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DECLARATION OF COVENANTS. CONDITIONS. AND RESTRICTIONS
FOR
TILE ELMS
A PLANNED COMMUNITY
AND
THE ELMS COMMUNITY ASSOCIATION
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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 I 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
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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
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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 Conunon 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
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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 Transferrable. 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
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DECLARATION OF COVENANTS. CONDITIONS. AND RESTRICTIONS
FOR
THE ELMS
AllANNEDrY
AND
THE ELMS COMMUNITY ASSOCIATION
PREAMRI,F
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 1 through 6
Block 24, Lots 1 through 5 Block 25, Lots 1 through 4 Block 26, Lots 1 through 5
Block 27, Lots 1 through 3 Block 28, Lots 1 through 5 Block 29, Lots 1 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), gt. sgq., Colorado Revised Statutes, as it may be
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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 11. "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
nerrzsary 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 1Q. "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 1 i. "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 1'1. "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
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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 15. "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 2Q. "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
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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 7'. "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 3Q. "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 19. "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 DELL R� RATION
,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. The 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
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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 - Mergtr. 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 Dirties. 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) Exercise 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
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more than one (1) person may only be exercised by one (I) 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 F.I.MS
cOMM1INITY ASSOCIATION
Section 1 - General 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.
Section I -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
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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 ofthe 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 R - 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.
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,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, but 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 arid 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. My 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.
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Section 14-Power to EmployManagers. 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 (I) 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. Any 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 16 - 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 Use. 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.
Re4tion 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 D i s R garding 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
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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
finds 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-Method 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 Mortgagee 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.
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Section 4 - General Assessments.
(a) Purpose. 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 Unproved lot assessment as defined in
Section 8 of this Article VI. The unimproved 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.
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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 a majority vote of the Members present and voting in person or by proxy at any
Annual Meeting of the Members of the Association or at ny Special Meeting thereof c II d for th
e
pugtose of considering such Special Assessment.
Section 7 - Reimbursement Assessments. The Executive Board of the Association may,
subject to the provisions hereog 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.
Unimproved Lots 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
Less. "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
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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 - Tien 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. Anx_useslinseampitaljhall
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.
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Ssrtion 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-Family Residences. 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 Regulation, . 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 Building. 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
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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. My
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 Antennas 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).
All 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 is 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 HanrdotJs 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 while 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.
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Section IR-)log Runt and Storage Areas. No dog nun, 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
nun shall be permitted without the need for the architectural review and approval as described in this
Declaration. Any temporary dog run 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.
Sectioanadiggraadgetharasmai. 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 Burning. 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 Lake. No Lot Owner in The Elms
shall have arress 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 - Possibl .Mandatory Int ^^r r ire C pkling Systems ReGyugd. 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 26 - Covenants Run with Taps/. 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.
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ARTICLE VIII
INSURANCE.
Section 1 -Insurance. 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.
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(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 Employer's Liability 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.
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,Sssion 10-Other Insurance. The Association may obtain insurance coverage against such
additional risks as it shall determine to be appropriate.
ARTICLE IX
VARIOUS RIGHTS ANT) 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) FAsements Over Tots 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. Facements 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.
,Senion 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 -Membership 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.
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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 Planc. 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.
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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 K - 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 10 - 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 11 - 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
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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 16 - 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 any 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.
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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 Certificates. 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.
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Winn 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 surracsive 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
CONDEMNATION DAMAGE OR DESTRUCTION
TO COMMON AREA
,Section 1 -Damage or Destruction to Common Arm. 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. lf, 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 full 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.
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ARTICLE XIII
MORTGAGEE'S RIGHTS
Section 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;
(0 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 full 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
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(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.
$s''Jion 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.
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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.
(0 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-Additional Reserved 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.
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,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 after 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 Numher of I,nts. 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.
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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 Ea tent. 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 13 - 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 Righu. 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.
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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
GENERAL 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 no 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-Regic ration 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
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IN WITNESS WHEREOF, Declarant has executed this Declaration on the ?F! day
of Can aE2 , 1999.
Declarant
ELMS LAND COMPANY, LLC
a Colorado limited liability company,
By: . � �f?f &it(722L—,'
FLO D O [VER, Manager
STATE OF COLORADO )
) ss.
COUNTY OF WELD )
The foregoing instrument was acknowledged before me this 20 day of
ce4OC ZA -- , 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.
Notary Public
F-41-3*)
int'.'n:a,.., e.•c.. Address: j�2 7 s i '
F0Ecr„ v ''w (�1 tCcy0+Zo44'� a,
M Commission Ex ires:
`�• %V''" `,P ;� Y p 2 U 2 — Z�
11/49. co,....,.,„÷
onto+ , ,
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(NW 1/4)of
Section Four(4),Township Two North(T.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
NW 1/4/4 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 feet
to the TRUE POINT OF BEGINNING:
TI IENCE 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;
1'1)ENCE North 01°06'08"East along the West line of said N W 1/4 a distance of 2613.47 feet to
the Northwest Corner of said Section 4;
THENCE North 89°3l'04"East along the North line of said N W 1/4 a distance of 2345.64 feet to
the West line of the East 17.5 rods(288.75')of said N W 1/4. Said point also being on the
existing center line of Weld County Road#5.5(WCR#5.5);
THENCE South W°3730"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);
THENCE 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 distant=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);
THENCE 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;
THENCE along the Art 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°2(Y00",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);
THENCE.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 125.00
feet;
THENCE South 38°47'01"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(±)and is subject to any rights-
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
1,Charles E.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 hest of my knowledge,information,belief,and in my professional
opinion.
Charles B.Jon = 2 a f `>t . /J(/( �S/797
Colorado Re =; ofeui•• (�j A
Land Surveyor #22t A(�
32
KING SURVEYORS, INC.
9299 Eastman Park Drive
Windsor, Colorado 80550
(970)686-5011 I I"III III 111111 11111 11111 11111 111111 III 11111 ill) IIII
2733551 11/19/1999 09:01A JA Saki Tsukamoto
.,� ..+ a 40C nn n n nn Weld enmity CO
I MI 1111 Iii 1111111111111111111 11111 III
2733562 11/19/1999 09:01A JA Suki Teukamolo
1 of 1 R 6.00 D 0.00 Weld County CO
552 WARRANTY DEED
THIS DEED is a conveyance of real property described below,including any improvements and other appurtenances(the"property")from
the individual(s),corporation(s),partnaslnp(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(1)
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
restrictions 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 Warianty 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
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 FLOYI)OLIVER,Manager of ELMS LAND COMPANY,LLC,a Color o Limi Liability Company.
WITNESS my hand and official seal. 1t.R,Q .lei tryrrN".
My commission expires: Z_ cjZ-2t 2x No Public
STATE OF COLORADO ) �� ‘OTAR '•r1
�'
COUNTY OF )ss. t i -4:0-10-0- 1*i
Ts foregoing instrument was acknowledged before me this day of ,19 fir,PUB t_ t J I
p�a��CO,L,�449
(*name individual Grantor(s)or if Grantor is Corporation,Partnership or Association,then identify signers as president or aiiiW ident and
secretary or assistant secretary of corporation;or as partner(s)of partnership;or as authorized member(s)of association.)
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