HomeMy WebLinkAbout992778.tiff RESOLUTION
RE: APPROVE IMPROVEMENTS AGREEMENT ACCORDING TO POLICY REGARDING
COLLATERAL FOR IMPROVEMENTS (PUBLICLY MAINTAINED ROADS)AND
IMPROVEMENTS AGREEMENT ACCORDING TO POLICY REGARDING
COLLATERAL FOR IMPROVEMENTS (OFF-SITE), AUTHORIZE CHAIR TO SIGN,
AND ACCEPT COLLATERAL AND WARRANTY FOR THE ELMS AT MEADOW VALE
PLANNED UNIT DEVELOPMENT, S #506 - FLOYD OLIVER
WHEREAS, the Board of County Commissioners of Weld County, Colorado, pursuant to
Colorado statute and the Weld County Home Rule Charter, is vested with the authority of
administering the affairs of Weld County, Colorado, and
WHEREAS, on October 21, 1999, the Department of Planning Services staff approved a
Site Specific Development Plan and Final Plat for a 74-lot Planned Unit Development, S #506,
for Floyd Oliver,2385 Homestead Place, Longmont, Colorado 80504, on the following described
real estate, to-wit:
Part of the Northwest Quarter of Section 4,
Township 2 North, Range 68 West of the 6th P.M.,
Weld County, Colorado
WHEREAS, pursuant to certain Conditions of Approval for said Planned Unit
Development, the Board has been presented with an Improvements Agreement According to
Policy Regarding Collateral for Improvements (Publicly Maintained Roads) and an
Improvements Agreement According to Policy Regarding Collateral for Improvements
(Off-Site), between the County of Weld, State of Colorado, by and through the Board of County
Commissioners of Weld County, and Floyd Oliver, with terms and conditions being as stated in
said agreements, and
WHEREAS, pursuant to said agreements, the Board has been presented with
Irrevocable Letter of Credit#8230951, drawn on the First Bank of Longmont, 1707 North Main
Street, Longmont, Colorado 80501, issued through the account of Nancy and Thomas Dunn, in
the amount of$300,000.00, and
WHEREAS, in lieu of the fifteen percent retainage normally required for the paving
portion of said agreement, the Board has been presented with a letter from Western Mobile,
Inc., extending the one-year warranty to Weld County, and
WHEREAS, after review, the Board deems it advisable to approve said agreements and
accept said collateral and warranty as stated above, copies of which are attached hereto and
incorporated herein by reference.
NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of
Weld County, Colorado, that the Improvements Agreement According to Policy Regarding
Collateral for Improvements (Publicly Maintained Roads) and the Improvements Agreement
According to Policy Regarding Collateral for Improvements (Off-Site), between the County of
Weld, State of Colorado, by and through the Board of County Commissioners of Weld County,
and Floyd Oliver, be, and hereby are, approved.
PL, 992778
UU�lhw PL1254
IMPROVEMENTS AGREEMENT- THE ELMS AT MEADOW VALE, S #506
PAGE 2
BE IT FURTHER RESOLVED that Irrevocable Letter of Credit#8230951, drawn on the
First Bank of Longmont, 1707 North Main Street, Longmont, Colorado 80501, in the amount
of$300,000.00, be, and hereby is, accepted.
BE IT FURTHER RESOLVED that the one-year warranty extended by Western Mobile,
Inc., to Weld County be, and hereby is, accepted in lieu of fifteen percent retainage of the
paving portion of said agreement.
The above and foregoing Resolution was, on motion duly made and seconded, adopted
by the following vote on the 17th day of November, A.D., 1999.
BOARD OF COUNTY COMMISSIONERS
COUNTY, C ORADO
ATTEST: ,a,,„dI apt '.� F La
gale K. Hall, Chair
Weld County Clerk to the o Rai• mar y,,
iv- VV
%ur 1�:arbar J. Kirkmeyer, o-Tem p�
t
BY: iii _ I�i�.1 •� i � -24dDeputy Clerk to the Bow`UTc � -
Georg xter
APP OVED AS TO FORM: LLB,
eile
®� dal&
County Attorney ��`YJ�%,,�"i,,,�
Glenn Vaad
992778
PL1254
IMPROVEMENTS AGREEMENT ACCORDING
POLICY REGARDING COLLATERAL FOR IMPROVEMENTS
(PUBLICLY MAINTAINED ROADS)
THIS AGREEMENT,made and entered into this 17th day of November , by and between
the County of Weld,State of Colorado,acting through its Board of County Commissioners,hereinafter called
"County", ,hereinafter called "Applicant".
WITNES SETH:
WHEREAS, Applicant is the owner of or has a controlling interest in the following described
property in the County of Weld, Colorado:
The Elms at Meadow Vale located as part of the NW1/4 , Sec 4
T2N, R68M of the ADM Wol rl rnnnfv lnl nrarin
WHEREAS,a final subdivision/PUD plat of said property,to be known as The Elms at Meadow Vale
has been submitted to the County for approval; and
WHEREAS, Section of the Weld County(Subdivision)(Zoning)Ordinance provides
that no final plat shall be approved by the County until the Applicant has submitted a Subdivision
Improvement Agreement guaranteeing the construction of the public improvements shown on plans,plats
and supporting documents of the subdivision, 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 improvements listed on
Exhibit"A" which is attached hereto and made a part of this 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
to the County for approval prior to the letting of any construction contract. Before
acceptance of the roads within the subdivision by the County, Applicant shall
1 Revised 6/97
11111 11111 111111 11111 11111 111111 1111 I I 111111 I I I 11111
2735672 11/30/1999 03:09P JA Sukl Tsukamoto
1 of 12 R 0.00 D 0.00 Weld County CO
•
furnish one set of reproducible "as-built" drawings and a final statement of
construction cost to the County.
2.0 Bights-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
improvements listed on Exhibit"A: which is attached hereto and made a part hereof by this
reference,according to the construction schedule set out in Exhibit"B"also attached hereto
and made a part hereof by this 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 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 is proposed, the
requirements and standards of the County shall be adhered to. If both the
incorporated community an 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 The 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 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.
2 Revised 6/97
I Mill 11111 I(III!11111 VIII 11111111111 III 111112735572 IIII IIII
9 12 R1/O0 0 0.00 Weld County CO 9 03:09P JA
kamoto
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 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 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 workman'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 are not adequate in structural capacity, width, or functional
classification to support the traffic requirements of the uses of the subdivision.
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, or
resubdivision, 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 or resubdivision will use a road improvement constructed under
an improvement agreement, the subsequent subdivider, applicant, or owner shall
reimburse the original subdivider, applicant,or owner, for a portion of the original
3 Revised 6/97
HON I1ll1111111VIIIVIII111111VIII IIIVIII Illl IIII
2735572 11/30/1999 03:09P JA Suki Tsukamoto
2 of 12 R 0.00 0 0.00 Weld County CO
construction cost. In no event shall the original subdivider, applicant, or owner
collect an amount which exceeds the total costs of improvements less the pro rata
share of the total trip impacts generated by the 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 final subdivision or resubdivision plat.
5.5 The amount of road improvement cost to be paid by the subsequent subdivider,
applicant,or owner of a subdivision or resubdivision 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 cost 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 or
resubdivisions. 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 or resubdivision 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 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",
4 Revised 6/97
�1111111111111111111111111111111111111III IIIII IIII IIII
2735572 11/30/1999 03:09P JA Sukl Tsukamoto
a of 12 R 0.00 D 0.00 Weld County CO
•
and may continue to issue building permits so long as the progress of work on the
subdivision improvements in that phase of the development is 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 and the filing of a
Statement of Substantial Compliance, the applicant(s) may request in writing that the
County Engineer inspect its 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 100%
of the value of the improvements as shown in this Agreement. Prior to Final Plat
approval,the applicant shall indicated which of the five types of collateral prefered
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 er
acceptable collateral is submitted) unless_the applicant(s) requests that this
Agreement be renewed at least thirty (30) days prior to its expiration and further
provides that cost estimates for the remaining improvements are updated and
collateral is provided in the amount of 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 Plan or Final Plat Subdivision.
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
5 Revised 6/97
111111111111 111111 1111111111 111111 11111 111 11111 IIII I11I
2736672 11/30/1999 03:09P JA Sub Tsukamoto
5 of 12 ft 0.00 D 0.00 Weld County CO
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.
7.3 The applicant intends to develop in accordance with Exhibits "A" and "B". The
costs of the improvements described in the Appendix"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. This applicant has provided cost estimates for all phases
of the development which will be adjusted in accordance with the The State
Highway Bid Price Indes 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 of 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
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 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 15%, or one year from the date of Final Plat approval, whichever
6 Revised 6/97
1111111 11111 111111 11111 11111111111 11111 III 11111 Ellin'
2736572 11/30/1999 03:09P JA Suki Tsukamoto
6 of 12 R 0.00 D 0.00 Weld County CO
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.
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
M.A.I.member of the American Institute of Real Estate Appraisers indicating that
the value of the property encumbered in its current degree of development is
sufficient to cover 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 M.A.I.
member of the Institute of Real Estate Appraisers indicating that the value of the
property encumbered in its current state of development is sufficient to cover 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 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 Board.
8.3.3 The escrow agent will be a Federal or State licensed bank or financial institution.
8.3.4 If the County of 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 100% of the value of the improvements as specified in the
Improvements Agreement.
8.5 A cash deposit made with the County equivalent to 100%of the value of the improvements.
7 Revised 6/97
I IIIIII 11111 IIIIII VIII 11111 111111 11111 III HIED
I'll
2735572 11/30/1999 03:09P JA Suki Tsukamoto
7 of 12 R 0.00 D 0.00 Weld County CO
•
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 Compliance from an Engineer registered in 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 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 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 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 streets and utility easements of
a character,extent and location suitable for public use for parks, greenbelts or schools, said
8 Revised 6/97
1 111111 11111 111111 1111111111 111111 11111 III VIII Il1I I'll
2735572 11/30/1999 03:09P JA Suki Tsukamoto
8 of 12 R 0.00 D 0.00 Weld County CO
•
actions shall be secured in accordance with one of the following alternatives,or as specified
in the PUD plan, if any:
10.1 The required acreage as may be determined according to Section 8-15-B of the
Weld County Subdivision Regulations shall be dedicated to the County or the
appropriate school district, for 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 according to Section 8-15-B of the Weld
County Subdivision Regulations 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.
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 according to Section 8-15-B. 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.
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLO DO
D e . Hall; hai ( 1/17/99)
arba L Kirkm er, P e
ATTE -�!
G%f
eorge Baxter
d o� Board
14, Geil2
vtu{
Glenn Vaad
B
Dep� >� {� a Board __
APPROVED AS TO FORM:
9 Revised 6/97
111111111111111111111111111111111111111till
2735672 11/30/1999 03:09P JA SukiTsukamoto
A of 12 R O.nf O 0.00 Weld County CO
County Attorney
APPLICANT
Elr.,y LA .Va a LL -
BY: 7, 7l�C O
v�J(title)
SUBSCRIBED AND SWORN to before me this 2< day ofstlikC S l-- , 191
WITNESS my hand and official seal. U
Li
ILO eCtj2)----
Notary Public .My commission expires: .. -` ;• ',
2 - OZ -2Oa1_
i ' a •' o
•
M:\FORMWPUBLIC.DB
•
10 Revised 6/97
111111111111111111 NI 1111111111111111III111111III IIII
2736672 11/30/1999 03:09P JA Sukl Tsukamoto
10 of 12 R 0.00 D 0.00 Weld County CO
i/ '?70-353-9597 PEEK-DRDEGEMUELLER PAGE 01
EXHIBIT " A
NAME OF SUBDIVISION: The Elms at Meadow Vale
LOCATION: PART OF NW 1/4 SEC. 4 & SE 1/4 SEC. 5, T2N, R66 W
Intended to be legally bound, the undersigned Applicant hereby agrees to provide
thro4ThWut this subdivision and as shown of the subdivision final plat County
dates 19 , recorded on 19 in Book , Page No
, Reception No. , the following Improvements
ROUGH GRADING WCR 5.5 $10,000
CURB, GUTTER& SIDEWALK 1,500 FT. 20,000
ASPHALT PAVING 1,500 FT. X23 FT. 30,000
Uncompleted work as of August 24, 1999 $60,000
Engineering and Supervision Costs Completed
Total Estimate coat of Improvements and supervision$60,000.00
The above improvements shall be constructed in accordance with all OCounty requirements
and specifications, and conformance with this provision shall be determined solely by Weld
County, or Its duly authorized agent.
Prior to the issuance of building permits on any phase, a Letter of Credit equal to that
portion of the improvements not completed as shown hereon shall be provided to Weld
County.
Said improvements shall be completed according to the construction schedule set out in
Exhibit $.. U,/J
ELMS L D COMPANY LLC
FLOYD O IVER, MANAGER
111111� 11130/1999 03:09P 111111 111111Tsu11111 III IIII
11 of 12 R 0.00 D 0.00 Weld County CO
EXHIBIT "B"
Nane of Subdivision: Meadow Vale Farm
Filing: 2nd Filing
Location: Colorado Highway 119 and Weld County Road 5.5
Intending to be legally bound, the undersigned Applicant hereby agrees to construct the
improvements shown on the final subdivision plat of Meadow Vale Farm Subdivision,
dated 19_, Recorded on ,19
in Book , Page No. , Reception No. , the following
schedule.
All improvements shall be completed within one year of final plat.
Construction of the improvements listed in Exhibit"A" shall be completed as follows:
Improvements Time of Completion
Rough Grading WCR 5.5 May 1999 2000
Curb, gutter fit sidewalk May 1990 2.009
Asphalt Paving May 1999 Zcooa
ELMS LAND COMPANY LLC
Floyd Oliver, Manager
HUM 11111 1111 1011 111111111 LIII III 111111III 101
2735572 11/30/1999 03:09P JA Suki Tsukamoto
12 of 12 R 0.00 D 0.00 Weld County CO
IMPROVEMENTS AGREEMENT ACCORDING
POLICY REGARDING COLLATERAL FOR IMPROVEMENTS
(PUBLICLY MAINTAINED ROADS)
503
THIS AGREEMENT,made and entered into this 17 thday of November, 1999,by and between
the County of Weld,State of Colorado,acting through its Board of County Commissioners,hereinafter called
"County", ,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:
The Elms at Meadow Vale Located as part of the NW1/4, Sec 4 T2N,
R68W of the 6th PM in Weld County, Colorado
WHEREAS, a final subdivision/PUD plat of said property, to be known as The Elms at Meadow Vale
has been submitted to the County for approval; and
WHEREAS, Section of the Weld County(Subdivision)(Zoning)Ordinance provides
that no final plat shall be approved by the County until the Applicant has submitted a Subdivision
Improvement Agreement guaranteeing the construction of the public improvements shown on plans, plats
and supporting documents of the subdivision, 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 improvements listed on
Exhibit "A" which is attached hereto and made a part of this 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
to the County for approval prior to the letting of any construction contract. Before
acceptance of the roads within the subdivision by the County, Applicant shall
1 Revised 6/97
111111 1111 111111 11111 11111 111111 11111 Mill 11111111111111
2735573 11/30/1999 03:09P JA Sulu Tsukamoto
i of 12 R n.00 D 0.00 Weld County CO
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
improvements listed on Exhibit"A: which is attached hereto and made a part hereof by this
reference,according to the construction schedule set out in Exhibit"B" also attached hereto
and made a part hereof by this 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 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 is proposed, the
requirements and standards of the County shall be adhered to. If both the
incorporated community an 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 The 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 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.
2 Revised 6/97
1111111111 11111 1111 111111 1111 III VIII IIII IIII
2735573
9 03:09P JA kemoto
2 of 12 R O0D 0.00 Weld County CO
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 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 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 workman'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 are not adequate in structural capacity, width, or functional
classification to support the traffic requirements of the uses of the subdivision.
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, or
resubdivision, 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 or resubdivision will use a road improvement constructed under
an improvement agreement, the subsequent subdivider, applicant, or owner shall
reimburse the original subdivider,applicant,or owner, for a portion of the original
3 Revised 6/97
11111111111111111 1111 11111 11111 11111 III 11111 II11 1111
2736673 11/30/1999 03:09P JA Suki Tsukamoto
3 of 12 R 0.00 D 0.00 Weld County nn
construction cost. In no event shall the original subdivider, applicant, or owner
collect an amount which exceeds the total costs of improvements less the pro rata
share of the total trip impacts generated by the 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 final subdivision or resubdivision plat.
5.5 The amount of road improvement cost to be paid by the subsequent subdivider,
applicant,or owner of a subdivision or resubdivision 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 cost 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. 19821 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 or
resubdivisions. 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 or resubdivision 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 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",
4 Revised 6/97
1 111111 11111 111111 11111 11111 111111 11111 I I 111111 I I I I I I I I
2735573 11/30/1999 03:09P JA Suki Tsukamoto
4 of 12 R 0.00 D 0.00 Weld County CO
and may continue to issue building permits so long as the progress of work on the
subdivision improvements in that phase of the development is 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 and the filing of a
Statement of Substantial Compliance, the applicant(s) may request in writing that the
County Engineer inspect its 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 100%
of the value of the improvements as shown in this Agreement. Prior to Final Plat
approval,the applicant shall indicated which of the five types of collateral prefered
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 further
provides that cost estimates for the remaining improvements are updated and
collateral is provided in the amount of 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 Plan or Final Plat Subdivision.
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
5 Revised 6/97
HBO 11111 11111 11111 MEI11111III MINIM'
2735573 11/30/1999 03:09P JA Sukl Tsukamoto
5 of 12 R 0.00 D 0.00 Weld County CO
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.
7.3 The applicant intends to develop in accordance with Exhibits "A" and "B". The
costs of the improvements described in the Appendix"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. This applicant has provided cost estimates for all phases
of the development which will be adjusted in accordance with the The State
Highway Bid Price Indes 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 of 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
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 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 15%, or one year from the date of Final Plat approval, whichever
6 Revised 6/97
111111111111111111 11111 1111111111111111 III 111111111 u11
2735573 11/30/1999 03:09P JA Sukl Tsukamoto
6 of 12 R 0.00 D 0.00 Weld County CO
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.
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
M.A.I. member of the American Institute of Real Estate Appraisers indicating that
the value of the property encumbered in its current degree of development is
sufficient to cover 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 M.A.I.
member of the Institute of Real Estate Appraisers indicating that the value of the
property encumbered in its current state of development is sufficient to cover 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 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 Board.
8.3.3 The escrow agent will be a Federal or State licensed bank or financial institution.
8.3.4 If the County of 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 100% of the value of the improvements as specified in the
Improvements Agreement.
8.5 A cash deposit made with the County equivalent to 100%of the value of the improvements.
7 Revised 6/97
111111111111111111111111111111111111111 III 11111
2735573 11/30/1999 03:09P JA Suki Tsukamoto
7 of 12 R 0.00 D 0.00 Weld County CO
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 Compliance from an Engineer registered in 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 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 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 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 paces: 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 streets and utility easements of
a character,extent and location suitable for public use for parks,greenbelts or schools, said
8 Revised 6/97
1 111111 11111 111111 11111 11111 111r 11111 III 11111 111111
28735573 of 9
R 00D 0.00 0 Weld JCounty CO �moto
•
actions shall be secured in accordance with one of the following alternatives, or as specified
in the PUD plan, if any:
10.1 The required acreage as may be determined according to Section 8-15-B of the
Weld County Subdivision Regulations shall be dedicated to the County or the
appropriate school district, for 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 according to Section 8-15-B of the Weld
County Subdivision Regulations 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.
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 according to Section 8-15-B. 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.
BOARD OF COUNTY COMMISSIONERS
ELD COUNTY,COLORADO
D e K. Hall,/ i (11/17/99)
Barb a J. Kir ever, rot m
E Baxter
? + e to the Board
m. Gei
OG enn as
1• • t th the
APPROVED AS TO FORM:
9 Revised 6/97
1111103 111111 11111 11111 11111 I I Hill III I
2735573 11/30/1999 03:09P JA Suki Tsukamoto
9 of 12 R 0.00 D 0.00 Weld County CO
County Attorney
APPLICANT Elms
Land Company, LLC
BY: 7�,61y ° .7
Floyd Olive (title) Manager
1999
SUBSCRIBED AND SWORN to before me this day of do-cit'5,..Q_ ,flat
WITNESS my hand and official seal.
Notary Public
My commission expires: Z— C Z - Z00Z
$ t\ OTARI
9 j*
tPCUt01
Op co\-0
smin
N dFORNMPUBuc DB
10 Revised 6/97
1 11111 Ell 11111 111111 11111 I I 1111111 I I 11111
2735573 11/30/1999 03:09P JA Suki Tsukamoto
10 of 12 R 0.00 D 0.00 Weld County CO
EXHIBIT " A
NAME OF SUBDIVISION: THE ELMS AT MEADOW VALE
LOCATION: PART OF NW 1/4 SEC. 4 , T2N, R68 W
Intended to be legally bound, the undersigned Applicant hereby agrees to provide
throughtout this subdivision and as shown of the subdivision final plat County
dated 19 , recorded on ,19 , in Book , Page No
, Reception No. , the following improvements
Rough Grading Completed
Sanitary Sewer Completed
Water Mains Completed
Drainage Pipe Completed
Curb, Gutter and Sidewalk Completed
Asphalt Paving will be completed by 11/15/99
Street Signs 15,000.00
Sprinkling System Completed
Landscaping 194,559.96
3-Rail Fence Completed
Electrical Contracted for with United Power
Natural Gas Contracted for with Public Service Co.
Telephone Contracted for with U. S West
TV Cable contracted for with Comcast
6'Cedar Fence 12,396.00
Entrance Sign 15.000.00
Uncompleted work as of 11/08/99 $236,955.96
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.
Prior to the issuance of building permits on any phase, a Letter of Credit equal to that
portion of the improvements not completed as shown hereon shall be provided to Weld
County.
Said improvements shall be completed according to the construction schedule set out in
Exhibit "B".
Elms La Co. LLC. Manager
11111111111 I M I 11111111111 HMI 11111 III 111111 III III I
2735573 11/30/1999 03:09P JA Sukl Tsukamoto
11 of 12 R 0.00 0 0.00 Weld County CO
_ _ - ___ _..�. rccn-u,¢ucuuucLLtm PAGE 04
•
•
EXHIBIT us"
Nene of Subdvision: Meadow Vale Farm
Filing: 2nd Filing
Location: Colorado Highway 119 and Weld County Road 5.5
Intending to be legally bound, the undersigned Applicant hereby agrees to construct the
Improvements shown on the final subdivision plat of Meadow Vale Farm Subdivision,
dated 19 , Recorded on ,1g_
in
a Page No. , Reception No. , the following
All Improvements shall be completed within one year of final plat.
Construction of the Improvements listed in Exhibit"A" shall be completed as follows:
Improvements Time of Completion
Water and Sewer Mains COMPLETED
Streets NOV. 1999
Curb, Gutter&Sidewalks OCT. 1999
Entrance Sign OCT. 1999
Gas, electric, telephone OCT. 1999
Landscaping and Sprinkler System MAY 2000
ELMS I ?�I�� �/ A� NY LLC
Olive Manager
yd
111111111111 HUI111111111111111111111III111111III IIII
2735573 11/30/1999 03:09P JA Sukl Tsukamoto
12 of 12 R 0.00 D 0.00 Weld County CO
MEMORANDUM
VI To: Board of County Commissioners November 15, 1999
COLORADO From: Kim Ogle, Planner
Subject: Acceptance of Irrevocable Letter of Credit
On November 12, 1999, we received an Irrevocable Letter of Credit for the Elms at Meadow
Vale, First Filing, Case-S-506, in the amount of three hundred thousand dollars and no/100s
($300,000.00.)
To date the following On-Site improvements have been completed:
Water and Sewer Mains completed
Curb, Gutter and Sidewalk completed
Drainage Pipe completed
Irrigation Sprinkling System completed
Landscaping May 2000 estimate $194,559.96
Asphalt Paving Streets November 1999
Entrance Sign March 2000 estimate $ 15,000.00
Gas, Electric and Telephone December 1999
Street Signs estimate $ 15,000.00
To date the following Off-Site improvements need to be completed:
Rough Grading at WCR 5.5 estimate $ 10,000.00
Curb, Gutter and Sidewalk - 1,500 ft estimate $ 20,000.00
Asphalt Paving - 1,500 ft. X 23 ft estimate $ 30,000.00
Total Estimated Cost of Improvements and supervision $ 284,559.96
After review of the Letter by the Weld County Attorney, the Department of Public Works and the
Department of Planning Services, it has been determined that the amount of the agreement will
be sufficient to complete the work required for the First Filing, of the Elms at Meadow Vale, and
the Department of Planning Services recommends acceptance of this Letter.
SERVICE,TEAMWORK,INTEGRITY,QUALITY
992778
Ib1BANC BENEFICIARY
County Of Weld
IRREVOCABLE
LETTER OF
FirstBank orth Main Strf eet
CREDIT
Longmont CO 80501
(303)772-5500 LENDER" ADDRESS
1555 North 17Th Avenue
Greeley, CO 80631 NO.: 8230951
TELEPHONE NO. IPENTIPICATION NO.
(970) 353-6100
' '.:CUSTOMER': 'EXPIRATION DATE
Elms Land Company, LLC, A Colorado
Limited Liability Company This Letter of Credit shall expire upon the earlier of:
Nancy J. Dunn
Thomas L. Dunn 1. the close of business on
November 13, 2000
and all drafts and accompanying statements or documents
AsoREss must be presented to Lender on or before that time; or
6400 Rabbit Mountain Road 2. the day that Lender honors a draw under which the full
Longmont, CO 80503
TVLEPIwNE NO.^; IDENTIFICATION No. : amount of this Letter of Credit has been drawn.
(303) 772-8842
Lender hereby establishes at the request and for the account of Customer, an Irrevocable Letter of Credit in favor of Beneficiary for a
sum of Three Hundred Thousand and no/100
- — - Dollars ($ 300,000.00 )
These funds shall be made available to Beneficiary upon Lender's receipt from Beneficiary of sight drafts drawn on Lender at Lender's
address indicated above (or such other address that Lender may provide Beneficiary in writing) during regular business hours and
accompanied by the signed written statements or documents indicated below.
WARNING TO BENEFICIARY: PLEASE EXAMINE THIS LETTER OF CREDIT AT ONCE. IF YOU FEEL UNABLE TO MEET ANY OF ITS
REQUIREMENTS, EITHER SINGLY OR TOGETHER,YOU SHOULD CONTACT THE CUSTOMER IMMEDIATELY TO SEE IF THE LETTER
OF CREDIT CAN BE AMENDED. OTHERWISE,YOU WILL RISK LOSING PAYMENT UNDER THIS LETTER OF CREDIT FOR FAILURE TO
COMPLY STRICTLY WITH ITS TERMS AS WRITTEN.
1. DRAFT TERMS AND CONDITIONS
Lender shall honor drafts submitted by Beneficiary under the following terms and conditions:
Each Draft must be accompanied by a written statement signed by a duly authorized
officer of County of Weld, stating that this draw pertains to the obligations
specified in the Improvements Agreements for The Elms at Meadow Vale and that Elms
Land Company, LLC has not performed the obligations as specified.
Upon Lender's honor of such drafts, Lender shall be fully discharged of its obligations under this Letter of Credit and shall not be
obligated to make any further payments under this Letter of Credit once the full amount of credit available under this Letter of Credit has
been drawn. If a non-conforming demand is made, Lender shall notify Beneficiary of its dishonor on or before the time specified in
Paragraph 5 below.
Beneficiary shall have no recourse against Lender for any amount paid under this Letter of Credit once Lender has honored any draft or
other document which complies strictly with this Letter of Credit, and which on its face appears otherwise in order but which is signed,
issued, or presented by a party or under the name of a party purporting to act for Beneficiary, purporting to claim through Beneficiary, or
posing as Beneficiary without Beneficiary's authorization. By paying an amount demanded in accordance with this Letter of Credit, Lender
makes no representation as to the correctness of the amount demanded and Lender shall not be liable to Beneficiary, or any other person,
for any amount paid or disbursed for any reason whatsoever, including, without limitation, any nonapplication or misapplication by
Beneficiary of the proceeds of such payment. By presenting upon Lender or a confirming bank, Beneficiary certifies that Beneficiary has not
and will not present upon the other, unless and until Beneficiary meets with dishonor. Beneficiary promises to return to Lender any funds
received by Beneficiary in excess of the Letter of Credit's maximum drawing amount.
2. USE RESTRICTIONS
All drafts must be marked"DRAWN UNDER FirstBank Of Longmont
IRREVOCABLE LETTER OF CREDIT NO. 8230951 DATED
November 12, 1999 ," and the amount of each draft shall be marked on the draft. Only Beneficiary or Beneficiary's
Transferee (if this Letter of Credit is transferable) may complete a draft and accompanying statements or documents required by this
Letter of Credit and make a draw under this Letter of Credit. This original Letter of Credit must accompany any draft drawn hereunder.
Partial draws [] are permitted nil are not permitted under this Letter of Credit. Lender's honor of a partial draw shall
correspondingly reduce the amount of credit available under this Letter of Credit. Following a partial draw, Lender shall return this
original Letter of Credit to Beneficiary with the partial draw noted hereon; in the alternative, and in its sole discretion, Lender may
issue a substitute Letter of Credit to Beneficiary in the amount shown above, less any partial draw(s).
3. PERMITTED TRANSFEREES
L] If checked,this Letter of Credit may be transferred by Beneficiary upon prior written notice to Lender of the transfer. The Transferee
shall be deemed the new Beneficiary of this Letter of Credit and the documents of the Transferee, including drafts required under
this Letter of Credit, will be processed by Lender(or any intermediary)without the original Beneficiary's intervention and without any
further obligation of Lender to the original Beneficiary.
LX� If checked,the right to draw under this Letter of Credit shall be nontransferable, except for:
A. A transfer (in its entirety, but not in part) by direct operation of law to the original Beneficiary's administrator, executor, bankruptcy
trustee, receiver, liquidator, successor,or other representative at law; and
B. The first immediate transfer (in its entirety, but not in part) by such legal representative to a third party after express approval of a
governmental body(judicial, administrative,or executive).
MAST602 7FormAiion Technologies,Inc. (9/3/96) (800)937-3199
4. TRANSFEREE'S REQUIRED DOCUMENTS
When the presenter is a permitted Transferee under paragraph 3 above,the documents required for a draw shall include:
A. All documents required elsewhere in this Letter of Credit,except that such documents may be in the name of and executed by either
the original Beneficiary or the presenter permitted by paragraph 3;and
B. When the presenter is a permitted Transferee under paragraph 3A. or a third party under paragraph 3.B., a certified copy of the one
or more documents which show the presenter's authority to claim through or to act with authority for the original Beneficiary.
5. TIMING OF DISHONOR
Lender may rely upon any reason for dishonor which it communicates to Beneficiary or the presenter within three(3) Banking Days after
Lender has received the last document forming Beneficiary's presentment(the"Three-Day Period'). Lender shall be entitled to rely upon
such reason without regard to either (i) the timing of any presentment made before the Expiration Date, or (ii) the timing inside the
Three-Day Period of any preliminary communication(s) from Lender concerning the dishonor decision or any reason for dishonor. For
any reason for dishonor given during the Three-Day Period, Lender shall be conclusively deemed to have met the 'reasonable time',
"without delay", and other timing requirements as the Uniform Customs and Practice for Documentary Credits, 1993 Revision, ICC
Publication No 500, as most recently published by the International Chamber of Commerce (the "UCP") may impose. The Expiration
Date shall not be extended to accommodate a presentment made less than three (3) Banking Days before the Expiration Date, and
Beneficiary shall not be entitled to submit a draw request or provide Lender with any documents in support of a draw after the Expiration
Date. Lender shall not be required to communicate a dishonor decision or its reasons within a time less than the Three-Day Period.
"Banking Day"means any day,except Saturday, on which commercial banks located in Colorado are open.
8. COMPLIANCE BURDEN
Lender is not responsible for any impossibility or other difficulty in achieving strict compliance with the requirements of this Letter of
Credit precisely as written. Beneficiary understands and acknowledges: (i) that unless and until the present wording of this Letter of
Credit is amended with Lender's prior written consent, the burden of complying strictly with such wording remains solely upon
Beneficiary; and (ii) that Lender is relying upon the lack of such amendment as constituting Beneficiary's initial and continued approval
of such wording.
7. NON-SEVERABILITY
If any aspect of this Letter of Credit is ever declared unenforceable for any reason by any court or governmental body having jurisdiction,
Lender's entire engagement under this Letter of Credit shall be deemed null and void ab initio, and both Lender and Beneficiary shall be
restored to the position each would have occupied with all rights available as though this Letter of Credit had never occurred. This
non-severability provision shall override all other provisions in this Letter of Credit, no matter where such provision appears within this
Letter of Credit.
8. CHOICE OF LAW/JURISDICTION
This Letter of Credit is subject to the UCP. This Letter of Credit shall be governed by and construed in accordance with the laws of the
State of Colorado , United States of America, except to the extent such laws are inconsistent with the UCP. Lender
and Beneficiary consent to the jurisdiction and venue of any court selected by Lender in its discretion located in the State of
Colorado in the event of any legal proceeding under this Letter of Credit.
9. EXPIRATION
Lender hereby agrees with Beneficiary that drafts drawn under and in compliance with the terms of this Letter of Credit will be duly
honored if presented to the Lender on or before the Expiration Date.
Dated: November 12, 1999
LENDERiAratBank Of Longmont
By: _ / ,.
Gregg SS. L
(#
President
ENDORSEMENT OF DRAFTS DRAWN:
Amount Amount
Date Negotiated By In Words In Figures
MASTS02B 0 FormAtion Technologies,Inc. (8/3/99) (800)937-3799
LAFARGE l�,El C C! iY
rr
"C:v 17 ?Ii 8: 52
November 16, 1999
Floyd Oliver
Meadow Vale Farms
4250 W 16th St
Greeley, CO 80634
RE: Warranty on The Elms
Dear Floyd:
The one year warranty we extended to Floyd Oliver for the asphalt completed on
November 16, 1999 at The Elms at Meadow Vale on SH 119 and WCR 55 will also be
extended to Weld County.
Sincerely
LA'ARG
/ o Hause,
Sr. Estimator/Project Mgr.
JH;jlc
WESTERN MOBILE,INC.,a subsidiary of Lafarge Corporation t`na�,7`d-r
Northern Colorado Division f 7
1150 N.25th Avenue,Greeley, Colorado 80631 74/0154
Office:(970)353-2777 Metro:(303)534-1696
Printed on Recycled Pep, r
a
Meadow Vale Farm
f. Written approval from Left Hand Water District and the St. Vrain Sanitation District are
enclosed.
g. Written approval from the Mountain View Fire District is enclosed.
h. A Warranty Deed transferring the 1.05 acre parcel is ready to be signed and recorded. A
copy of this deed is enclosed.
i. We will make the changes to "Common Open Space" to the plat as requested.
On page 4 there is a list of 15 items as conditions of final platting. We agree to all 15 items.
Do you really want all 15 items placed on the final plat? If you do we will add these notes.
It just seems usual.
I hope this concludes the process of final plat recording, please advise.
Sincerely,
THE]]ELMS at MEADOW VALE
Floyd Oliver
Manager
4250 W. 16th Street,#46 k Greeley,CO 80634
Phone•970-339-9404 lib Cellular• 970-396-5035 lU# Fax• 970-339-8556
cSt. (Kain cSanitation INsttiet
(cSaint cSan)
JsIs@one th l0.!Sox gob
(303) 7/6-9570 43t Colhat 1.ktikt 201,
(303 774-2349 vI" 2 Jfl moni,(�L� .Co_50?-000F'
October 25, 1999
Mr. Floyd Oliver
Elms Land Company, LLC
4250 West 16th Street, 346
Greeley, CO 80634
Re: The Elms @ Meadowvale, Filing I, Sewer Line Acceptance.
Dear Mr. Oliver.
Sewer collection lines in the The Elms @ Meadowvale, Filing 1, have been inspected and
tested and are, with this letter, accepted by the Saint Vrain Sanitation District. Warranty
period for the lines begins as of this date.
Thank you for your cooperation.
Sincerely,
Saintt \//� rraain Sanitation District
Yir
M k A Peterson
Manager
ouNrg2,1, MOUNTAIN VIEW FIRE PROTECTION DISTRICT
a Administrative Office:
9119 County Line Road • Longmont, CO 80501
(303) 772-0710• FAX (303) 651-7702
VIEW
October 25, 1999
Mr. Kim Ogle
Weld County Planning Department
1555 North 17"' Avenue
Greeley, CO 80631
RE: Case Number: S-506
The Elms at Meadow Vale Subdivision
Dear Mr. Ogle:
The Fire District has approved the Final Plat for Filing One of this subdivision. If you
have any questions, please contact me.
Sincerely,
Charles E. Boyes
Fire Prevention Specialist
CC: LuAnn :Penfold, Fire Marshal
Station 1 Station 2 Station 3 Station 4 Station 5 Station 6 Station
9119 Cnty Line Rd 10971 WCR 13 P.O.Box 575 P.O.Box 11 10911 Dobbin Run P.O.Box 666 F.O.Box 40
Longmont,CO Longmont,CO 299 Palmer Ave. 8500 Niwot Road Latayette,CO 60(1 Briggs 100 So.Forest St.
80501 80504 Mead.CO 80542 Niwot,CO 80544 80026 Erie,CO 80516 Daamn.CO 80511
LEFT HAND WATER DISTRICT
October 25, 1999
Kim Ogle
Weld County Department of Planning
1555 N. 17th Ave
Greeley, CO 80631
Re: Case S-506 The Elms at Meadow Vale
Dear Mr. Ogle:
Some of the conditions for recording of PUD Final Plat for Filing One, Phase One, of The Elms at
Meadow Vale were conditioned upon requirements of the Left Hand Water District. The District
approves the Final Plat, based on the following:
The Left Hand Water District has received and approves the irrigation system plans for the
common areas and road right-of-ways, as well as the individual irrigation systems for
homes, on which the two-to-one tap equivalency is based.
The applicant will build a District main line extension, to District standards and
specifications, to serve the development with fire flow and domestic service.
The above conditions satisfy the District's concerns with service to the development, and the
District has no objection to the Final Plat.
Sincerely,
V6`4
Kath/Peterson
General Manager
P.O. Box 210 •Niwot CO. 80544•(303) 530-4200 • Fax (303) 530-5252
• 6
PUBLIC WORKS DEPARTMENT
114 PHONE (970)356-4000. EXT. 3750
FAX: (970) 304-6497
11 11 H STREET
CP.O. BOX 758 GREELEY, COLORADO 80637_
COLORADO
October 7, 1999
Floyd Oliver
Meadow Vale Farm
4250 W. 16th Street, #46
Greeley, CO 80634
RE: The Elms at Meadow Vale, Phase I, S-506
Dear Mr. Oliver:
The Weld County Public Works Department will allow the transportation portion of Phase Ito be recorded
providing no lots abutting Pearl Howlett Road be allowed access onto Pearl Howlett Road if there is
alternative public road frontage. These alternate access points and limits on access to Pearl Howlett shall
be identified on the plat prior to recording. Public Works is not agreeing any direct lot accesses from the
north to Pearl Howlett from Phase [I at this time.
Prior to recording Phase II, a traffic study must be performed to determine the volumes on Pearl Howlett
Road and the impacts on the intersection with WCR 5.5. Any necessary improvements to WCR 5.5 must
be addressed. Mr. Oliver has proposed providing evidence of his committment to the traffic study in his
letter of October 5, 1999, and those items should be accepted and placed in the file. If the study reflects
additional improvements to the intersection of WCR 5.5 and Pearl Howlett Road, the applicant shall
complete those items. The traffic study must consider ultimate site build-out both north and south of Pearl
Howlett Road as currently planned. The traffic study should also consider traffic connecting to WCR 26 to
the north and whether this traffic would warrant improvements to the intersection with WCR 26.
Sincerely,
Lits
Donald Carroll
Engineering Administrator
DC/pjg
cc: Lee Morrison, Assistant County Attorney
Frank B. Hempen, Jr., Director of Public Works/County Engineer
Monica Mike-Daniels, Director of Planning services
Kim Ogle, Planner
S-506
SURFACE USE AGREEMENT
This Surface Use Agreement ("Agreement") is made this 13th day of July 1999, and is
between HS Resources, Inc. ("HSR"), 1999 Broadway, Suite 3600, Denver, Colorado 80202, and
Elms Land Company, LLC ("Elms"), 4250 W. 16th Street, #46, Greeley, Colorado 80634.
A. Elms is the owner of the surface of the NW/4 of Section 4, Township 2 North, Range
68 West, Weld County, Colorado (hereinafter referred to as the "Property");
B. Elms surface ownership of the Property is subject to the rights of the oil and gas
mineral estate, which is owned by third parties, and which has been leased to HSR;
C. Elms has plans to develop the surface as a housing development known as The Elms
at Meadow Vale;
D. HSR has the right to develop its oil and gas leasehold estate by drilling five additional
wells (hereinafter referred to as "Future Wells") on the Property and/or deepening, recompleting,
or reworking these Future Wells; and
E. This Agreement sets forth the parties' rights and obligations regarding the
relationship between the development of the Property by Elms and I-ISR's operation and
development of its oil and gas leasehold estate.
In consideration of the mutual covenants contained herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as
follows:
1. AREAS RESERVED FOR FUTURE WELLS.
Elms shall provide HSR the space designated on Exhibit "A" for Future Wells (the "Oil and
Gas Operations Area") for any operations conducted by HSR in connection with any Future
Wells, including, but not limited to, lease operating activities, workovers, well deepenings,
recompletions and fracturing. Except for the space included within the Oil and Gas
Operations Area and the access roads provided for in Section 4 below, HSR. shall not occupy
the surface of the Property except in the event of an emergency or for reasonable incidental,
temporary and non-damaging activities, and HSR shall be strictly and solely responsible for
any damages that may occur on such portions of the Property.
2. WELL LOCATIONS.
HSR shall have the right to drill Future Wells (including horizontal and directional wells that
produce from and drain lands other than the Property) at any locations within areas
designated as the Oil and Gas Operations Area, so long as such locations are permitted
locations under the then applicable well spacing regulations of the Colorado Oil and Gas
Conservation Commission ("COGCC"). HSR shall not otherwise have the right to drill wells
on the Property.
3. SURFACE RECLAMATION AND SURFACE DAMAGES.
HSR shall be responsible for all costs of reclamation for its activities on the Property.
Notwithstanding the above, Elms shall have the right to perform the reclamation work, upon
written notification to HSR and consultation with HSR as to the scope and cost of the work.
In such event, within 30 days of receipt of final invoices, HSR shall reimburse Elms the
appropriate costs. If HSR and Elms cannot agree on the cost of the work to be performed by
Elms, the reimbursement obligation of HSR shall be limited to the HSR's share of the bid
that HSR has accepted for the same work. HSR and Elms may agree to limit the scope of any
reclamation rather than return the surface to as near as practical to the condition in existence
prior to any operation.
4. ACCESS.
Elms shall provide to HSR a 25 foot wide easement for access to the Oil and Gas Operations
Area. Such access shall extend from Weld County Road #26 to the Oil and Gas Operations
Area substantially in the location depicted on Exhibit A. The access road shall be
constructed at HSR's sole cost and expense. HSR shall maintain the access road at its sole
cost during the period of time that HSR conducts operations within the Oil and Gas
Operations Area. Elms shall execute and record an easement and right of way in favor of
HSR, granting it the rights of access as are specified in this Agreement. Within the Oil and
Gas Operations Area, HSR may locate such roads as it determines convenient for its
operations within the Area.
5. BATTERIES AND EQUIPMENT.
HSR shall have the right to locate, build, repair and maintain tanks, separators, dehydrators,
compressors and other equipment reasonably appropriate for the operation and production of
any Future Wells only within the Oil and Gas Operations Area. With respect to HSR's
equipment and facilities other than pipelines:
a. HSR shall install and maintain, at its sole cost and expense, all fences around any
Future Wells in compliance with the Rules and Regulations of the COGCC or as are
mutually agreed by Elms and HSR. HSR shall install its standard warning signs on the
fences surrounding any Future Wells;
b. HSR shall install and maintain, at its sole cost and expense, all gates and locks
necessary for the security of any Future Wells. Such gates and locks shall be the standard
gates and locks used by HSR;
c. HSR shall paint any production facilities for any Future Wells, including wellhead
guards, with paint that is approved by the COGCC; and
d. Elms shall install and maintain, at its sole cost and expense, any landscaping around
any Future Wells. Elms shall not inhibit HSR's access to any Future Wells by
landscaping or other installations.
6. FLOWLINES AND PIPELINES.
HSR shall have the right to lay any and all new flowlines and pipelines for gas and
liquids necessary in connection with HSR's production and transportation of oil and gas from
any Future Wells. Elms shall grant to HSR the rights-of-way needed by 1ISR for any new
flowlines or pipelines. In the event any new flowlines or pipelines are necessary, HSR agrees to
locate and route such lines along the access road, as shown on Exhibit "A". HSR further agrees
to comply with any and all applicable county, state or federal regulations pertaining to the
location of such lines. All pipelines shall be located at a surface depth of approximately 48
inches from the final graded elevation. Flowlines, which are defined as those lines which carry
water or hydrocarbons from the wellhead to a production unit (such as a separator), shall be
buried to a surface depth of at least 36 inches. Elms shall furnish information regarding final
grade to HSR. The construction and burying of flowlines and pipelines shall be at the sole cost
and expense of HSR or its gas purchaser. Elms and HSR shall consult and cooperate regarding
their respective development plans.
7. NOTICE OF FUTURE OPERATIONS.
HSR shall provide at least fourteen days prior written notice to Elms of any operations in
connection with the reworking, fracturing, deepening or other operation on any Future Wells;
provided, however, that HSR shall provide at least 30 days prior written notice to Elms and/or
any homeowner's association formed by Elms of the drilling of any Future Wells. Regardless of
the foregoing notice requirements, HSR shall have immediate access in the event of an
emergency.
The Notification shall describe the following:
1. The proposed starting date for the proposed activity;
2. The proposed operations to be performed at the site;
3. An approximate summary of the on-site equipment to be utilized; and
4. The approximate duration of the proposed activities.
Not less than five working days prior to HSR's mobilization on the applicable Oil and
Gas Operations Area, either HSR or Elms may request an on on-site meeting. The purpose of the
meeting shall be to inform Elms of the expected activity and to coordinate site access, hazards,
barricades, restoration or any other issues that affect the use of and the safety of F ltus'
development.
3
8. NOTICE TO HOMEOWNERS AND BUILDERS.
HSR has filed of record a Notice of Right to Use Surface of Lands attached as Exhibit
"B". This notice shall be amended so that the terms of this Agreement shall control. Elms shall
furnish all buyers of the Property from the Elms with a plat or map showing the future roads, the
Oil and Gas Operations Area and other related facilities. In addition, the Elms shall provide
notice to all builders, homeowners and other buyers of the Property from F.Irns and the
homeowners association that:
a. Such buyers are not purchasing and do not own any interest in the oil and gas mineral
estate;
b. There may be ongoing oil and gas operations and production in the Oil and Gas
Operations Area on the surface of the Property;
c. There are likely to be additional Future Wells drilled and oil and gas operations and
production on the surface of the Property in the, Oil and Gas Operations Area;
d. Builders and other "wholesale" purchasers of portions of the Elms' property larger
than one residential lot, and property zoned for multifamily use, as successors in interest
to the Elms, will be acquiring all of the Elms' rights under this Agreement and assuming
those obligations undertaken by the Elms pursuant to this Agreement; and
e. Homeowner's associations and buyers of individual lots or homes, as successors in
interest to the Elms, will be acquiring all of the Elms' rights under this Agreement, and
will be subject to the waivers contained in Sections 9 and 10 and the covenant contained
in Section 11.
9. DRILLING AND COMPLETION OPERATIONS.
HSR shall endeavor to diligently pursue any actual drilling operations to minimize the
total time period and to avoid rig relocations or startup during the course of drilling. Elms
waives any objections to continuous (i.e., 24-hour) drilling operations. Elms also waives any
right to require that wellhead or production equipment be located in conformance with any
setback requirements (including but not limited to those concerning any "high density" rules of
the COGCC) that are more restrictive than those specified in Section 10 or as depicted on Exhibit
"A". Subject to the waiver of setback requirements as set forth above, HSR shall conduct its
operations in compliance with the provisions of the rules and regulations of the COGCC set fbrth
in Rule 603.
10. SETBACK REQUIREMENTS.
a. Any Future Well, at the time HSR initially drills it, shall be located at least 150 feet
or 1.5 times; the rig height, whichever is greater, from any occupied building, public road
or major above-ground utility line. In the event HSR elects to drill a Future Well in the
Oil and Gas Operations Area, as shown on Exhibit "A", that is less than 150 feet from a
„„.,,,.,,.,.. ,,....o,...... 4
public road, Elms shall provide to HSR any waivers necessary so as to comply with the
Rules and Regulations of the COGCC;
b. Consistent with the COGCC's Rules and Regulations, Elms and the IAnis at Meadows
Vale will not locate any residential lot line within 150 feet from the Oil and Gas
Operations Area as shown on Exhibit "A" hereto. If the Elms executes a waiver
consistent with Rule 603(a)(2) of the COGCC's Rules and Regulations and files such
written waiver with the Weld County Clerk and Recorder and with the Director of the
COGCC, then Elms shall be entitled to locate residential lots closer than 150 feet from a
Future Well; and
c. Elms and the Elms at Meadow Vale shall not sell any Property or residential lot that
does not meet the criteria set forth in Section 10.b. above, unless and until the affected
well is plugged and abandoned and IISR has provided notice that it does not anticipate
drilling a new well at the abandoned location.
11. GOVERNMENTAL PROCEEDINGS.
Elms shall not oppose HSR in any agency or governmental proceedings, including but
not limited to COGCC or City proceedings, related to HSR's operations on the Property,
including but not limited to drilling, workovers, well deepenings and recompletions, provided
that HSR's position in such proceedings is consistent with this Agreement.
12. LIMITATION OF LIABILITY, RELEASE AND INDEMNITY.
a. NO PARTY SHALL BE LIABLE FOR, OR BE REQUIRED TO PAY FOR,
SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR
INDIRECT DAMAGES TO ANY OTHER PARTY FOR ACTIVITIES UNDERTAKEN
WITHIN THE SCOPE OF THIS AGREEMENT;
b. Except as to claims arising out of pollution or environmental damage (which claims
are governed by Section 13 below) or out of other provisions of this Agreement (which
claims shall be governed by the terms of this Agreement), each party shall be and remain
responsible for all liability arising out of those losses, claims, damages, demands, suits,
causes of action, fines, penalties, expenses and liabilities, including without limitation
attorneys' fees and other costs associated therewith (all of the aforesaid herein referred to
collectively as "Claims"), arising out of or connected with each such party's ownership or
operations on the Property, no matter when asserted, subject to applicable statutes of
limitations. Each such party shall release, defend, indemnify and hold the other parties,
their officers, directors, employees, successors and assigns, harmless against all such
Claims. This provision does not, and shall not be construed to, create any rights in
persons or entities not a party to this agreement, nor does it create any separate rights in
parties to this Agreement other than the right to he indemnified fbr Claims as provided
herein;
5
c. HSR shall not permit any liens to be filed on or otherwise attach to, the Property, and
in the event any such liens are filed by a person pursuant to any statute or any lien
attaches by operation of law or otherwise, HSR shall take all necessary action, at its sole
cost and expense, to have such lien discharged and released as promptly as practicable,
except that HSR shall have the right to file an operator's lien against other owners of the
oil and gas leasehold interest to recover amounts owed to HSR; and
d. Upon the assignment or conveyance of a party's entire interests in the Property, that
party shall be released from its indemnification in Section 12.b. above, for all actions or
occurrences happening after the assignment or conveyance.
13. ENVIRONMENTAL INDEMNITY.
The provisions of Section 12 above, except for Section 12.a., shall not apply to any
environmental matters, which shall be governed exclusively by the following, subject to the
limitations of Section 12.a. above:
a. "Environmental Claims" shall mean all Claims asserted by governmental bodies or
other third parties for pollution or environmental damage of any kind, arising from
operations on or ownership of the Property or ownership of the oil and gas leasehold
interest, whichever is applicable, and all cleanup and remediation costs, fines and
penalties associated therewith, including but not limited to any Claims arising from
Environmental Laws or relating to asbestos or to naturally occurring radioactive material.
Environmental Claims shall not include the costs of any remediation undertaken
voluntarily by any party, unless such remediation is performed under the imminent threat
of a Claim by governmental bodies or other third parties;
b. "Environmental Laws" shall mean any laws, regulations, rules, ordinances, or order
of any governmental authority(ies), which relate to or otherwise impose liability,
obligation, or standards with respect to pollution or the protection of the environment,
including but not limited to, the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended (42 U.S.C. § 9601 et seq.), the Resource
Conservation and Recovery Act of 1976 (42 U.S.C. §§ 6901 et seq.), the Clean Water Act
(33 U.S.C. §§ 466 et seq.), the Safe Drinking Water Act (14 U.S.C. §§ 1401-1450), the
Hazardous Material Transportation Act (49 U.S.C- §§ 1801 et seq.), the Clean Air Act,
and the Toxic Substances Control Act (15 U.S.C. §§ 2601-2629); and
c. "Environmental Indemnification." HSR shall fully protect, indemnify., and hold
harmless Elms and any lot owner who purchases a lot from Elms from any
Environmental Claims relating to the Property or oil and gas leasehold thereunder that
arise out of its ownership and operation of the Oil and Gas Operations Area. Elms shall
fully protect. indemnify and hold harmless HSR from any and all Environmental Claims
relating to the Property that arise out of Elms' development of the Property.
6
14. EXCLUSION FROM INDEMNITIES.
The indemnities of any party herein shall not cover or include any amounts for which the
indemnified party may legally recoup from other third party owners without judicial process. or
that for which the indemnified party is reimbursed by any third party. The indemnities in this
Agreement shall not relieve any party from any obligations to third parties.
15. NOTICE OF CLAIM FOR INDEMNIFICATION.
If a Claim is asserted against a party for which another party would be liable under the
provisions of Section 12 or 13 above, it is a condition precedent to the indemnifying party's
obligations hereunder that the indemnified party give the indemnifying party written notice of
such Claim setting forth all particulars of the Claim, as known by the indemnified party,
including a copy of the Claim (if it was a written Claim). The indemnified party shall make a
good faith effort to notify the indemnifying party within one month of receipt of a Claim and
shall effect such notice in all events within such time as will allow the indemnifying party to
defend against such Claim and no later than three calendar months after receipt of the Claim by
the indemnified party.
16. REPRESENTATIONS
The parties represent to one another that each one has the full right and authority to enter
into this Agreement. HSR does not represent that it has rights to settle matters for the mineral
owners in the Property. HSR only has rights as a mineral lessee and this Agreement only
pertains to such rights as HSR may hold.
17. SUCCESSORS.
The terms, covenants and conditions hereof shall be binding upon and shall inure to the
benefit of the parties and their respective successors and assigns; provided, as to HSR, successors
and assigns shall be deemed to be limited to lessees under the oil and gas leases which HSR
owns.
18. TERM.
This Agreement shall become effective when it is fully executed and shall remain in full
force and effect until HSR's leasehold estate expires or is terminated, and HSR has plugged and
abandoned all Wells and complied with the requirements of all applicable oil and gas leases
pertaining to removal of equipment, reclamation, cleanup and all other applicable provisions of
the leases and existing laws and regulations. When this Agreement ceases to be in full force and
effect, the parties shall execute any and all releases necessary to evidence the fact that this
Agreement shall no longer apply to the Property.
19. NOTICES.
Any notice or other communication required or permitted under this Agreement shall he
sufficient if deposited in U.S. Mail, postage prepaid, addressed to each of the following:
If to HSR:
HS Resources, Inc.
1999 Broadway, Suite 3600
Denver, Colorado 80202
Attention: Land Manager
If to Elms:
Elms Land Company, LLC
4250 W. 16th Street, #46
Greeley, Colorado 80634
Attention: Floyd Oliver, Manager
Any party may, by written notice so delivered to the other parties, change the address or
individual to which delivery shall thereafter be made.
20. RECORDING.,
This Agreement, any amendment hereto, and any release entered into pursuant to Section
18 above, shall be recorded by HSR, which shall provide the other parties with a copy showing
the recording information as soon as practicable thereafter.
21. SURFACE DAMAGES.
In consideration of the parties' rights and obligations, as outlined herein, this Agreement
shall constitute the agreement for surface damages required pursuant to the COGCC's Rules and
Regulations or under any oil and gas lease between the parties for the Existing Well and any
Future Wells drilled by HSR.
22. ARBITRATION.
Any controversy or claim arising out of or relating to this Agreement, or the breach
thereof, shall be resolved by arbitration administered by the American Arbitration Association
under its commercial rules, and judgment on the award rendered by the arbitrator(s) may he
entered in any court having jurisdiction thereof.
.,w....,.n.P....,. .,..«oJ. 8
23. APPLICABLE LAW.
This Agreement shall be governed by and construed in accordance with the Paws of the
State of Colorado.
24. ENTIRE AGREEMENT.
This Agreement sets forth the entire understanding among the parties hereto regarding the
matters addressed herein, and supersedes any previous communications, representations or
agreement, whether oral or written. This Agreement shall not be amended, except in written form
signed by all parties.
The parties have executed this Agreement on the day and year first above written.
I-IS RESOURCES,INC.
By://54-71-0.
y: l V,
J et W. Pasque, Attorne -in-Fact
ELMS LAND COMPANY, LLC
By: 7% ,a' zv` ° ✓
Floyd Oliv r, Manager
u.>,w. ...,.., ,,._.... 9
STATE OF COLORADO )
CITY AND ) ss.
COUNTY OF DENVER )
The foregoing instrument was acknowledged before me this 13th day of July 1999. by
Janet W. Pasque as Attorney-in-Fact for HS Resources, Inc., a Delaware corporation,on behalf of
that corporation.
P, 1J/A wia se 1.
NOTARY PUBLIC
(SE ) STATE on COLORADO / 14
My Commission Expires 3/10/2002 9)/
Nota Public
My Com is ionExpires:
� �200Z-
STATE OF COLORADO )
CITY AND ) ss.
COUNTY OF DENVER )
The foregoing instrument was acknowledged before me this 13th day of July 1999, by
Floyd Oliver as Manager for Elms Land Company,. LLC, on behalf of the limited liability
company.
Witness my hand and official seal.
(SEAL)
Notary Public
My Commission Expires:
March 24, 2000
1
OIL 8c GAS EXHIBIT EXHIBIT A NW 1/4 SEC4-7.2N.—R.68W.
NORTHWEST CORNER PROPERTY DESCRIPTION
SECTION a-T.2N._R.e6W. OIL AND GAS OPERATIONS AREA
FOUND f6 REBAR IWitl A
ALUM. CAP STAMPED A parcel of land being a (NW �) ( )
LS 17662 part of the Northwest Quarter 1 of Section Four 4
Township Two North (T.2N.), Range Sixty-Eight West (R.68W.) cf the Sixth Principal
Meridian (6th P.M.), County of Weld, State of Colorado and being more particularly
described as follows:
NORM LINE NW 14 SECTION 4 BEGINNING at the Northwest Corner (NW Cor) of said Section 4 and assuming the
West line of said NW A as Dearing South 01'06'08" West with all other bearings
contained herein relative thereto:
17.50 I THENCE South 01'06'08" West along said West line a distance of 400.15 feet to
i i the TRUE POINT OF BEGINNING:
25.00 - ACCESS
THENCE North 89'}1'04" East a distance of 350.13 feet:
EASEMENT THENCE South 01'06'08" West a distance of 450.17 feet:
THENCE South 89'31'04" West a distance of 350.13 feet to a point on said West
line;
o THENCE North 01'06'08' East along said West line a distance of 450.17 feet to the
a I TRUE POINT OF BEGINNING,
i
1 Said described parcel of land contains 3.617 Acres, more or less (±) and is subject to any
rights—of—way or other easements as granted or reserved by instruments of record or as
4( l N89'31'04"E now existing on said described parcel of land.
350.13'
L OIL AND GAS 3
OPERATIONS m . SURVEYOR'S STATEMENT
0 - AREA 0
O in P n I, Charles B. Jones, a Colorado Registered Professional Land Surveyor, do hereby state to:
o c o -4-
Meadow Vale Farms, Inc.
Z ul c/oFloyd Oliver
4250 W. 16th Street
Greeley, CO 80634
that this Exhibit was prepared under my personal supervision, that the
monumentation as indicated hereon were found or set as shown, and that the foregoing
589'3104W plat is an accurate representation thereof, all this to the best of my knowledge, information, belies.
350.13' and in my professional opinion.
a I I further state that thi �Anot extend to any unnamed parties or the successors ann/or
S assigns of Meadow Vole FkW, r r% .
F •
c' ‘2 .y 1
W
CD e
s _ [! Z y
Charles B. Jas 4 r1 Qc/
j a U LL <
m 96 O
i I Colorado Regis i(.14pfessional
I
SI '
.ca. Land Surveyor y22 %L. LAN° 3
f
IV
0
52/, WEST QUARTER CORNER MIIMil
SECTION 4—T.2N.—R.88W.
FOUND AXLE WIM ALUM. CAP
STAMPED JONE.5 LS 22096 2OO 0 200
1 "=200'
KING SURVEYORS, INC. PROJECT NO: 97205
9299 EASTMAN PARK DRIVE DATE: 7/1/99 d
WINDSOR, CO. 80550 PHONE: (970) 686-5011 CLIENT: MEADOW VALE INC.
WARRANTY DEED
THIS DEED is a conveyance of real property described below,including any improvements and other appurtenances(the"property")from
the individual(s),c apesation(s),partnership(s),or other entity(ies)named below as GRANTOR to the individual(s)or entity(ies)named below
as GRANTEE.
The GRANTOR hereby sells and conveys the property to the GRANTEE and the GRANTOR warrants the title to the property,except for(I)
the lien of the general property taxes for the year of this deed,which the GRANTEE will pay(2)any easements and rights-of-way shown of
record (3) any patent reservations and exceptions(4) any outstanding mineral interests shown of record(5)any protection covenants and
rwbictions show of record(6)any additional matters shown below under"Additional Warranty Exceptions",and(7)subject to building and
zoning regulations.
The Specific Terms of this Deed Are:
Grantor: ELMS LAND COMPANY,LLC,a Colorado Limited Liability Company
822 7th Street,#350,Greeley,CO 80631
Grantee: ST.VRAIN VALLEY SCHOOL DISTRICT
395 S.Pratt Parkway,Longmont,CO 80501
Form of Co-Ownership: N/A
Property Description: Block 17,The Elms At Meadow Vale First Filing,Weld County,Colorado
Property Address: None Assigned
Consideration:
Reservations-Restrictions: None
Additional Warranty Exceptions:
Executed by the Grantor on Signature for Individual(s):
Signature for Corporation,Partnership or Association
ELMS LAND COMPANY,LLC,a ColoradoLimited Liability Company Grantor
By di- d-
FLOYD O R,Manager Grantor
By -
Grantor
By
Grantor
Attest:
STATE OF COLORADO
COUNTY OF WELD )ss.
The foregoing instrument was acknowledged before me this 28th day of October, 1999
By FLOYD OLIVER,Manager of ELMS LAND COMPANY,LLC,a Color o Limi d Liability Company
WITNESS my hand and official seal. __Lou
I�r '
My commission expires: Z_. �Z- z.EK'�Z_ No Public l ,�'
•
STATE OF COLORADO + 0T4Ry= `„
COUNTY OF )ss. :f „d„p„� °f�
This foregoing instrument was acknowledged before me this day of ,19 ';tea'•Pt/ • iL�r' 'Oc rt
•By* dikirtlror•~`•••....r 9,4%
Ya®F CON ` ''
(*name individual Grantor(s)or i.f Grantor is Corporation,Partnership or Association,then identify signers as president or NEeli!srdent and
secretary or assistant secretary of corporation;or as partner(s)of partnership;or as authorized member(s)of association.)
DECLARATION OF COVENANTS, CONDTTIONS. AND RESTRICTIONS
FOR
THE ELMS
A PLANNED COMMUNITY
AND
THE ELMS COMMUNITY ASSOCIATION
TABLE OF CONTENTS
PREAMBLE 1
ARTICLE I DEFINITIONS 2
Section 1 Architectural Review Committee 2
Section 2 Articles of Incorporation 2
Section 3 Association 2
Section 4 Association Fences 2
Section 5 Assessment 2
Section 6 Assessable Unit 2
Section 7 Board 2
Section 8 Bylaws 2
Section 9 Common Area 2
Section 10 Common Nonpotable Water Line 2
Section 11 Common Water Line 2
Section 12 Declaration 2
Section 13 Developer 2
Section 14 Federal Mortgage Agencies 3
Section 15 First Mortgage 2
Section 16 First Mortgagee 3
Section 17 Improvements 3
Section 18 Institutional Mortgagee or Institutional Lender 3
Section 19 Living Unit 3
Section 20 Lot 3
Section 21 Member 3
Section 22 Mortgage 3
Section 23 Mortgagee 3
Section 24 Nonassessable Lot 3
Section 25 Notice 3
Section 26 Owner 3
Section 27 Person 4
Section 28 Project or Properties 4
Section 29 Quorum of Owners 4
Section 30 Registered Notice 4
Section 31 Related User 4
Section 32 Single Family 4
ARTICLE II PROPERTY SUBJECT TO THIS DECLARATION 4
Section 1 Existing Property 4
Section 2 Right to Expand 4
Section 3 Manner of Annexation. 5
Section 4 Effect of Supplemental Declaration. 5
Section 5 Merger. 5
ARTICLE III ASSOCIATION STRUCTURE AND FORMAT 5
Section 1 Organization. 5
Section 2 Membership 5
Section 3 Executive Board. 6
ARTICLE IV DUTIES AND POWERS OF THE ELMS COMMUNITY ASSOCIATION 6
Section 1 General Duties and Powers of Association 6
Section 2 Duty to Accept and Maintain Property and Facilities Transferred
by Declarant 6
Section 3 Duty to Manage and Care for the Association Fences. 6
Section 4 Duty to Manage and Care of Nonpotable Water Irrigation System 6
Section 5 Duty to Manager and Care for Domestic Treated Water Distribution System 7
Section 6 Duty to Pay Taxes and Assessments. 7
Section 7 Duty to Prepare Budgets. 7
Section 8 Duty to Levy and Collect Assessments. 7
Section 9 Duty to Provide Audit. 7
Section 10 Possible Additional Duties of Association 8
Section 11 Power to Adopt Rules and Regulations. 8
Section 12 Power to Enforce Declaration and Rules and Regulations. 8
Section 13 Power to Provide Special Services for Members. 8
Section 14 Power to Employ Managers 9
Section 15 Power to Engage Employees, Agents and Consultants. 9
Section 16 General Corporate Powers 9
ARTICLE V COMMUNITY ASSOCIATION PROPERTIES 9
Section 1 Right of Association to Regulation Use 9
Section 2 No Partition of Association Common Areas 9
Section 3 Liability of Owners for Damage by Member 9
Section 4 Association Duties Regarding Damage„ Destruction
or Required Improvements 9
Section 5 Title to Common Areas on Dissolution of Association 10
ARTICLE VI COVENANTS FOR ASSESSMENTS 10
Section 1 General. 10
Section 2 Method of Assessment 10
Section 3 Relationship of the Association Lien to Mortgages. 10
Section 4 General Assessments. 11
Section 5 Budget Process. 11
Section 6 Special Assessments. 12
Section 7 Reimbursement Assessments. 12
Section 8 Differential Assessments 12
Section 9 Time for Payments. 12
Section 10 Lien for Assessments and Other Amounts. 13
Section 11 Reserve Capital. 13
Section 12 Estoppel Certificate. 13
Section 13 No Abatement. 13
Section 14 Rights of First Mortgagees. 13
Section 15 Exempt Property. 13
ARTICLE VII USE AND OTHER RESTRICTIONS 13
Section 1 Nuisances. 13
Section 2 Restriction on Further Subdivision 14
Section 3 Single-Family Residences 14
Section 4 Common Area Restriction. 14
Section 5 No Imperiling of Insurance. 14
Section 6 No Violation of Law 14
Section 7 Appearance 14
Section 8 Restrictions on Signs. 14
Section 9 Conditions for Architectural Control 14
Section 10 Rules and Regulations 14
Section 11 Accessory Building 14
Section 12 Restrictions on Parking and Storage. 14
Section 13 Animals Within Project. 15
ii
Section 14 Control of Antennas and Receiving Equipment. 15
Section 15 Underground Electric Lines. 15
Section 16 No Hazardous Activities. 15
Section 17 No Annoying Light, Sound or Odors. 15
Section 18 Dog Runs, and Storage Areas. 16
Section 19 Garbage and Refuse Disposal. 16
Section 20 Repair. 16
Section 21 Storage. 16
Section 22 Trash Burning. 16
Section 25 Weed Control. 16
Section 24 No Right of Access to Meadow Vale Farm Lake 16
Section 25 Possible Mandatory Interior Fire Sprinkling Systems Required. 16
Section 26 Covenants Run with Land. 16
ARTICLE VIII INSURANCE 17
Section 1 Insurance. 17
Section 2 Insurance Requirements Generally. 17
Section 3 Insurance for Common Area and Fidelity Insurance. 17
Section 4 Insurance on Living Units. 18
Section 5 Association Insurance as Primary Coverage. 18
Section 6 Worker's Compensation and Employer's Liability Insurance. 18
Section 7 Notice of Loss to First Mortgagees. 18
Section 8 Annual Review of Insurance Policies. 18
Section 9 Distribution of Insurance Proceeds by the Association. 18
Section 10 Other Insurance. 19
ARTICLE IX VARIOUS RIGHTS AND EASEMENTS 19
Section 1 Association Easements. 19
Section 2 Easements Deemed Appurtenant. 19
Section 3 Emergency Access Easement 19
Section 4 Title to Common Area 19
ARTICLE X ARCHITECTURAL REVIEW 19
Section 1 Membership and Activation of the Association Architectural
Review Committee. 19
Section 2 Improvement to Property Defined. 20
Section 3 Approval of Improvements Required. 20
Section 4 Committee Guidelines or Rules. 20
Section 5 Submission of Plans 20
Section 6 Criteria for Approval. 20
Section 7 Architectural Review Fee 21
Section 8 Decision of Committee. 21
Section 9 Failure of Committee to Act on Plans. 21
Section 10 Obtaining Governmental Approvals. 21
Section 11 Prosecution of Work After Approval. 21
Section 12 Notice of Completion. 21
Section 13 Inspection of Work. 21
Section 14 Notice of Noncompliance. 22
Section 15 Failure of Committee to Act After Completion 22
Section 16 Correction of Noncompliance. 22
Section 17 No Implied Waiver or Estoppel. 22
Section 18 Committee Power to Grant Variances. 22
Section 19 Compensation of Members. 23
Section 20 Meetings of Committee. 23
Section 21 Records of Actions. 23
Section 22 Estoppel Certificates. 23
iii
Section 23 Nonliability for Committee Action. 23
Section 24 Construction Period Exception. 23
ARTICLE XI TERMINATION AND AMENDMENT OF DECLARATION 23
Section 1 Termination. 23
Section 2 Amendment 24
ARTICLE XII CONDEMNATION, DAMAGE OR DESTRUCTION
TO COMMON AREA 24
Section 1 Damage or Destruction to Common Area. 24
Section 2 Owner-Caused Damage. 24
Section 3 Condemnation Procedure. 24
ARTICLE XIII MORTGAGEE'S RIGHTS 25
Section 1 Notice to Mortgagee. 25
Section 2 Actions Requiring Member Approval. 25
Section 3 Implied Approval. 26
ARTICLE XIV RIGHTS RESERVED BY DECLARANT 27
Section 1 Special Declarant Rights. 27
Section 2 Additional Reserved Rights. 27
Section 3 Rights Transferable. 27
Section 4 Development and Withdrawal Rights. 28
Section 5 Amendment of the Declaration. 28
Section 6 Amendment of the Map. 28
Section 7 Interpretation. 28
Section 8 Maximum Number of Lots. 28
Section 9 Expansion Rights. 29
Section 10 Construction. 29
Section 11 Construction Easement. 29
Section 12 Reciprocal Easements. 29
Section 13 Termination of Development Rights. 29
Section 14 Transfer of Development Rights. 29
ARTICLE XV REQUIRED ALLOCATION OF INTERESTS 30
Section 1 Allocated Interests 30
ARTICLE XVI GENERAL PROVISIONS 30
Section 1 Enforcement. 30
Section 2 Severability. 30
Section 3 Claims. 30
Section 4 Waiver. 30
Section 5 Conflicts of Provisions 30
Section 6 Owners Right to Examine. 30
Section 7 Registration by Owner of Mailing Address 30
EXHIBIT A Legal Description of Potential Expansion Property 32
iv
DECLARATION OF COVENANTS. CONDITIONS. AND RESTRICTIONS
FOR
THE ELMS
A PLANNED COMMUNITY
AND
THE ELMS COMMUNITY ASSOCIATION
PREAMI{1P
THIS DECLARATION, made on the date hereinafter set forth, by Elms Land Company,
LLC, a Colorado limited liability company, hereinafter referred to as "Declarant."
WITNESSETH:
WHEREAS, Declarant is the owner of the following described property located in Weld
County, State of Colorado, more particularly described as follows:
Lot 1 Block I, Lots 1 through 8 Block 2, Lots 1 through 7 Block 3, Lots 1 through
4 Block 4,Lots 1 through 9 Block 5, Lot 1 Block 6, Lots 1 through 5 Block 7, Lots
1 through 6 Block 8, Lot 1 Block 9, Lots 1 through 3 Block 10, Lots 1 through 6
Block 11,Lots 1 through 8 Block 12, Lots 1 and 2 Block 13, Lots 1 through 6 Block
14, Lots 1 through 4 Block 15, Lots 1 through 3 Block 16, Lots 1 through 5 Block
17, Lot 1 Block 18, Lots 1 through 6 Block 19, Lots 1 through 6 Block 20, Lot 1
Block 21, Lots 1 through 3 Block 22, Lots 1 through 6 Block 23, Lots I through 6
Block 24, Lots 1 through 5 Block 25, Lots 1 through 4 Block 26, Lots l through 5
Block 27, Lots 1 through 3 Block 28, Lots 1 through 5 Block 29, Lots through 7
Block 30, Lots 1 through 13 Block 31, and Lot 1 Block 32, together with Outlots A
through J of the Elms at Meadow Vale First Filing, Weld County, Colorado.
WHEREAS, this Declaration is executed pursuant to and in furtherance of a common and
general plan (a) to protect and enhance the quality, value, desirability and attractiveness of all
property which may be subject to this Declaration; (b) 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; (c) to define duties, powers and rights of the association; (d) to define certain duties,
powers and rights of owners of property which may become subject to this Declaration with respect
to the association and with respect to the functions undertaken by the association; and (e) to create
a planned common interest community as defined in this Declaration; and
WHEREAS,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.
NOW, THEREFORE, the Declarant with this Declaration states that: the real property
described in the Preamble is and shall be held, transferred, sold, conveyed and occupied subject to
the covenants, restrictions, easements, charges, and liens hereinafter set forth. Additionally, Declarant
hereby submits the real estate identified above to the provisions of the Colorado Common Interest
Ownership Act Sections 38-33.3-101 (the Act), es sa, Colorado Revised Statutes, as it may be
amended from time to time. In the event the Act is repealed, the Act, on the effective date of this
Declaration, shall remain applicable.
ARTICLE I
DEFINITIONS
Section 1. "Architectural Review Committee" shall mean the committee that is formed by
Article X of these covenants.
Section 2. "Articles of Incorporation" shall mean the Articles of Incorporation of the
Association, as the same may from time to time be amended.
,Section {. "Association" shall mean and refer to The Elms Community Association, a
Colorado corporation, not-for-profit, its successors and assigns.
Section 4. "Association Fences" shall mean the fences located or to be located on the
Common Area. The precise locations of the Association Fences shall be as determined by Declarant.
Section 5. "Assessment" shall mean and refer to any assessment levied, charged., or assessed
against an Owner in accordance with the provisions of this Declaration.
Section 6. "Assessable Unit" shall mean and refer to any Lot within the properties which is
subject to assessments.
Section 7. "Board" shall mean the Executive Board of the Association.
,Section 8. "Bylaws" shall mean and refer to the duly adopted Bylaws of the Association, as
the same may from time to time be amended.
Section 9. "Common Area" shall mean and refer to all real property and improvements owned
or leased by the Association other than Lots, as that term is defined herein, which shall include, by
way of example but not limitation, all common sprinkler systems, landscaping of any open space area
adjacent to Lot lines, any exterior signs identifying the subdivision, all irrigation equipment, pumps,
pipelines, and meters necessary to operate a nonpotable water system to furnish irrigation water for
Lots within the subdivision and the raw water provided to the Association to be used for irrigation
purposes and a master domestic water tap, transmission lines and individual Lot water meters
necessary to deliver domestic water to each Residential Home within the Project. This definition shall
expressly exclude any public streets as shown on the Subdivision Plat required by Weld County,
Colorado. The Common Areas shall be owned by the Association, it being understood that the
Common Areas will be developed and transferred by the Declarant in phases as the Project is
completed. The raw water to be owned by the Association shall be provided to the Association by
a supplemental agreement between the Association and the Declarant which is not being recorded as
a part of this Declaration of Covenants.
Section 10. "Common Nonpotable Water Line" shall mean a Water Line which services the
Common Areas and each Lot within the Association which provides nonpotable water for irrigation
of the Common Areas and Lots within the Subdivision.
Section 11.. "Common Water Domestic Line" shall mean a Water Line and master meter
which provide domestic treated water to each residential home within the subdivision.
Section 12. "Declaration" shall mean the covenants, conditions, and restrictions, and all other
provisions herein set forth in this entire document, as the same may from time to time be amended.
Section 13. "Developer" or Declarant shall mean and refer to Elms Land. Company, LLC, a
Colorado limited liability company, its successors and assigns; provided, however, that no successor
or assignee of the Developer shall have any rights or obligations of the Developer hereunder unless
2
such rights and obligations are specifically set forth in the instrument of succession or assignment or
which pass by operation of law.
Section 14. "Federal Mortgage Agencies" shall mean and refer to those Federal Agencies
who have a security interest in a Lot and/or Improvements thereon as evidenced by an insured
mortgage or deed of trust or other security instrument, such as the Federal Housing Administration,
the Veteran's Administration, the Federal National Mortgage Association, and the Federal Home
Loan Mortgage Corporation, or successors to their interest.
Section 1¶. "First Mortgage" shall mean and refer to any unpaid mortgage, deed of trust or
other security instrument recorded in the records of the office of the Clerk and Recorder of Weld
County, Colorado, having priority of record over all other recorded liens except those governmental
liens made superior by statute (such as general ad valorem tax liens and special assessments).
Section 16. "First Mortgagee" shall mean and refer to an institutional lender who holds either
a first deed of trust or a first mortgage on a Lot or Living Unit.
,Section 17. "Improvements" shall mean and refer to all improvements now or hereafter
constructed including,without limitation, all Association-owned exterior boundary fencing, exterior
lighting, walks, landscaping, sprinkling systems, irrigation equipment, and domestic water taps,
delivery lines and meters within the project owned by the Association.
Section 18. "Institutional Mortgagee" or "Institutional Lender" shall mean and refer to a First
Mortgagee which is a federally or state chartered bank, a federal or state savings bank, or savings and
loan institution, a real estate investment trust, or any corporation whose primary business is the
making,purchasing, or placing of mortgage loans, who shall perfect a first priority security position
as to any Lot or Living Unit constructed within the Project.
Section 19. "Living Unit" shall mean and refer to any structure situated upon a lot designed
and intended for use and occupancy as a residence by a single family.
Section 20. "Lot" shall mean and refer to any numbered area of land shown as such upon any
recorded final filing plat required by Weld County, Colorado, with the exception of Common Area
as heretofore defined. "Lot" shall also mean a "Unit" as defined in C.R.S. §38.33-103(30) as
originally enacted or subsequently amended.
Section 21. "Member" shall mean and refer to the Person designated as such pursuant to
Article III.
Section 22. "Mortgage" shall mean and refer to a mortgage, deed of trust, or other similar
security instrument held or owned by a Mortgagee which encumbers any Lot and/or Living Unit.
Section 23. "Mortgagee" shall mean and refer only to a Mortgagee under a Mortgage or a
beneficiary under a deed of trust or similar security instrument. For the purpose of this Declaration
and the Bylaws, no Person shall be deemed a Mortgagee until written notice of such interest has been
given to the Association together with the name and address of the Mortgagee.
,Section 24. "Nonassessable Lot" shall mean and refer to any Lot for which the Weld County
will not issue a building permit because the requirements of Weld County have not been satisfied.
Section 25. "Notice" shall mean and refer to (i) written notice delivered personally or mailed
to the last known address of the intended recipient, or (ii) notice through an Association publication
which is delivered to the Living Units, or (iii) notice delivered by electronic mail or facsimile to any
Owner. "Notice to Mortgagee" shall mean and refer to only written notice delivered personally or
mailed to the last known address of the intended recipient and not notice through an Association
publication.
,Section 26. "Owner" means any person, corporation, partnership, association, contract sellers
or other legal entity or any combination thereof, including Declarant, who owns the record fee simple
3
interest in one or more Lots and shall include the purchaser under any executory land sales contract
wherein the Administrator of Veteran's Affairs is seller, whether recorded or not, 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 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 27. "Person" shall mean an individual, corporation, partnership, association, trust,
or other legal entity, or any combination thereof
Section 28. "Project" or"Properties" shall mean and refer to all real property which is subject
to the Declaration.
Section 29. "Quorum of Owners" shall mean the representation by presence or proxy of
Members who hold twenty percent (20%) of the outstanding votes entitled to be cast on any issue.
,Section 30. "Registered Notice" shall mean and refer to any notice which has been signed for
by a recipient or has been certified by the U.S. Postal Service or other entity as having been delivered
to the address of the intended recipient. Failure by refusal of an intended recipient to acknowledge
such Notice shall nevertheless constitute receipt when such refusal is witnessed by one other person.
Section 31. "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 Living Unit of an Owner who claim by, or
through an Owner.
Section 37, "Single Family" shall have the same meaning as that term is defined in the zoning
ordinance of Weld County, Colorado, as of the date of the recording of this Declaration or as
amended in the future by the governing body of Weld County, Colorado.
ARTICLE II
PROPERTY SUBJECT TO THIS DECLARATION
Section 1 - 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 in the Preamble and represents the first area which will be subject to this
Declaration.
Section 2 - Right to Expand. Declarant reserves the right but not the obligation to expand
this Project, without the approval of the Owners or First Mortgagees, to include additional land and
one or more additional Lots located upon all or any part of the Expansion Property as described in
"Exhibit A", attached hereto and incorporated herein by this reference; provided, however, that the
total number of Lots in the project, as expanded, shall not exceed the maximum number of lots
allowed by Weld County pursuant to any development plan for the project. Thee right of expansion
of the Declarant shall be premised upon Declarant demonstrating reasonable progress in the
development or sale of Lots within the existing project and, if a general plan for development is
required by the FHA or VA, only after the FHA or the VA has determined that the annexation is in
accord with the general plan for development theretofore approved by FHA or VA. Delays in
development or sale of the Lots resulting from causes beyond the reasonable control of Declarant,
shall not affect the right of Declarant to annex further property to the project. In any event, it shall
be conclusively presumed that Declarant is reasonably progressing in the development of Lots within
the existing project if the first annexation proposed by Declarant is effected prior to the tenth(10th)
anniversary of the Recordation of this Declaration, and if any subsequent annexation proposed by
Declarant hereunder is effected prior to the tenth (10th) anniversary of the Recordation of the most
recently Recorded Supplemental Declaration annexing property to the project. By accepting a deed
to a Lot, each Owner hereby grants to Declarant the right to expand the project and to modify the
Owner's rights, title and interest in the Common Area accordingly, as set forth in this Article. Any
4
such expansion shall be subject only to this Article II and shall not make or constitute any amendment
or modification in this Declaration except as provided in this Article II.
Section 3 -Manner of Annexation. Additions to the project may be made by Declarant by
the Recordation of one or more Supplemental Declarations or other written instruments signed by
Declarant. Such Supplemental Declarations or other instruments shall contain legal descriptions of
the additional real property which shall become part of the project and shall declare that such property
shall be subject to this Declaration.
Section 4 •• Effect of Supplemental Declaration. Upon the Recording of a Supplemental
Declaration, the property described therein shall be subject to the Restrictions contained in this
Declaration. The property described in a Supplemental Declaration may be made subject to additional
and different Restrictions which are set forth in the Supplemental Declaration provided such
Restrictions are no less restrictive than those contained in this Declaration and, if required, are
approved in writing by the Federal Housing Administration and the Veterans Administration.
Section 5 - Merger. In accordance with its Articles of Incorporation, the properties, rights
and obligations of the Association may, by operation of law, be transferred to another surviving or
consolidated association similar in corporate nature and purposes or, alternatively, the properties,
rights and obligations of an association similar in corporate nature and purposes may by operation
of law be added to the properties, rights and obligations of the Association as a surviving corporation
pursuant to a merger. The surviving or consolidated association may administer the covenants and
restrictions established upon any other basis as one scheme. No such merger or consolidation,
however, shall effect any revocation, change, or addition to the covenants established by this
Declaration within the Existing Property except as hereinafter provided. Such merger or
consolidation shall have the assent of sixty-seven percent (67%) of the Owners. of Lots within the
Project at the time of the proposed merger.
ARTICLE III
ASSOCIATION STRUCTURE AND FORMAT
Section 1 -Organization. The Association is a nonprofit, nonstock corporation organized and
existing under the laws of Colorado, charged with the duties and vested with the powers prescribed
by law and set forth in the Articles of Incorporation and Bylaws, as such may be amended from time
to time, provided that the Articles of Incorporation and Bylaws shall not for any reason, be amended
or otherwise changed or interpreted so as to be inconsistent with this Declaration.
Section 2 -Membership.
(a) Basis. Membership shall be appurtenant to each Lot giving rise to such
membership, and shall not be assigned, transferred, pledged, hypothecated, conveyed or
alienated in any way except as provided in the Declaration, Articles of Incorporation or
Bylaws.
(b) Member's Rights and Duties. Each Member shall have the rights, duties and
obligations set forth in this Declaration, the Articles of Incorporation or Bylaws.
(c) Voting Rights. The Association shall have one(1) class of voting membership:
Class A: Class A members shall be all Owners of Lots as defined in Article I,
Section 26. Class A Members shall be entitled to one (1) vote for each Lot owned.
(d) Fxerrise of Vote. Class A Membership shall be appurtenant to and may not
be separated from record ownership of a Lot, and such membership shall automatically
transfer to the new Owner upon any sale, transfer or other disposition of a Lot subject to the
provisions of this Declaration and any Supplements thereto. There shall not be more than one
(1)Class A Member for any Lot within the Project. Upon transfer, sale or other disposition
of all or some of the fee interest in a Lot, the then Owner shall automatically become the
Class A Member with respect to such Lot. The vote for any Membership, which is held by
5
more than one (1) person may only be exercised by one (1) person, or if the Owner is a
corporation, by an officer of such corporation. A written notice subscribed to by all of such
persons or by such corporation, as the case may be, designating one (1) of such persons or
an officer of such corporation as the person entitled to cast the vote with respect to such Lot
shall be delivered to the Secretary of the Association prior to the start of any annual or special
meeting of the Association. Without this written notice. the vote for the Membership shall
not be counted.
Section 3 -Executive Board.
(a) composition. The number of Directors shall be as provided in the Articles of
Incorporation and Bylaws.
(b) Extent of Power.
(1) The Executive Board shall have all powers for the conduct of the
affairs of the Association which are enabled by law or the Declaration of Covenants
or the Articles of Incorporation and its Bylaws which are not specifically reserved to
Members, the Declarant or the Architectural Review Committee by said Documents.
(2) The Executive Board shall exercise its powers in accordance with this
Declaration of Covenants, Articles of Incorporation and its Bylaws.
ARTICLE IV
DUTIES AND POWERS OF THE ELMS
COMMUNITY ASSOCIATION
Section 1 - Feral Duties and Powers of Association. The Association has been formed to
further the common interests of the Members of the Association. The Association, acting through
its Executive Board or Persons to whom the Board has delegated such powers, shall have the duties
and powers hereinafter set forth and, in general, the power to do anything that may be necessary or
desirable to further the common interests of the Members of the Association, to maintain, improve
and enhance the Common Area and to improve and enhance the attractiveness and desirability of the
Project.
Section 2 - Duty to Accept and Maintain Property and Facilities Transferred by Declarant.
The Association shall accept title to and maintain the Common Areas, including any Improvements
or landscaping thereon, Association Fences and personal property or equipment transferred to the
Association by the Declarant, together with the responsibility to perform any and all of the functions
set forth in this Declaration in connection therewith, provided that such property and functions are
not inconsistent with the terms of this Declaration. Real property interests transferred by Declarant
to the Association shall consist of fee simple title to the Common Area, the walk in enclosed Mail
Center, Association Fences and the easements therefor as contained herein. Except as otherwise
specifically approved by resolution of the Executive Board of the Association, no real property
transferred to the Association by Declarant and no personal property transferred to the Association
by Declarant shall impose upon the Association any obligation to make monetary payments to
Declarant nor any affiliate of Declarant, including, but not limited to, any purchase price, rent, charge
or fee. The interest in property transferred to the Association by Declarant shall not impose any
unreasonable or special burden on the Association other than the duties set forth hereinafter.
$ertion 3 -Duty to Manage and Care for the Association Fences. Upon commencement of
the Common Assessments and following the installation of the Association Fences, the Association
shall manage, operate, care for, maintain, repair and replace the Association Fences and keep the
Association Fences in a neat, attractive and desirable condition.
Section 4 Duty to Manage and Care for Nonpotable Water Irrigation System. Upon the
commencement of Common Assessments and following the installation of irrigation equipment and
water lines for irrigation of individual Lots and the Common Area, the Association shall manage, care
for, maintain, repair and replace all equipment associated with providing nonpotable irrigation water
6
to Lots and Common Areas. The Association shall meter each Lot within the Association and charge
a fee for the nonpotable water used by each Lot Owner. The fee shall be collected by the Association
as determined by its Executive Board. The Declarant reserves the right to furnish to the Association
all raw water necessary to operate the nonpotable irrigation system. The Developer shall provide
such raw water without charge to the Association other than those carrying charges assessed to the
Developer by the Oligarchy Ditch Company for delivery of the water on an annual basis. At such
time as the original Lots subject to the Declaration or additional Lots which are brought into the
Declaration and the Common Areas adjoining such Lots have all landscaping completed and such
landscaping has been in place a period of three(3)years, the Declarant and the Association shall then
determine the necessary raw water to allow the Association to operate the nonpotable domestic
system. The Declarant shall then transfer raw water directly to the Association in an amount
sufficient to allow the Association to operate the nonpotable system. The Association and the
Meadow Vale Farm Community Association shall both share costs of operation of a common lake
and pumping system which delivers nonpotable irrigation water to both Associations. The Elms
Association shall be allowed to recover from the Lot Owners its proportionate share of common
operation costs on an annual basis with the Meadow Vale Community Association. A nonpotable
operation agreement between the two (2) Associations will be executed both Associations to
document the cost of participation of both Associations in the nonpotable systems. The Association
shall not be responsible for the maintenance, repair and replacement of any irrigation system that is
constructed on an. internal Lot in order to irrigate a Lot. The responsibility of the interior Lot
irrigation system shall be that of the Lot Owner and not of the Association. The Declarant anticipates
constructing a nonpotable system which will deliver fifteen(15)gallons of water per minute at 60 PSI
to each Lot within the Development.
Section 5 - Duty to Manage and Care For Domestic Treated Water Distribution System.
Upon the commencement of common assessments and following the installation of a master meter
and distribution lines for domestic water to each individual Lot, the Association shall manage, care
for, maintain, repair, and replace all equipment associated with providing domestic water to Lots and
the Association shall be responsible for the reading of all meters to individual Lots, the reading of the
master meter which delivers water to the Association, and shall be responsible for payment of the
master water bill and recovery of each Lot Owner's proportionate share of the bill. The Association
shall have in place an administrative system which provides individual water meters to be read on a
periodic basis and each Lot Owner billed on a periodic basis for domestic water utilized by the owner
of each Lot. The Association shall not be responsible for the maintenance, repair and replacement
of any service line which is constructed to provide domestic water service to each residential home
located on a Lot from the point the service line connects to the master water line which provides
water to multiple residences.
Section 6 -Duty to Pay Taxes and Assessments. The Association shall be obligated to pay
all taxes and assessments levied on any property or facilities transferred to or acquired and owned by
the Association except taxes and assessments applicable to the period prior to transfer of such
property or facilities by Declarant which shall be prorated as of the time of such transfer and paid by
Declarant. The Association may contest the validity or applicability of any such taxes, assessments
or impositions so long as such contest does not jeopardize the title of the Association to any such
property or facilities.
Section 7 - Duty to Prepare Budgets. The Association shall prepare budgets as elsewhere
provided in this Declaration.
Section 8 - Duty to Levy and Collect Assessments. The Association shall levy and collect
Assessments as elsewhere provided in this Declaration.
Section 9 - Duty to Provide Audit. The Association may provide for an annual audit of the
accounts of the Association. If required by a Government Mortgage Agency such audit may be an
independent audit. Copies of the report of the audit will be made available to any Member who
requests a copy of the same upon payment of such Member of the reasonable cost of copying the
same.
7
Section 10 - Possible Additional Duties of Association. The Executive Board may either
during the Period of Declarant Control or after the Period of Declarant Control, elect to provide the
following optional services by way of illustration, but not limitation, to Owners within the Project.
Should the Executive Board elect to provide these services, the Board may increase the Assessments
of the Association to recover the costs of the services provided. Those services which may be
provided include, hut are not limited to, snow removal of public streets within the Project, weed
control of Lots upon which no Living Unit has been constructed, negotiation of trash service for all
Living Units within the Project, and debris pickup from Common Areas.
,Section 11 -Power to Adopt Rules and Regulations. The Association may adopt, amend,
repeal and enforce rules and regulations as may be deemed necessary or desirable with respect to the
interpretation and implementation of this Declaration, the operation of the Association, and the use
of any property within the project. Any such rules and regulations shall be reasonable and uniformly
applied. Such rules and regulations shall be effective only upon adoption by resolution of the
Executive Board of the Association. Notice of the adoption, amendment or repeal of any rule or
regulation shall be given in writing to each Member of the Association at the address for notices to
Members as elsewhere provided in this Declaration or the Bylaws of the Association, and copies of
the currently effective rules and regulations will be made available to each Member upon request and
payment of the reasonable expense of copying the same. Each Member shall comply with such rules
and regulations and shall see that Related Users comply with such rules and regulations. Such rules
and regulations shall have the same force and effect as if they were set forth in and were part of this
Declaration. In the event of conflict between the rules and regulations and the provisions of this
Declaration, the provisions of this Declaration shall prevail.
Section 12 -Power to Enforce Declaration and Rules and Regulations. The Association shall
have the power to enforce the provisions of this Association Declaration and of its rules and
regulations and shall take such action as the Executive Board of the Association deems necessary or
desirable to cause such compliance by each Member of the Association and each Related User.
Without limiting the generality of the foregoing, the Association shall have the power to enforce the
provisions of this Declaration and of rules and regulations of the Association by any one or more of
the following means: (a)by entry upon any property within the Association Area. (when a bona fide
emergency exists), without liability to the Owner thereof, for the purpose of enforcement or causing
compliance with this Declaration or rules and regulations of the Association; (b) by commencing and
maintaining actions and suits to restrain and enjoin any breach or threatened breach of the provisions
of this Declaration or the rules and regulations of the Association, by mandatory injunction or
otherwise; (c)by commencing and maintaining actions and suits to recover damages for breach of any
of the provisions of this Declaration or the rules and regulations of the Association; (d) by suspension,
after notice and hearing of the voting rights of a Member of the Association during and for up to sixty
(60) days following any breach by such Member or a Related User of such member of this Declaration
or such rules and regulations, unless the breach is a continuing breach, in which case such suspension
shall continue for so long as such breach continues; (e) by levying and collecting, after notice and
hearing a Reimbursement Assessment against any member of the Association for breach of this
Declaration or such rules and regulations by such Member or a Related User of such member; and
(f)by levying and collecting, after notice and hearing as defined in this Declaration, reasonable and
uniformly applied fines and penalties, established in advance in the rules and regulations of the
Association, from any Member of the Association for breach of or failure to comply with this
Declaration or such rules and regulations by such Member or a Related User of such member.
Section 13 -Power to Provide Special Services for Members. The Association shall have the
power to provide services to a Member or group of members. Any service or services to a Member
or group of Members shall be provided pursuant to an agreement in writing, or through one or more
special service contract(s), which shall provide for payment to the Association by such Member or
group of Members of the reasonably estimated costs and expenses of the Association of providing
such services, including a fair share of the overhead expenses of the Association, and shall contain
reasonable provisions assuring that the obligation to pay for such services shall be binding upon any
heirs, personal representatives, successors and assigns of the Member or group of Members and that
the payment for such services shall be secured by a lien on the property of the Member or group of
Members.
8
Section 14 -Power to Employ Managers. The Association shall have the power to retain and
pay for the services of a Manager or Managers to undertake any of the management or functions for
which the Association has responsibility under this Declaration to the extent deemed advisable by the
Association, and may delegate any of its duties, powers or functions to any such Manager. Any
contract or agreement with any such Manager shall be terminable by the Association for cause on no
more than thirty (30) days' prior written notice, and shall be terminable by the Association without
cause and without payment of a termination fee on no more than ninety (90) days' prior written
notice. Any such contract or agreement shall be for a term of no more than one (1) year but may be
subject to renewal for succeeding terms of no more than one (1) year each. Notwithstanding any
delegation to a Manager of any duties, powers or functions of the Association, the Association and
its Executive Board shall remain ultimately responsible for the performance and exercise of such
duties, powers and functions. My agreement or contract with a Manager may contain any other
provisions which are required to be contained therein by any Government Mortgage Agency.
Section 15 - Power to Engage Employees Agents and Consultants. The Association shall
have the power to hire and discharge employees and agents and to retain and pay for legal and
accounting services as may be necessary or desirable in connection with the performance of any duties
or the exercise of any powers of the Association under this Declaration.
,Section 10 - General Corporate Powers. The Association shall have all of the ordinary
powers and rights of a Colorado corporation formed under the Colorado Nonprofit Corporation Act,
including, without limitation, entering into partnership and other agreements, subject only to such
limitations upon such powers as may be set forth in this Declaration or in the Articles of
Incorporation or Bylaws of the Association. The Association shall also have the power to do any and
all lawful things which may be authorized, required or permitted to be done under this Declaration
or the Articles of Incorporation and Bylaws of the Association and to do and perform any and all acts
which may be necessary or desirable for, or incidental to, the exercise of any of the express powers
or rights of the Association under this Declaration and the Articles of Incorporation and Bylaws of
the Association.
ARTICLE V
COMMUNITY ASSOCIATION PROPERTIES
Section 1 •- Right of Association to Regulate IZs_e. The Association , acting through the
Executive Board, shall have the power to regulate use of the Association Common Areas by
Members to further and enhance the overall rights of use and enjoyment of all Members, including
imposing reasonable limits on the times of use and numbers of guests permitted to use Association
Common Areas including imposing reasonable limits on the times of use and numbers of guests
permitted to use Community Association properties.
,Section 2 -No Partition of Association Common Areas. No Owner shall have the right to
partition or seek to partition of the Association Common Areas or any part thereof
Section 3 - Liability of Owners for Damage by Member. Each Member shall be liable to the
Association for any damage to Association Common Areas or for any expense or liability incurred
by the Association to the extent not covered by insurance which may be sustained by reason of the
negligence or willful misconduct of such Member or any person using the Association Common
Areas through such Member and for any violation by such Member or any such person of this
Declaration or any Rule or Regulation adopted by the Association. The Association shall have the
power, as elsewhere provided in this Declaration, to levy and collect a Reimbursement Assessment
against a Member., after Notice and Hearing, to recover the costs and expenses incurred by the
Association on account of any such damage or any such violation of this Declaration or of such Rules
and Regulations or for any increase in insurance premiums directly attributable to any such damage
or any such violation.
Section 4 - Association Duties Regarding Damage, Destruction or Required Improvements.
In the event of damage to Association Common Areas by fire or other casualty or in the event any
governmental authority shall require any repair, reconstruction or replacement of any Association
9 •
Common Areas, the Association shall have the duty to repair, reconstruct or replace the same. Any
insurance proceeds payable by reason of damage or destruction of Association Common Areas by
fire or other casualty shall be paid to the Association and shall be used, to the extent necessary, to
pay the costs of repair, reconstruction or replacement. If funds from insurance proceeds or from
reserves for replacement are insufficient to pay all costs of repair, reconstruction or replacement of
Improvements damaged or destroyed, or if the Association is required to make repairs, replacements
or Improvements by governmental authorities, the Association may, in order to make up any
deficiency in the insurance proceeds or to pay for the required repair, replacement or improvement,
levy a Special Assessment in accordance with Article VI Section 6, or if a Member or group of
Members is liable for such damage, levy a Reimbursement Assessment in accordance with Article VI
Section 7, against the Member or group of Members responsible therefor, to provide the additional
funds necessary as elsewhere provided in this Community Declaration. Repair, reconstruction and
replacement of Association Common Areas shall be done under such contracting and bidding
procedures as the Association shall determine are appropriate.
Section 5 - Title to Common Areas on Dissolution of Association . In the event of dissolution
of the Association , the Association Common Areas shall, to the extent reasonably possible, be
conveyed or transferred to an appropriate public or governmental agency or agencies or to a
nonprofit corporation, association, trust or other organization to be used, in any such event, for the
common benefit of Owners for similar purposes for which the particular Association Property was
held by the Association .
ARTICLE VI
COVENANTS FOR ASSESSMENTS
Section 1 - General. The Association shall have the power to levy Assessments against the
Lots and the Owners thereof, and each Owner, and, if more than one (1) Person, all such Persons,
jointly and severally, by acceptance of the deed to a Lot, whether or not it shall be expressed in any
such deed, shall be deemed to covenant and agree expressly in any such deed to pay all such
Assessments in the manner and for the purposes provided herein. Subject to the provisions hereof,
the Board shall have the power and authority to determine all matters in connection with
Assessments, including the power and authority to determine where, when, and how Assessments
shall be paid to the Association, and each Owner shall comply with such determination.
Section 2- Msthod of Assessment All Assessments shall be levied by the Association against
Lots and collected and disbursed by the Association. The Executive Board shall fix the amount of
the Assessments as provided hereinafter and set the date or dates such Assessments shall become due.
Section 3 - Relationship of the Association Lien to Mortgages. Except as provided in C.R.S.
§38-33.3-316 as originally enacted or as subsequently amended by the Colorado Legislature, the lien
of the assessments provided for herein shall be subordinate to the lien of any First Mortgage. The lien
of such assessments shall be superior to any homestead exemption or other exemption as is now or
may hereafter be provided by Colorado or Federal law. The acceptance of a deed to land subject to
this Declaration shall constitute a waiver of the homestead and any other exemption as against said
assessment lien. Sale or transfer of any Lot shall not affect the liens for said charges except that sale
or transfer of any Lot pursuant to mortgage foreclosure or any proceeding in lieu thereof, including
a deed in lieu of foreclosure or cancellation or forfeiture of an executory land sales contract shall
extinguish the lien of such charges as to payments which became due prior to such sale, transfer,
cancellation or forfeiture of executory land sales contract. No sale, transfer, cancellation or forfeiture
of executory land sales contract shall relieve such Lot from liability for any such charges thereafter
becoming due or from the lien thereof; provided, however, that in the event of foreclosure of a First
Mortgage or the taking of a deed in lieu thereof, such First Mortgagee shall not be liable for unpaid
assessments or other charges which accrue prior to the acquisition of title to the Lot in question by
such First Mortgage except to the extent C.R.S. §38-33.3-316 grants a superior priority to liens of
the Association in relationship to a first mortgage.
10
Section 4 - General Assessments.
(a) ha. The General Assessment shall be used to promote the welfare of the
Members and in particular to improve, maintain and operate the Common Areas, any
improvements located including funding of an adequate reserve fund for maintenance, repair,
replacement of those elements of the Common Areas that must be replaced on a periodic
basis, to maintain the landscaping of the Common Areas, and to pay annual insurance costs
necessary to the Association, all tax liabilities assessed by any federal, state or local tax
authority relating to the common areas, to carry out all activities necessary to enforce these
Covenants as they relate to architectural control issues, as well as to pay any professional fee
incurred by the Association.
(b) Basis for Assessment. For General Assessment purposes Lots with the
Development shall be assessed either as improved lots or unimproved lots or nonassessable
lots as defined in Section 9 of this Article or Article I, Section 21 of these Covenants.
(c) Initial Monthly Assessment. An initial monthly assessment has been
determined by the Declarant to be as follows: The improved lot assessment will be Thirty and
no/100 Dollars($30.00). The unimproved lot assessment will be Fifteen and no/100 Dollars
($15.00) per month.
(d) Increase in Lot Assessment. The Executive Board, shall have the ability to
increase general assessments by vote of a majority of the executive board in an amount which
shall be sufficient to meet the obligations imposed by the Declaration. In the event the Board
fails to fix an assessment for any physical year, then the general assessment established for the
prior year shall automatically be continued until such time as the board acts.
(e) Date of Commencement of General Assessments. All General Assessments
shall be either an unimproved lot assessment or an improved lot assessment as defined in
Section 8 of this Article VI. The snimproved lot assessment shall commence on the first day
of the month following the recording of the subdivision plat by the Developer/Declarant. The
improved lot assessment shall commence on the first day of the month following the
conveyance of a lot upon which there is a completed residence by Ryland Group, Inc. to any
third party purchaser or the first day of the month following the issuance of a Certificate of
Occupancy for any Living Unit by Weld County if such Living Unit is constructed by a builder
other than Ryland Group, Inc. If for any reason an unimproved lot is a nonassessable lot as
defined in Article I, Section 24 of this Declaration the general assessment for an unimproved
lot shall not commence until such time as the nonassessable lot is eligible for a building permit
to be issued by Weld County, Colorado.
Section 5 - Budget Process. To determine the amount required to be raised by General
Assessments for any fiscal year, the Executive Board shall prepare an Annual Budget for such fiscal
year showing, in reasonable detail, the various matters proposed to be covered by the Budget, the
estimated costs and expenses which will be payable, and the estimated income and the funds which
will be available in that fiscal year, and the estimated total amount of money required to be raised by
the General Assessment to cover such costs and expenses and to provide a reasonable reserve. The
total amount of money required to be raised by the General Assessment for such fiscal year shall be
the amount as determined by the Board necessary to satisfy the costs and expenses of fulfilling such
functions and obligations of the Association in the coming fiscal year, including the payment of debts
from prior fiscal years, providing reasonable reserves, and providing a reasonable carry-over reserve
for the following fiscal year. Within thirty(30) days after 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 the Lot Owners and shall set a date for a meeting of the Lot
Owners to consider ratification of the budget not less than fourteen (14) nor more than sixty (60)
days after mailing or other delivery of the summary. Unless at that meeting a majority of all Lot
Owners present at the meeting, in person or by proxy, rejects the budget, the budget is ratified,
whether or not a quorum is present. In the event the proposed budget is rejected, the periodic budget
last ratified by the Lot Owners must be continued until such time as the Lot Owners ratify a
subsequent budget proposed by the Executive Board.
11
Section 6 - Special Assessments. Special Assessments may be made for the purposes of
raising funds for capital improvements and for any other Association purpose for which General
Assessments may not or have not been made. Whether to make a Special Assessment and the amount
thereof per Lot shall be determined by the Board; provided that no Special Assessment shall be valid
unless approved by g majority vote of the Members present and voting in person or by proxy at any
Annual Meetina of the Members of the Association or at any Special Meeting thereof called for the
purpose of considering such Special Assessment.
,Section 7 • Reimbursement Assessments. The Executive Board of the Association may,
subject to the provisions hereof, levy an Assessment against any Member if(a) the willful or negligent
failure of the Member or Related User of the Member to comply with this Declaration, the Articles
of Incorporation, the Bylaws of the Association, rules and regulations adopted by the Association,
or guidelines or rules adopted by the Association Architectural Review Committee have resulted in
the expenditure of funds to cause such compliance, or (b) if a Member or a Related User of the
Member shall fail to pay any fines or penalties established in the rules and regulations of the
Association for breach of or failure to comply with this Declaration or such rules and regulations.
Such Assessments shall be known as Reimbursement Assessments. The amount of the
Reimbursement Assessments shall be due and payable to the Association thirty (30) days after notice
to the Member of the decision of the Executive Board of the Association that the Assessment is
owing.
Section 8 - Differential Assessments. Each Owner, including the Declarant, shall have the
obligation to pay the General Assessment for each Lot owned within the Association. There shall be
two(2)levels of General Assessments for Lots within the Association. One level of assessment shall
be based upon Lots which are unimproved. "Unimproved Lots" shall be defined to mean Lots within
the Association, for which water and sewer services, curb, gutter, sidewalk, and street paving
improvements have been completed but upon which no residential construction has started.
I Jnimproved I its shall pay an assessment which includes these expense items incurred by the
Association: general liability insurance costs, weed control costs, general administrative overhead
necessary to operate the Association and a proportionate share of the costs necessary to maintain and
care for the common areas. The second level of assessment by the Association shall be for Improved
Lots. "Improved Lots" shall be defined to mean any Lot upon which residential construction has been
completed as of the date the assessment is due. The Improved Lot assessment shall include those
costs incurred by the Association for: general liability insurance costs, Common Area maintenance
costs, Common Area sprinkler system operation and maintenance costs, general administrative
overhead necessary to operate the Association, and a proportionate share of the costs necessary to
maintain and care for the common areas. The percentages allocated to both unimproved and
improved lots shall be set by the Executive Board and the Declarant on an annual basis with the intent
that as The Elms develops and residential homes are completed within the development there will be
a cost shifting so that residential homeowners within the development will assume a greater
responsibility for the maintenance and operation of the common areas. The identification of costs in
this Section 8 is not meant to be exhaustive, and the Executive Board may identify additional costs
to be included as costs to be paid by either an unimproved or improved Lot. With the exception of
nonassessable Lots as defined in Article I, Section 24 of this Declaration, no Owner, including the
Declarant/Developer, shall be exempt from General Assessments for Lots within the Association, and
Owners shall pay either an Unimproved Lot assessment or an Improved Lot assessment on each Lot
owned from the date said Owner acquires title.
Section 9 •. Time for Payments. The General Assessment for each Lot shall be payable in
twelve equal monthly installments due on the first day of each month and shall become delinquent if
not paid by the tenth(10th)day of each month. Special Assessments shall be payable as provided in
the resolutions authorizing the same. All installments of General and Special Assessments shall be
due and payable without notice or demand, and all Assessments shall be paid without any setoff or
diminution of any kind. Any Assessment or installment thereof or other amount payable pursuant to
this Section or under the Articles of Incorporation or its Bylaws which is not paid when due shall bear
interest from the delinquency date until paid at the maximum rate permitted by law for interest as
provided in Colorado Revised Statutes §38-33.3-315(2) or any subsequent amendment thereto or
such lesser rate as the Board shall determine and/or may be subject to a late charge as may be set and
12
uniformly applied by the Board. All payments on account shall be first applied to interest and late
charges and then to the Assessment payment due.
Section 10 - Lien for Assessments and Other Amounts. The Association shall have a lien
against each Lot to secure payment of any Assessment and other amounts due and owing to the
Association with respect to that Lot which shall be created and enforced as provided in Colorado
Revised Statutes §38-33.3-316 or any subsequent amendment thereto.
Section 11 -Reserve Capital. The Association or Declarant may require the Purchaser
of any Lot who purchases that Lot from the Declarant to make a contribution to reserve capital equal
to two monthly general assessments currently being collected by the Association from its members
with the Association,which sum shall be held, by the Association as and for reserve capital. Reserve
capital shall not be used for recurring expenses in the Association but rather shall be used for
extraordinary expenses that were not anticipated by the Board. Any use of reserve capital shall
require the prior approval of a majority vote of the Members present at voting in person or in proxy
at an Annual Meeting of the Members of the Association or at any Special Meeting thereof called
for the purpose of considering the use of reserve capital. Such deposit shall not relieve an Owner
from making the regular payment of assessments as the same become due. Any amount collected,
shall not be refunded to the owner upon the sale or transfer of a Lot. No owner shall be entitled to
interest on any amount provided as working capital to the Association. The provisions of this Section
11 shall not apply to the Declarant or Ryland Group, Inc. or any successor in interest to the
Declarant.
Section 12-Estoppel Certificate. Upon payment of a reasonable fee and upon written request
of any Owner, or First Mortgagee, or any person with any right, title or interest in a Lot or intending
to acquire any right,title, or interest in a Lot, the Association shall furnish a written statement stating
forth the amount of any Assessments, if any, due or accrued and then unpaid with respect to such Lot
and the amount of the Assessments for the current fiscal period of the Association payable with
respect to the Lot, which statement shall, with respect to the party to whom it is issued, be conclusive
against the Association, for all purposes, that no greater or other amounts were then due or accrued
and unpaid.
Section 13 -No Abatement. No diminution or abatement of Assessments shall be allowed
or claimed for any reason including, without limitation, from the making of repairs or improvements
to the Common Area or from any action taken to comply with any law, ordinance, or order of a
governmental authority.
Section 14 - Rights of First Mortgagees Any First Mortgagee of a Lot within the Project
may jointly or severally pay any tax or other charge which is in default and which may have become
a charge or a lien against any common area of the Association, and any First Mortgagee may jointly
or severally pay any overdue premium on hazard insurance policies or secure new hazard insurance
coverage on the lapse of any such policy, upon common area of the Association, and any First
Mortgagee(s)making such payments shall be entitled to immediate reimbursement therefor from The
Elms Community Association.
Section 15 -Exempt Property. The following property subject to this Declaration shall be
exempted from the Assessments, a charge and lien created herein: (a) All properties to the extent of
any easement or other interest therein dedicated and accepted by a public authority and devoted to
public use; (b)all Association Properties; and (c) all properties exempted from taxation by the State
or County Government on the terms and to the extent of such legal exemption.
ARTICLE VII
USE AND OTHER RESTRICTIONS
Section 1 - Nuisances. No nuisance shall be permitted to exist or operate upon any property
so as to jeopardize property values or to be detrimental to the well being of any other Member of the
Association.
13
Section 2 -Restriction on Further Subdivision. No Lot upon which a Living Unit has been
constructed shall be further subdivided or separated into smaller lots by any Owner, and no portion
less than all of any such Lot, nor any easement or other interest herein 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.
Section 3 - ;Single>FamilyResidences. No Lot shall be used for any other purpose other than
as a single-family residence, and no business or commercial activity shall be carried on or within the
Project other than those home occupations defined as such in the Weld County Zoning Code.
Section 4 -Common Area Restriction. All use and occupancy of the Common Areas within
the subdivision shall be subject to and governed by the Rules and Regulations adopted by the
Association. No damage or waste shall be committed to the Common Areas or Improvements
located thereon.
Section 5 -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 Association.
Section 6 -No Violation of Law. Nothing shall be done or kept in or on any portion of the
Project which would be in violation of any Statute, Rule, Ordinance, Regulations, Permit or validly
imposed requirement of any governmental body.
Section 7 - Appearance. All Lots shall be kept in a clean, safe and attractive condition, and
no rubbish, refuse or garbage shall be allowed to accumulate.
Section 8 - Restrictions on Signs. With the exception of one eighteen inch by twenty-four
inch Real Estate "For Sale" sign, no signs or advertising devices of any nature shall be erected or
maintained on any part of the Project(including, without limitation, any Lot)without the prior written
approval of the Architectural Review Committee of the Association.
Section 9 - Conditions for Architectural Control. No improvements, alterations, repairs,
change of paint colors, excavations, changes in grade or other work which in any way alters the
exterior of any Lot, Living Unit, Common Area or the improvements located thereon from their
natural or improved state existing on the date such property was first subject to this Declaration shall
be made or done without compliance with the procedures set forth in Article X of this Declaration
regarding Architectural control.
,Section 10 - Rules and Regilations. Every Owner or guests or members of the family, or
Related User, and employees shall strictly adhere to the Rules and Regulations adopted from time to
time by the Association. The Executive Board may adopt general rules, including but not limited to,
rules to regulate potential problems relating to the use of the property and the well-being of the
members, such as keeping of animals, storage items and the use of all vehicles, storage and use of
machinery, use of outdoor drying lines, antennas, signs, trash, trash containers, maintenance and
removal of vegetation on the properties.
Section 11-Accessory Buildinv. No accessory building shall be constructed or placed upon
any Lot without compliances with the procedures set forth in Article X of this Declaration regarding
architectural control. The exterior of any accessory building shall be constructed of the same
components and the roofing materials shall be the same roofing materials as the Residential Unit
which is constructed on any Lot. No accessory building shall be placed nearer than fifteen (15) feet
to any side lot line or twenty(20) feet from the rear lot line of any lot and the exact location shall be
approved by the architectural review committee as set forth in Article X of this Declaration.
Section 12 -Restrictions on Parking and Storage. Except as expressly heretofore provided,
no Lot, including the private drives, or parking areas, shall be used as a parking, storage, display or
accommodation area for any type of house trailer, camping trailer, boat trailer, hauling trailer, running
gear, boat or accessories thereto, trucks with a greater than one(1) ton cargo capacity, self-contained
motorized recreational vehicle except as for the temporary purpose of loading or unloading of such
14
vehicle or for any such emergencies purpose. No more than two (2) vehicles of any type shall be
parked on any drive way at any time for a period which shall not exceed twelve (12) hours. Any
vehicle parked on a private drive shall be in an operable condition and licensed by the State of the
Owner of such vehicle. No abandoned or inoperable vehicle (which shall be defined to mean any
vehicle which has not been driven under its own power for period of two (2)weeks or longer) shall
be stored anywhere on a Lot, or a private drive. Inoperable vehicles may be stored in accessory
buildings which have been approved in accordance with Article X of this Declaration regarding
architectural control. Guest vehicles may be parked on private drive ways for a periods which do not
exceed twelve(12)hours. Owners may also allow guests with self contained motorized recreational
vehicles to park in a private drive a period of fourteen (14) consecutive days, if the owner has
obtained prior written approval of the Executive Board for such parking. The Executive Board shall
also have the ability to grant a waiver from these restrictions upon application to the Executive Board
by Owner, if circumstances warrant a waiver of the restrictions set forth herein.
Section 13 -Animals Within Project. No animals shall be kept within the Project except that
any Owner may keep a reasonable number of household pets in any Living Unit. Household pets shall
be defined to include dogs, cats, or any other animal confined in a cage or tank which is does not
exceed six (6) square feet in its dimensions. No animal shall be kept within the Project for any
commercial purpose. The Owner of any dog shall fence the exterior of any Lot in a manner which
would prevent the dog from gaining access to any other Lot or Common Area within the Project.
It shall be the obligation of each Owner to prevent any pet maintained by the Owner from becoming
a nuisance to adjoining property owners as it relates to the pet's activities or barking. It shall be the
responsibility of each owner to maintain any Lot or Common Area used in any manner by any pet to
avoid any noise or odor or nuisance to any other owner within the Association. Each pet owner shall
be responsible for cleaning up of any excrement left by such pet on any Lot or Common Area. The
Executive Board may, at any time, create rules and regulations regarding the keeping of animals
within the Project, and all Owners shall be subject to this covenant which requires the Owners to
comply with the terms and conditions of those rules and regulations regarding animals within the
Project. Any rules and regulations regarding animals once established by the Executive Board shall
be mailed to all owners within the Project.
Section 14 - Control of Ajttennas and Receiving Equipment. The use of certain types of
receiving equipment is subject to rules and regulations issued by the Federal Communications
Commission which limits the ability of the Association Board to control the placement of such
equipment. As of the date of this Declaration, the types of receiving equipment which do not require
architectural review and approval include: (1)a"dish" antenna which is thirty-nine (39) inches or less
in diameter and is designed to receive direct broadcast satellite service including direct to home
satellite service; or (2) an antenna which is thirty-nine (39) inches or less in diameter or diagonal
measurement and is designed to receive video programming services via MMDS (wireless cable).
MI transmission or receiving devices other than those governed by the Federal Communications
Commission shall be installed in a manner in which the device is not higher than the ridge line of the
roof of the Residence on the Lot on which the receiving or transmitting device i.s being installed.
Section 15 - Underground Electric Tines. All electric, television, radio, telephone line
installations and connections from any property line of a Lot to a Living Unit or other structures shall
be placed underground, except that during the construction of a Living Unit, the contractor or builder
may install a temporary overhead utility line which shall be promptly removed upon completion of
construction.
Section 16 -No Hazardous Activities. No activities shall be conducted on the project and on
improvements constructed on the project which are or might be unsafe or hazardous to any person
or property. Without limiting the generality of the foregoing, no firearms shall be discharged upon
any of the Project and no open fires shall be lighted or permitted on the Project except in a contained
barbecue unit whille attended and in use for cooking purposes or within a safe and well-designed
interior fireplace.
Section 17 -No Annoying Light Sound or Odors. No light shall be emitted from any Lot
which is unreasonably bright or causes unreasonable glare; no sound shall be emitted on any Lot
which is unreasonably loud or annoying; and no odor shall be emitted on any Lot which is noxious
or offensive to others.
15
,Section 18 •-DogRunt and Storage Areas. No dog run, drying yard, storage area or wood
pile shall be constructed or altered within the Project without being approved according to the
provisions of this Declaration regarding Architectural Control. The installation of a temporary dog
run shall be permitted without the need for the architectural review and approval as described in this
Declaration. Any temporary dog nun shall be defined to mean a fenced area for dogs which shall not
be allowed to exist for a period of more than sixty(60) days from the date of its construction. Any
permanent dog run shall require architectural approval according to the provisions of this Declaration
regarding Architectural Control.
Section 19•-Garbage and Refuse Disposal. No garbage, refuse, rubbish or cuttings shall be
deposited on any street or Lot unless placed in a container suitably located solely for the purpose of
garbage pickup. All equipment for the storage or disposal of such materials shall be kept in clean and
sanitary condition.
Section 20 -Repair. No activity such as, but not limited to, maintenance., repair, rebuilding,
dismantling, repainting or servicing of any kind of vehicles, trailers or boats may be performed on any
Lot unless it is done within completely enclosed structures located in the Living Unit which screen
the sight and sound of the activity from the street and from adjoining property nor shall any such
activity be performed on the Common Area. The foregoing restriction shall not be deemed to prevent
washing and polishing of any motor vehicle, boat, trailer or motor-driven cycle, together with those
activities normally incident and necessary to such washing and polishing.
Section 21 - Storage. No tanks for the storage of gas, fuel, oil or other materials shall be
erected, placed or permitted above or below the surface of the Lot except for propane tanks used to
store propane in connection with barbecue equipment.
Section 22 - Trash Rurninu. Trash, leaves and other similar materials shall not be burned
within the Project.
Section 23 -Weed Control Each Lot Owner shall be responsible for weed control on each
Lot owned by that Owner. The Association shall enforce a weed height standard'which requires that
weeds shall not exceed six inches in height. Should a Lot Owner allow weeds to exceed twelve
inches in height, the Association may,but shall not be required, to give the Lot Owner written notice
of its intent to mow the weeds and should the Lot Owner not mow the weeds within seven days after
receiving said notice, or should the Association deem it necessary for immediate maintenance to
occur, the Association may employ agents to perform the weed maintenance, pay for the cost of that
maintenance, and then recover it from the Lot Owner in the form of a reimbursement assessment as
described in Article V. Section 7 of these covenants.
Section 24 -No Right of Access to Meadow Vale Farm i,alre. No Lot Owner in The Elms
shall have access to or a right to use Meadow Vale Farm Lake which adjoins this Project to the south.
The use and access of the Lake is controlled by the Meadow Vale Farm Community Association and
not The Elms Community Association.
Section 25 -Possible Mandatory Interior Fire Sprinkling Systems Required. The Declarant
has been informed by the Mountain View Fire Protection District that if the interior finished living
space of any residential home exceeds 3600 square feet, that the fire protection district will require
a mandatory interior fire protection sprinkling system to be installed in that residence. Each lot owner
who constructs a residence in excess of 3600 square feet shall be required to comply with the fire
protection standards of the Mountain View Fire Protection District. Those standards exist on the
date of the recording of this Declaration or are subsequently amended after the recording of this
Declaration.
Section 2(i - Covenants Run with Land. It is expressly understood and agreed that all
covenants, conditions and restrictions contained herein are intended to and shall run with the land,
and Declarant hereby agrees, for itself and its successors and assigns, that such covenants, individually
and collectively, touch and concern the land and shall be binding, fully and in all respects, upon
Declarant's successors in title to the land, regardless of how succession of title may be accomplished.
16
ARTICLE VIII
INSURANCE,
Section 1 -Tns iranre. All insurance, other than title insurance, carried in connection with the
Common Area, Lots, Living Units, Improvements and Project shall be governed by the provisions
of this Article VII.
Section 2- Insurance Requirements Generally. The Association shall obtain and maintain in
full force and effect at all times certain casualty, liability and other insurance as hereinafter provided.
All such insurance shall be obtained, to the extent possible, from responsible companies duly
authorized and licensed to do insurance business in the State of Colorado.
To the extent possible, the casualty, property and liability insurance shall: (1) provide for a
waiver of subrogation by the insurer as to claims against the Association, its directors, officers,
employees, agents and members; (ii) provide that the insurance cannot be canceled, invalidated or
suspended on account of the conduct of the Association, its officers, directors, employees and agents;
(iii) provide that the policy of insurance shall not be terminated, canceled or substantially modified
without at least thirty (30) days' prior written notice to the Association; and (iv) provide for a
standard Mortgagee's Clause in favor of all First Mortgagees who have an interest within the Project.
Any insurance policy may contain such deductible provisions as the Association deems
consistent with good business practice and which shall be consistent with the requirements of any
First Mortgagees. Any loss falling within the deductible portion of a policy shall be paid by the
Association, but may be recovered from the Lot Owner(s) whom the Association determines to be
responsible for the loss. The cost and expense of all insurance obtained by the Association shall be
paid out of Association funds collected by Assessments and otherwise as elsewhere provided in this
Declaration.
,Section 3 - Insurance for Common Area and Fidelity Insurance. The Association shall
maintain insurance covering all insurable improvements located or constructed upon the Common
Areas. The Association shall maintain the following types of insurance, to the extent that such
insurance is reasonably available from a carrier with a Best's Insurance Rating of Class X-B or better:
(a) A policy of property insurance covering all insurable improvements located
on the Common Area, with coverage sufficient to obtain a replacement, cost endorsement
providing that any claim will be settled on a full replacement cost basis without deduction for
depreciation, and including an "Inflation Guard Endorsement" and an "Agreed Amount
Endorsement." The Association may also purchase a "Demolition Endorsement," an
"Increased Cost of Construction Endorsement," a "Contingent Liability from Operation of
Building Laws Endorsement" or the equivalent and/or coverage on personal property owned
by the Association. Such insurance as maintained by the Association pursuant to this
subsection shall afford protection against at least the following:
(1) loss or damage by fire and other hazards covered by the standard all
risk form; and
(2) such other risks as shall customarily be covered with respect to
projects similar in construction, location and use.
(b) A comprehensive policy of public liability insurance covering all of the
Common Areas insuring the Association in an amount not less than $1,000,000 covering
bodily injury, personal injury and property damage liability arising out of a single occurrence,
such coverage to include protection against liability for non-owned and hired automobile and,
if applicable, garage keeper's liability, water damage liability, contractual liability, worker's
compensation insurance for employees of the Association and such other risks as shall
customarily be covered with respect to projects similar in construction, location and use.
17
(c) A policy providing adequate fidelity coverage or fidelity bonds to protect
against dishonest acts on the part of officers, directors, trustees and employees of the
Association and all others who handle or are responsible for handling funds of the
Association. Such fidelity coverage or bonds shall meet the following requirements::
(1) all such fidelity coverage or bonds shall name the Association as an
obligee;
(2) such fidelity coverage or bonds shall contain waivers of any defense
based upon the exclusion of persons who serve without compensation from any
definition of"employee" or similar expression; and
(3) the amount of coverage shall not be less in aggregate than two (2)
months current assessments plus reserves, as calculated from the current budget of
the Association or such amount that is subsequently required by legislative
amendment to C.R.S. §38-33.3-313
All policies of insurance in this Section 3 shall contain waivers of subrogation and waivers of
any defense based on invalidity arising from any acts of a Member of the Association and shall
provide that the policies may not be canceled or substantially modified without at least thirty (30)
days' prior written notice to the insured, as well as to the First Mortgagees of Lots who have
requested notice of cancellation or modification from the Association. Duplicate originals of all
policies and renewals thereof, together with proof of payment of premiums, shall be delivered to any
First Mortgagee of any Lot upon written request. The insurance shall be carried in blanket form
naming the Association, as the insured, as trustee and attorney in fact for all Owners, and their
respective First Mortgagees and each Owner shall be an insured person under such policies with
respect to liability arising out of any such Owner's membership in the Association.
Section 4 - Insurance on Living Units. Each Owner of a Lot shall be responsible for
obtaining general liability and property insurance for all Living Units built on each Lot owned without
participation by the Association. Insurance coverage on the furnishings and other items of personal
property belonging to an Owner shall be the Owner's responsibility as well.
Section 5 - Association Insurance as Primary Coverage. If at the time of any loss under any
policy which is in the name of the Association, there is other insurance in the name of any Owner and
such Owner's policy covers the same property or loss, or any portion thereof, which is covered by
such Association policy, such Association policy shall be primary insurance not contributing with any
other insurance.
,Section 6-Worker's Compensation and Employees T,iability Insurance. The Association may
obtain and maintain worker's compensation and employer's liability insurance as may be necessary to
comply with applicable laws.
,Section 7 - Notice of Loss to First Mortgagees. Provided that a First Mortgagee has, in
writing, requested the following information and has furnished the Association with the address to
which said First Mortgagee wants the information sent, then in the event there shall be any damage
to or destruction of the Common Area which shall be in excess of Ten Thousand Dollars
($10,000.00), timely written notice of any such damage or destruction shall be given by the
Association to such First Mortgagee.
Section 8 - Annual Review of Insurance Policies. All insurance policies carried by the
Association shall be reviewed at least annually by the Executive Board of the Association to ascertain
that the coverage provided by such policies adequately covers those risks insured by the Association.
Section 9 - Distribution of Insurance Proceeds by the Association. In the event the
Association is required to distribute any insurance proceeds directly to an Owner for losses to
property, any such distribution shall be made jointly payable to the Owner and any First Mortgagee
of record, as defined in this Declaration.
18
Section 10••Other Insurance. The Association may obtain insurance coverage against such
additional risks as lit shall determine to be appropriate.
ARTICLE IX
VARIOUS RIGHTS AND EASEMENTS
,Section 1 - Association Easements. Declarant hereby expressly creates and reserves for the
benefit of the Association, its designees, successors and assigns, the following easements:
(a) Easements Over Lots for Maintenance of Common Area. Easements over and
across Lots as may be necessary or appropriate for the Association to perform duties and
functions which it is obligated or permitted to perform under this Declaration, including the
use, enjoyment, maintenance, repair, and replacement of any portion of Common Area, or
Improvements thereon, and for access, ingress, and egress necessary for such use, enjoyment,
maintenance, repair and replacement.
(b) Easements for Association Fences. Easements over and across those Lots,
Common Area and Public Streets upon which Declarant installs or constructs the Association
Fences, as may be reasonable and necessary for the installation, construction, operation,
maintenance, repair and replacement of the Association Fences, and for access, ingress and
egress necessary for such installation, construction, operation, maintenance, repair and
replacement.
(c) Easements for Maintenance of Private Irrigation Systems. Easements over and
across those Lots and Common Areas upon which the Declarant installs or constructs
irrigation lines for the delivery of nonpotable water for irrigation to each Lot shall exist with
a width which is ten feet (10) from the centerline of any such water line installed by the
Declarant for the original installation, construction, operation, maintenance, repair and
replacement of those water lines and for access, ingress and egress necessary for any of the
acts named in this subparagraph (c).
Section 2- Easements Deemed Appurtenant. The easements and rights hereinabove created
shall be binding upon and inure to the benefit of the Association or each Lot in the Project and the
Owner of each such Lot, as the case may be, and all conveyances of and other instruments affecting
title to any such Lot or Common Area shall be deemed to grant and reserve the easements and rights
as are provided for herein, even though no specific reference to such easements appears in any such
conveyance.
Section 3 - Emergency Access Easement. An easement and right-of-way for ingress, egress
and access for service and emergency vehicles is hereby granted to all police, fire protection,
ambulance and all other similar emergency agencies or persons over, across, on and through any and
all Common Areas hereafter established in the Project.
Section 4 - Title to Common Area. Title to the Common Area shall be conveyed to the
Association by the Developer, free and clear of financial encumbrances.
ARTICLE X
ARCHITECTURAL REVIEW
Section 1 -Mem rship and Activation of the Association Architectural Review Committee.
The initial Architectural Review Committee and the membership thereof shall be determined by the
Executive Board of the Association. The Committee shall begin to function at such time as the
construction period exception defined in Section 24 of this Article X has been concluded by the
construction of all Living Units which can be built within the Project or the Declarant delegates
some or all decisions regarding architectural control as provided in Section 24 of this Article 10.
19
Section 2 - Improvement to Property Defined. "Improvement to Property," requiring
approval of the Executive Board, shall mean and include, without limitation: (a) the construction,
installation, erection or expansion of any building, structure or other Improvements; (b) the
demolition or destruction,by voluntary action, of any building, structure or other Improvements; (c)
the grading of any Lot, as set forth in the Master Grading Plan approved by Weld County and filed
with the Engineering Department of Weld County, excavation, filling or similar disturbance to the
surface of the land including, without limitation, change of grade, change of ground level, change of
drainage pattern; and (d) any change or alteration of any previously approved Improvement to
Property including any change of exterior appearance, color or texture.
Section 3 -- Approval of Improvements Required. After the activation of the Association
Architectural Review Committee, the approval of the Association Architectural Review Committee
shall be required for any Improvement to Property on any lot within the project, except for any
Improvement to Property made by Declarant and except as prior approval may be waived or certain
Improvements to Property may be exempted in writing or under written guidelines or rules
promulgated by the Association Architectural Review Committee because approval in such case or
cases is not reasonably required to carry out the purposes of this Declaration.
Section 4 - Committee Guidelines or Rules. The Association Architectural Review
Committee may issue guidelines or rules relating to the procedures, materials to be submitted and
additional factors which will be taken into consideration in connection with the approval of any
proposed Improvement to Property. Such guidelines or rules may specify circumstances under which
the strict application of limitations or restrictions under this Declaration will be waived or deemed
waived in whole or in part because strict application of such limitations or restrictions would be
unreasonable or unduly harsh under the circumstances. Such guidelines or rules may waive the
requirement for approval of certain Improvements to property or exempt certain Improvements to
Property from the requirement for approval, if such approval is not reasonably required to carry out
the purposes of this Declaration. Such guidelines or rules may elaborate or expand upon the
provisions herein relating to procedures and criteria for approval. Such guidelines or rules may
specify rules and restrictions pertaining to the construction of Improvements to property, including,
for example, the storage of construction materials and hours of construction operations. Such
guidelines or rules shall have the same force and effect as if they were set forth in and were a part of
this Declaration.
Section 5 - Submission of Plans. Prior to commencement of work to accomplish any
proposed Improvement to property, the Owner or its duly authorized representative proposing to
make such Improvement to property ("Applicant") shall submit to the Association Architectural
Review Committee at its offices such descriptions, surveys, plot plans, drainage plans, elevation
drawings, construction plans, landscape plans, specifications and samples of materials and colors as
the Association Architectural Review Committee shall reasonably request showing the nature, kind,
shape, height, width, color, materials, and location of the proposed Improvement to Property
("Plans"). The Association Architectural Review Committee may require submission of additional
Plans or other information prior to approving or disapproving the proposed Improvement to
Property. Until receipt by the Association Architectural Review Committee of all required materials
in connection with the proposed Improvement to Property, the Association Architectural Review
Committee may postpone review of any materials submitted for approval.
Section 6 - Criteria for Approval. The Association Architectural Review Committee shall
approve any proposed Improvement to Property only if it deems in its reasonable discretion that the
Improvement to Property in the location indicated will not be detrimental to the appearance of the
project in the vicinity of the proposed Improvement to Property; that the appearance of the proposed
Improvement to Property will be in harmony with the surrounding areas of the project; that the
Improvement to Property will not detract from the beauty, wholesomeness and attractiveness of the
project or the enjoyment thereof by Owners; and that the upkeep and maintenance of the proposed
Improvement to Property will not become a burden on the Association. The Association
Architectural Review Committee may condition its approval of any proposed Improvement to
Property upon the making of such changes therein as the Association Architectural Review
Committee may deem appropriate.
20
Section 7-Architectural Review Fee. The Association Architectural Review Committee may,
in its guidelines or rules, provide for the payment of a fee not to exceed twenty-five dollars ($25.00)
to accompany each request for approval of any proposed Improvement to Property. The Association
Architectural Review Committee may provide that the amount of such fee shall be uniform for similar
types of any proposed Improvement to Property or that the fee shall be determine in any other
reasonable manner, such as based upon the estimated cost of the proposed Improvement to Property.
,Section 8 - Decision of Committee The decision of the Association Architectural Review
Committee shall be made within thirty(30)days after receipt by the Association Architectural Review
Committee of all materials required by the Association Architectural Review Committee unless such
time period is extended by mutual agreement. The decision shall be in writing and, if the decision is
not to approve a proposed Improvement to Property, the reasons therefor shall be stated. The
decision of the Association Architectural Review Committee shall be promptly transmitted to the
Applicant at the address furnished by the Applicant to the Association Architectural Review
Committee.
Section 9 - Failure of Committee to Act on Plans. Any request for approval of a proposed
Improvement to Property shall be deemed approved, unless disapproval or a request for additional
information or materials is transmitted to the Applicant by the Association Architectural Review
Committee within thirty (30) days after the date of receipt by the Association Architectural Review
Committee of all required materials including, in the case of Initial Improvements, final working
drawings.
,Section 19 - Obtaining Governmental Approvals. Applicant shall obtain, prior to
commencement of construction of any Improvements to Property, all permits, licenses, certificates,
consents and any other approvals necessary or required pursuant to any law, ordinance, resolution,
order, rule or regulation of any governmental authority having jurisdiction ("Governmental
Approvals")in order for Applicant to construct, operate and maintain the Improvements to Property.
The Governmental Approvals shall be deemed to include, but not be limited to, building approvals
by Weld County, Colorado.
,Section 1] - Prosecution of Work After Approval. After approval of any proposed
Improvement to Property, the proposed Improvement to Property shall be accomplished as promptly
and diligently as possible in complete conformity with the description of the proposed Improvement
of Property, any materials submitted to the Association Architectural Review Committee in
connection with the proposed Improvement to Property, any conditions imposed by the Association
Architectural Review Committee and in compliance with the conditions and restrictions of this
Declaration. If any approved improvement to the property is not completed within twelve months
of the original acceptance the improvement must be re-submitted to the Association Architectural
Review Committee for approval prior to the commencement of any construction or alteration.
,Section 12-Notice of Completion. Upon completion of any Improvement of Property, the
Applicant may give written Notice of Completion to the Association Architectural Review
Committee. Until the date of receipt of such a Notice of Completion, the Association Architectural
Review Committee shall not be deemed to have notice of completion of such Initial Improvements
or Improvement to Property.
,Section 13 -Inspection of Work. The Committee or its duly authorized representative shall
have the right to inspect any Improvement to Property or the Property itself prior to, during or after
completion of any improvement to the Property. The Committee's right of inspection of
improvements shall terminate thirty (30) days after the work or improvement shall have been
completed and the respective Owners shall have given written notice to the Committee of such
completion. The Committee's right to inspection shall not be terminated pursuant to this Section in
the event plans for the construction of improvements or modification of improvements have not been
previously submitted to it by the Applicant/Owner. If, as a result of any inspection, the Committee
finds that such improvement has been initiated without obtaining approval of the plans therefore, or
is not being constructed in substantial compliance with the plans approved by the Committee, the
Committee shall have the right to initiate a civil action seeking injunctive relief against the Owner of
the Property and any contractor or subcontractor who is completing the improvements without
compliance with the Architectural Control provisions of this Declaration. Should the Committee be
21
successful in obtaining injunctive relief against the Owner, any contractor or subcontractor involved
in construction of improvements,the Committee shall be entitled to receive from the Owner all costs
of the action, including reasonable attorney's fees. It is the intent of this Section to give the
Committee the ability to prevent any construction within the subdivision of any type of improvement
that has not been previously approved by the Architectural Review Committee.
Section 14 - Notice of Noncompliance. If, as a result of inspections or otherwise, the
Association Architectural Review Committee finds that any Improvement to property has been done
without obtaining the approval of the Association Architectural Review Committee, or was not done
in substantial compliance with the approved Plans or other materials furnished to, and any conditions
imposed by, the Association Architectural Review Committee, or has not been accomplished as
promptly and diligently as possible, then the Association Architectural Review Committee shall notify
the Applicant in writing of the noncompliance;which notice shall be given, in any event, within thirty
(30) days after the Association Architectural Review Committee receives a Notice of Completion
from the Applicant. The notice shall specify the particulars of the noncompliance and shall require
the Applicant to take such action as may be necessary to remedy the noncompliance.
Section 15 -Failure of Committee to Act After Completion. If, for any reason other than the
Applicant's act or neglect, the Association Architectural Review Committee fails to notify the
Applicant of any noncompliance within thirty(30) days after receipt by the Association Architectural
Review Committee of written Notice of Completion from the Applicant, the Improvement to
Property shall be deemed in compliance if the Improvement to Property was, in fact, completed as
of the date of the Notice of Completion.
Section 10 - Correction of Noncompliance. If the Executive Board of the Association
determines that a noncompliance exists, the Applicant shall remedy or remove the same within a
period of not more than forty-five (45) days from the date of receipt by the Applicant of the ruling
of the Executive Board of the Association. If the Applicant does not comply with the Executive
Board of the Association ruling within such period the Executive Board, may, at its option, record
a Notice of Noncompliance against the real property on which the noncompliance exists, may remove
the noncomplying Initial Improvements or other Improvement to Property or may otherwise remedy
the noncompliance, and the Applicant shall reimburse the Association, upon demand, for all expenses
incurred in connection therewith. If such expenses are not promptly repaid by the Applicant, the
Executive Board of the Association may levy a Reimbursement Assessment against the Owner of the
Lot for such costs and expenses. The right of the Association to remedy or remove any
noncompliance shall be in addition to all other rights and remedies which the Association may have
at law, in equity, or under this Declaration.
Section 17 -No Implied Waiver or Estoppel. No action or failure to act by the Association
Architectural Review Committee or the Association shall constitute a waiver or estoppel with respect
to future action by the Association Architectural Review Committee with respect to any Improvement
to Property. Specifically, the approval by the Association Architectural Review Committee of any
Improvement to Property shall not be deemed a waiver of any right or an estoppel to withhold
approval or consent for any similar Improvement to property or any similar proposals, plans,
specifications or other materials submitted with respect to any other Improvement to Property.
Section 18 - Committee Power to Grant Variances. The Association Architectural Review
Committee may authorize variances from compliance with any of the provisions of this Declaration
for property in the project when circumstances such as, but not limited to, topography, natural
obstructions, hardship, aesthetic or environmental considerations may require. Such variances must
be evidenced in writing and shall become effective when signed by at least a majority of the members
of the Executive Board. If any such variance is granted, no violation of the provisions of this
Declaration for property in the project shall be deemed to have occurred with respect to the matter
for which the variance was granted; provided, however, that the granting of a variance shall not
operate to waive arty of the provisions of this Declaration for property in the project for any purpose
except as to the particular property and particular provisions covered by the variance, nor shall the
granting of a variance affect in any way the Owner's obligation to comply with Restrictions in any
deed or lease from Declarant or to comply with all governmental laws and regulations affecting the
property concerned, including, but not limited to, development guides and zoning ordinances and
setback lines or requirements imposed by any governmental authority having jurisdiction.
22
Section 19- Compensation of Members. Members of the Association Architectural Review
Committee may receive reimbursement of out-of-pocket expenses incurred by them in the
performance of their duties hereunder as compensation for the performance of such duties.
Section 20- Meetings of Committee. The Association Architectural Review Committee shall
meet from time to time as necessary to perform its duties hereunder. The Association Architectural
Review Committee may, from time to time, by resolution in writing adopted by a majority of the
members, designate a Committee Representative (who may, but need not, be one of its members) to
take any action or perform any duties for or on behalf of the Association Architectural Review
Committee, except the granting of approval to any Improvement to Property and granting of
variances. The action of such Committee Representative within the authority of such Committee
Representative or the written consent or the vote of a majority of the members of the Association
Architectural Review Committee shall constitute action of the Association Architectural Review
Committee.
Section 21 - Records of Actions. The Association Architectural Review Committee shall
report in writing to the Executive Board of the Association all final action of the Association
Architectural Review Committee and the Executive Board shall keep a permanent record of such
reported action.
Section 22 -Estoppel Cerlifisotes. The Association shall, upon the reasonable request of any
interested party and after confirming any necessary facts with the Association Architectural Review
Committee, furnish a certificate with respect to the approval or disapproval of any Improvement to
Property or with respect to whether any Improvement to Property was made in compliance herewith.
Any Person, without actual notice to the contrary, shall be entitled to rely on said certificate with
respect to all matters set forth therein.
Section 23 - Nonliability for Committee Action. There shall be no liability imposed on the
Association Architectural Review Committee, any member of the Committee, any Committee
Representative, the Association, any member of the Executive Board of either, or Declarant for any
loss, damage or injury arising out of or in any way connected with the performance of the duties of
the Association Architectural Review Committee unless due to the willful misconduct or bad faith
of the party to be held liable. In reviewing any matter, the Association Architectural Review
Committee shall not be responsible for reviewing, nor shall its approval of an Improvement to
Property be deemed approval of the Improvement to Property from the standpoint of safety, whether
structural or otherwise, or conformance with building codes or other governmental laws or
regulations.
Section 24-.Construction Period Exception. Until such time as Living Units and other initial
improvements to property required in connection with the Living Units are built upon all Lots within
the Project, all actions regarding architectural control and the approvals of such initial improvements
to property shall be decided by the Declarant or its successor or assign, without participation by the
Executive Board of the Association or the Architectural Review Committee. The Declarant or its
successor or assign may incorporate and utilize any and all provisions of this Article X to arrive at
its decision. The]Declarant or its successor or assign may also ask the Executive Board for input
regarding any improvement to a Lot subsequent to completion of the original home on the Lot. The
input shall be advisory only and the Declarant or its successor or assign shall have the ability to
control all architectural decisions until such time as residential homes have been built on each of the
Lots. The Declarant reserves the right to delegate some or all decisions regarding architectural
control to the Architectural Review Committee at the discretion of the Declarant or its successor or
assign.
ARTICLE XI
TERMINATION AND AMENDMENT OF DECLARATION
Section 1 - Termination. This Declaration shall continue in effect until and unless terminated
as provided in accordance with the provisions of C.R.S. §38-33.3-217 as originally enacted or as
subsequently amended by Colorado Legislature.
23
Section 2 - Amendment. Unless terminated as provided in Section 1, each and every
provision of this Declaration shall run with and bind the land for a term of twenty(20) years from the
date recording of this Declaration, after which time this Declaration shall be automatically extended
for successive periods of ten (10)years each except for provisions stated in Article XIII, Section 2,
which identify specific voting requirements for those actions to be authorized. This Declaration may
be amended during the first twenty (20) year period in accordance with the provisions of C.R.S.
§38-33.3-217 as originally enacted or subsequently amended by the Colorado Legislature
ARTICLE XII
CONDF,MNATION DAMAGE OR DESTRUCTION
TO COMMON AREA
Section 1 - Damage or Destruction to Common Ar t. In the event of damage or destruction
to all or a portion of the Common Area due to fire or other disaster, the insurance proceeds, if
sufficient to reconstruct or repair the damage, shall be applied by the Association to such
reconstruction and repair. If the insurance proceeds with respect to such Common Area damage or
destruction are insufficient to repair and reconstruct the damaged or destroyed Common Area, the
Association shall present to the Members a notice of a special assessment for approval by the
membership as provided for in Article VI, Section 6 of this Declaration. If such assessment is
approved, the Association shall levy such assessment and proceed to make such repairs or
reconstruction. If such assessment is not approved, the insurance proceeds may be applied in
accordance with the wishes of the membership as expressed by the written consent of seventy-five
percent(75%)of the Owners other than Declarant, except that the proceeds shall not be distributed
to the Owners, unless made jointly payable to Owners and the First Mortgagees of their respective
Lots, if any. Such assessment shall be due and payable as provided by resolution of the Executive
Board, but not sooner than sixty(60)days after written notice thereof. The assessment provided for
herein shall be a debt of each Owner and a lien on the Lot, and may be enforced and collected in the
same manner as any assessment lien provided for in this Declaration.
Section 2 - Owner-Caused Damage. If, due to the act or neglect of an Owner or a Related
User of an Owner,whether by virtue of the exercise by such Owner or Related User of any easement
or right granted to him herein or otherwise, loss or damage shall be caused to any property, including
the Common Area, and, in the case of damage to property, if such Owner does not promptly repair
and restore any such damaged property to the condition it was in prior to such damage at such
owner's sole cost and expense, such Owner shall be liable and responsible for the same except to the
extent that such damage or loss is covered by insurance obtained by the Association and the carrier
of the insurance has waived its rights of subrogation against such Owner. The amount of such loss
or damage may be collected by the Association from such Owner as a Reimbursement Assessment
against such Owner, by legal proceedings or otherwise, and such amount shall be secured by a lien
on the Residential Lot of such Owner as provided elsewhere in this Declaration for assessments or
other charges.
Section 3 - Condemnation Procedure. In the event proceedings are initiated by any
government or agency thereof, seeking to take by eminent domain the Common Area, any part
thereof or any interest therein, any improvement thereon, or any interest therein, with a value
(including loss of value to the balance of the Common Area and improvements thereof), as reasonably
determined by the Association in excess of$10,000, the Association shall give prompt notice thereof,
including a description of the part of or interest in the Common Area or improvement thereon sought
to be so condemned,to all First Mortgagees, Members, and to the Declarant. The Association shall
have fill power and authority to defend in said proceedings, but the Association shall not enter into
proceedings, pursuant to which the Common Area or any part thereof or any interest therein, or any
improvement thereon or any part thereof or interest therein is relinquished without giving all First
Mortgagees, Members, and Declarant at least fifteen (15) days prior written notice thereof.
In the event, following such proceedings, there is such a taking in condemnation or by eminent
domain of a part or all of the Common Area, the award made for such taking shall be payable to the
Association, subject to the provisions of C.R.S. §38-33.3-107 regarding the distribution of eminent
domain awards as that section was originally enacted or is subsequently amended by the Colorado
Legislature.
24
ARTICLE XIII
MORTGAGEE'S RIGHTS
$ection 1 -Notice to Mortgagee. Each holder of a first deed of trust on any Lot shall, upon
written request by such holder to the Board, receive any of the following:
(a) Copies of budgets, notices of assessments, insurance certificates, or any other
notices or statements provided under this Declaration by the Association to the Owner of the
Lot covered by the deed of trust;
(b) Any audited or unaudited financial statements of the Association within ninety
(90) days :Following the end of any fiscal year, which are prepared for the Association and
distributed to the Owners subject to the limitation that the Association shall not be required
to provide an audited financial statement to any owner or mortgagee unless the holder of the
first mortgage requests either an audited or unaudited financial statement from the
Association;
(c) Copies of notices of meetings of the Owners and the right to be represented
at any such meetings by designated representative;
(d) Notice of the decision of the Owners or the Association to make any material
amendment to this Declaration(as defined in Federal National Mortgage Association Lending
Guide), the Bylaws, or the Articles of Incorporation of the Association;
(e) Notice of substantial damage to or destruction of any Building or Living Unit,
or any part of the Common Area;
(f) Notice of commencement of any condemnation or eminent domain
proceedings with respect to any part of the Common Area or any Lot within the Project;
(g) Notice of any default of the holder's Owner which is not cured by the Owner
within thirty (30) days after the giving of notice by the Association to the Owner of the
existence of the default;
(h) The right to examine the books and records of the Association at any
reasonable time;
(i) Notice of any lapse, cancellation or material modification of any insurance
policy or fidelity bond maintained by the Association.
Section 2-Actions Requiring Member Approval. Notwithstanding anything to the contrary
set forth in this Declaration, the Association shall not:
(a) unless it has obtained the prior written consent of at least fifty-one percent
(51%) of all Members:
(1) by act or omission, change, waive, or abandon any scheme of
architectural control, or enforcement thereof, as set forth in this Declaration,
regarding the design or maintenance of the Lots, improvements thereon or the
Common Area;
(2) fail to maintain Ml current replacement cost fire and extended
insurance coverage on the Common Area, or
(3) use hazard insurance proceeds for Common Area property losses for
purposes other than to repair, replace, or reconstruct such property; or
25
(4) by act or omission, seek to abandon, partition, subdivide, encumber,
sell, or transfer any common property owned, directly or indirectly, by the Association
for the benefit of the Owners (excluding the granting of easements for public utilities
or other purposes consistent with the intended use of such common property); or
(5) effectuate any decision to terminate professional management and
assume self-management of the Properties;
(6) any change in the voting method;
(7) change the method of determining the obligations, assessments, dues,
or other charges which may be levied against an Owner;
(8) change the method of determining or the amount of reserves for
maintenance, repair and replacement of the common areas;
(9) change or alter in any respect the required insurance coverages or
fidelity bonds;
(10) change the Association or owner responsibility for maintenance and
repair of the common area, lots, lot improvements or Living Units;
(11) Seek to expand or contract the project subject however to the Special
Declarant's right of expansion and development rights set forth within this
Declaration;
(12) change the boundaries of any lot;
(13) change the interests in the general common areas.
(14) alter this Declaration with respect to leasing of Living Units or the
composition of any right of first refusal or similar restructure or the right of any Lot
owner to sell, transfer, or convey a lot;
(15) alter any provision within the Declaration, Articles of Incorporation,
or Bylaws which is for the express benefit of a first mortgage holder or eligible insurer
or guarantor of first mortgage of a Lot within the project.
(16) make a decision by the owners Association to establish self
management when professional management had been required previously by an
eligible mortgage holder;
(17) attempt restoration or repair of the project (after a hazard damage or
partial condemnation) in a manner other than that specified in the documents;
(18) take any action to terminate the legal status of the project after
substantial destruction or condemnation occurs;
(19) attempt a termination for reasons other than substantial destruction or
condemnation.
Section 3 -Implied Approval. Implied approval by a First Mortgagee shall be assumed when
a first mortgage fails to submit a response to any written proposal for amendment of the Declaration
within thirty(30)days after said First Mortgagee receives written notice of the proposed amendment
provided the notice was delivered by certified or registered mail with return receipt requested. Any
First Mortgagee who has not recorded an assignment of its interest with the Weld County Clerk and
Recorder shall be deemed to have approved any proposed amendment without the notification
process described in the section being completed. Any of the mortgagee rights referred to in this
Article XIII shall be subject to this implied approval section.
26
ARTICLE XIV
RIGHTS RESERVED BY DECLARANT
,Section 1 - Special Declarant Rights. Declarant hereby reserves the right from time to time
until the Turnover Date, to perform the acts and exercise the rights hereinafter specified (the "Special
Declarant Rights"). Declarant's Special Declarant Rights include the following:
(a) Completion of Improvements. The right to complete improvements indicated
on Plats and Maps filed with the Declarant.
(b) Exercise of Development Rights. The right to exercise any Development
Right reserved in Article XIII of this Declaration.
(c) ,Sales Management and Marketing. The right to maintain sales offices,
management offices, signs advertising the project and models.
(d) Construction Easements. The right to use easements through the Common
Elements for the purpose of making improvements within the project or within real estate
which may be added to the project.
(e) Control of Association and Executive Board. The right to appoint or remove
any officer of the Association or any Executive Board member.
(f) Amendment of Declaration. The right to amend this Declaration in connection
with the exercise of any Development Rights.
(g) Amendment of Map. The right to amend the Map in connection with the
exercise of any Development Rights.
,Section 2-AddjtionalBeserved Rights. In addition to the Special Declarant Rights set forth
in Section 1 above,Declarant also reserves the following additional rights (the "Additional Reserved
Rights"):
(a) Dedications. The right to establish from time to time, by dedication or
otherwise, utility and other easements for purposes, including but not limited to, streets,
paths,walkways, drainage, recreation areas, parking areas and conduit installation areas and
to create other reservations, exceptions and exclusions for the benefit of and to serve the Lot
Owners within the project.
(b) Use Agreements. The right to enter into, establish, execute, amend and
otherwise deal with contracts and agreements for the use, lease, repair, maintenance or
regulation of parking,which may or may not be a part of the project for the benefit of the Lot
Owners and/or the Association.
(c) Other Rights. The right to exercise any Additional Reserved Right created by
any other provision of this Declaration.
,Section 3 -Rights Transferrable. Any Special Declarant Right or Additional Reserved Right
created or reserved under this Article for the benefit of Declarant may be transferred to any Person
by an instrument describing the rights transferred and recorded in Weld County. Such instrument
shall be executed by the transferor Declarant and the transferee.
27
Section 4 -Development and Withdrawal Rights. Declarant expressly reserves the right to
develop additional Lots and, Common Elements (the "Additional Improvements") on all or any
portion of the Property reserved for future development in the Declaration or on the Map. Declarant
may exercise its Development Rights on all or any portion of the reserved Property in whatever order
of development Declarant, in its sole discretion, determines. If all or any part of the Development
Property is submitted to this Declaration, this right to reserve property for future development shall
apply to such property as well. Declarant expressly reserves the right to withdraw all or any portion
of the Property that is reserved for future development in the Declaration or on the Map from the
project by recording a document evidencing such withdrawal in the office of the Clerk and Recorder
of Weld County; provided, however, that no portion of the Property may be withdrawn after a Lot
in that portion of the Property has been conveyed to a Purchaser. The property withdrawn from the
project shall be subject to whatever easements, if any, are reasonably necessary for access to or
operation of the project. Declarant shall prepare and record in the office of the Clerk and Recorder
of Weld County whatever documents are necessary to evidence such easements.
Section 5 - Amendment of the Declaration. If Declarant elects to submit the Development
Property, or any part thereof, or Additional Improvements, to this Declaration, or to subdivide or to
convert Units at such time as construction of the improvements on the Development Property or the
Additional Improvements are substantially complete, Declarant shall record an amendment to this
Declaration reallocating the Allocated Interests so that the Allocated Interests appurtenant to each
Living Unit will be apportioned according to the total number of Living Units submitted to the
Declaration. The Allocated Interests appurtenant to each Lot in the project, as expanded, shall be
based on the total number of Lots within the project, as expanded, and/or on such other information
as Declarant shall reasonably determine is relevant to the reallocation.
The amendment to this Declaration shall contain, at a minimum, the legal) description of the
Development Property, or a part thereof, or a description of the property on which the Additional
Improvements being submitted to this Declaration are located and a schedule of the Allocated
Interests appurtenant to the Lots in the project as expanded.
Section 6- Amendment of the Map. Declarant shall, contemporaneously with the amendment
of this Declaration, file an amendment of the Map showing the location of the Additional
Improvements constructed on the Development Property. The amendment to the Map shall
substantially conform to the requirements contained in this Declaration.
Section 7 - Interpretation. Recording of amendments to this Declaration and Map in the
office of the Clerk and Recorder of Weld County shall automatically:
(a) Vest in each existing Lot Owner the reallocated Allocated Interests
appurtenant to the Lot; and
(b) Vest in each existing Mortgagee a perfected security interest in the reallocated
Allocated Interests appurtenant to the encumbered Lot.
Upon the recording of an amendment to this Declaration, the definitions used in this
Declaration shall automatically be extended to encompass and to refer to the Property, as expanded.
The Development Property, or any part thereof, or the Additional Improvements, shall be added to
and become a part of the Property for all purposes. All conveyances of Lots alter such expansion
shall be effective to transfer rights in all Common Elements as expanded, whether or not reference
is made to any amendment to this Declaration or the Map. Reference to this Declaration and the Map
in any instrument shall be deemed to include all amendments to this Declaration and the Map without
specific reference thereto.
,Section 8 - Maximum Number of I,ots. The maximum number of Lots in the project shall not
exceed the maximum number of Lots allowed by Weld County, pursuant to any development plan
for the Project. Declarant shall not be obligated to expand the project beyond the number of Lots
initially submitted to this Declaration.
28
Section 9-Expansion Rights. Declarant expressly reserves the right to subject all or any part
of the property described in "Exhibit A", attached hereto and hereby incorporated by reference (the
"Development Property"), to the provisions of this Declaration upon the substantial completion of
Improvements on the Development Property. The consent of the existing Lot Owners or Mortgagees
shall not be required for any such expansion, and Declarant may proceed with such expansion without
limitation at its sole option.
Section 10 -Construction. The buildings, structures and types of improvements to be placed
on the Property or the Development Property or any part thereof shall be of a quality equal to the
improvements previously constructed on the property, but need not be of the same size, style or
configuration. The improvements may be located anywhere on the Property reserved for future
development or on the Development Property.
Section 11 - Construction F.asemenl. Declarant expressly reserves the right to perform
warranty work, repairs and construction work and to store materials in secure areas in Lots and in
Comment Elements, and the future right to control such work and repairs, and the right of access
thereto, until its completion. All work may be performed by Declarant without the consent or
approval of any Lot Owner or Mortgagee. Declarant has such an easement through the Common
Elements as may be reasonably necessary for the purpose of discharging Declarant's obligations and
exercising Declarant's reserved rights in this Declaration. Such easement includes the right to
construct underground utility lines, pipes, wires, conduits and other facilities across the land not
designated as reserved for future development in this Declaration or on the Map for the purpose of
furnishing utility and other services to buildings and improvements to be constructed on the property
so reserved for future development. Declarant's reserved construction easement includes the right
to grant easements to public utility companies and to convey improvements within those easements
anywhere in the Common Elements not occupied by an improvement containing Living Units.
Section 12 - Reciprocal Easements. If all or part of the Development Property is not
submitted to this Declaration, or if property is withdrawn from the Project ("Withdrawn Property"):
(a) The Owner(s) of the Development Property and/or Withdrawn Property shall
have whatever easements are necessary or desirable, if any, for access, utility service, repair,
maintenance and emergencies over and across the Project; and
(b) The Owner(s) in the Project shall have whatever easements are necessary or
desirable, if any, for access, utility service, repair, maintenance and emergencies over and
across the Development Property and Withdrawn Property.
Declarant shall prepare and record in the office of the Clerk and Recorder of Weld County
whatever documents are necessary to evidence such easements. Such recorded easement(s) shall
specify that the Owners of the Development Property and the Withdrawn Property and the Owners
in the Project shall be obligated to pay a proportionate share of the cost of the operation and
maintenance of any easements utilized by either one of them on the other's property upon such
reasonable basis as the Declarant shall establish in the easement(s). Preparation and recordation by
Declarant of an easement pursuant to this Section shall conclusively determine the existence, location
and extent of the reciprocal easements that are necessary or desirable as contemplated by this Section.
Section 11 - Termination of Development Rights. The development rights reserved by
Declarant, for itself, its successors and assigns, shall expire fifteen (15) years from the date of
recording this Declaration, unless the development rights are (i) extended as allowed by law or (ii)
reinstated or extended by the Association, subject to whatever terms, conditions and limitations the
Executive Board may impose on the subsequent exercise of the development rights by Declarant.
Upon the expiration or other termination of the development rights, any Lot then subject to
Development Rights shall become Common Elements.
Section 14 - Transfer of Development Rights. Any Special Declarant Right or Additional
Reserved Right created or reserved under this Article for the benefit of Declarant may be transferred
to any Person by an instrument describing the rights transferred and recorded in Weld County. Such
instrument shall be executed by the transferor Declarant and the transferee.
29
ARTICLE XV
REQUIRED ALLOCATION OF INTERESTS
Section 1 - Allocated Interests. The undivided interest in the common expense liability and
voting in the Association allocated to each Lot are as follows:
(a) The percentage of liability for common expenses shall be determined by using
a formula in which the numerator is 1 and the denominator is the total number of Lots subject
to this original Declaration or any subsequent amendment of this Declaration which are shown
on a recorded subdivision plat(s) required by Weld County and recorded with the Weld
County Clerk and Recorder; and
(b) The number of votes in the Association, on the basis of one (1) vote being
allocated to each Lot Owner, as determined by the total number of Lots that have been
submitted to this original Declaration or any subsequent amendment of this Declaration which
are shown on a recorded subdivision plat required by Weld County and recorded with the
Weld County Clerk and Recorder.
ARTICLE XVI
cw,NFR AL PROVISIONS
Section 1 -Enforcement. The Association or any Owner shall have the right to enforce, by
any proceeding at law or in equity, all restrictions, conditions, covenants, reservations, liens, and
charges now or hereafter imposed by the provisions of this Declaration. Failure by the Association
or by any Owner to enforce any covenant or restriction herein contained shall in n.o event be deemed
a waiver of the right to do so thereafter.
Section 2 - Severability. Invalidation of any of these covenants or restrictions by judgment
or court order shall in no way affect or limit any other provisions which shall remain in full force and
effect.
Section 3 - Claims. No claim or cause of action shall accrue in favor of any person in the
event of the invalidity of any provision of this Declaration or for failure of the Association or
Declarant to enforce any provision hereof. This Section may be pleaded as a full bar to the
maintenance of any suit, action, or arbitration brought in violation of this provision.
Section 4-Waiver. No provision contained in this Declaration shall be deemed to have been
abrogated or waived by reason of any failure to enforce the same, irrespective of the number of
violations or breaches which may occur,.
Section 5 - Conflicts of Provisions. In case of any conflict between this Declaration, the
Articles of Incorporation or Bylaws of the Association, this Declaration shall control. In case of any
conflict between the Articles of Incorporation and Bylaws of the Association, the Articles of
Incorporation shall control.
Section 6 - Owners Right to Examine. Each Lot owner shall have a right to examine the
books and records of the Association at any reasonable time.
Section 7-Registration by Owner of Mailing Address. Each Owner shall register a mailing
address with the Association, and except for monthly statements and other routine notices, all other
notices or demands intended to be served upon an Owner shall be sent by either registered or certified
mail, postage prepaid, addressed in the name of the Owner at such registered mailing address. All
notices, demands, or other notices intended to be served upon the Executive Board of the Association
shall be sent by certified mail, postage prepaid, to the office of the Association at such address as is
identified by the Association in writing to each owner.
30
p� IN WITNESS WHEREOF, Declarant has executed this Declaration on the 18 day
t of C n 3E iz_, 1999.
Declarant
ELMS LAND COMPANY, LLC:
a Colorado limited liability company,
( 1
By: 1..-
FLOYD O EVER, Manager
STATE OF COLORADO )
) ss.
COUNTY OF WELD )
The foregoing instrument was acknowledged before me this h day of
Le46(>12,-- , 1999, by FLOYD OLIVER, known to me to be the Manager of ELMS LAND
COMPANY, LLC; a Colorado limited liability company.
WITNESS my hand and official seal.
,aLtc.,(6_
Notary Public
Address: 2 Is Q Y' �� c2
q ^.`n z My Commission Expires: 2 ``
%9twrnr•r.,.,
31
EXHIBIT A
Legal Description of Potential Expansion Property
A parcel of land being part of Lots One(1)and Two(2)of the Northwest Quarter(N W1/4)of
Section Four(4),Township Two North O%2N.),Range Sixty-eight West(R.68W.)of the Sixth
Principal Meridian(6th P.M.),County of Weld,State of Colorado and being more particularly
described as follows:
BEGINNING at the Center Quarter Corner of said Section 4 and assuming the East line of said
NV/1/4 as bearing North 00°37'32" East a distance of 2605.80 feet,with all other bearings
contained herein relative thereto:
THENCE South 89°21'48" West along the South line of said N W 1/4 a distance of 1553.52 fret
to the TRUE POINT OF BEGINNING.
TIIENCE continuing South 89°21'48"West along said South line a distance of 1102.77 feet to
the West Quarter Corner of said Section 4;
Tl1ENCE North 01°06'08"East along the West line of said N W1/4 a distance of 2613.47 feet to
the Northwest Corner of said Section 4;
THENCE North 89°31'04"East along the North line of said N W1/4 a distance of 2345.64 feet to
the West line of the East 17.5 rods(288.75')of said NW1/4.1/4. Said point also being on the
existing center line of Weld County Road 05.5(WCR#5.5);
THENCE South 00°37'30"West along the West line of said East 17.5 rods,also being the
existing center line of said WCR#5.5 a distance of 1194.96 feet;
THENCE North 89°22'30"West a distance of 40.00 feet to the beginning point of a curve. The
aforesaid line being radial to said curve;
THENCE along the Arc of a curve which is concave to the Northwest a distance of 31.20 feet.
whose Radius is 20.00 feet,whose Delta is 89°22'30",and whose Long Chord bears South
45°18'45" West a distance of 28.13 feet to the Point of Tangency(PT);
Tl1ENCE North 90°00'00"West a distance of 666.08 feet to a Point of Cusp;
THENCE along the Arc of a curve which is concave to the Northwest a distance of 17.69 feet,
whose Radius is 10,00 feet,whose Delta is 101°20'00",and whose Long Chord bears North
39°20'00"East a distance of 15.47 feet to a Point of Compound Curvature(PCC);
'[HENCE along the Arc of a curve which is concave to the South a distance of 949.70 feet,
whose Radius is 345.85 feet,whose Delta is 157°20'00",and whose Long Chord bears North
90°00'00"West a distance of 678.21 feet to a PCC;
TIIENC:E along the Arc of a curve which is concave to the Northeast a distance of 17.69 feet,
whose Radius is 10.00 feet,whose Delta is 101°20'00",and whose Long Chord bears South
39°20'00" East a distance of 15.47 feet to a Point of Cusp;
THENCE North 90°00'00" West a distance of 46.55 feet;
THENCE South 00°00'00"Fast a distance of 206.70 feet to a Point of Curvature(PC);
THENCF.along the Arc of a curve which is concave to the West a distance of 43.15 feet,whose
Radius is 600.00 feet,whose Delta is 04°07'15",and whose Long Chord bears South 02°03'37"
West a distance of 43.14 feet;
THENCE South 85°52'45" East along a line radial to the aforesaid curve a distance of 125.(10
feet;
THENCE South 38°4701"East a distance of 20.42 feet;
THENCE South 08°18'44"West a distance of 93.83 feet;
THENCE South 13°12'26" West a distance of 180.01 feet;
THENCE South 05°3744" West a distance of 55.57 feet;
THENCE.South 25°12'52"East a distance of 246.74 feet;
THENCE South 23°22'34"East a distance of 103.52 feet;
THENCE South 03°55'50"East a distance of 106.67 feet;
THENCE South 13°35'59"West a distance of 106.67 feet;
THENCE South 31°07'48"West a distance of 106.67 feet;
THENCE South 00°38'12"East a distance of 188.50 feet to the TRUE POINT OF
BEGINNING.
Said described parcel of land contains 95.992 Acres,more or less(th)and is subject to any tights-
of-way or other easements as granted or reserved by instruments of record or as now existing on
said described parcel of land.
SURVEYOR'S CERTIFICATE
i,Charles B.Jones,a Colorado Registered Professional Land Surveyor do hereby state that this
Property Description was prepared under my personal supervision and checking,and that it is
true and correct to the best of my knowledge,information,belief,and in my professional
opinion.
one R
Charles B.Jon
10 2098 CI �5 ' � 6- `•
Colorado Regis Y-• ofessioratl <f\'\
to fey •. ... •• , v '. II . ./
Land Surveyor #22 At i$O --
32
KING SURVEYORS, INC.
9299 Eastman Park Drive
Windsor. Colorado 80550
(970)686-5011
Hello