to terminate this Declaration. 6.02 Amendments 6.02.1 Amendments by Declarant. Notwithstanding any other provision,until such time as one-half of the Lots in the property are owned by purchasers, Declarant(or Declarant's Successor)alone, and without the necessity of consent by anyone else, shall have the right to amend this Declaration from time to time for any purpose which Declarant deems appropriate. Such amendments shall bind all the Lots in the Property,but shall not be effective with respect to any person not having actual knowledge thereof until such time as notice of such amendment is filed for record in the Office of the Weld County Clerk and Recorder. • 6.02.2 Amendments by Owners, Consent of Declarant. The Owners of Lots holding sixty-seven percent (67%) of the votes which may be cast for matters upon which Owners may vote for Association matters, may at any time modify,amend,augment,or delete any of the provisions of this Declaration provided however that: (A) While the Declarant,or any successor to Declarant(other than a purchaser),to whom the right to consent to amendment has been assigned by Declarant, owns any Lot no amendment may be made unless the Declarant(or Declarant's Successor)has consented in writing thereto. (B) No amendment shall be effective with respect to any person not having actual knowledge thereof, until such time as notice of such amendment is filed for record in the Office of the Weld county Clerk and Recorder. (C) No amendments may be adopted which would be inconsistent with any condition or covenants imposed as a condition of approval of the platting and subdivision of the Property. (D) The Association may not be voluntarily dissolved without prior permission of the county of Weld. (E) Any of the following amendments to be effective must be approved in writing by the record holders of all encumbrances on the lots at the time of such amendment: 1) Any amendment which affects or purports to affect the validity or priority of any encumbrance; or 2) Any amendment which would necessitate a mortgagee after it has acquired a lot to pay any portion of any unpaid assessment or assessments accruing prior to foreclosure,to the extent the amounts would exceed the priority of such assessment over that now provided by this Declaration. -1g_ • 6.03 Addition of Other Land, and Additional Rights of Declarant. In addition to any other rights of • Declarant, during the period of Declarant Control described in this Declaration, the Declarant shall have the following rights: 6.03.1 Addition and Withdrawal of Real Estate. The right to add additional real estate to the property and to withdraw real estate for the property. Such addition or withdrawal shall be accomplished by recording a supplement to this Declaration. 6.03.2 Addition of Common Elements. The right to add or create Common elements in the property. 6.03.3 Completion of Improvements. The right to complete improvements indicated on the Plat. 6.03.4 Construction Easements. The right to use easements through the common Elements for the purpose of making improvements with the property or within real estate which may be added to the property. 6.03.5 Merger. The right to merge or consolidate the property and the Association with another Common Interest Community of the same form of ownership;and to make the property and the Association subject to a master Association. 6.03.6 Dedications. The right to establish, from time to time,by dedication or otherwise,utility and other easements over,across,and upon the Common Elements. 6.03.7 Use Agreements. The right to enter into, establish execute, amend, and otherwise deal with contracts and agreements for the use,lease,repair,maintenance,or regulation of Common Elements for the benefit of the Lot Owners and/or the Association. 6.03.8 Other Rights. The right to exercise any other right created in or reserved to Declarant by any other provision of this Declaration. 6.03.9 Rights Transferable. Any right created or reserved under this Declaration for the benefit of the • Declarant may be transferred to any person by an instrument describing the right transferred and recorded in Weld County,Colorado. Such instrument shall be executed by the Declarant and the Transferee. 6.04 Mortgagee Protection Clause. No breach of the covenants or restrictions herein contained, shall defeat or render invalid the lien of any mortgage or deed of trust made in good faith for the value,except as provided herein with regard to priority of liens in favor of the Association, but all of said covenants and restrictions, together with any amount for assessments, shall be binding upon any Owner whose title is derived through foreclosure or through trustee sale or through deed given in lieu thereof. 6.05 Enforcement. The provisions of this Declaration may be enforced in proceedings brought by any Owner or by the Board of Directors of the Association or the Architectural Control Committee; provided that enforcement of liens and recovery of assessments shall be by the Board of Directors of the Association. In addition to the provisions for the lien foreclosure and the recovery against Owners for assessments, enforcement may be by proceedings at Law or in equity against any person or persons violating or attempting to violate any provisions of this Declaration either to restrain violation, or to recover damages, or both. All remedies provided are cumulative, and pursuit of one shall not bar pursuit of any other,independently,or jointly,and in any sequence. 6.06 Severability. Invalidation of any clause,sentence,phrase,or provision of this Declaration by judgment or court order shall not affect the validity of any other provisions of this Declaration which shall remain in full force and effect. 6.07 Non-application of Colorado Common Interest Ownership Act.This Declaration limits assessments,as set forth in the paragraph entitled "Limitation on Assessments", as not to exceed the maximum amount allowable from time to time by applicable Colorado law for exception of the Property and the Association from a general application of the provisions Colorado Common Interest Ownership Act. Declarant elects that only the mandatory Sections 38-33.3-105,38-33.3-106,and 38-33.3-107 C.R.S.of the Colorado Common Interest Ownership Act shall be applicable. • -19- • • 6.08 Enforcement by Governmental Entity. In the event that the Association or any Successor to the • Association fails to maintain the Common Elements in reasonably good order and condition,the County of Weld(the "County"), may serve written notice upon such organization or upon the residents of the Property setting forth the manner in which the organization has failed to maintain the Common Elements in reasonable condition, and said notice shall include a demand that such deficiencies of maintenance be cured with thirty(30) days thereof and shall state the date and place of a hearing thereon which shall be held within fourteen (14) days of the Notice. At such hearing the County may modify the terms of the original notice as to deficiencies and may be given an extension of time within which they shall be cured. If the deficiencies set forth in the original notice or in the modifications thereof are not cured within said thirty(30)days or any extension thereof,the county,in order to preserve the taxable values of the properties with the Property and to prevent the Common Elements from becoming a public nuisance, may enter upon said Common Elements and maintain the same for a period of one (1) year. Said entry and maintenance shall not vest in the public any right to use the Common Elements except when the same is voluntarily dedicated to the public by the Owners. Before the Expiration of said year, the County shall, upon its initiative or upon the written request of the organization theretofore responsible for the maintenance of the Common Elements, call a public hearing upon notice to such organization,or to the residents of the Property shall show cause why such maintenance by the County shall not, at the election of the county, continue for a succeeding year. If the Board designated by the County determines that such organizations are ready and able to maintain said Common Elements in reasonable condition, the County shall cease to maintain said Common Elements at the end of said year. If the Board designated by the County determines that such organizations are not ready and able to maintain said Common Elements in a reasonable condition, the County may, in its discretion, continue to maintain said Common Elements during the next succeeding year and,subject to a similar hearing and determination,in each year thereafter. 6.08.1 The cost of such maintenance by the county shall be paid by the Owners of the Lots within the Property that have a right of enjoyment of the Common Elements, and any unpaid assessments shall be a tax lien on said Properties. The county shall file a notice of such lien in the Office of the County clerk and Recorder upon the Properties affected by such lien within the Property and shall certify such unpaid assessments to the Board of the County Commissioner and the County Treasurer for collection, enforcement, and remittance in the manner provided by law for the collection,enforcement,and remittance of general property taxes. 6.09 Conveyance or encumbrance of Common Elements Conveyance or encumbrance of any Common • Element shall require the consent of the Owners of sixty-seven(67%)of the Lots in the Property. • -20- • • • IN WITNESS WHEREOF, this Declaration has been executed by the Declarant who is the Owner of all lands in the Property. who signature and identification of Ownership interest is set forth below. DATED this day of 20 DECLARANT; Mackey Enterprises,a Colorado Corporation By: Bryon Mackey, President • STATE OF COLORADO ) )ss. COUNTY OF WELD) The foregoing instrument was acknowledged before me this day of . 20 by Bryon Mackey as President of Mackey Enterprises a Colorado Corporation. WITNESS my hand and official seal. My commission expires: Notary Public • Hello