The URL can be used to link to this page

Browse Search

Home My WebLink About20053734.tiff HID 1 1111 11111 11111 111111 111111 1111 111111111 3340526 11/16/2005 02:15P Weld County, CO 1 of 34 R 171.00 D 0.00 Steve Moreno Clerk & Recorder DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR OWL CREEK ESTATES (A Common Interest Community) THIS DECLARATION OF COVENANTS,CONDITIONS,AND RESTRICTIONS(the "Declaration") is made on the date hereinafter set forth by Olando Ltd. Liability Co., a Colorado limited liability company, hereinafter referred to as "Declarant." WITNESSETH: WHEREAS, Declarant is the owner of a parcel of land located in the County of Weld, State of Colorado, as described on Exhibit A attached hereto. WHEREAS, this Declaration is executed pursuant to and in furtherance of a common and general plan: (I) to protect and enhance the quality, value, desirability, and attractiveness of all property that may be subject to this Declaration; (ii) to provide for an Association as a vehicle to perform certain functions for the benefit of Owners of Property which may become subject to this Declaration; (ill) to define duties, powers, and rights of the Association; and (iv)to define certain duties, powers, and rights of Owners of Property subject to this Declaration with respect to the Association and with respect to the functions undertaken by the Association. NOW, THEREFORE, Declarant for itself, its successors and assigns, hereby declares that all property herein or hereafter made subject to this Declaration, in the manner hereinafter provided, and each part thereof shall,from the date the same becomes subject to this Declaration, be owned, held, transferred, conveyed, sold, leased, rented, hypothecated, encumbered, used, occupied, maintained, altered, and improved subject to the covenants, conditions, restrictions, limitations, reservations, exceptions, equitable servitudes, and other provisions set forth in this Declaration for the duration thereof: all of which shall run with the title to such property and be binding upon all parties having any right, title, or interest in said property or any part thereof and upon their heirs, personal representatives, successors, and assigns and shall inure to the benefit of each party having any such right, title, or interest in said property or any part thereof. ARTICLE I - DEFINITIONS The following words when used in this Declaration or any Supplemental Declaration, the Articles of Incorporation or any Amendments thereto, and the Bylaws or any Amendments thereto, shall have the following meanings: I. PURPORTEIS „ 1 0260$-- 7,3y 7_02/- a©/O AL �5vA 11111111111111111111111111111111111111 III 1111111111111 3340526 11/16/2005 02:15P Weld County, CO 2 of 34 R 171.00 I) 0.00 Steve Moreno Clerk& Recorder Section 1. Act shall mean and refer to the Colorado Common Interest Ownership Act Colorado Revised Statutes, §38-33.3-301, et. seq., as presently enacted or subsequently amended. Any reference in the Association Documents to the Act or a section of the Act shall refer to the Act as presently enacted or subsequently amended. Section 2. Agency shall mean any agency or corporation that purchases or insures residential mortgages. Section 3. Architectural Design Standards shall mean design standards adopted by the Architectural Review Committee from time to time that govern the quality of workmanship, color of materials, harmony of external design with existing structures, and location with respect to topography and finish grade elevation and the master drainage plan and all other appearances of buildings and structures in the Project. The Minimum Architectural Design Standards are set forth in Exhibit "B" attached hereto. Section 4. Articles shall mean the Articles of Incorporation for Owl Creek Estates Homeowners Association, Inc., a Colorado nonprofit corporation, and any amendments that may be made to those Articles from time to time. Section 5. Annual Assessment shall mean the Assessment levied pursuant to an annual budget. Section 6. Assessments shall mean the Annual, Special, and Default Assessments levied pursuant to the terms of this Declaration. Assessments are also referred to as a Common Expense liability as defined under the Act. Section 7. Association shall mean Owl Creek Estates Homeowners Association, Inc., a Colorado nonprofit corporation, and its successors and assigns. Section 8. Association Documents shall mean this Declaration and any Supplemental Declaration, the Articles of Incorporation, the Bylaws, the Plat and any procedures, rules, regulations, Architectural. Design Standards, or policies adopted under such documents by the Association. Section 9. Builder shall mean any person who acquires from Declarant one or more Lots for the purpose of constructing thereon a building and. selling such building, together with the Lot upon which it is situated to any member of the general public. Section 10. Bylaws shall mean the Bylaws adopted by the Association, as amended from time to time. Section 11. Clerk and Recorder shall mean the office of the Clerk and Recorder in the County of Weld, State of Colorado. Section 12. Common Elements shall mean all real and personal property, , now 2 1111111 11111 11111 11111111111 3340526 11/16/2005 02:15P Weld County, CO 3 of 34 R 171.00 D 0.00 Steve Moreno Clerk& Recorder or hereafter owned by the Association for the common use and enjoyment of the Owners. Common Elements shall also mean and refer to any and all personal property and Improvements owned or leased by the Association and shall include, by way of example but without limitation, any exterior signage which identifies the subdivision, the bus stop, exterior lighting, irrigation systems (including ditches and culverts), recreation equipment, and any other personal property owned by the Association. The Common Elements are to be devoted to the common use and enjoyment of the Owners (subject to the provisions hereof) and are not dedicated for use by the general public except as indicated on the subdivision Plat and the real estate records of the Clerk and Recorder of Weld County, Colorado. Common Elements shall be owned by the Association. In no event shall the Common Elements fail to be transferred to the Association on a date which is not later than sixty, (60) days after the completion of the transfer of all Lots from the Declarant or the Declarant's successors and assigns to third party purchasers. Each Owner and his or her guests may use the appurtenant Common Elements in accordance with the purpose for which they are intended,without hindering or encroaching upon the lawful rights of any of the other Owners. The Executive Board may adopt Rules and Regulations governing the use of the Common Elements, but such Rules and Regulations shall be uniform and nondiscriminatory. Each Owner, by the acceptance of his or. her deed or other instrument of conveyance or assignment and such Owner's guests agree to be bound by any such adopted Rules and Regulations. Section 13. Common Expenses shall mean: (I) all expenses. expressly declared to be common expenses by this Declaration or by the Bylaws of the Association; (ii) all other expenses of administering, servicing, conserving, managing, maintaining, repairing, or replacing the Common Elements_(ill) insurance premiums for the insurance required or permitted under this Declaration; and (iv)all expenses lawfully determined to be Common Expenses by the Executive Board. Common Expenses benefitting fewer than all the Units may, in the discretion of the Executive Board, be assessed exclusively against those Units benefitted. Section 14. Declaration shall mean this Declaration and the Plat and amendments and supplements to the foregoing. Section 15. Executive Board shall mean the governing body of the Association. Section 16. First Mortgage shall mean any Mortgage that is not subject to any monetary lien or encumbrance except liens for taxes or other liens that are given priority by statute. 3 1111111 11111 11111 Ell 111111111111 111111 III IIIII It DI 3340526 11/16/2005 02:15P Weld County, CO 4 of 34 R 171.00 0 0.00 Steve Moreno Clerk & Recorder Section 17. First Mortgagee shall mean any person named as a Mortgagee or beneficiary in any First Mortgage, or any successor to the interest of any such person under such First Mortgage. Section 18. Improvements shall mean and refer to all improvements now or hereafter. constructed including, without limitation, all buildings, exterior lighting, signs, benches, walks, landscaping, fencing, irrigation systems (including ditches and culverts), and parking areas within the Project. Section 19. Lot shall mean and refer to any numbered area of land designated for separate ownership or occupancy as shown on the recorded Plat. Lot shall also mean a "Unit"as defined in C.R.S. §38-33.3-103 as originally enacted or subsequently amended. Lot shall not include any Common Elements including outlots. Section 20. Manager shall mean a person or entity engaged by the Association to perform certain duties, powers, or functions of the Association, as the Executive Board may authorize from time to time. Section 21. Member shall mean and refer to every person or entity that holds membership in the Association by virtue of the ownership of a Unit. Section 22. Mortgage shall mean any mortgage, deed of trust or other document pledging any Residential Unit or interest therein as security for payment of a debt or obligation. Section 23. Mortgagee shall mean any person named as a mortgagee or beneficiary in any Mortgage, or any successor to the interest of any such person under such Mortgage. Section 24. Notice shall mean and refer to: (I)written notice hand delivered or sent by prepaid United States mail to the mailing address of a Unit or to any other mailing address designated in writing by the Unit Owner or to the last known address of the intended recipient, or(ii) notice through an Association publication which is hand delivered or sent by prepaid United States mail to the Units; or(ill) notice delivered by electronic mail or facsimile to an Owner at the electronic mail address or facsimile number designated by the Owner. Section 25. Owner shall mean any person, corporation, partnership, association, contract seller, or other legal entity or any combination thereof, including Declarant, who owns the record fee simple interest in a portion of one or more Lots. The term Owner shall include any grantee, transferee, heir, successor, personal representative, executor, administrator, devisee, and assign of any Owner but shall not refer to any Mortgagee as herein defined or other person or entity having. an ownership interest in any portion of a Lot merely as security for the performance of an obligation, unless such Mortgagee has acquired title pursuant to foreclosure or any proceeding in lieu of foreclosure. 4 11111 11111 IIII 111111 IIIN 111111 III 11111 IIII IIII 3340526 11/16/2005 02:15P Weld County, CO 5 of 34 R 171.00 D 0.00 Steve Moreno Clerk& Recorder Section 26. Parcel shall mean each platted, numbered, and recorded division of vacant land as depicted on the Plat. Section 27. Plat shall mean that part of this Declaration that is a land survey Plat recorded in the real estate records of Weld County, Colorado, depicting any portion of the Property subject to this Declaration. Section 28. Project shall mean the common interest community created by this Declaration and as shown on the Plat. Section 29. Property shall mean the real property described in Exhibit A. Section 30. Related User shall mean any member of the family of an Owner who resides with such Owner, guests and invitees of an Owner, employees and agents of an Owner, and occupants, tenants, and contract purchasers residing in a Unit. Section 31. Rules and Regulations shall mean those rules and regulations as may be adopted by the Board of Directors for the management, preservation, safety, control and orderly operation of the Project and governing the use of the Common Elements provided, however, that such Rules and Regulations shall be uniform and nondiscriminatory. Copies of all such Rules and Regulations shall be furnished to Owners prior to the time that they become effective. Section 32. Single Family shall mean an individual living alone, or any number of persons living together as a single household who are interrelated by blood, marriage, adoption or other legal custodial relationship; or not more than two(2) unrelated adults and any number of persons related to those unrelated adults by blood, adoption, guardianship or legal custodial relationship. Section 33. Successor Declarant shall mean any person or entity to whom Declarant assigns any or all of its rights, obligations, or interest as Declarant, as evidenced by an assignment or deed of record executed by both Declarant and the transferee or assignee and recorded with the Clerk and Recorder. Section 34. Supplemental Declaration shall mean an instrument which amends this Declaration. Section 35. Supplemental Plat shall mean a supplemental plat of the Project which depicts any change in the Project through a Supplemental Declaration. Section 36. Undefined Terms. Each term not otherwise defined in this Declaration, including the Plat, shall have the same meaning specified or used in the Act. 5 HUMID!! III IIII 111111111111 VII III 11111 IIII VIII 3340526 11/16/2005 02:15P Weld County, CO 6 of 34 R 171.00 D 0.00 Steve Moreno Clerk & Recorder Section 37. Unit shall mean a physical portion of the common interest community which is designated for separate ownership or occupancy as shown on the recorded Plat. Unit shall not include any Common Elements including outlots. ARTICLE II - NAME, PROPERTY SUBJECT TO THIS DECLARATION AND ALLOCATION OF INTERESTS Section 1. Name. The name of the Project is Owl Creek Estates.The Project is a planned community pursuant to the Act. Section 2. Existing Property. The real property which is and shall be held, transferred, sold, conveyed, and occupied subject to this Declaration is located in Weld County, Colorado, and is more particularly described on Exhibit A. Section 3. Expansion Property. The real property which is and shall be held, transferred, sold, conveyed, and occupied subject to this Declaration may not be expanded. Section 4. Maximum Number of Units. The maximum number of units is nine (9). Section 5. Identification of Units. The identification number of each Unit is shown on the Plat. Section 6. Allocation of Interests. The Common Expense liability and voting in the Association are allocated to each Unit as follows: a. The percentage of liability for Common Expenses shall be determined by using a formula in which the numerator is one (1) and the denominator is the total number of Units subject to this original Declaration, or subject to this Declaration from time to time; and b. There shall be one (1) vote per Unit. 6 111111 IIIII DI 111111 IMIII III 11111 IIII IIII 3340526 11/16/2005 02:15P Weld County, CO 7 of 34 R 171.00 D 0.00 Steve Moreno Clerk & Recorder ARTICLE III - MEMBERSHIP AND VOTING RIGHTS; ASSOCIATION STRUCTURE AND OPERATIONS Section 1. Association Name. The name of the Association shall be Owl Creek Estates Homeowners Association, Inc. Every Owner of a Unit shall be a Member of the Association. Membership shall be appurtenant to and may not be separated from ownership of a Unit. Section 2. Transfer of Membership. An Owner shall not transfer, pledge, or alienate their membership in the Association in any way, except upon the sale or encumbrance of their Unit and then only to the purchaser or Mortgagee of their Unit. The Association shall not create a right of first refusal on any Unit and Owners may transfer ownership of their Units tree from any such right. Section 3. Membership. The Association shall have one class of membership consisting of all Owners, including the Declarant so long as Declarant continues to own an interest in a Unit. Except as otherwise provided for in the Association Documents, each Member shall be entitled to vote in Association matters as set forth in this Declaration and the Bylaws. Each Owner, including Declarant while Declarant owns any Unit, is subject to all the rights and duties assigned to Owners under the Association Documents. Section 4. Voting. There shall be one vote per Unit. Section 5. Declarant Control. Declarant shall be entitled to appoint and remove the members of the Association's Executive Board and officers of the Association during the period of Declarant Control. Declarant may voluntarily relinquish such power by recording a notice executed by Declarant with the Clerk and Recorder but, in such event, Declarant may at its option require that specified actions of the Association or the Executive Board as described in the recorded notice, during the period Declarant would otherwise be entitled to appoint and remove directors and officers, be approved by Declarant before they become effective. Section 6. Books and Records. The Association shall make available for inspection, upon request, during normal business hours or under other reasonable circumstances, to Owners and to Mortgagees, current copies of the Association Documents and the books, records, and financial statements of the Association prepared pursuant to the Bylaws. The Association may charge a reasonable fee for copying such materials. Section 7. Manager. The Association may employ or contract for the services of a Manager to whom the Executive Board may delegate certain powers,functions, or duties of the Association, as provided in the Bylaws of the Association. The Manager shall not have the authority to make expenditures except upon prior approval and direction by the Executive Board. 7 HID 1111111111 IIII 111111111111 All III EE IIII IIII 3340526 11/16/2005 02:15P Weld County, CO 8 of 34 R 171.00 D 0.00 Steve Moreno Clerk & Recorder Section 8. Cooperation with Other Associations. The Association shall have the right and authority at any time, from time to time, to enter into agreements and otherwise cooperate with other homeowner association( s) and/or any district(s), to share the costs and/or responsibility for any maintenance, repair, replacement or other matters, to perform maintenance, repair or replacement for any person(s) in consideration of payment or reimbursement therefor, to utilize the same contractors, subcontractors, managers or others who may perform services for the Association, any other homeowner association(s) and/or any district(s), Of to otherwise cooperate with any other homeowner association(s) and/or any district(s) in order to increase consistency or coordination, reduce costs, or as may otherwise be deemed appropriate or beneficial by the Executive Board in its discretion from time to time. The costs and expenses for all such matters, if any, shall be shared or apportioned between the Association and/or any other homeowner association(s) and/or any district(s), as the Executive Board may determine in its discretion from time to time. Additionally, the Association shall have the right and authority at any time, from time to time, to enter into agreements and otherwise cooperate with any other homeowner association(s) and/or any district(s) to collect assessments, other charges or other amounts which may be due to such entity and to permit any such entity to collect assessments, other charges or other amounts which may be due to the Association; in any such instance, the Association shall provide for remittance to such entity of any amounts collected by the Association or to the Association of any amounts collected by such entity. Section 9. Rights of Action. The Association on behalf of itself and any aggrieved Owner, shall be granted a right of action against any and all Owners for failure to comply with the provisions of the Association Documents, or with decisions of the Executive Board made pursuant to authority granted to the Association in the Association Documents. In any action covered by this section,the Association or any Owner shall have the right, but not the obligation, to enforce the Association Documents by any proceeding at law or in equity, or as set forth in the Association Documents, or by mediation or binding arbitration if the parties so agree. The prevailing party in any arbitration or judicial relief shall be entitled to reimbursement from the non-prevailing party or parties, for all reasonable costs and expenses, including attorney fees in connection with such arbitration or judicial relief. Failure by the Association or by any Owner to enforce compliance with any provision of the Association Documents shall not be deemed a waiver of the right to enforce any provision thereafter. Section 10. Implied Rights and Obligations. The Association may exercise any right or privilege expressly granted to the Association in the Association Documents, by the Act, and by the Colorado Revised Nonprofit Corporation Act. 8 AEI 111111111! ECHO 111111111111III111111111E 3340526 11/16/2005 02:15P Weld County, CO 9 of 34 R 171.00 D 0.00 Steve Moreno Clerk& Recorder ARTICLE IV - POWERS OF THE EXECUTIVE BOARD Section 1. Powers. Except as provided in the Bylaws and the Act, the Executive Board may act in all instances on behalf of the Association, to: a. Adopt and amend bylaws and rules and regulations and Architectural Design Standards; . b. Adopt and amend budgets for revenues, expenditures and reserves, and collect Assessments; c. Hire and terminate managing agents and other employees, agents, and independent contractors; . d. Institute, defend, or intervene in litigation or administrative proceedings in its own name on behalf of itself or two or more Owners on matters affecting the Project; e. Make contracts and incur liabilities; f. Regulate the use, maintenance, repair, replacement, and modification' of Common Elements, if any; g. Cause additional Improvements to be made as a part of the Common Elements, if any; h. Acquire, hold, encumber, and convey in the name of the Association any right, title, or interest to real or personal property, except that Common Elements, if any, may be conveyed or subjected to a security interest only if Members entitled to cast at least eighty percent (80%) of the votes agree to that action and if all Owners of Units to which any Limited Common Element as defined in the Act("Limited Common Element"), is allocated agree to convey that Limited Common Element or subject it to a security interest; Grant easements, leases, licenses, and concessions through or over the Common Elements, if any; j. Impose and receive any(payments, fees or charges for the use, rental, or operation of the Common Elements, if any; k. Impose charges for late payment of Assessments, recover 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 opportunity to be heard, levy reasonable fines for violations of the Association Documents; I. Impose reasonable charges for the preparation and recordation of 9 11111111111111111IIII111111111111 IOU III 11EIIIIiii 3340526 11/16/2005 02:15P Weld County, CO 10 of 34 R 171.00 D 0.00 Steve Moreno Clerk& Recorder amendments to the Declaration or statements of unpaid Assessments; m. Provide for the indemnification of its officers and Executive Board and maintain directors' and officers' liability insurance; n. Assign its right to future income, including the right to receive Assessments; o. Exercise any other powers conferred by the Declaration or Association Bylaws; p. Exercise all other powers that may be exercised in this state by legal entities of the same type as the Association; q. Delegate powers to a master association as provided in C.R.S. §38- 33.3-220. If powers are delegated to a master association, the executive board of the master association must be elected pursuant to C.R.S. §38-33.3-220. r. Merge or consolidate the project with another common interest community of the same form of ownership. s. Exercise any other powers necessary and proper for the governance and operation of the Association. ARTICLE V - MECHANICS' LIENS Section 1. No Liability. If any Owner shall cause any material to be furnished to their Unit or any labor to be performed therein or thereon, no Owner of any other Unit shall under any circumstances be liable for the .payment of any expense incurred or for the value of any work done or material furnished. All such work shall be at the expense of the Owner causing it to be done, and such Owner shall be solely responsible to contractors, laborers, materialmen, and other persons furnishing labor or materials to their Unit. Section 2. Indemnification. If, because of any act or omission of any Owner, any mechanic's or other lien or order for the payment of money shall be filed against the Common Elements, if any, or the Association (whether or not such lien or order is valid or enforceable as such), the Owner whose act or omission forms the basis for such lien or order shall at his own cost and expense cause the same to be canceled and discharged of record or bonded by a surety company reasonably acceptable to the Association, or to such other Owner or Owners, within twenty (20) days after the date of filing thereof: and further shall indemnify and hold all the other Owners and the Association harmless from and against any and all costs, expenses, claims, losses, or damages including, without limitation, reasonable attorney fees resulting therefrom. Section 3. Association Action. Labor performed or materials furnished for the 10 110111 11111 11111 I I I 111111111111 111111II1111111 I I 11111 3340526 11/16/2005 02:1512 Weld County, CO 11 of 34 R 171.00 D 0.00 Steve Moreno Clerk& Recorder Common Elements, if any, if duly authorized by the Association in accordance with this Declaration or its Bylaws, shall be the basis for the filing of a lien pursuant to law against the Common Elements, if any. Any such lien shall be limited to the Common Elements, if any, and no lien may be effected against an individual Unit or Units. ARTICLE VI - EASEMENTS Section 1. Recorded Easements. The Property shall be subject to all easements as shown on any Plat, those of record, those provided in the Act(including easements for encroachment set forth in Section 214 of the Act and an easement for maintenance of any such encroachment), and otherwise as set forth in this Article. Section 2. Utility Easements. There is hereby created an easement as denoted on the Plat for ingress and egress, installation, replacing, repairing and maintaining all utilities, including, but not limited to water, sewer, gas, telephone, cable TV, electricity, drainage, and fences. Said easement includes future utility services not presently available to the Units which reasonably may be required in the future. By virtue of this easement, it shall be expressly permissible for the companies providing utilities to erect and maintain the necessary equipment within such easement on any of the Units. Section 3. Reservation of Easements, Exceptions and Exclusions. The Association is hereby granted the right to establish from time to time, by Declaration or otherwise, utility and other easements, permits, or licenses over the Common Elements, if any, for the best interest of all the Owners and the Association. Each Owner is hereby granted a perpetual non-exclusive right of ingress to and egress from the Owner's Unit over and across the Common Elements, if any, and Limited Common Elements, if any, appurtenant to that Owner's Unit,which right shall be appurtenant to the Owner's Unit, and which right shall be subject to limited and reasonable restriction on the use of Common Elements, if any, set forth in writing by the Association. Section 4. Use of Easement Area. Within reserved easements, as shown on recorded Plats, or herein reserved, there shall be no structure, tree or shrub planting, or any other material installation which may damage or interfere with the installation or maintenance of utilities such as plumbed gas or water lines, wired electrical, cable television, or telephone utility lines. A Unit Owner shall not alter, inhibit, or change the direction of water flow in drainage channels established in said easements or in any way that discharges drainage onto adjacent Units. The easement area of each Unit and all Improvements in it, including fences, shall be maintained continuously in good repair by the Owner of said Unit, except for those Improvements for which a public utility shall be responsible. It shall be the responsibility of the Unit Owner to notify with due speed the appropriate public utility of any known flaws, defects, or damage to any utility improvements on said Owners Unit. Section 5. Emergency Access Easement. A general easement is hereby granted to all police, sheriff, fire protection, ambulance, and other similar emergency 11 HIM! IIIIIE 111111111111DIIEIII111111IIII • 3340526 11/16/2005 02:15P Weld County, CO 12 of 34 R 171.00 0 0.00 Steve Moreno Clerk & Recorder agencies or persons to enter upon the Property in the proper performance of their duties. ARTICLE VII - MAINTENANCE Section 1. Maintenance by Owners. Each Owner shall maintain and keep in repair his Unit, landscaping, grasses, and plants, fencing and any structures or buildings thereon, including the fixtures thereof to the extent current repair shall be necessary in order to avoid damaging other Units and to maintain a good appearance for the Project. Section 2. Maintenance by Association (except as set forth in Article VII, Section 1). The Association shall be responsible for the maintenance and repair of the Common Elements as shown on the Plat, including any drainage structures or facilities and any fences. constructed by Declarant and such maintenance and repair shall be the Common Expense of all Owners. This maintenance of the Common Elements shall include, but shall not be limited to, upkeep, repair and replacement of all landscaping, walls, fences, gates, signage, irrigation systems, private streets, and Improvements located in the Common Elements. The Association may, but shall not be obligated to, remove snow from the private street when the Association determines the amount of snow justifies the cost of removal. In the event the Association does not maintain or repair the Common Elements, Declarant shall have the right, but not the obligation, to do so at the expense of the Association. Section 3. Association Maintenance as Common Expense. The cost of maintenance and repair by the Association shall be a Common Expense of all of the Owners, to be shared by each Owner equally. If maintenance is necessitated by damage caused by the negligence, misuse, or tortuous act of an Owner or Owner's agent, then the person or Owner causing the damage shall be responsible for the repair and expense. ARTICLE VIII - INSURANCE Section 1. General/Insurance Provisions. The Association shall acquire and pay for, out of the Assessments levied in accordance with this Declaration, any insurance policies required by the Act and such other insurance as the Executive Board may, within its discretion, determine desirable for the protection of the Common Elements, if any. Such insurance required by this Article or the Act shall conform to the requirements set forth in C.R.S.§38-33.3-313(4)(a)-(d) which are as follows: a. Each Unit Owner is an insured person under the policy with respect to liability arising out of such Unit Owner's interest in the Common Elements or membership in the Association. . b. The insurer waives its rights to subrogation under the policy against any Unit Owner or member of his household. c. No actor omission by any Unit Owner, unless acting within the scope 12 1111111 11111 11111 IIII 111111111111 111 III 111111 III IIII 3340526 11/16/2005 02:15P Weld County, CO 13 of 34 R 171.00 D 0.00 Steve Moreno Clerk& Recorder of such Unit Owner's authority on behalf of the Association, will void the policy or be a condition to recovery under the policy. d. If, at. the time of a loss under the policy, there is other insurance in the name of a Unit Owner covering the same risk covered by the policy, the: Association's policy provides primary insurance. Section 2. Property and Commercial General Liability Insurance. Commencing not later than the time of the first conveyance of a Lot to a person other than Declarant, the Association shall maintain, to the extent reasonably available: a. Insurance on Common Elements. Property insurance on the Common Elements and also on property that must become Common Elements for broad form covered causes of loss, except that the total amount of insurance must be not less than the full insurable replacement cost of the insured property less applicable deductibles at the time the insurance is purchased and at each renewal date, exclusive of land, excavations, foundations, and other items normally excluded from property policies. b. Commercial General Liability Insurance. Commercial general liability insurance in a minimum amount of one million dollars ($1,000,000) or otherwise larger amount deemed sufficient in the judgment of the Executive Board against claims and liabilities arising in connection with the ownership, existence, use, or management of the Common Elements, insuring the Executive Board,the Association,the management agent, and their respective employees, agents, and all persons acting as agents. The Declarant shall be included as an additional insured in such Declarant's capacity as the Unit Owner and board member. The Unit Owners shall be included as additional insureds but only for claims and liabilities arising in connection with the ownership, existence, use, or management of the Common Elements. The insurance shall cover claims of one or more insured parties against other insured parties. Section 3. Fidelity Insurance. Fidelity insurance or fidelity bonds may be maintained by the Association to protect against dishonest acts on the part of its officers, directors, trustees, independent contractors, employees, and on the part of all others, including any Manager hired by the Association, who. handle or are responsible for handling the funds belonging to or administered by the Association. In addition, if responsibility for handling funds is delegated to a Manager, such insurance must be obtained by or for the Manager and its officers, employees, and agents, as applicable. Such fidelity insurance or bond shall name the Association as insured and shall contain waivers of all defenses based upon the exclusion of persons serving without compensation from the definition of"employees"or similar terms or expressions. Such fidelity bonds shall be a minimum of an amount equal to three (3) months Assessments plus replacement reserves. Section 4. Workers' Compensation Insurance. The Executive Board shall obtain workers' compensation or similar insurance with respect to its employees, if 13 MID 1111111111 Ell 111111111111 111111 III 111111 III IIII 3340526 11/16/2005 02:15P Weld County, CO 14 of 34 R 171.00 D 0.00 Steve Moreno Clerk& Recorder applicable, in the amounts and forms as may now or hereafter be required by law. Section 5. Notice. If any insurance required by this Article is not reasonably available, or if any policy of such insurance is canceled or not renewed without a replacement policy therefore having been obtained, the Association promptly shall cause notice of that fact to be hand delivered or sent prepaid by United States mail to all Unit Owners. Section 6. Common Expenses. Premiums for insurance that the Association acquires and other expenses connected with acquiring such insurance are Common Expenses. Section 7. Other. An insurance policy issued to the Association does not obviate the need for Owners to obtain insurance for their own benefit. ARTICLE IX -ASSESSMENTS Section 1. Obligation. Each Owner, including Declarant while an Owner of any Unit, is obligated to pay to the Association: (I) the Annual Assessments; (ii) Special Assessments; and (iii) Default Assessments. Section 2. Budget. Within ninety (90) days after the adoption of any proposed budget for the Common Interest Community, the Executive Board shall mail, by ordinary first-class mail, or otherwise deliver a summary of the budget to all Owners and shall set a date for a meeting of the Owners to consider the budget. Such meeting shall occur within a reasonable time after mailing or other delivery of the summary, or as allowed for in the Bylaws. The Executive Board shall give notice to the Owners of the meeting as allowed for in the Bylaws. The budget proposed by the Executive Board does not require approval from the Owners and it will be deemed approved by the Owners in the absence of a veto at the noticed meeting by a majority of all Owners, whether or not a quorum is present. In the event that the proposed budget is vetoed, the periodic budget last proposed by the Executive Board and not vetoed by the Owners must be continued until a subsequent budget proposed by the Executive Board is not vetoed by the Owners. Section 3. Annual Assessments. Annual Assessments made for Common Expenses shall be based upon the estimated cash requirements as the Executive Board shall from time to time determine to be paid by all of the Owners. Estimated Common Expenses shall include, but shall not be limited to, the cost of routine maintenance and operation of the Common Elements, if any. expenses of management and insurance premiums for insurance coverage as deemed desirable or necessary by the Association, landscaping of the Property, care of grounds within the Common Elements, if any, routine repairs. replacements and renovations within and of the Common Elements, if any,wages, common water and utility charges for the Common Elements. if any. legal and accounting fees. management fees, expenses and liabilities incurred by the Association. under or by reason of this Declaration, payment of any default remaining from a previous Assessment 14 1111111 11111 11111 IIII 111111111111 111111 III 111111 III IIII 3340526 11/16/2005 02:15P Weld County, CO 15 of 34 R 171.00 D 0.00 Steve Moreno Clerk & Recorder • period, and the creation of a reasonable and adequate contingency or other reserve or surplus fund for insurance deductibles and general. routine maintenance. repairs and replacement of Improvements within the Common Elements. if any. on a periodic basis, as needed. Annual Assessments shall be payable in monthly. installments or on such other dates as the Executive Board determines.. The. omission or failure of the . Association to fix the Annual Assessments for any Assessment period shall not be deemed a waiver, modification, or release of the Owners from their obligation to pay the same. The Association shall have the right. but not the obligation; to make prorated refunds of any Annual Assessments in excess of the actual expenses incurred in any fiscal year. Section 4 Apportionment of Annual Assessments. The Common Expenses shall be allocated among the Lots on the basis of the allocated interest for Common Expenses in effect on the date of Assessment. provided however that the Association reserves the right to allocate all expenses related to fewer than all of the Lots to the Owners of those affected Lots only. Notwithstanding the foregoing, the amount of Annual Assessment against Lots on which a certificate of occupancy has not been issued may be set at a lower rate than the rate of Annual Assessment against those Lots on which a certificate of occupancy has been issued pursuant to C.R.S. §38-33.3-315(3)(b), as amended, since such Lots do not receive certain benefits including the same services as other Lots. The lower rate of Assessment against such Lots shall be determined by the Board based upon the costs and expenses of the services actually provided to such Lots. Section 5. Special Assessments. In addition to the Annual Assessments. the Association may levy in any fiscal year one or more Special Assessments, payable over such a period as the Association may determine, for the purpose of defraying, in whole or in part, the cost of any construction or reconstruction, unexpected repair or replacement of Improvements within the Common Elements, if any, or for any other expense incurred or to be incurred as provided in this Declaration. This Section shall not be construed as an independent source of authority for the Association to incur expense, but shall be construed to prescribe the manner of assessing expenses authorized by other sections of this Declaration. Any amounts assessed pursuant to this Section shall be assessed to Owners according to their allocated interests for Common Expenses, subject to the right of the Association to assess only against the Owners of affected Units any extraordinary maintenance, repair or restoration work on fewer than all of the Units which shall be borne by the Owners of those affected Units only, and any extraordinary insurance costs incurred as a result of the value of a particular Owner's Unit or the actions of a particular Owner(or his agents, servants, guests, tenants or invitees) shall be borne by that Owner. Notice in writing of the amount of such Special Assessments and the time for payment of the Special Assessments shall be given promptly to the Owners, and no payment shall be due less than ten (10) days after such notice shall have been given. Section 6. Default Assessments.All monetary fines assessed against an Owner pursuant to the Association Documents, or any expense of the Association which is the 15 1111111 11111 11111 Ell 111111111111 IIIIL III 111111 III IIII 3340526 11/16/2005 02:15P Weld County, CO 16 of 34 R 171.00 D 0.00 Steve Moreno Clerk & Recorder obligation of an Owner or which is incurred by the Association on behalf of the Owner pursuant to the Association Documents, shall be a Default Assessment and shall become a lien against such Owner's Unit which may be foreclosed or otherwise collected as provided in this Declaration. Notice of the amount and due date of such Default Assessment shall be sent to the Owner subject to such Assessment at least ten (10) days prior to the due date. Section 7. Effect of Nonpayment; Assessment Lien. Any Assessment installment, whether pertaining to any Annual, Special, or Default Assessment,which is not paid on or before its due date shall be delinquent. If an Assessment installment becomes delinquent, the Association, in its sole discretion, may take any or all of the following actions: a. Assess a late charge for each delinquency in such amount as the Association deems appropriate; b. Assess an interest charge from the due date at the yearly rate of eighteen percent (18%), or such other lawful rate as the Executive Board may establish; c. Suspend the voting rights of the Owner during any period of delinquency; d. Suspend the rights of the Owner, and the Owner's family, guests, lessees, and invitees, to use Common Element facilities during any period of delinquency; e. Accelerate all remaining Assessment installments so that unpaid Assessments for the remainder of the fiscal year shall be due and payable at once; f. Bring an action at law against any Owner personally obligated to pay the delinquent Assessments; and g. Proceed with foreclosure as set forth in more detail below. Assessments chargeable to any Unit shall constitute a lien on such Unit. The Association may institute foreclosure proceedings against the defaulting Owner's Unit in the manner for foreclosing a mortgage on real property under the laws of the State of Colorado. In the event of any such foreclosure, the Owner shall be liable for the amount of unpaid Assessments, any penalties and interest thereon, the cost and expenses of such proceedings, the cost and expenses for filing the notice of the claim and lien, and all reasonable attorney fees incurred in connection with the enforcement of the lien. The Association shall have the power to bid on a Unit at foreclosure sale and to acquire and hold, lease, mortgage, and convey the same. Liens for Assessments and their priority shall be as provided in C.R.S. §38-33.3-316. Section 8. Personal Obligation. Each Assessment against a Unit is the personal 16 1111111 11111 11111 IIII 111111111111 111111 III IIIIII III IIII 3340526 11/16/2005 02:15P Weld County, CO 17 of 34 R 171.00 D 0.00 Steve Moreno Clerk& Recorder obligation of the Owner of the Unit at the time the Assessment became due. Any Owner shall be liable for the unpaid assessments, penalties and interest thereon and all costs of collection, including reasonable attorneys' fees. No Owner may exempt himself from liability for the Assessment by abandonment of his Unit or by waiver of the use or enjoyment of all or any part of the Common Elements, if any. Suit to recover a money judgment for unpaid Assessments, any penalties and interest thereon, the cost and expenses of such proceedings, and all reasonable attorney fees in connection therewith shall be maintainable without foreclosing or waiving the Assessment lien provided in this Declaration. Section 9. Payment by Mortgagee.Any Mortgagee holding a lien on a Unit may pay any unpaid Assessment payable with respect to such Unit, together with any and all costs and expenses incurred with respect to the lien, and upon such payment that Mortgagee shall have a lien on the Unit for the amounts paid with the same priority as the lien of the Mortgage. Section 10. Statement of Status of Assessment Payment. Upon payment of a reasonable fee set from time to time by the Executive Board, the Association shall furnish to a Unit Owner or such Unit Owner's designee or to a holder of a security interest or its designee upon written request, delivered personally or by certified mail, first-class postage prepaid, return receipt, to the Association's registered agent or Manager, a written statement setting forth the amount of unpaid Assessments currently levied against such Owner's Unit. The statement shall be furnished within fourteen (14) calendar days after receipt of the request and is binding on the Association, the Executive Board, and every Unit Owner. If no statement is furnished to the Unit Owner or holder of a security interest or his or her designee, delivered personally or by certified mail, first-class postage prepaid, return receipt requested, to the inquiring party, then the Association shall have no right to assert a lien upon the Unit for Unpaid Assessments which were due as of the date of the request. Section 11. Maintenance of Accounts;Accounting. If the Association delegates powers of the Executive Board or its officers relating to collection, deposit, transfer, or disbursement of Association funds to other persons or to a Manager, then such other persons or Manager must: (I) maintain all funds and accounts of the Association separate from the funds and accounts of other associations managed by the other person or Manager; (ii) maintain all reserve and working capital accounts of the Association separate from the operational accounts of the Association, and (ill) provide to the Association an annual accounting and financial statement of Association funds prepared by the Manager, a public accountant, or a certified public accountant. ARTICLE X - RESERVED SPECIAL DECLARANT RIGHTS Section 1. Special Declarant Rights. Declarant reserves the Special Declarant Rights as defined from time to time in the Act, including without limitation, the right or combination of rights as follows: 17 11111111111111 IIII 111111111111111111 III 111111 III IIII 3340526 11/16/2005 02:15P Weld County, CO 18 of 34 R 171.00 D 0.00 Steve Moreno Clerk 8 Recorder a. To complete any Improvements indicated on the Plat; b. To maintain sales offices, management offices, model homes, and signs advertising the common interest community; . c. To use easements through the Common Elements and Lots for the purpose of making Improvements within the common interest community; d. To appoint or remove any officer of the Association or any Executive Board member during any period of Declarant control. Section 2. Construction. Declarant's Easement. Declarant reserves the right to perform warranty work, repairs and construction in Units and Common Elements, to store materials in secure areas, and to control and have the right of access to work and make repairs until completion. All work may be performed by Declarant without the consent or approval of the Executive Board. Declarant has an easement through the Common Elements as may be reasonably necessary for the purpose of discharging Declarant's obligations or exercising Special Declarant Rights, whether arising under the Act or reserved in this Declaration. This easement includes the right to convey access, utility, and drainage easements to a governmental entity. 18 1111111111111111 �� 11111111111MIIIIII111111IIIIIII 3340526 11/16/2005 02:15P Weld County, CO 19 of 34 R 171.00 D 0.00 Steve Moreno Clerk & Recorder Section 3. Declarant's Property. Declarant reserves the right to remove and retain all its property used in the sales, management, construction, and maintenance of the property, whether or not they have become fixtures. Section 4. Limitations on Special Declarant Rights. Unless terminated earlier by a document executed by Declarant and recorded in the real estate records of Weld County, Colorado, any reserved Development Rights and Special Declarant Rights may be exercised by Declarant, as long as Declarant: ( a) is obligated under any warranty or obligation; (b) holds a Development Right to create additional Units or Common Elements; ( c) owns any Unit; (d) owns any security interest in any Unit; or (e) ten (10) years have elapsed after recording of this Declaration in the real estate records of Weld County, Colorado. Earlier termination of certain rights may occur in accordance with the Act. Section 5. Interference With Special Declarant Rights. While the Declarant is entitled to exercise its Special Declarant Rights, neither the Association nor any Unit Owner may take any action or adopt any rule that will interfere with or diminish any Special Declarant Right without the prior written consent of Declarant and any entity to whom Special Declarant Rights have been assigned. Section 6. Rights Transferable. Any Special Declarant rights or other Declarant rights created or reserved under this Declaration may be transferred by an instrument evidencing the transfer recorded in Weld County, Colorado. Such instrument shall be executed by the transferor, Declarant, and the transferee. ARTICLE XI -ARCHITECTURAL REVIEW AND OTHER RESTRICTIONS Section 1. Association Power. The Association shall have the right and power to prohibit any activities deemed unsafe, unsightly, unreasonably noisy or otherwise offensive to the senses and perceptible to another Unit or the Common Elements, if any, by promulgating Rules and Regulations which restrict or prohibit such activities. Section 2. Review. No buildings, structures or other Improvements including fences and landscaping shall be constructed, modified or altered unless first approved in writing by the Architectural Review Committee. The Architectural Review Committee shall exercise reasonable judgment to the end that all buildings, structures, modifications, alterations, or additions to the Units conform to and harmonize with existing surroundings and structures. The Architectural Review Committee has the absolute right to deny any requested buildings, structures, modifications, alterations, or additions which the Architectural Review Committee reasonably determines do not conform to and harmonize with existing surroundings and structures. 19 I Hill 11111 11111 I I I 1111111111111 DUI III 1111111111111 3340526 11/16/2005 02:15P Weld County, CO 20 of 34 R 171.00 D 0.00 Steve Moreno Clerk & Recorder Section 3. Membership of Architectural Review Committee. The Architectural Review Committee shall consist of two (2) members, all of whom shall be appointed by Declarant. Declarant shall have the continuing right to appoint all two (2) members during the Appointment Period (as hereafter defined). The Association shall have the right to appoint such members after the end of the Appointment Period. The"Appointment Period" shall mean the period of time commencing as of the date of recordation of this Declaration and continuing until the earliest to occur of the following events: (a) when all Units in the Project have been conveyed to persons other than Declarant and certificates of occupancy have been issued for the residences constructed thereon; (b)ten (10)years after the date this Declaration is recorded; or(c)when, in its discretion, Declarant voluntarily relinquishes such right. During the Appointment Period, Declarant shall not be obligated to appoint members to the Architectural Review Committee. In such event, Declarant or Declarant's designated representative shall exercise all rights and obligations of the Architectural Review Committee as. set forth in this Article. Members of the Architectural Review Committee may but shall not necessarily be members of the Association. Members of the Architectural Review Committee to be appointed by the Association shall be appointed by the Executive Board. Members of the Architectural Review Committee appointed by the Executive Board may be removed at anytime by the Board, and shall serve for such term as may be designated by the Executive Board, or until resignation or removal by the Board. During the Appointment Period, Declarant shall give the Association written notice of the appointment or removal of any member of the Architectural Review Committee. After the Appointment Period, the Association may at any time and from time to time change the authorized number of members of the Architectural Review Committee, but the number of members of the Architectural Review Committee shall not be less than two(2). A majority of the Architectural Review Committee shall constitute a quorum of the Committee, and a majority of. Committee members present at any meeting where a quorum is present shall be required for Committee action. Notice of all Architectural Review Committee meetings shall be furnished to each member of the Committee. Section 4. Plan Review Procedure. Prior to commencement of any onsite work, the Owner or such Owner's designated representative (hereinafter referred to as "Applicant") must obtain the written approval of the Architectural Review Committee. a. Plan Submittal. The Applicant must submit to the Architectural Review Committee the following minimum items (in addition to other items which the Architectural Review Committee deems necessary or advisable for it to act under the circumstances): (I) Site plan; (ii) Complete construction plans; (iii) Specifications, including color schemes and material samples for the building, addition or alteration; and (iv) Payment in full of all anticipated costs as set forth below. b. Plan Approval. Upon receipt by the Architectural Review Committee of all items set forth above, the Architectural Review Committee shall thereafter have thirty 20 111111111111111111111111111111111111111III 111111I Ell 3340526 11/16/2005 02:15P Weld County, CO 21 of 34 R 171.00 0 0.00 Steve Moreno Clerk& Recorder (30) days to furnish Applicant with written notice of approval or rejection of the plans as submitted. If rejected, the Architectural Review Committee shall furnish a written explanation of the basis for its rejection and shall, if practical, furnish suggested modifications which would render the plans acceptable, subject to resubmission for review and approval upon completion of any such modifications. The Architectural Review Committee may condition its approval upon certain modifications being made to the plans, in which event such plans shall be deemed approved only upon submission to the Architectural Committee of one (1) complete set of all revised plans fully incorporated and reflecting all such required modifications. c. Failure to Respond. If for any reason the Architectural Review Committee has not responded to the Applicant in writing within the thirty(30)day period as provided above, the Applicant shall notify the Architectural Review Committee of such failure in writing by certified mail, return receipt requested. Thereafter, unless the Architectural Review Committee furnishes written notice of approval or rejection as required above within fifteen (15) days following receipt of said notice from the Applicant, the plans as submitted shall be deemed approved. In the event the Architectural Review Committee has notified Applicant of the necessity of submitting additional documentation, the thirty(30)day and fifteen (15)day periods set forth above shall not begin until Applicant has submitted all required documentation. Section 5. Notice of Completion. Upon completion of the construction, modification or alteration of any Improvements, the Applicant shall furnish written notice to the Architectural Review Committee of same. Thereafter, the Architectural Review Committee or its designee shall have the right to inspect the Improvements to assure compliance with the approved plans and the Applicant shall cooperate with the Architectural Review Committee or its designee to arrange the inspection. If the Applicant fails or refuses to permit such inspection, or if upon inspection it is determined that such Improvements do not comply with the approved plans,the Architectural Review Committee may furnish Applicant with written notice of noncompliance and exercise all remedies permitted herein, at law or in equity. Section 6. Remedies Upon Noncompliance. If at any time the Architectural Review Committee determines an Owner or Applicant is not in compliance with the Architectural Design Standards or approved plans, including without limitation the failure to submit plans for approval prior to commencing any onsite work, the Architectural Review Committee shall furnish notice of noncompliance to the Owner. Upon such notice, the Owner shall immediately cease all work other than is required to bring the Improvements into compliance. If the Owner fails to immediately cease all such work, or fails to bring the Improvements into such compliance within a reasonable period of time not exceeding thirty (30)days, the Architectural Review Committee and the Association shall have all rights and remedies available pursuant to this Declaration, at law or in equity. Such rights and remedies include but are not limited to the following: a. Injunctive Relief. The Architectural Review Committee and the 21 1111111 11111 11111 I I I 1111111111111111111111 1111111111111 3340526 11/16/2005 02:15P Weld County, CO 22 of 34 R 171.00 D 0.00 Steve Moreno Clerk & Recorder Association may seek appropriate injunctive relief in order to compel the Owner to cease all work and bring the Improvements into compliance or authorize the Architectural Review Committee or the Association to undertake all steps and actions, on the Owner's behalf and expense. Said expense shall be a personal obligation of the Owner and a charge and lien against said Owner's Unit as with Assessments as provided herein. b. Damages, Costs, and Attorney Fees. The Architectural Review Committee and the Association may recover from the Owner all damages, costs, and attorney fees suffered or incurred in connection with the existence or remedy of any Improvements found by a court of competent jurisdiction to be in noncompliance with this Declaration, the Architectural Design Standards or approved plans, as applicable. Said damages, costs, and attorney fees shall be a personal obligation of the Owner and a charge and lien against said Owner's Lot as with Assessments as provided herein. Section 7. Authority to Hire, Assess Costs, and Raise Funds. The Architectural Review Committee has the authority to hire or retain such professionals or other persons as it deems necessary for the purposes described herein. The Architectural Review Committee shall also have the power to require the Owner submitting matters to it for approval to pay reasonably necessary costs of the submission prior to their review and as a necessary condition thereof Any excess funds shall be returned, but the submitting Owner shall remain liable to pay any additional expense( s) if prepayment is insufficient. Section 8. Records. The Architectural Review Committee shall maintain written records of all applications submitted to it and all actions taken thereon. Section 9. Restrictions on Use. Use and enjoyment of each Unit shall be subject to the following restrictions and such additional restrictions as are adopted by the Owners holding not less than seventy-five percent (75%) of the votes possible to be cast under this Declaration: a. Land Use. No Unit or portion thereof shall be used for any purpose other than a Single Family residence. No group housing or board and care homes shall be permitted. b. No Further Subdivision. No Unit or any building shall be further subdivided or separated into smaller units by any Owner, and no portion less than all of any such Unit or building or any easement or other interest therein shall be conveyed or transferred by an Owner, provided that this shall not prohibit deeds of correction, deeds to resolve boundary line disputes, and similar corrective instruments. c. Nuisances. No noxious or offensive activity shall be carried on upon any Unit, nor shall any thing be done thereon which may become an annoyance to the neighborhood. No annoying light, sound, or odor shall be emitted from any Unit onto any other Unit(s) which can be considered offensive or intrusive to other Unit Owners or 22 1 111111 1 1111 11111 I I I 11111 111 111 111111II11111111111111 3340526 11/16/2005 02:15P Weld County, CO 23 of 34 R 171.00 0 0.00 Steve Moreno Clerk & Recorder occupants. d. Temporary Structures. No structures of a temporary character such as trailers, mobile homes, tents, shacks, garages, barns or other outbuildings shall be used on any Unit at any time as a residence either temporarily or permanently. e. Accessory Buildings. No accessory buildings, storage barns, or sheds shall be constructed or moved onto any Unit without written consent of the Architectural Review Committee. Said structures shall not be prohibited so long as full consideration is given to architectural integration of materials, colors, and placement on the property. f. Animals, Livestock and Poultry. Animal units will be in compliance with Weld County Code (E) Estate Zoning District. Animals shall be kept or maintained on any Lot of the subdivision and such animal units shall be maintained in a humane manner. All raising of livestock of any nature provided herein must be incidental to the normal residential land use of the property and not to be commercial in nature. Any animal pens, stalls, cages and enclosures shall be maintained on a regular basis. No overgrazing of pasture shall be allowed. Reference "A Manual for Success for Small Acreages" developed and produced by Colorado State University Cooperative Extension Service, Table 6, of the Grazing Management Section. If pasture becomes overgrazed, the Architectural Review Committee has the authority to mandate that owners maintain livestock in a in a confined area on the property. If owners do not have a facility for such confinement, the Architectural Review Committee has the authority to remove the livestock to a confined area and maintain livestock, at the owners expense. g. Garbage and Refuse Disposal. No Unit shall be used or maintained as a dumping ground for rubbish, trash, or garbage. Trash, garbage, or other waste shall not be kept except in sanitary and secure containers. All containers shall be kept in a clean and sanitary condition and shall not be kept in public view except during the scheduled day of pick up. h. Storage of Materials. Storage of materials shall be done in accordance with the following provisions: (i) No occupant or Owner of any Unit shall store or permit to be stored or to accumulate, upon any Unit, any debris, any piles of manure, piles of dirt, machinery or equipment or any part thereof, old or rusted pieces of metal, rubber or any type of junk, or other miscellaneous items unless concealed from public and neighbor views within an enclosed structure. (ii) Storage of building materials is permitted only to facilitate continuous building projects in progress. Unit Owners shall supervise and assure secure storage of all building materials during construction to prevent damage to other structures or littering throughout neighborhood as a result of heavy winds. 23 . 11111 11111 11111 IIII 111111111111 11111 III 1111111111111 3340526 11/16/2005 02:15P Weld County, CO 24 of 34 R 171.00 D 0.00 Steve Moreno Clerk& Recorder Motor Vehicles, Recreational Vehicles, Disabled Vehicles, Vehicle Storage and Repair. No more than two of the following may be parked on a Lot except in an enclosed building: motor vehicles, motor cycles, motor homes, campers, trailers, recreational vehicles, tractors and equipment. All of the above must be operable and, if applicable, properly licensed. Except as set forth above nothing else shall be parked or stored on a Lot except in and enclosed building unless specifically permitted by Rules and Regulations adopted by the Association. No motor vehicles, motor cycles, motor homes, campers, trailers, recreational vehicles, tractors, and equipment shall be stored or parked for more than 72 hours on any street within the Project. Nothing contained herein shall prevent the Owner or Owners of any Lot from storing any of said vehicles in a garage on their Lot. The restrictions set forth above shall not restrict the parking of trucks or other commercial vehicles for a reasonable time upon a Lot,which vehicles are necessary for the construction of a building on said Lot. j. Maintenance and Repair of Landscaping and Improvements: All landscaping plans must be submitted to the Architectural Review Committee prior to installation. Landscaping must be completed within eighteen (18) months of receiving the Certificate of Occupancy. Maintenance and repair of landscaping and Improvements shall be subject to the following provisions: (i) Each Owner shall provide prudent and regular exterior maintenance upon each Unit including painting, repairs and/or replacement of roofs, gutters, downspouts, exterior building surfaces, trees, shrubs, grass and other landscaping, fences, walks, driveways and other surfaces, and all other exterior Improvements to maintain the value of said property. Owners shall comply with mandatory landscaping requirements as set forth in the Architectural Design Standards adopted by and available from the Architectural Review Committee. (ii) Failure to maintain: In the event an Owner of any Unit in the Project shall fail to maintain the premises and the Improvements thereon as provided herein, the Association or the Architectural Review Committee, after Notice to the Owner and a reasonable opportunity for the Owner to perform all necessary work:, may undertake such work on behalf of and at the Owner's expense. Any such expense shall be reimbursed to the Association or Architectural Review Committee within thirty(30)days of the furnishing of Notice to such Owner that such reimbursement is owed, together with costs of collection thereof: attorney fees, and interest thereon. Said obligation shall be a personal obligation of the Owner and a charge and lien against each Owner's Unit as provided herein for Assessments. k. Non-Owner Occupants. All covenants, restrictions, rules, regulations, and provisions of this Declaration shall be binding on non-Owner occupants without exception. Property Owners who lease their property shall be required to furnish to lessees copies of this Declaration along with a written lease referencing this Declaration; leasing or being absent from the property shall not release property Owners from liabilities and responsibilities described herein. 24 • 111111111111IIIIItlt111111X11111111111M111111 �� 3340526 11/16/2005 02:15P Weld County, CO 25 of 34 R 171.00 D 0.00 Steve Moreno Clerk& Recorder No Violation of Law. Nothing shall be done or kept in or on any portion of the Project by a Unit Owner or occupant which would be in violation of any statute, rule, ordinance, regulation, permit, or validly imposed requirement of any governmental body having jurisdiction over the Project. The Association shall have no duty or obligation to enforce any such statute, rule, ordinance, regulation, permit or validly imposed requirement. m. Fencing. Perimeter fencing of each Lot shall be, at a minimum, of the legal fence as defined by Colorado law and shall be wildlife friendly. No privacy fence shall be allowed unless within fifty feet (50') of the house. n. Architectural Design Standards. The minimum Architectural Design Standards for the Project are set forth in Exhibit B attached hereto and made a part hereof The Architectural Review Committee has the power and authority to make additional requirements for any residential construction or reconstruction within the Project. The Architectural Review Committee may modify or amend the Architectural Design Standards so long as such modifications and amendments are consistent with this Declaration. During the period of Declarant' s reserved Rights, the minimum standards set forth in Exhibit B cannot be altered without Declarant's approval. o. Drainage. No Owner shall change the topography or drainage pattern of a Lot including, not by limitation, any drainage easement areas, from the topography or drainage pattern established by the Declarant unless such change is approved by the Architectural Review Committee. Any Owner who in any way materially modifies the topography or drainage pattern of a Lot without such consent shall be liable for any and all damages stemming therefrom, and may be required to return such topography or drainage patterns to their original state. If any Owner fails to fully abide by this provision, the Association or the Architectural Review Committee, after Notice to the Owner and a reasonable opportunity to perform all necessary work restoring drainage patterns, may undertake such work on behalf of and at the Owner's expense.Any such expense shall be reimbursed to the Association or Architectural Review Committee within thirty(30)days of the furnishing of Notice to such Owner that such reimbursement is owed, together with costs of collection thereof, attorney fees, and interest thereon. Said obligation shall be a personal obligation of the Owner and a charge and lien against each Owner's Lot as provided herein for Assessments. Section 10. Waivers; No Precedent. The approval or consent of the Architectural Review Committee or any representative thereof, or of the Board of Directors, to any application for architectural approval shall not be deemed to constitute a waiver of any right to withhold or deny approval or consent by the Committee or any representative thereof, or by the Board of Directors, as to any application or other matters whatsoever as to which approval or consent may subsequently or additionally be required. Nor shall any such approval or consent be deemed to constitute a precedent as to any other matter. 25 1111111 11111 11111 IIII 111111111111111111 III 1111111 III 3340526 11/16/2005 02:15P Weld County, CO 26 of 34 R 171.00 D 0.00 Steve Moreno Clerk& Recorder ARTICLE XII - MORTGAGEE'S RIGHTS The following provisions are for the benefit of holders, insurers, or guarantors of First Mortgages on Units. To the extent permitted under Colorado law and applicable, necessary or proper, the provisions of this Article apply to this Declaration and also to the Articles, Bylaws, and Rules and Regulations of the Association. Section 1. Distribution of Insurance or Condemnation Proceeds. In the event of a distribution of insurance proceeds or condemnation awards allocable among the Units for losses to, or taking of, all or part of the Common Elements, neither the Owner nor any other person shall take priority in receiving the distribution over the right of any Mortgagee who is a beneficiary of a First Mortgage against the Unit. Section 2. Right to Pay Taxes and Charges. Mortgagees who hold First Mortgages against Units may jointly or singularly, pay taxes or other charges which are in default and which may or have become a charge against any Common Elements, and may pay overdue premiums on hazard insurance policies, or secure new hazard insurance coverage on the lapse of a policy for such Common Elements, and Mortgagees making such payments shall be owed immediate reimbursement therefor from the Association. Section 3. Audited Financial Statement. Upon written request from any Agency or Mortgagee which has an interest or prospective interest in any Unit or the Project, the Association shall prepare and furnish within ninety(90)days an audited financial statement of the Association for the immediately preceding fiscal year, at the expense of such Mortgagee or Agency. Section 4. Notice of Action. Any First Mortgagee and any Agency which holds, insures or guarantees a First Mortgage, upon written request to the Association (which shall include the Agency's name and address and the Unit number), will be entitled to timely written notice of: a. Any proposed termination of the common. interest community; b. Any condemnation loss or any casualty loss which affects a material portion of the Project or which affects any Unit on which there is a First Mortgage held, insured, or guaranteed by such Agency; c. Any delinquency in the payment of Assessments owed by an Owner subject to the Mortgage where such delinquency has continued for a period of sixty (60) days; d. Any lapse, cancellation, or material modification of any insurance policy maintained by the Association pursuant to this Declaration. Section 5. Action by Mortgagee. If this Declaration or any Association 26 1111111 111 1111 111111111111 1111II11111111111111 3340526 11/16/2005 02:15P Weld County, CO 27 of 34 R 171.00 D 0.00 Steve Moreno Clerk& Recorder Documents require the approval of Mortgagees, then if any Mortgagee fails to respond to any written proposal for such approval within thirty(30) days after such Mortgagee is given proper notice of the proposal (or such longer time as may be set forth in the notice), such Mortgagee shall be deemed to have approved such proposal provided that the notice was delivered to the Mortgagee by certified or registered mail return receipt requested. ARTICLE XIII - DURATION OF COVENANTS AND AMENDMENT Section 1. Term. The covenants and restrictions of this Declaration shall run with and bind the land in perpetuity. Section 2. Amendment. Except in cases of amendments that may be executed by the 'Declarant or the Association under the Act, this Declaration, or any provision of it, may be amended only by vote or agreement of Owners holding not less than seventy-five percent (75%) of the votes possible to be cast under this Declaration. The covenants contained in this Declaration requiring maintenance of the private street and irrigation system shall not be modified or terminated without the consent of the Weld County Board of County Commissioners. Section 3. Declarant Rights. To the extent permitted under the Act, provisions in this Declaration reserving or creating Special Declarant Rights may not be amended without the consent of Declarant. Section 4. Execution of Amendments. Any amendment must be executed by the President of the Association and recorded, and approval of such amendment may be shown by including within or attaching a certificate of the Secretary of the Association to the recorded instrument certifying the approval of a sufficient number of Owners of the amendment. Notwithstanding the foregoing, Declarant, acting alone, reserves to itself the right and power to modify and amend this Declaration and the Plat to the fullest extent permitted under the Act and this Declaration. Section 5. Revocation. This Declaration will not be revoked nor shall the common interest community created hereby be terminated (except as provided above regarding total destruction and! or total condemnation), without the consent of the Owners to which at least seventy five percent (75%) of the votes in the Association are allocated evidenced by a written instrument duly recorded with the Clerk and Recorder. ARTICLE XIV - WELD COUNTY'S RIGHT TO FARM Section 1. Rural Weld County. Weld County is one of the most productive agricultural counties in the United States, ranking fifth in total market value of agricultural products sold. The rural areas of Weld County may be open and spacious, but they are intensively used for agriculture. Persons moving into a rural area must recognize and accept there are drawbacks, including conflicts with longstanding agricultural practices and a lower level of services than in town. Along with the drawbacks come the incentives which 27 1111111 11111 IIIII IIII 111111111111 111111 III 1111111111111 3340526 11/16/2005 02:15P Weld County, CO 28 of 34 R 171.00 D 0.00 Steve Moreno Clerk& Recorder attract urban dwellers to relocate to rural area: open views, spaciousness, wildlife, lack of city noise and congestion, and the rural atmosphere and way of life. Without neighboring farms, those features which attract urban dwellers to rural Weld County would quickly be gone forever. Section 2. Agricultural Uses. Agricultural users of the land should not be expected to change their long-established agricultural practices to accommodate the intrusions of urban users into a rural area. Well-run agricultural activities will generate off- site impacts, including, noise from tractors and equipment; slow-moving farm vehicles on rural roads; dust from animal pens, field work, harvest and gravel roads; odor from animal confinement, silage and manure; smoke from ditch burning; flies and mosquitoes; and the use of pesticides and fertilizers in the fields, including the use of aerial spraying. Ditches and reservoirs cannot simply be moved"out of the way"of residential development without threatening the efficient delivery of irrigation to fields which is essential to farm production. Section 3 5..3.5-102, Colorado Revised Statutes, provides that an agricultural operation shall not be found to be a public or private nuisance if the agricultural operation alleged to be a nuisance employs methods or practices that are commonly or reasonably associated with agricultural production. Section 3. Rural Services. Weld County covers a land area of over four thousand (4,000) square miles in size (twice the size of the State of Delaware) with more than three thousand seven hundred (3,700) miles of state and county roads outside of municipalities. The sheer magnitude of the area to be served stretches available resources. Law enforcement is based on responses to complaints more than on patrols of the County and the distances which must be traveled may delay all emergency responses, including law enforcement, ambulance and fire. Fire protection is usually provided by volunteers who must leave their jobs and families to respond to emergencies. County, gravel roads, no matter how often they are bladed, will not provide the same kind of surface expected from a paved road. Snow removal priorities mean that roads from subdivisions to arterials may not be cleared for several days after a major snowstorm. Snow removal for roads within subdivisions are of the lowest priority for public works or may. be the private responsibility of the homeowners. Services in rural areas, in many cases, will not be equivalent to municipal services. Rural dwellers must, by necessity, be more self-sufficient than urban dwellers. Section 4. Parental Supervision. Children are exposed to different hazards in the County than-in an urban or suburban setting. Farm equipment and oil field equipment, ponds and irrigation ditches, electrical power for pumps and center pivot operations, high speed traffic, sand burs, puncture vines, territorial farm dogs and livestock present real threats to children. Controlling children's activities is important, not only for their safety, but also for the protection of the farmer's livelihood. Parents are responsible for their children. ARTICLE XV - GENERAL PROVISIONS Section 1. Restriction on Declarant Powers. Notwithstanding. anything to the 28 11111 1111 IIII 111111111111 111111III 1111111111111 3340526 11/16/2005 02:15P Weld County, CO 29 of 34 R 171.00 D 0.00 Steve Moreno Clerk & Recorder contrary herein, no rights or powers reserved to Declarant hereunder shall exceed the time limitations or permissible extent of such rights or powers as restricted under the Act. Any provision in this Declaration in conflict with the requirements of the Act shall not be deemed to invalidate such provision as a whole but shall be adjusted as is necessary to comply with the Act. Section 2. Enforcement. Except as otherwise provided in this Declaration, the Executive Board, Declarant, Architectural Review Committee, or any Owner shall have the right to enforce, by a proceeding at law or in equity, all restrictions, conditions, covenants, reservations, liens, and charges now or hereafter imposed by the provisions of this Declaration. Failure by the Executive Board of the Association, Declarant, Architectural Review Committee, or by any Owner to enforce any restriction, condition, covenant, reservation, lien, or charge now or hereafter imposed by the provisions of this Declaration shall in no event be deemed a waiver of the right to do so thereafter. Section 3. Registration of Mailing Address. Each Owner and each security interest holder, insurer, or guarantor of a security interest, shall register their mailing address with the Association.All notices, demands, or other notices intended to be served upon the Board of Directors or the Association during the period of Declarant control shall be sent by registered or certified mail, postage prepaid, c/o Owl Creek Estates, 826 9th Street, Greeley, Colorado 80631, unless such address is changed by the Association during the period of Declarant control. Subsequent to the termination of the period of Declarant control, the Association shall notify the Owners of a different address for notices. 29 111111IIE11111IIII111111111111 DIE IIIIIII11111IIII 3340526 11/16/2005 02:15P Weld County, CO 30 of 34 R 171.00 D 0.00 Steve Moreno Clerk& Recorder Section 4. Limitation on Liability. The Association, Board of Directors, Architectural Review Committee, Declarant, and any member, agent, or employee of any of the same, shall not be . liable to any person for any action or for any failure to act unless the action or failure to act was not in good faith and was done or withheld with malice. Section 5. No Representations or Warranties. No representations or warranties of any kind, express or implied, shall be deemed to have been given or made by the Declarant or its agents and employees, in connection with any portion of the community, or any Improvement, or their physical condition, zoning, compliance with applicable laws, fitness for intended use, or in connection with the subdivision, sale, operation, maintenance, cost of maintenance, taxes or regulation thereof, unless and except as shall be specifically set forth in writing. Section 6. Severability. Invalidation of anyone of these covenants or restrictions by judgment or court order shall in no way affect any other provisions which shall remain in full force and effect. Section 7. Conflicts Between Documents. In case of conflict between this Declaration and the Articles and the Bylaws of the Association, this Declaration shall control. In case of conflict between the Articles and the Bylaws, the Articles shall control. Section 8. Conflict With Act. In the event that any of the terms or provisions of this Declaration are in conflict or inconsistent with the Act, the terms or provisions of the Act shall control and govern. In case of any such conflict or inconsistency, the applicable terms and provisions contained in this Declaration shall, to the extent possible, be construed in accordance with the Act, and any conflict with or violation of the Act by any terms. or provisions of this Declaration shall not affect, void, or render unenforceable any other term or provision of this Declaration (which shall be in full force and effect in accordance with their terms). Section 9. No Representations or Warranties. No representations or warranties of any kind, express or implied, shall be deemed to have been given or made by the Declarant or its agents and employees, in connection with any portion of the community, or any Improvement, or their physical condition, zoning, compliance with applicable laws, fitness for intended use, or in connection with the subdivision, sale, operation, maintenance, cost of maintenance, taxes or regulation thereof, unless and except as shall be specifically set forth in writing. Section 10. Disclaimer Regarding Safety. DECLARANT AND THE ASSOCIATION HEREBY DISCLAIM ANY OBLIGATION REGARDING THE SECURITY OF ANY PERSONS OR PROPERTY WITHIN THE COMMUNITY. BY ACCEPTING A DEED TO PROPERTY WITHIN THE COMMUNITY, EACH OWNER ACKNOWLEDGES THAT DECLARANT AND THE ASSOCIATION ARE ONLY OBLIGATED TO DO THOSE ACTS SPECIFICALLY ENUMERATED HEREIN, OR IN THE ARTICLES OF INCORPORATION, BYLAWS AND RULES AND REGULATIONS OF THE ASSOCIATION, 30 I EMI 11111 III 1111 IIIII IIII 3340526 11/16/2005 02:15P Weld County, CO 31 of 34 R 171.00 D 0.00 Steve Moreno Clerk& Recorder AND ARE NOT OBLIGATED TO DO ANY OTHER ACTS WITH RESPECT TO THE SAFETY OR PROTECTION OF PERSONS OR PROPERTY WITHIN THE COMMUNITY. DECLARAN • OWL RE ESTAT By r_ d Orr, Manager STATE OF COLORADO } }ss COUNTY OF WELD } The foregoing instrument was acknowledged before me on the 20th day of October, 2005, by Ed Orr as Manager of Owl Creek Estates. V1%+`t f S my Hand and Official Seal. tj My:cornrntssion expires: June 18, 2009. / z Via. Va,YO� Notary Public 31 1111 111111111111 DIME 1111111111111 3340526 11/16/2005 02:15P Weld County, CO 32 of 34 R 171.00 D 0.00 Steve Moreno Clerk & Recorder EXHIBIT "A" TO DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR OWL CREEK ESTATES LEGAL DESCRIPTION OF PROPERTY SUBJECT TO THIS DECLARATION ADD ACTUAL LEGAL DESCRIPTION WILL BE INSERTED UPON RECORDING OF THE PLAT 32 1111111 11111 11111 I I I 111111111111 1115 1111111111111111 3340526 11/16/2005 02:15P Weld County, CO 33 of 34 R 171.00 D 0.00 Steve Moreno Clerk & Recorder EXHIBIT "B" TO DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR OWL CREEK ESTATES MINIMUM ARCHITECTURAL DESIGN STANDARDS Section 1. Architectural Styles. It is the intent of these guidelines to ensure a high quality, aesthetically pleasing neighborhood. The homes should have a diversity of architectural styles and be compatible with the neighborhood as a whole. The Architectural Review Committee shall have the authority to deny any building plan for any reason including that the plan is not compatible with the neighborhood for aesthetic or other reasons. Section 2. Minimum Square Footage and Building Height. The ground floor finished area of any residence, exclusive of open porches, patios and vehicle garages, shall not be less than one thousand, five hundred (1,500) square feet for a one-story residence and not less than one thousand two hundred fifty(1,250) square feet for the first floor of a two-story residence. The total square footage minimum for the main floor and upper floors of a multi-level residence shall not be less than one thousand, eight hundred (1,800) square feet. The maximum building height of any residence constructed shall be thirty-five (35)feet measured from the top of the foundation to the crest of the highest roof line (excluding chimneys, cupola). Section 3. Roof Pitches. The roof pitch on any residence must be from four- twelve (4/12)to twelve-twelve (12/12). There must be a minimum of one break in the roof line. Section 4. Standards Regarding Use of Exterior Materials. Exterior materials shall be limited as follows: a. Stone, brick or stucco shall be required for a minimum of forty percent (40%) of the first floor facade of the front elevation of the residence b. The roofing material to be utilized upon buildings in the subdivision shall be approved by the Architectural Review Committee. No wood roofs or shingles shall be allowed. c. Foundation walls shall not be exposed more than twelve (12) inches above grade. d. All fascia on residences shall be a minimum of eight (8) inches. e. All soffits on residences shall be a minimum of twelve (12) inches except that where brick adjoins the soffit, the soffit shall be a minimum of eight(8) inches. 33 MID IIIO 111111111111111111111111111 III 11111 IIII IIII 3340526 11/16/2005 02:15P Weld County, CO 34 of 34 R 171.00 0 0.00 Steve Moreno Clerk& Recorder Section 5. Color of Exterior Materials. All exterior colors including, roofing colors, must be approved by the Architectural Review Committee prior to construction. Only earth tone colors shall be permitted. Section 6. Setbacks. All structures shall be constructed such as to meet the building setbacks required by Weld County, Colorado. Section 7. Accessory Buildings. All accessory buildings shall be subject to Architectural Review Committee approval as set forth in the Declaration. 34 Hello