HomeMy WebLinkAbout20041987.tiff DECLARATION OF
COVENANTS, CONDITIONS, AND RESTRICTIONS
FOR
CATTAIL CREEK
(A Common Interest Community)
PREAMBLE
THIS DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS (the
"Declaration") is made on the date hereinafter set forth by CATTAIL CREEK GROUP, LLC, 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; (iii) 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.
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2004-1987
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:
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 Cattail Creek
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 Cattail Creek 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.
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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,including water
rights, now 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. The definition of Common Elements shall expressly include the private street
shown on the Plat. 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;(iii)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.
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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.
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(iii) 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 and shall include the purchaser under any executory
land sales contract wherein the Administrator of Veterans' Affairs is the seller, whether or not
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recorded, and whether owned by said Administrator or his assigns. 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.
Section 26. Parcel shall mean each platted, numbered,and recorded division ofvacant 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.
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Section 35. Supplemental Plat shall mean a supplemental plat ofthe 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.
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 Cattail Creek. 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. Declarant reserves the right to create up to a
total of nine (9)Units.
Section 5. Identification of Units. The identification number of each Unit is shown on
the Plat.
Section 6. Description of Units. Each Unit presently consists of surveyed and platted
undeveloped vacant land. Any instrument affecting a Unit may describe it by its Unit number, Cattail
Creek, Town of Windsor, Weld County, Colorado, according to the Plat thereof recorded on
, 2004, at Reception No. , and the Declaration recorded on
, 2004, at Reception No. in the records of the Clerk and
Recorder of the County of Weld, Colorado, as amended from time to time (with the appropriate
information inserted in place of the blanks set forth above).
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Section 7. 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.
ARTICLE III -- MEMBERSHIP AND VOTING RIGHTS;
ASSOCIATION STRUCTURE AND OPERATIONS
Section 1. Association Name. The name of the Association shall be Cattail Creek
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 free 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 e 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
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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.
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, repaire, 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), or 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.
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ARTICLE IV - POWERS OF [Iik 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;
i. Grant easements, leases, licenses, and concessions through or over the
Common Elements, if any;
j. Annex additional property, pursuant to the terms of this Declaration, which
does not result in an increase in Annual Assessments of more than ten percent
(10%)per Owner;
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k. Impose and receive any payments, fees or charges for the use, rental, or
operation of the Common Elements, if any;
1. 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;
m. Impose reasonable charges for the preparation and recordation of amendments
to the Declaration or statements of unpaid Assessments;
n. Provide for the indemnification of its officers and Executive Board and
maintain directors' and officers' liability insurance;
o. Assign its right to future income, including the right to receive Assessments;
p. Exercise any other powers conferred by the Declaration or Association
Bylaws;
q. Exercise all other powers that may be exercised in this state by legal entities of
the same type as the Association;
r. 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.
s. Merge or consolidate the project with another common interest community of
the same form of ownership.
t. 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.
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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 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 ail 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
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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 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.
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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 act or omission by any Unit Owner,unless acting within the scope 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 ($1,000,000.00) 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
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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 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
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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 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
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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 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. Wan 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
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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
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. My 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 famish 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)
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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 (iii)
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:
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. MI 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.
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
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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 O I H R 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 from 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.
Section 3. Membership of Architectural Review Committee. The Architectural Review
Committee shall consist of three (3) members, all of whom shall be appointed by Declarant.
Declarant shall have the continuing right to appoint all three (3) 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 orDeclarant's
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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 any time 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 three(3). 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(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
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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 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.
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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 neces-
sary 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 occupants.
d. Temporary Structures. No structures of a temporary character such as
trailers, mobile homes, tents, shacks, garages, barns, or other outbuildings
22
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 unreasonably
prohibited so long as full consideration is given to architectural integration of
materials, colors, and placement on the property.
f. Move and Set Structures. All structures within the Project shall be new
construction and no previously erected building, structure, or Improvement
shall be moved and set upon any Unit from any other location. Modular
homes,factory-built homes, and mobile homes are not permitted. Exceptions
may be made for prefabricated storage buildings with written approval of the
Architectural Review Committee.
g. Signs. No sign of any kind shall be displayed to the public view on any Unit
except as specifically permitted by the Association.
h. Oil, Gas, and Mining. No oil drilling, oil development operations, oil
refining, quarrying, or mining operations of any kind shall be permitted upon,
in or under any Unit. Nor shall any oil wells, tanks, tunnels, mineral
excavations, or shafts be permitted upon any Unit. No derrick or other
structures designed for use in boring for oil or natural gas shall be erected,
maintained, or permitted on any Unit.
Animals, Livestock and Poultry. No animals, livestock, or poultry of any
kind shall be raised,bred, or kept on any Unit, except for dogs, cats, or other
household pets, provided that they are not kept, bred, or maintained for any
commercial purposes and do not constitute a nuisance. No more than two(2)
dogs and two (2) cats may be kept on any Unit. Notwithstanding the
foregoing,the Association may adopt Rules and Regulations permitting horses
on the property subject to the Ordinances of Weld County. Animals shall not
be permitted to roam onto other Units. No animals shall be allowed on the
Common Elements except in strict compliance with Rules and Regulations
adopted by the Association. The Owners of a Unit shall be responsible for
any damage or injury caused by any animals owned or kept by the Owners.
Without limiting the foregoing,continuous and/or frequent barking or howling
by dogs is hereby defined as a nuisance.
j. 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
23
be kept in a clean and sanitary condition and shall not be kept in public view
except during the scheduled day of pick up.
k. 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.
(iii) No tanks for the storage of gas, fuel, oil or other flammable materials
shall be erected, placed, or permitted above or below the surface of
any Unit. Any firewood pile shall be screened and located within the
- - confines of a privacy fence approved by the Architectural Review
Committee.
Hazardous Activities. No activities shall be conducted on any Unit which
are or might be unsafe or hazardous to any person or any property. No
firearms shall be discharged upon any Unit and no open fires shall be lighted
or permitted on any Unit except in a contained barbecue unit while attended
and in use for cooking purposes or within an interior approved fireplace. No
burning of trash, leaves, or other materials shall be allowed. The storage of
any type of explosive devices, compounds, chemicals, or materials is
prohibited.
m. 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. No tractor-
trailers or semi-trucks may be parked on a Lot at anytime. 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,
24
trailers, recreational vehicles, tractors, and equipment shall be stored or
parked for more than 72 hours on any street within the Project. No
tractor-trailer or semi-truck shall be allowed at any time on any street in the
Project except for delivery of materials during construction or moving vans,
while being used to move personal property to or from a Lot. Nothing
contained herein shall prevent the Owner or Owners of any Lot from storing
any of said vehicles(except tractor-trailers or semi-trucks)in a garage on their
Lot. No automotive repairs shall be done on any street, or Lot which may be
seen from the view of adjacent properties. 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.
n. Antennas. No exterior radio antennas,television antennas, or other antennas
may be erected unless approved in writing by the Architectural Review
Committee. Any facility for the transmission or reception of audio or visual
signals shall be kept and maintained, to the extent reasonably possible,
underground or within an enclosed structure. Notwithstanding the foregoing,
neither the restrictions nor the requirements of this Section shall apply to
those antennas (which may include some satellite dishes and other devices)
that are specifically covered by the Telecommunications Act of 1996, as
amended from time to time. As to antennas which are specifically covered by
the Telecommunications Act of 1996, as amended, the Committee shall be
empowered to adopt rules and regulations governing the types of antennas
that are permissible hereunder, and to the extent permitted by the
Telecommunications Act of 1996, as amended, establishing reasonable, non-
discriminatory restrictions relating to appearance, safety, location, and
maintenance.
o. Home Occupations/Businesses. The conduct of a home occupation or
business within the Project is prohibited unless the following requirements are
met: home occupations or businesses must be conducted inside the residence
and not occupy more than fifteen percent (15%) of the total floor area of the
residence. Home occupations or businesses must be conducted only by the
residents of said dwelling with no nonresidents employed at the residence. No
retail sales shall be conducted on the Lot or in public view. Home
occupations or businesses must be conducted within the scope of the zoning
ordinances of Weld County. Customer visits must be limited to an occasional
frequency. Customer parking must be in the driveway or immediately in front
of the residence. There shall be no evidence of a home occupation or business
from the outside of the residence.
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p. Clothes Lines and Dog Runs. No clothes lines shall be located on any Lot
and dog runs must first be approved by the Architectural Review Committee.
q. Maintenance and Repair of Landscaping and Improvements:
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.
Unit Owners shall not allow weeds or other unsightly vegetation on
unimproved Units to exceed twelve inches in height.
(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.
r. 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.
s. Water and Sewer. No individual water supply system or sewage disposal
system shall be permitted on any Unit unless it is in compliance with all state
and county health regulations and approved by the Weld County Department
of Public Health and Environment. All dwellings must attach to a public
26
water source. Leach fields must be designed by a licensed engineer. Space
for two septic systems must be reserved and maintained by each lot owner.
All activities such as landscaping and construction are expressly prohibited in
any designated absorption field site. The Association shall be responsible for
all aspects of the ownership of any irrigation water owned by the Association
including the irrigation water transferred to the Association by the Declarant.
The Association may adopt Rules and Regulations concerning the
maintenance of any irrigation systems(including ditches and culverts)and the
distribution of the irrigation water. The Association may also adopt Rules and
Regulations concerning the septic systems, which may include, but are not
limited to, requiring all septic systems to be pumped by the same company on
the same day, subject to reasonable exemptions.
t. 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.
u. Fencing. No fencing of any type shall be constructed by any Lot Owner on
any Lot within the Project without prior approval in writing by the
Architectural Review Committee. All fencing,except dog runs,shall be of the
style and material set forth in the PUD approved by Weld County, and as
recommended by the Colorado Division of Wildlife.
v. No Imperiling of Insurance. Nothing shall be done or kept in or on any
portion of the Project which might result in an increase in the premiums with
respect to insurance obtained for all or any portion of the Project or which
might cause cancellation of such insurance, except with the prior written
consent of the Architectural Review Conunittee.
w. 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.
27
Underground Lines. All electric, television, telephone, and other lines
running from any property line of a Lot to a residence or other structure shall
be placed underground.
y. Trash Burning. Trash,leaves, and other similar materials shall not be burned
within the Project.
z. 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.
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
28
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 ofAction. 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 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
29
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. Frerution 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 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
30
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 35-3.5-102,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 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
31
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 Cattail Creek Group, LLC, P.O. Box 68, Windsor, CO 80550,
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.
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 any one 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).
32
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,AND ARE NOT OBLIGATED TO DO
ANY OTHER ACTS WITH RESPECT TO THE SAFETY OR PROTECTION OF PERSONS OR
PROPERTY WITHIN THE COMMUNITY.
DECLARANT:
CATTAIL CREEK GROUP, LLC
By: George DuBard, Manager
STATE OF COLORADO )
)ss.
COUNTY OF WELD )
The foregoing instrument was acknowledged before me on the day of May,2004,by George DuBard
as Manager of Cattail Creek Group,LLC,a Colorado limited liability company.
WITNESS my Hand and Official Seal.
My commission expires:
Notary Public
33
EXHIBIT A
TO
DECLARATION OF
COVENANTS,CONDITIONS AND RESTRICTIONS FOR
CATTAIL CREEK
LEGAL DESCRIPTION OF PROPERTY SUBJECT TO THIS DECLARATION
A portion of Lot C, Amended Recorded Exemption No. 0805-09-3-AmRE2637,according to
the Map recorded September 11, 2000, at Reception No. 2793115, being a part of Section 9,
Township 6 North, Range 66 West of the 6th P.M., County of Weld, State of Colorado.
ACTUAL LEGAL DESCRIPTION
WILL BE INSERTED
UPON RECORDING OF THE PLAT.
r 34
EXHIBIT B
TO
DECLARATION OF
COVENANTS,CONDITIONS AND RESTRICTIONS FOR
CATTAIL CREEK
MINIMUM ARCHITECTURAL DESIGN STANDARDS
Section 1. Architectural Styles. It is the intent of these guidelines to insure 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
(1,000)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-six-twelve(6/12)to
twelve-twelve (12/12).
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.
35
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.
f. All plumbing vents shall be located on the back portion of the residence.
Section 5. Color of Exterior Materials. ALL EXTERIOR COLORS,INCLUDING ROOFING COLORS,
MUST BE APPROVED BY the Architectural Review Committee PRIOR TO CONSTRUCTION.
Section 6. Setbacks. All structures shall be constructed such as to meet the buiding setbacks
required by Weld County, Colorado.
Section 7. Site Grading. Exterior grading shall be adequate for drainage away from the
buildings and adjacent buildings.
Section 8. Paved Areas. Hard-surfaced private driveways and parking areas are required.
Concrete is the preferred surface for private driveways and parking areas. If alternative materials are
proposed, they must be submitted to and approved by the Architectural Review Committee prior to
construction.
Section 9. Garages. Each residence must have an attached garage of not less than twenty-
two feet by twenty-two feet (22'x 22').
Section 10. Accessory Buildings. All accessory buildings shall be subject to Architectural
Review Committee approval as set forth in the Declaration. Each Lot may have up to two (2)
accessory buildings. One building shall be a storage building which shall not exceed twelve feet by
twelve feet (12' x 12'). The maximum size of the other building may not exceed the maximum size
permitted by Weld County, Colorado.
Section 11. Building Location. All buildings shall be located within the building envelope as
shown on the recorded Plat.
Section 12. Landscaping. Lots 1, 2, 3, 4, and 5 shall plant a minimum of three (3)
coniferous trees with a minimum height of five feet(5')and two(2)deciduous trees with a minimum
1.5" calibration, within the "No Build" area. The tree plantings are expressly prohibited in any
absorption field site. Prior to tree planting, the Lot Owner must receive written approval by the
Architectural Review Committee of the tree planting plan for the Lot.
36
EXHIBIT C
TO
DECLARATION OF
COVENANTS,CONDITIONS AND RESTRICTIONS FOR
CATTAIL CREEK
LIEN HOLDER'S CONSENT
The lienholder of record, First MainStreet Bank, N.A., states that it has reviewed the terms and
conditions of the Declaration of Covenants, Conditions and Restrictions for Cattail Creek and the Plat
of the Property and expressly consents to said Declaration.
FIRST MAINSTREET BANK,N.A.
By:
Michael D. Anderson, Vice President
State of Colorado )
) ss
County of Larimer )
The foregoing instrument was acknowledged before me this day of May, 2004, by
Michael Anderson, Vice President of First MainStreet Bank, N.A..
Witness my Hand and Official Seal.
My commission expires:
Notary Public
37
IMPROVEMENTS AGREEMENT ACCORDING TO
POLICY REGARDING COLLATERAL FOR IMPROVEMENTS
(PUBLIC ROAD MAINTENANCE)
THIS AGREEMENT, made and entered into this day of , 2004, by and
between the County of Weld, State of Colorado, acting through its Board of County Commissioners,
hereinafter called "County," and Cattail Creek Group, LLC, hereinafter called "Applicant."
WITNESSETH:
WHEREAS, Applicant is the owner of, or has a controlling interest in the following described
property in the County of Weld, Colorado:
Lot C of Recorded Exemption #2637; being part of the Southwest Quarter(S W%)of Section 9.
Township 6 North, Range 66 West of the 6°' P. M., Weld County, Colorado
WHEREAS,a final Subdivision/Planned Unit Development(PUD)Plat of said property,to be known
as CATTAIL CREEK PLANNED UNIT DEVELOPMENT has been submitted to the County for approval;
and
WHEREAS, relevant Sections of the Weld County Code provide that no Subdivision Final Plat,
Planned Unit Development Final Plat, or Site Plan shall be approved by the County until the Applicant has
submitted a Subdivision Improvements Agreement guaranteeing the construction of the public improvements
shown on plans, plats and supporting documents of the Subdivision Final Plat, Planned Unit Development
Final Plat,or Site Plan,which improvements,along with a time schedule for completion,are listed in Exhibits
"A" and "B" of this Agreement.
NOW, THEREFORE, IN CONSIDERATION OF the foregoing and of the acceptance and
approval of said Final Plat,the parties hereto promise, covenant and agree as follows:
1.0 Engineering Services: Applicant shall furnish,at its own expense,all engineering services in
connection with the design and construction of the Subdivision or Planned Unit Development
improvements listed on Exhibit "A," which is attached hereto and incorporated herein by
reference.
1.1 The required engineering services shall be performed by a Professional Engineer and
Land Surveyor registered in the State of Colorado,and shall conform to the standards
and criteria established by the County for public improvements.
1.2 The required engineering services shall consist of, but not be limited to, surveys,
designs,plans and profiles, estimates,construction supervision,and the submission
of necessary documents to the County.
1.3 Applicant shall furnish drawings and cost estimates for roads within the Subdivision
or Planned Unit Development to the County for approval prior to the letting of any
construction contract. Before acceptance of the roads within the Subdivision or
Page 1 of 14
Planned Unit Development by the County, Applicant shall furnish one set of
reproducible "as-built" drawings and a final statement of construction cost to the
County.
2.0 Rights-of-way and Easements: Before commencing the construction of any improvements
herein agreed upon,Applicant shall acquire,at its own expense,good and sufficient rights-of-
way and easements on all lands and facilities traversed by the proposed improvements. All
such rights-of-way and easements used for the construction of roads to be accepted by the
County shall be conveyed to the County and the documents of conveyance shall be furnished
to the County for recording.
3.0 Construction: Applicant shall furnish and install, at its own expense, the Subdivision or
Planned Unit Development improvements listed on Exhibit"A,"which is attached hereto and
incorporated herein by reference,according to the construction schedule set out in Exhibit"B"
also attached hereto and incorporated herein by reference.
3.1 Said construction shall be in strict conformance to the plans and drawings approved
by the County and the specifications adopted by the County for such public
improvements. Whenever a Subdivision or Planned Unit Development is proposed
within three miles of an incorporated community located in Weld County or located
in any adjacent county, the Applicant shall be required to install improvements in
accordance with the requirements and standards that would exist if the plat were
developed within the corporate limits of that community. If the incorporated
community has not adopted such requirements and standards at the time the
Subdivision or Planned Unit Development is proposed, the requirements and
standards of the County shall be adhered to. If both the incorporated community and
the County have requirements and standards,those requirements and standards that
are more restrictive shall apply.
3.2 Applicant shall employ,at its own expense, a qualified testing company previously
approved by the County to perform all testing of materials or construction that is
required by the County; and shall furnish copies of test results to the County.
3.3 At all times during said construction, the County shall have the right to test and
inspect, or to require testing and inspection of material and work, at Applicant's
expense. Any material or work not conforming to the approved plans and
specifications shall be removed and replaced to the satisfaction of the County at
Applicant's expense.
3.4 Applicant shall furnish proof that proper arrangements have been made for the
installation of sanitary sewer or septic systems, water, gas, electric and telephone
services.
3.5 Said Subdivision or Planned Unit Development improvements shall be completed,
according to the terms of this Agreement,within the construction schedule appearing
in Exhibit "B." The Board of County Commissioners, at its option, may grant an
extension of the time of completion shown on Exhibit"B" upon application by the
Applicant subject to the terms of Section 6 herein.
4.0 Release of Liability: Applicant shall indemnify and hold harmless the County from any and
all liability loss and damage County may suffer as a result of all suits, actions or claims of
Page 2 of 14
every nature and description caused by, arising from, or on account of said design and
construction of improvements,and pay any and all judgments rendered against the County on
account of any such suit,action or claim,together with all reasonable expenses and attorney
fees incurred by County in defending such suit, action or claim whether the liability, loss or
damage is caused by, or arises out of the negligence of the County or its officers, agents,
employees, or otherwise except for the liability, loss, or damage arising from the intentional
torts or the gross negligence of the County or its employees while acting within the scope of
their employment. All contractors and other employees engaged in construction of the
improvements shall maintain adequate worker's compensation insurance and public liability
insurance coverage,and shall operate in strict accordance with the laws and regulations of the
State of Colorado governing occupational safety and health.
5.0 Off-Site Improvements Reimbursement Procedure: The subdivider,applicant,or owner may
be reimbursed for off-site road improvements as provided in this section when it has been
determined by the Board of County Commissioners that the road facilities providing access to
the Subdivision or Planned Unit Development are not adequate in structural capacity,width,
or functional classification to support the traffic requirements of the uses of the Subdivision or
Planned Unit Development.
5.1 The subdivider, applicant, or owner shall enter into an off-site improvements
agreement prior to recording the final plat when the subdivider,applicant,or owner
expects to receive reimbursement for part of the cost of the off-site improvements.
5.2 The off-site improvements agreement shall contain the following:
The legal description of the property to be served.
The name of the owner(s)of the property to be served.
A description of the off-site improvements to be completed by the
subdivider, applicant,or owner.
The total cost of the off-site improvements.
The total vehicular trips to be generated at build-out by the Subdivision,
Resubdivision, or Planned Unit Development, as specified by the ITE Trip
Generation Manual, or by special study approved by the Board of County
Commissioners.
A time period for completion of the off-site improvements.
The terms of reimbursement.
The current address of the person to be reimbursed during the term of the
agreement.
Any off-site improvements agreement shall be made in conformance with the
Weld County policy on collateral for improvements.
5.3 If the subdivider, applicant, or owner fails to comply with the improvements
agreement, the opportunity to obtain reimbursement under this section is forfeited.
5.4 When it is determined by the Board of County Commissioners that vehicular traffic
from a Subdivision, Resubdivision, or Planned Unit Development will use a road
improvement constructed under an improvements agreement, the subsequent
subdivider,applicant,or owner shall reimburse the original subdivider,applicant,or
owner, for a portion of the original construction cost. In no event shall the original
subdivider, applicant, or owner collect an amount which exceeds the total cost of
improvements less the pro rata share of the total trip impacts generated by the
Page 3 of 14
original development. Evidence that the original subdivider,applicant,or owner has
been reimbursed by the subsequent subdivider,applicant or owner shall be submitted
to the Department of Planning Services prior to recording the Subdivision,
Resubdivision, or Planned Unit Development Final Plat.
5.5 The amount of road improvement costs to be paid by the subsequent subdivider,
applicant,or owner of a Subdivision, Resubdivision.or Planned Unit Development
using the road improvements constructed under a prior improvement agreement will
be based upon a pro rata share of the total trip impacts associated with the number
and type of dwelling units and square footage and type of nonresidential
developments intended to use the road improvement. The amount of road
improvement costs shall also consider inflation as measured by the changes in the
Colorado Construction Cost Index used by the Colorado Division of Highways. The
cost of road improvements may be paid by cash contribution to the prior subdivider,
applicant or owner, or by further road improvements which benefit the prior
subdivider, applicant, or owner's property. This decision shall be at the sole
discretion of the Board of County Commissioners based upon the need for further
off-site road improvements.
5.6 The report entitled TRIP GENERATION (Third Edition, 1982) of the institute of
Transportation Engineers shall normally be used for calculating a reasonable pro rata
share of the road improvement construction costs for all Subdivisions,
Resubdivisions,or Planned Unit Developments. A special transportation study shall
be used for land uses not listed in the ITE Trip Generation Manual. Any question
about the number of trips a Subdivision, Resubdivision, or Planned Unit
Development will generate shall be decided by the County Engineer.
5.7 The term for which the subdivider,applicant,or owner is entitled to reimbursement
under the off-site improvements agreement,entered into between the subdivider and
the County, is ten years from the date of execution of a contract for road
improvements.
5.8 This provision is not intended to create any cause of action against Weld County or
its officers or employees by any subdivider,applicant,or owner for reimbursement,
and in no way is Weld County to be considered a guarantor of the monies to be
reimbursed by the subsequent subdividers,applicants, or owners.
6.0 Acceptance of Streets for Maintenance by the County: Upon compliance with the following
procedures by the Applicant,streets within a Subdivision or Planned Unit Development may
be accepted by the County as a part of the County road system and will be maintained and
repaired by the County.
6.1 If desired by the County, portions of street improvements may be placed in service
when completed according to the schedule shown on Exhibit"B," but such use and
operation shall not constitute an acceptance of said portions.
6.2 County may,at its option, issue building permits for construction on lots for which
street improvements detailed herein have been started but not completed as shown on
Exhibit "B," and may continue to issue building permits so long as the progress of
work on the Subdivision or Planned Unit Development improvements in that phase
Page 4 of 14
of the development are satisfactory to the County; and all terms of this Agreement
have been faithfully kept by Applicant.
6.3 Upon completion of the construction of streets within a Subdivision or Planned Unit
Development and the filing of a Statement of Substantial Compliance, the
applicant(s)may request in writing that the County Engineer inspect the streets and
recommend that the Board of County Commissioners accept them for partial
maintenance by the County. Partial maintenance consists of all maintenance except
for actual repair of streets, curbs and gutters, and related street improvements. Not
sooner than nine months after acceptance for partial maintenance of streets, the
County Engineer shall,upon request by the applicant, inspect the subject streets,and
notify the applicant(s)of any deficiencies. The County Engineer shall reinspect the
streets after notification from the applicant(s) that any deficiencies have been
corrected. If the County Engineer finds that the streets are constructed according to
County standards,he shall recommend acceptance of the streets for full maintenance.
Upon a receipt of a positive unqualified recommendation from the County Engineer
for acceptance of streets within the development, the Board of County
Commissioners shall accept said streets as public facilities and County property,and
shall be responsible for the full maintenance of said streets including repair.
7.0 General Requirements for Collateral:
7.1 The value of all collateral submitted to Weld County must be equivalent to One-
Hundred percent (100%) of the value of the improvements as shown in this
Agreement. Prior to Final Plat approval,the applicant shall indicate which of the five
types of collateral preferred to be utilized to secure the improvements subject to final
approval by the Board of County Commissioners and the execution of this
Agreement. Acceptable collateral shall be submitted and the plat recorded within six
(6)months of the Final Plat approval. If acceptable collateral has not been submitted
within six(6)months then the Final Plat approval and all preliminary approvals shall
automatically expire. An applicant may request that the County extend the Final Plat
approval provided the cost estimates are updated and the development plans are
revised to comply with all current County standards, policies and regulations. The
improvements shall be completed within one (1) year after the Final Plat approval
(not one year after acceptable collateral is submitted) unless the applicant(s)
requests that this Agreement be renewed at least thirty (30) days prior to its
expiration and fttrther provides that cost estimates for the remaining improvements
are updated and collateral is provided in the amount of One-Hundred percent
(100%) of the value of the improvements remaining to be completed. If
improvements are not completed and the agreement not renewed within these time
frames, the County, at its discretion, may make demand on all or a portion of the
collateral and take steps to see that the improvements are made.
7.2 The applicant may choose to provide for a phased development by means of
designating filings of a Planned Unit Development Final Plan or Subdivision Final
Plan. The applicant would need only to provide collateral for the improvements in
each filing as approved. The County will place restrictions on those portions of the
property that are not covered by collateral which will prohibit the conveyance of the
property or the issuance of building permits until collateral is provided or until
improvements are in place and approved pursuant to the requirements for a Request
for Release of Collateral.
Page 5 of 14
7.3 The applicant intends to develop in accordance with Exhibits"A"and"B." The costs
of the improvements described in Exhibit"A"will be adjusted higher or lower for the
year and quarter in which the contemplated work is being performed based on"The
State Highway Bid Price Index" contained in the "Quarterly Cost Report" of The
Engineering News-Record as published by The McGraw-Hill Companies. The
applicant has provided cost estimates for all phases of the development which will be
adjusted in accordance with The State Highway Bid Price Index at the time of
posting of collateral for each phase.
8.0 Improvements Guarantee: The five types of collateral listed below are acceptable to Weld
County subject to final approval by the Board of County Commissioners.
8.1 An irrevocable Letter of Credit from a Federal or State licensed financial institution
on a form approved by Weld County. The Letter of Credit shall state at least the
following:
8.1.1 The Letter of Credit shall be in an amount equivalent to One-Hundred
percent(100%)of the total value of the improvements as set forth in Section
6.0 and Exhibits "A" and"B."
8.1.2 The Letter of Credit shall provide for payment upon demand to Weld County
if the developer has not performed the obligations specified in the
Improvements Agreement and the issuer has been notified of such default.
8.1.3 The applicant may draw from the Letter of Credit in accordance with the
provisions of this policy.
8.1.4 The issuer of the Letter of Credit shall guarantee that, at all times, the
unreleased portion of the Letter of Credit shall be equal to a minimum of
One-Hundred percent (100%) of the estimated costs of completing the
uncompleted portions of the required improvements,based on inspections of
the development by the issuer. In no case shall disbursement for a general
improvement item exceed the cost estimate in the Improvements Agreement
(i.e., streets, sewers, water mains and landscaping, etc.). The issuer of the
Letter of Credit will sign the Improvements Agreement acknowledging the
agreement and its cost estimates.
8.1.5 The Letter of Credit shall specify that fifteen percent (15%) of the total
Letter of Credit amount cannot be drawn upon and will remain available to
Weld County until released by Weld County.
8.1.6 The Letter of Credit shall specify that the date of proposed expiration of the
Letter of Credit shall be either the date of release by Weld County of the
final fifteen percent(15%),or one year from the date of Final Plat approval,
whichever occurs first. Said letter shall stipulate that, in any event, the
Letter of Credit shall remain in full force and effect until after the Board has
received sixty(60)days written notice from the issuer of the Letter of Credit
of the pending expiration. Said notice shall be sent by certified mail to the
Clerk to the Board of County Commissioners.
Page 6 of 14
-- 8.2 Trust Deed upon all or some of the proposed development or other property
acceptable to the Board of County Commissioners provided that the following are
submitted:
8.2.1 In the event property within the proposed development is used as collateral,
an appraisal is required of the property in the proposed development by a
disinterested Member of the American Institute of Real Estate Appraisers
(M.A.I.) indicating that the value of the property encumbered in its current
degree of development is sufficient to cover One-Hundred percent(100%)of
the cost of the improvements as set forth in the Improvements Agreement
plus all costs of sale of the property.
8.2.2 In the event property other than the property to be developed has been
accepted as collateral by Weld County,then an appraisal is required of the
property by a Member of the Institute of Real Estate Appraisers (M.A.I.)
indicating that the value of the property encumbered in its current state of
development is sufficient to cover One-Hundred percent(100%)of the cost
of the improvements as set forth in the Improvements Agreement plus all
costs of sale of the property.
8.2.3 A title insurance policy insuring that the Trust Deed creates a valid
encumbrance which is senior to all other liens and encumbrances.
8.2.4 A building permit hold shall be placed on the encumbered property.
8.3 Escrow Agreement that provides at least the following:
8.3.1 The cash in escrow is at least equal to One-Hundred percent(100%)of the
amount specified in the Improvements Agreement.
8.3.2 The escrow agent guarantees that the escrowed funds will be used for
improvements as specified in the agreement and for no other purpose and
will not release any portion of such funds without prior approval of the Weld
County Board of Commissioners.
8.3.3 The escrow agent will be a Federal or state-licensed bank or financial
institution.
8.3.4 If Weld County determines there is a default of the Improvements
Agreement,the escrow agent,upon request by the County,shall release any
remaining escrowed funds to the County.
8.4 A surety bond given by a corporate surety authorized to do business in the State of
Colorado in an amount equivalent to One-Hundred percent(100%)of the value of
the improvements as specified in the Improvements Agreement.
8.5 A cash deposit made with the County equivalent to One-Hundred percent(100%)of
the value of the improvements.
9.0 Request for Release of Collateral: Prior to release of collateral for the entire project or for a
portion of the project by Weld County,the Applicant must present a Statement of Substantial
Page 7 of 14
Compliance from an Engineer registered in the State of Colorado that the project or a portion
of the project has been completed in substantial compliance with approved plans and
specifications documenting the following:
9.1 The Engineer or his representative has made regular on-site inspections during the
course of construction and the construction plans utilized are the same as those
approved by Weld County.
9.2 Test results must be submitted for all phases of this project as per Colorado
Department of Transportation(CDOT) Schedule for minimum materials sampling,
testing and inspections found in CDOT Materials Manual.
9.3 "As-built" plans shall be submitted at the time the letter requesting release of
collateral is submitted. The Engineer shall certify that the project "as-built" is in
substantial compliance with the plans and specifications as approved, or that any
material deviations have received prior approval from the County Engineer.
9.4 The Statements of Substantial Compliance must be accompanied,if appropriate,by a
letter of acceptance of maintenance and responsibility by the appropriate utility
company, special district or town for any utilities.
9.5 A letter must be submitted from the appropriate Fire Authority indicating the fire
hydrants are in place in accordance with the approved plans. The letter shall indicate
if the fire hydrants are operational and state the results of fire flow tests.
9.6 The requirements in Sections 9.0 thru 9.5 shall be noted on the final construction
plans.
9.7 Following the submittal of the Statement of Substantial Compliance and
recommendation of acceptance of the streets for partial maintenance by the County,
the applicant(s)may request release of the collateral for the project or portion of the
project by the Board. This action will be taken at a regularly scheduled public
meeting of the Board.
9.8 The request for release of collateral shall be accompanied by"Warranty Collateral"in
the amount of fifteen percent(15%)of the value of the improvements as shown in
this Agreement excluding improvements fully accepted for maintenance by the
responsible governmental entity, special district or utility company.
9.9 The warranty collateral shall be released to the applicant upon final acceptance by the
Board of County Commissioners for full maintenance under Section 5.3 herein.
10.0 Public Sites and Open Spaces: When the Board of County Commissioners, pursuant to a
rezoning, Subdivision or Planned Unit Development, requires the dedication, development
and/or reservation of areas or sites other than Subdivision or Planned Unit Development
streets and utility easements of a character, extent and location suitable for public use for
parks, greenbelts or schools, said actions shall be secured in accordance with one of the
following alternatives, or as specified in the Planned Unit Development plan, if any:
10.1 The required acreage, as may be determined by relevant Sections of the Weld
County Code,shall be dedicated to the County or the appropriate school district,for
Page 8 of 14
one of the above purposes. Any area so dedicated shall be maintained by the County
or school district.
10.2 The required acreage,as determined by relevant Sections of the Weld County Code
may be reserved through deed restrictions as open area, the maintenance of which
shall be a specific obligation in the deed of each lot within the Subdivision or
Planned Unit Development.
10.3 In lieu of land,the County may require a payment to the County in an amount equal
to the market value at the time of Final Plat submission of the required acreage as
determined by relevant Sections of the Weld County Code. Such value shall be
determined by a competent land appraiser chosen jointly by the Board and the
Applicant. The cash collected shall be deposited in an escrow account to be
expended for parks at a later date.
11.0 Successors and Assigns: This Agreement shall be binding upon the heirs,executors,personal
representatives,successors and assigns of the Applicant,and upon recording by the County,
shall be deemed a covenant running with the land herein described,and shall be binding upon
the successors in ownership of said land.
IN WITNESS WHEREOF,the parties hereto have caused this Agreement to be executed on the day
and year first above written.
APPLICANT:
APPLICANT:
TITLE:
Subscribed and sworn to before me this day of , 2004.
My Commission expires:
Notary Public
Page 9 of 14
ATTEST: BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
Weld County Clerk to the Board Chair
BY:
Deputy Clerk to the Board
APPROVED AS TO FORM:
Page 10 of 14
EXHIBIT "A"
Name of Subdivision
or Planned Unit Development:_CATTAIL CREEK P. U. D.
Filing:
Location: Part of the Southwest Quarter(SW'/)of Section 9,Township 6 North, Range 66 West of the 6"
P. M., Weld County, Colorado
Intending to be legally bound,the undersigned Applicant hereby agrees to provide throughout this Subdivision
or Planned Unit Development the following improvements. (Leave spaces blank where they do not apply.)
Improvements Quantity Units Unit Estimated
Costs Construction Cost
Site grading
Street grading 1,800 Cu. Yd. $2.00 $3,600.00
Street base (4") 4,625 Sq. Yd. $5.00 $23,125.00
Street paving(3") 4,625 Sq. Yd. $7.00 $32375.00
Curbs, gutters,and culverts
Sidewalk
Storm sewer facilities
Retention ponds
Ditch Improvements L. S. $15,000.00
Subsurface drainage
Sanitary sewers
Trunk and forced lines
Mains
Laterals(house connected)
On-site sewage facilities
On-site water supply and storage
Water Mains(includes bore) L. S. $35,000.00
Fire hydrants 2 Each $3,500 $7,000.00
Survey and street monuments and boxes L. S. $7,000.00
Street lighting
Street Signs 3 Each $250 $750.00
Fencing requirements
Landscaping L. S. $36,500.00
Park improvements
Road culvert 2 Each $2,250 $4,500.00
Grass lined swale L. S. $350.00
Telephone L. S. $4,400.00
Gas
Electric L. S. $50,000.00
Water transfer 3 Each $6,500 $19,500.00
SUB-TOTAL: $239,100.00
Engineering and Supervision Costs $ 25,000.00
(Testing, inspection, as-built plans and work in addition to preliminary and final plat; supervision of actual
construction by contractors)
TOTAL ESTIMATED COST OF IMPROVEMENTS AND SUPERVISION $ 264,100.00
Pane 11 of 14
The above improvements shall be constructed in accordance with all County requirements and specifications,
and conformance with this provision shall be determined solely by Weld County,or its duly authorized agent.
Said improvements shall be completed according to the construction schedule set out in Exhibit "B."
By:
Applicant
Applicant
Date: , 2004.
Title
(If corporation, to be signed by President and attested to by Secretary, together with corporate seal.)
Pape 12 of 14
EXHIBIT "B"
Name of Subdivision
or Planned Unit Development: CATTAIL CREEK P. U. D.
Filing:
Location: Part of the Southwest Quarter(S W'/)of Section 9, Township 6 North, Range 66 West of
the 6"' P. M., Weld County, Colorado
All improvements shall be completed within three (3)years from the date of approval of the final plat.
Construction of the improvements listed in Exhibit "A" shall be completed as follows:
(Leave spaces blank where they do not apply.)
Improvements Time for Completion
Site grading One Year from date of Plat Recording
Street grading One(I)Year from date of Plat Recording
Street base One(1) Year from date of Plat Recording
Street paving One (1) Year from date of Plat Recording
Curbs, gutters, and culverts
Sidewalk
Storm sewer facilities
Retention ponds
Ditch improvements One(1) Year from date of Plat Recording
Subsurface drainage
Sanitary sewers
Trunk and forced lines
Mains
Laterals (house connected)
On-site sewage facilities
On-site water supply and storage
Water mains One (I)Year from date of Plat Recording
Fire hydrants One (I) Year from date of Plat Recording
Survey and street monuments and boxes One(1) Year from date of Plat Recording
Street lighting
Street name signs One(1) Year from date of Plat Recording
Fencing requirements
Landscaping Three (3)Years from date of Plat Recording
Park improvements
Road culvert One(1) Year from date of Plat Recording
Grass lined swale Three (3)Years from date of Plat Recording
Telephone One (1)Year from date of Plat Recording
Gas
Electric One(I)Year from date of Plat Recording
Water transfer One(1)Year from date of Plat Recording
SUB-TOTAL:
Pave 13 of 14
The County, at its option, and upon the request of the Applicant, may grant an extension of time for
completion for any particular improvements shown above, upon a showing by the Applicant that the above
schedule cannot be met.
By:
Applicant
Applicant
Date: , 2004.
Title
(If corporation, to be signed by President and attested to by Secretary,together with corporate seal.)
Page 14 of 14
AGREEMENT FOR IMPROVEMENTS FOR WCR 70
ROAD STABILIZATION for Dust Control
THIS AGREEMENT is made and entered into this day of in the year
2004, by and between Cattail Creek Group, LLC, developer of Cattail Creek P. U. D.
hereinafter referred to as "Developer", with an address P. O. Box 980. Windsor, CO 80513,
Weld County Colorado, and the County of Weld, State of Colorado, by and through the Board of
County Commissioners of Weld County, Colorado, hereinafter referred to as "County," with
offices located at 915 - 10th Street, Greeley, Colorado 38631.
WITNESSETH:
WHEREAS, the Developer has obtained approval for a Subdivision Final Plat for 9 lots
for Cattail Creek P. U. D. , hereinafter referred to as the"Development," and
WHEREAS, WCR 70 from WCR 29 to WCR 31, hereinafter referred to as 'the Road",
will need ROAD STABILIZATION for dust control, in part, due to the increased traffic generated by
the Development, a distance of approximately one mile, and
WHEREAS, WCR 70 abuts a portion of Cattail Creek P. U. D. 9 of the lots will
need WCR 70 for access to the Development, and
WHEREAS, Cattail Creek P. U. D. requires approximately one-half mile of
WCR 70 and will constitute 27 percent of the participation for the Road, and
WHEREAS, the proportional costs of STABILIZATION for the Road attributable to the
traffic generated by the lots in the Development using the Road, is estimated to be $1.704.00
per lot.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein, the parties hereto agree as follow:
1. TERM
A. The term of this Agreement shall be from the date first written above to
the completion of STABILIZING the Road and final accounting by County
and payment of all land development charges by the Developer for the 9
lots accessing the Road, orb years if WRC 70 is not STABILIZED.
2. OBLIGATIONS OF THE COUNTY
A. Weld County shall STABILIZE the road, within five years of the date first
written above, the Road at a current estimated cost of $53.531.00. The
stabilization improvements are anticipated to be for two 12 foot travel
lanes designed in accordance with generally accepted engineering
practices but the actual design shall be at the discretion of Weld County.
Page 1 of 5
B. Design, construction, and maintenance of this portion of Road shall be the
responsibility by the County.
C. County or Developer must STABILIZE the roads within ft years of the
date first written above or forfeit all rights to land development charges,
which are the obligation of the Developer whether already in escrow or
remaining to be paid.
D. Weld County shall perform a final accounting once STABILIZATION is
complete and may collect from the escrow account (or from the developer
if the amount in the escrow is insufficient to satisfy developers obligation)
up to 50 percent of the total cost of STABILIZING WCR 70. If additional
traffic is generated prior to STABILIZING WCR 70, such that the
percentage of traffic generated by the development is less than 50 percent,
the County shall adjust the percentage charged to the developer
proportionately. Any amount which must be collected from the developer,
which is not paid within 45 days of final accounting, shall be assessed
interest in the amount of 8 percent per annum.
3. OBLIGATION OF THE DEVELOPER
A. Developer agrees to pay the amount of$ 1.704.00 per each lot accessing
the Road. The actual amount shall be determined in accordance with
paragraph 2.D.
B. The Developer agrees to escrow monies as follows at the sale of the first
lot $1.704.00 at the sale of the second lot $1.704.00. at the sale of the
third lot $ 1.704.00 at the sale of the fourth lot $ 1.704.00, at the sale of
the fifth lot $ 1.704.00, at the sale of the sixth lot $ 1.704.00, at the sale
of the seventh lot $ 1.704.00, at the sale of the eighth lot $ 1.704.00, at the
sale of the ninth lot $ 1.704.00. The escrow account shall be set up
according to paragraph 4 herein.
C. The Developer shall not be released from this obligation unless County
does not STABILIZE the road within the time frame set forth in paragraph
2.C. herein. In no event shall Developer's obligation under this Agreement
exceed $ 15.336.00 subject to adjustment to a higher or lower figure from
the first quarter of 2004 to the year and quarter in which the contemplated
work is being performed based on "The State Highway Bid Price index
contained in the "Quarterly Cost report" of The Engineering News-Record
as published by The McGraw-Hill Companies.
4. ESCROW AGREEMENT, the terms of which will be subject to review by the
County that provides at least the following:
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A. The cash in escrow when fully funded is $ 15,336.00.
B. The escrow agent guarantees that the escrowed funds will be disbursed
according to the terms of this agreement and will not release any portion
of the funds without prior written approval of the Weld County Board of
County Commissioners.
5. SEVERABILITY
If any term or condition of this Agreement shall be held to be invalid, illegal, or
unenforceable, this Agreement shall be construed and enforced without such
provision to the extent that this Agreement is then capable of execution within the
original intent of the parties hereto.
6. NO THIRD PARTY BENEFICIARY ENFORCEMENT.
It is expressly understood and agreed that the enforcement of the terms and
conditions of this Agreement, and all rights of action relating to such
enforcement, shall be strictly reserved to the undersigned parties and nothing in
this Agreement shall give or allow any claim or right of action whatsoever by any
other person not included in this Agreement. It is the express intention of the
undersigned parties receiving services of benefits under this Agreement shall be
an incidental beneficiary only.
a
7. MODIFICATION AND BREACH
This Agreement contains the entire agreement and understanding between the
parties to this Agreement and supersedes any other agreements concerning the
subject matter of this transaction, whether oral or written. No modification,
amendment, notation, renewal, or other alteration of or to this Agreement shall be
deemed valid or of any force or effect whatsoever, unless mutually agreed upon in
writing by the undersigned parties. No Breach of any term, provisions, or clause
of this Agreement shall be deemed waived or excused, unless such waiver or
consent shall be in writing and signed by the party claimed to have waived or
consented. Any consent by any party hereto, or waiver of, a breach by any other
party, whether express or implied, shall not constitute a consent to waiver of, or
excuse for any other different or subsequent breach.
8. NO WARRANTY.
Neither County nor Developer, by virtue of their entering into this Agreement and
upon their promises to perform the work described herein, make warranties, either
express or implied, that the improvement work and/or maintenance of these roads
meet standards other than those generally required for counties and cities of the
size and type similar to County.
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9. BINDING
This agreement shall be binding on the heirs, successors, and assigns of the
parties.
IN WITNESS WHEREOF the parties hereto have signed this Agreement this day
of , 2004.
BY: Cattail Creek Group. LLC
Developer
ATTEST: BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
Chair,
BY: Weld County Clerk to the Board
Deputy Clerk to the Board
APPROVED AS TO FORM:
County Attorney
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Cost Estimating for Offsite Improvements Agreement 19-May-04
Weld County Road 70 stabilization for one-mile between CR 29 and CR 31. Messner Engineering, Inc.
Two 12-foot lanes=24-feet.
one-mile estimate one-mile 27%
Material Quantity Units Cost per Unit Total Cost Percent Cost
Street Grading 2,347 Cu.Yd. $2.50 Cu.Yd. $5,866.67 $1,584.00
Street Base(Class 6) 2,347 Cu.Yd. $15.00 Cu.Yd. $35,200.00 $9,504.00
Chemical Stabilization 14,080 Sq.Yd. $0.80 Sq.Yd. $11,264.00 $3,041.28
(DC2000)
Engineering&Supervision Costs(fixed) $1,200 $1,200.00
Grand Total= I $53,530.671 $15,329.281 =56 Total
Estimate of Quantities
-- Material Lenath Width Depth Area Area Volume Volume Weiaht
feet feet feet Sq. Fl. Sq.Yd. Cu. Ft. Cu.Yd. ton
Street Grading 5,280 24 0.5 - - 63,360 2,347 -
Gass 6 5,280 24 0.5 - - 63,360 2,347 -
Chemical 5,280 24 - 126,720 14,080 - - -
Parentage of the Section We
Applicant Partift.l Total Itt.l Percentaae Participation
2,438 5,313 27%
...---
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