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DECLARATION OF PROTECTIVE COVENANTS
OF LITTLE THOMPSON VALLEY ESTATES P.U.D.
WELD COUNTY, COLORADO
RECITALS:
1. Declarants are the Owners in fee of all the lands according to and identified
in the recorded Plat of Little Thompson Valley Estates P.U.D., being located in the E'% of
Section 21, Township 4 North, Range 68 West of the 6th P.M., Weld County, Colorado.
Such development and lands being sometimes referred to hereafter as the "Property".
2. It is the intention and desire of the Declarant to set forth this Declaration of
Protective Covenants in order to promote the harmonious and attractive development of
the Property for the health, comfort, safety, convenience, and general welfare of the
present and subsequent Owners of the Property and each portion thereof.
NOW THEREFORE, Declarant hereby declares that the Property is subject to the
following protective covenants which shall run with the land for the benefit of and be
binding upon each present and subsequent Owner of any right, title or interest in any
portion of the Property and their respective heirs, grantees, successors, representatives,
and assigns.
DEFINITION OF TERMS
As used in this Declaration, the following terms shall have the meanings indicated:
Architectural Control Committee. The Committee described in Article II of
this Declaration.
Articles of Incorporation. The Articles of Incorporation of the Association as
the same may be amended from time to time.
Association. Little Thompson Valley Estates Homeowners Association, Inc.,
a Colorado nonprofit corporation, the members of which shall be all of the several Owners
of the Lots within the Property.
Board. The duly elected Board of Directors of the Association.
Bylaws. The duly adopted Bylaws of the Association as the same may be
amended from time to time.
Colorado Common Interest Ownership Act. The Colorado statutes known
as the "Colorado Common Interest Ownership Act", which is now codified as Article 33.3
of Title 38, Colorado Revised Statutes, as may from time to time hereafter be amended.
Common Elements. The areas identified in the recorded Plat as "Outlet A"
and "Alpine Sky Drive", and any common mailbox facility for the Property; and any addition
to the Common Elements which may hereafter be made.
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Protective Covenants for Little Thompson Valley Estates P.U.D.
Dealer. Means a person in the business of constructing homes or selling Lots
for such person's own account.
Declarant. The Owner of the Property whose signature is affixed to this
Declaration, and any successor or assign to Declarant's Rights hereunder with respect to
Declarant Control.
Declarant Control. Rights reserved to the Declarants to control the
Association, and the Architectural Control Committee, and to amend this Declaration.
Declarant's Facilities. Facilities as in the sole opinion of the Declarant may
be reasonably required, convenient, or incidental to the construction, management and sale
of the Lots and residences thereon, including but not limited to, a business office, storage
areas, construction yards, model homes, signs, and sales office.
Declaration. This Declaration as amended, changed, or modified from time
to time.
Dwelling. Means and refers to a single-family residential dwelling constructed
on a Lot.
Improvement. Means and refers to any dwelling, outbuilding, shed, garage,
fence, wall, pad, driveway, walkway, parking area, curb, clotheslines, berm, deck, patio
or other structure or improvement of any kind.
Landscape Buffer. Shall mean the portion of Lots 2 and 6 within the "20'
Landscape Buffer" as shown on the Plat within which each such Lot Owner is required to
place and maintain landscaping, and upon which structures, other than fences, may not
be erected or maintained.
Lot. Lots 1, 2, 3, 4, 5, and 6, inclusive; as shown on the Plat, and any
other Lots hereafter created within or added to the Property.
Owner. The record fee Owner, or Owners if more than one of a Lot,
including Declarant so long as Declarant owns any Lot. Owner shall include the seller of
a Lot under any executory contract for sale or installment sale contract. Owner shall not
include any person holding a mineral interest or holding an interest solely as security for
satisfaction of an obligation.
Plat. The Plat of Little Thompson Valley Estates P.U.D. within the County
of Weld, State of Colorado as recorded in the records of the Weld County Clerk and
Recorder.
Property. All of the real Property shown on the Plat, and any other Property
hereafter added.
Purchaser. Purchaser means a person, other than a Declarant or a Dealer
who by means of a transfer acquires a legal or equitable interest in a Lot, other than: (a)
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a leasehold interest in a Lot of less than forty (40) years, including renewal options, with
the period of the leasehold interest, including renewal options, being measured from the
date the initial term commences; or (b) a security interest.
Residential Lot(s). Means and refers to Lots 2, 3, 4, 5 and 6.
Single -Family. Means and refers to an individual, or a group of persons
related by blood or marriage, or a group of not more than three persons who are not all
related to each other by blood or marriage living together.
Successor. When used in connection with the Declarant, means one or more
persons (other than a Purchaser) who have been assigned or otherwise succeeded to all
or a portion of Declarant Control Rights.
ARTICLE I
LAND USE CONTROL -RESIDENTIAL LOTS 2 THROUGH 6
This Article sets forth land use controls for Residential Lots 2, 3, 4, 5 and 6, and
has no application to use of Lot 1, and unless otherwise specifically Stated, any reference
to Lot in this Article I shall mean and refer only to the said Residential Lots 2 through 6
inclusive, which are subject to the following provisions:
1.01 Land Use and Building Type. Except as may expressly be provided otherwise
in this Declaration, no Residential Lot shall be used except for single-family residential
purposes, and for any home occupation which is in compliance with this Article I and is
permitted by applicable zoning regulations. Except for Declarant's Facilities, no building,
other than approved outbuildings, shall be erected, altered, placed or permitted to remain
on any Residential Lot other than one detached single-family dwelling not to exceed two
stories in height (when viewed from the side of the dwelling determined by the
Architectural Control Committee to contain the front entrance to the dwelling) and a private
attached garage. For purposes of determining the number of stories, a walkout basement
shall not be counted as a story unless the walkout basement is on the same side of the
dwelling as the front entrance. In addition, the Architectural Control Committee may
approve placement on a Residential Lot of outbuildings in accordance with paragraph 1.04
below, if the Committee finds that such structure is compatible with the harmonious and
attractive appearance of the Residential Lot and is of satisfactory design and quality.
Notwithstanding any provisions herein contained to the contrary, it shall be expressly
permissible for the Declarant and its builders, agents, employees, successors and assigns
to maintain Declarant's Facilities on the Property during the period of construction and sale
of the Residential Lots.
1.02 Architectural Control Committee Approval Required. Except for Declarant'S
Facilities, no Improvement shall be erected, placed, maintained, or altered on any
Residential Lot unless they are in compliance with this Declaration and all required plans
and specifications related thereto have been first submitted to and approved by the
Architectural Control Committee in accordance with the provisions of Article III. -
All dwellings and other buildings, shall have finished exteriors and roofs of
a type and of a material approved by the Architectural Control Committee. Domes,
mansard roofs, flat roofs or other unusual roof style, or roofs having a pitch of less than
five/twelve shall require the specific approval of the Architectural Control Committee.
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It is the intent of this Declaration to allow the Architectural Control
Committee to exercise full discretion in the approval and denial of any Improvement so as
to create a development with rural elegance that compliments the character of the Little
Thompson River and the surrounding area, including agricultural uses, and to foster
compatible designs which are harmonious with the surrounding natural areas and
agricultural activities. Therefore, in addition to, and notwithstanding, the other provisions
of this Article I, and those set forth in Article III, the Architectural Control Committee shall
have the absolute and unfettered authority and discretion to approve or deny any
Improvement so as to insure the best use and the most appropriate development and
Improvement of each Residential Lot so as to protect the Owners of building sites against
inappropriate use of surrounding Residential Lots as will depreciate the value of the
Residential Lots; to preserve, so far as is practicable, the natural beauty of the Residential
Lots; to guard against the erection of poorly designed structures, and structures built of
improper or unsuitable materials; to obtain harmonious color schemes; to insure the highest
and best development of said Property; to encourage and secure the erection of attractive
homes and other permitted structures thereon, with appropriate locations thereof on
Residential Lots; to prevent haphazard and inharmonious improvement of Residential Lots;
to secure and maintain proper setbacks and in general to provide adequately for a high type
and quality of Improvements on said Residential Lots and thereby enhance the value of
Improvements on the Residential Lots.
1.03 Dwelling Quality and Size. Dwellings must be built on -site and no
prefabricated, previously built or modular home shall be permitted upon any Residential Lot.
A dwelling must include as a part thereof a private garage integrated into the structure
capable of housing at least two (2) cars. No single family dwelling with a finished living
area of less than 1,700 square feet shall be permitted on any Residential Lot. The first
floor of a two-story or multi -level home shall contain a minimum of 1,100 square feet of
finished living area, and a one-story home shall have a minimum of 1,700 square feet of
finished living area. The Architectural Control Committee shall be vested with the sole
determination as to what constitutes the first floor of a Dwelling and what constitutes a
story for purposes of this Article I, and such determination with regard to any proposed
Dwelling shall be final and binding upon the Owner proposing the Dwelling. For purposes
of this Section, the square footage of finished living area shall be calculated by the exterior
measurement of living area only, excluding basement (whether or not there is a basement
walkout) and attic areas, garage, porches, patios, and open spaces.
1.04 Outbuildings. All outbuildings are subject to the prior approval of the
Architectural Control Committee in accordance with the provisions of this Declaration. In
addition to a single-family dwelling, the Architectural Control Committee may approve the
following outbuildings for a Residential Lot:
1.04.1 Detached Buildings. Each Residential Lot may have: (i) one (1)
detached outbuilding not to exceed 1,000 square feet, with a side -wall height not to
exceed twelve (12) feet which may be used as a garage or other use permitted by this
Declaration; and (ii) one (1) utility shed not exceeding 96 square feet. The utility shed is
not required to be permanently affixed. A combination shed/barn building may be approved
by the Architectural Control Committee, not to exceed twelve hundred (1200) square feet
provided that if such combination shed/barn building is approved, the Residential Lot shall
not have a separate detached building and shall not have a separate loafing shed.
1.04.2 Loafing Shed/Corral. A loafing shed with an attached tack room, the
total square footage of which shall not exceed 800 square feet, if approved by the
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Architectural Control Committee, may be located in the following places: Lot 2, Southwest
corner; Lot 3, Northwest corner; Lot 4, Southwest corner; Lot 5, Northwest corner; Lot
6, either the Southwest or Northwest corner. Unless otherwise approved by the
Architectural Control Committee, corral fences will be consistent for all corrals. The total
corral size shall not exceed 800 square feet. Each Residential Lot with a loafing shed and
a corral shall be required to maintain a tree belt or shrub row around the corral and loafing
shed area to screen them.
1.05 Building Location. All structures located on any Residential Lot shall be
subject to the following setbacks:
1.05.1 Front Setback: Except for fencing approved by the Architectural
Control Committee, all buildings and structures shall be constructed no closer than 50 feet
to the East property line of the Residential Lot. The setback requirements for fencing, if
any, shall be as established from time to time by the Architectural Control Committee.
1.05.2 Rear Setback: All buildings and structures, except any loafing shed
approved by the Architectural Control Committee, shall be constructed no closer than 50
feet from the West property line of the Residential Lot.
1.05.3 Side Setbacks: (i) All buildings except any loafing shed approved by
the Architectural Control Committee, shall be constructed no closer than 70 feet from the
North and South property lines of the Residential Lot; provided that for Lot 2, the setback
from the North property line shall be 40 feet and for Lot 6 the setback from the South
property line shall be 40 feet.
1.06 Easements and Street Frontage. Easements for installation and maintenance
of utilities are reserved as shown on the recorded Plat. Within these easements no
structure, planting, or other material, other than any loafing shed, fencing or landscaping
approved by the Architectural Control Committee, shall be placed or permitted to remain
which may damage or interfere with the installation and maintenance of utilities. The
easements area of each Residential Lot and all landscaping and Improvements on it shall
be maintained continuously by the Owner of the Residential Lot.
1 .07 Time for Construction and Repair. The construction of a Dwelling, structure,
landscaping, or any other Improvement approved by the Architectural Control Committee,
shall be fully completed within nine (9) months after the date of commencement of the
construction. In the event any structure is destroyed either wholly or partially by fire or
other casualty, all debris and remaining portions of the structure shall be promptly removed
from the Residential Lot, and the structure shall be promptly rebuilt or remodeled to
conform to this Declaration. All repairs or reconstruction of dwellings, fences or other
structures or other Improvements, whether due to wear and tear or other causes shall be
subject to and in accordance with the covenants herein, and repair and reconstruction
thereof shall be completed no later than one (1) year from the date of damage. If required
by the Architectural Control Committee, the Owner of a Residential Lot upon which
construction, or repair or reconstruction, of any Dwelling, structure, or other Improvement,
is to be performed shall deliver to the Association a deposit in an amount to be determined
by the Architectural Control Committee not to exceed 8500.00 ("the Deposit"). The
Deposit shall be returned to the Owner within thirty (30) days after the Improvement has
been completed in conformity with the approved plans and specifications, and all debris has
been removed from the Residential Lot. If the Improvement has not been timely
completed, or has not been completed in conformity with the approved plans and
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specifications, or if debris has not been removed from the Residential Lot, then the
Association shall have the right, but not the obligation, to enter upon the Residential Lot
if it deems appropriate and complete the Improvements in conformity with the approved
plans and specifications and remove debris and deduct the cost thereof from the Deposit,
and to apply the balance of the Deposit to any attorney fees and other costs which may
be incurred due to the breach by the Residential Lot Owner of compliance with the
provisions of this Declaration. At such time as the Residential Lot has been placed in
conformity with the provisions of this Declaration, the balance of the Deposit, if any, shall
be returned to the Owner within thirty (30) days following attainment of compliance. If
the Deposit is not sufficient to cover the costs of completing the Improvements or
removing the debris or the costs and expenses of enforcement of this Declaration due to
Owner's breach, the amounts not so satisfied by the Deposit shall be recoverable as a
special assessment against the Owner and the Residential Lot.
1 .08 Nuisance. Each Residential Lot shall at all times be maintained in a clean and
tidy condition and shall not be used for any purpose or storage of anything that will cause
such Residential Lot to appear in an unclean or unsightly condition. No Residential Lot shall
be used in such a manner as to obstruct or interfere with the enjoyment of other
Residential Lots or of the Owner of Lot 1, or annoy them by unreasonable traffic, noises,
lights, odors, or otherwise, nor shall any nuisance or illegal activity be committed or
permitted to occur on any Residential Lot. No exterior horn, whistle, bell, or other sound
devices except security devices used exclusively to protect the security of the Residential
Lot and the Owners or occupants thereof shall be placed or used on any part of the
Residential Lot. All power and motorized equipment, including mowers, snowblowers,
tractors and any other motorized equipment used on any Residential Lot must be properly
equipped with mufflers so as to reduce to the degree practicable the noise of operation.
Any power equipment used on a Residential Lot shall be housed within the garage or a
building, if any, approved for such use by the Architectural Control Committee, and doors
and windows shall be closed to minimize to the greatest extent possible the noise of
operation. The hours of operation of any power equipment or motorized equipment on any
Residential Lot shall be confined to the period of time commencing at 7:00 a.m. and ending
at 7:00 p.m. unless the noise is so confined as to not unduly impact the occupant of any
adjacent Residential Lot or Lot 1, or unless the Board of the Association establishes
different hours hereafter. Motorcycles, all -terrain vehicles, snowmachines and similar
conveyances shall not be used on any Residential Lot except for the purpose of ingress and
egress or for the purpose of transportation of persons carrying out or materials used in any
Improvement or maintenance of the Residential Lot.
1.09 Animals. Except for the specific provisions below regarding the keeping of
household pets and horses, no animals will be kept on any Residential Lot.
1.09.1. Household Pets. Household pets such as dogs, cats, and such other
small animals which may be specifically approved from time to time by the Architectural
Control Committee hereafter, may be kept on a Residential Lot, provided that, unless
otherwise authorized by the Architectural Control Committee, no more than a total of five
(5) such household pets, and their unweaned offspring, may be kept on any Residential
Lot, and further provided that no such pets may be kept, bred, or maintained for any
commercial purposes and that the manner of keeping such animals does not result in any
unsanitary conditions or a nuisance or annoyance to the occupants of other Residential Lots
or Lot 1. Notwithstanding the foregoing, in no event shall more than two adult dogs be
kept on any Residential Lot. The Architectural Control Committee may adopt from time
to time such rules and regulations as it deems appropriate regarding the type, quantity and
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requirements for keeping such household pets on any Residential Lot. Any decision by the
Architectural Control Committee regarding the type and number of animals which may be
kept upon any Residential Lot, shall not be effective unless and until it has been reduced
to writing. Any such decision may be later rescinded or modified by the Architectural
Control Committee, and any Owner affected by such rescission or modification shall have
a reasonable time, not to exceed forty-five (45) days, to comply with such rescission or
modification. Household pets shall be properly housed and penned or fenced to confine
them to the Residential Lot and shall not be allowed to roam, nor shall they be allowed to
run or harass wildlife. The Architectural Control Committee shall not approve the keeping
of any swine on a Residential Lot, and no chickens, ducks, geese, pea hens, or other non -
household birds or poultry, may be kept on any Residential Lot unless the Architectural
Control Committee finds that the keeping thereof can be done in an appropriate manner
and that the keeping of such animals will aid in the control of insects or other pests.
1.09.2 Horses. No horses shall be kept on any Residential Lot, unless there
is in effect at all times, a lease by which such horses are allowed to graze on Lot 1. If
such a lease is in existence, no more than two (2) adult horses, and their unweaned
offspring, may be kept on any Residential Lot. The Owners of Lot 1 have no obligation to
allow grazing by any horses at any time, and it is solely within the discretion of the
Owners of Lot 1 as to whether any grazing will be permitted. In order to prevent the loss
of groundcover, in no event shall grazing of horses be permitted upon any Residential Lot,
and any horse allowed to be maintained on any Residential Lot shall be kept at all times
in a corral approved by the Architectural Control Committee. If the right to graze upon Lot
1 is terminated, all horses which have no such grazing rights shall be removed from any
Residential Lot within ten (10) days of the time that the right to graze has terminated.
1.09.3 Nuisance Animals. In the event that any dog, cat or other animal
which is allowed to be kept on any Residential Lot becomes a nuisance due to excessive
noise or other behavior or conditions, an Owner may file a complaint with the Association,
which complaint shall be forwarded to the Owner of the Residential Lot upon which the
nuisance animal is located. The Board may establish from time to time procedures for
handling such complaints, and if the complaining party is not satisfied with the outcome
at completion of the Board established procedure, the complaining party may request the
Association to direct the Owner of the Residential Lot to take specific remedial action; in
which event, by a majority vote of the Owners of the Association, the Association may
direct an Owner to take specific remedial action to be completed within a reasonable time
as the Association deems proper, and at the expiration of such time provided for remedial
action, the Association shall have the right to require the Owner to remove the nuisance
animal if by a vote of the Owners of four (4) or more of all Lots (including Lot 1) in the
Property, it is determined that the situation has not been properly corrected.
1.10 Commercial Uses. No Residential Lot shall be used for any business, trade,
or commercial use, except such home occupations as are otherwise in compliance with this
Declaration and permissible under the zoning regulations which from time to time are in
effect. Any such home occupation must meet any policy or decision of the Architectural
Control Committee regarding home occupation, must be fully carried out within the
dwelling unit on the Residential Lot, and may not be -conducted in such fashion as to
constitute a nuisance or violate any provision of this Declaration. Any such decision or
policy adopted by the Architectural Control Committee may be later rescinded or modified
by the Committee, and any Residential Lot Owner affected by such rescission or
modification shall have a reasonable time, not to exceed forty-five (45) days, within which
to comply with such rescission or modification.
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1 .1 1 Maintenance of Residential Lots and Improvements. Owners of Residential
Lots shall keep or caused to be kept all buildings, fences, structures, landscaping and other
Improvements in good repair. Rubbish, refuse, trash, litter, lumber, junk, boxes, bottles,
cans, garbage, and other solid, semi -solid, and liquid waste shall be kept within sealed
sanitary containers, shall not be allowed to accumulate, and shall be disposed of in a
sanitary manner. No Residential Lot shall be used or maintained as a dumping ground for
rubbish. All such containers shall be maintained in a good, clean condition and no such
containers shall be stored outside, unless the Architectural Control Committee first
approves appropriate screening, and each Residential Lot Owner shall arrange for the
removal, no less than weekly, of all such waste. No lumber or other building materials
shall be stored or permitted to remain on any Residential Lot unless screened from view
in a manner approved by the Architectural Control Committee, except for those materials
reasonably necessary to be stored on the Residential Lot during construction of
Improvements. No hay or straw shall be stored on any Residential Lot except in a corral
or a loafing shed area as approved by the Architectural Control Committee.
1.12 Signs. No sign of any kind shall be displayed to the public view on any
Residential Lot except signs erected by Declarant to identify the Property, and except: (i)
one sign of not more than five (5) square feet advertising the Residential Lot for sale or
rent; (ii) signs used by Declarant or a builder to advertise the Property or Residential Lot(s)
during the construction and sales period; and (iii) such other signs as the Architectural
Control Committee may, from time to time, approve.
1.13 Fences. Except those installed by Declarant, no fence, wall, hedge or other
plantings which will act as a screen or divider shall be installed or maintained without first
being approved by the Architectural Control Committee. All fences, walls, hedges and
plantings adjacent to public roads shall be in compliance with any applicable site line
requirements established by the governmental authority having jurisdiction. All fences,
walls, hedges, and shrub plantings shall be maintained in a clean, neat, and orderly
condition at all times.
1.14 Vehicles. No bus, large commercial or construction type vehicles (including
by way of example and not in limitation, dump truck, cement mixer truck, oil or gas truck,
delivery truck, backhoe, bulldozer, or semi -tractor or trailer) shall be parked, stored or kept
on any Residential Lot, or on Alpine Sky Drive, except those of Declarant, or while
reasonably necessary during construction of Improvements. Recreational vehicles, utility
and recreational trailers, horsetrailers not in excess of 35 feet, boats and boat trailers, and
recreational equipment or vehicles, shall be stored inside structures approved by the
Architectural Control Committee, or in accordance with any policies hereafter adopted by
the Architectural Control Committee from time to time regarding such storage. The
Architectural Control Committee can at any time modify or rescind its policies regarding
such storage and every Residential Lot Owner shall comply with such rescissions or
modifications within forty-five (45) days of notice from the Architectural Control Committee
of the change in policy. No junk or inoperative vehicles shall be stored or permitted to
remain on any Residential Lot unless within fully enclosed garages. For purposes of this
provision, any disassembled or partially disassembled car, truck, or other vehicle, pr any
vehicle which has not been moved under its own power for more than one (1) month shall
be considered an inoperable automobile. No work of automobile repair or maintenance shall
be performed except such work as is performed by the occupant of such Residential Lot
upon the occupant's vehicles and also such work shall be performed within the confines
of an Owner's garage.
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1.15 Fires and Firearms. There shall be no exterior fires permitted on any
Residential Lot except barbecue fires contained within receptacles specifically designed for
such purposes. No Owner shall permit any conditions on his Residential Lot which create
a fire hazard or are in violation of fire prevention regulations. No firearms shall be
discharged within or on any Residential Lot.
1.16 Towers. Masts. Antennas, Solar Panels, Mechanical Units and Satellite
Dishes. No devices for transmission or reception of microwave, optical, radio, television,
or other communication signals, including by way of example and not in limitation,
antennas, masts, towers, satellite dishes; and no heating, ventilating or air conditioning
units, solar panels, or other similar objects shall be placed on the roof or exterior of any
building,-. or elsewhere on a Residential Lot, unless first approved by the Architectural
Control Committee. Unless otherwise permitted by the Architectural Control Committee,
all such approved facilities shall be appropriately screened, or architecturally integrated into
and fully contained within the roof or exterior of dwellings and shall not significantly project
from the surrounding surfaces. The allowance of and the placement of all such units is,
to the fullest extent possible by law, restricted to the sole discretion of the Architectural
Control Committee.
1.17 Storage of Dangerous Materials. No above -ground storage tanks of any
character shall be allowed on any Residential Lot. Propane tanks shall be placed
underground. Except for such propane tanks, no gasoline, paint or any other toxic,
hazardous or flammable materials shall be stored on any Residential Lot in quantities in
excess of 15 gallons, unless written approval thereof is obtained from the Architectural
Control Committee, and such storage is in compliance with all applicable safety standards
and regulations.
1.18 Maintenance of Easements and Landscaping. Except for landscaping which
the Association maintains, the Owner of each Residential Lot shall be responsible for at all
times properly maintaining the landscaping on such Residential Lot, including without
limitation, all utility easements and to control and eradicate weeds. If the Owner of any
Residential Lot fails to so maintain such areas on their respective Residential Lots, the
Association shall be empowered, but is not required, to enter onto such Residential Lots
and undertake such steps as necessary to maintain or restore the same, and the cost
thereof shall be charged against the Owner of the respective Residential Lot and shall be
recoverable as a special assessment against the Owner and the Residential Lot.
1.19 No Subdivision of Residential Lots. No Residential Lot shall hereafter be
subdivided.
1.20 Drainage and Soil Conditions.
A. Soil Conditions. Many soils within the State of Colorado consist of both
expansive soils and low -density soils which may adversely affect structures if the structure
is not properly designed and maintained and appropriate drainage provided and maintained.
The soils can consist of soils that swell, as well as soils that shrink. Engineered
foundations for all construction on the Property are recommended. Soils may also contain
substances producing radon gas.
B. Action by Owner. The Owner of each Residential Lot agrees to obtain
plans and specifications from a qualified engineer for the foundation of any structures, as
well as recommendations of such engineer regarding radon gas testing and control
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measures, and for grading and other methods of control of water flow on and across the
Residential Lot in compliance with any grading and drainage plan for the Property approved
by Weld County. Each Owner of any Residential Lot is required to comply with the
recommendations of such engineer and to at all times take appropriate action to not impede
or hinder waters flowing across the Residential Lot in the manner intended by the
applicable grading and drainage plans and recommendations for the Residential Lot and the
grading and any drainage plan approved by Weld County for the entire Property.
C. Declarant Not Liable. The Declarant shall not be liable for any loss or
damage arising from or in any way connected with soil conditions on any Residential Lot,
including by way of example and not in limitation, radon gas, expansive or shrinking soils,
subsurface water conditions or the flow of waters on, across, through or under any
Residential Lot.
1.21 Driveways and Parking Areas. Hard surfaced or gravelled private driveways
and parking areas are required. Gravel, asphalt or concrete, or other materials approved
by the Architectural Control Committee shall be used for such surfacing. Except for those
installed by Declarant, no driveway, parking pad, patio, or other paved or hard surfaced
area shall be placed on any Residential Lot, or altered, unless first approved by the
Architectural Control Committee.
1.22 Exterior Lighting and Utilities. Exterior lighting shall be designed so as not
to unreasonably interfere with the use and enjoyment of other Residential Lots or Lot 1.
All exterior lighting shall be subject to approval by the Architectural Control Committee and
shall be designed and located so as to be compatible with and integrated info the
structures on any Residential Lot and the character of the development of the Property.
The Architectural Control Committee shall have full discretion to approve and deny exterior
lighting to minimize impact on adjacent Residential Lots in the Property and minimize the
appearance of a brightly lit complex. All electric, telephone, and other utility lines are to
be placed underground. Each Residential Lot Owner is responsible for design, approval,
construction and maintenance of adequate individual septic systems, the location of which
are subject to the prior approval of the Architectural Control Committee. Each Dwelling
have an operating garbage disposal unit connected to the waste water/septic system and
also approved by the Architectural Control Committee. No waste water shall be allowed
to run upon or remain upon any Residential Lot except through the septic system. Each
Residential Lot Owner shall at all times keep and maintain the septic system and
appurtenant leach fields or other facilities related thereto in proper and sanitary operating
condition.
1.23 Mining. No exploration for or extraction of any sand, gravel, oil, gas, mineral
or other subsurface material shall be performed on any part of any Residential Lot and no
part of any Residential Lot shall be used for the storage, processing or refining of any such
substance.
1.24 Entryways and Street Parking. Each Residential Lot shall have at least one
entry from Alpine Sky Drive, and each entry shall have a minimum culvert size of 18".
1.25 Street Parking. No parking is allowed on Alpine Sky Drive, provided, that
exceptions for special occasions may be made by the Board of the Association.
1.26 Prohibited Habitation. No basement, partially completed Dwelling, trailer,
shack, garage, barn, tent, or outbuilding or other structure or Improvement on a Residential
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Lot shall at any time be used for human habitation, temporarily or permanently. The only
place where habitation may occur is within a completed Dwelling complying with the plans
and specifications approved by the Architectural Control Committee and having all
necessary governmental approvals and occupancy permits. No habitation shall occur in any
Dwelling which has been damaged, or whose waste water/septic system has failed or is
inadequate, so as to render such habitation inappropriate.
1 .27 Compliance With Laws. Nothing shall be done or kept in or on any Lot which
would be in violation of any statute, rule, ordinance, regulation, permit or validly imposed
requirement of any governmental authority having jurisdiction.
ARTICLE II
LAND USE - LOT 1
2.01 Nonapolication of Article I. The character and size of Lot 1 makes it
inappropriate for application of land use regulations which apply to the Residential Lots.
The provisions of Article I therefore do not restrict Lot 1, however, the provisions of Article
I are for the benefit of Lot 1, as well as the Residential Lots, and therefore the Owner of
Lot 1 has the same rights of remedy and enforcement of the provisions of Article I as that
afforded to the Owners of the Residential Lots. The Owner of Lot 1 also has the same
rights as the Residential Lot Owners to vote upon any matter arising from or in connection
with the provisions of this Declaration, including without limitation, Article I.
2.02 Farmino Operations. It is anticipated that agricultural activities may in the
future take place upon Lot 1, and the lands surrounding the Property are also anticipated
to be used for agricultural purposes. Each person acquiring an interest in a Residential Lot
is hereby notified that such agricultural activities can potentially create dust and noise and
odors, and the use of chemicals in connection with the farming operations is necessary,
common and often undertaken. Slow moving vehicles, and farming operations taking place
in late evening and early morning and occasionally throughout the night can be expected.
By acceptance of an interest in a Residential Lot in the Property, the Owners are accepting
such potential affects of agricultural activities. Those who may find such agricultural
activities, and the affects thereof, offensive should acquire property in more urban settings.
The recorded Plat also contains a "right to farm" covenant which should be reviewed and
is binding upon the Owners of Residential Lots in the Property.
ARTICLE III
ARCHITECTURAL CONTROL COMMITTEE
3.01 Appointment of Committee. The Declarant has established an Architectural
Control Committee, the initial members of which are Kevin McCarty and Dina McCarty.
Until all Lots within the Property have been sold by the Declarants to Purchasers and
homes have been built and occupied upon all Lots, the Declarant shall appoint the
Architectural Control Committee, which may consist of one (1) or more persons as
determined by the Declarant. At such time as the Declarants have sold all Lots to
Purchasers and homes have been built and occupied thereon, the number of members of
the Architectural Control Committee shall and their appointment be as provided for in the
paragraph below entitled "Termination of Declarant Control". No member of the
Architectural Control Committee shall be entitled to any compensation for services as a
member of the Committee. The initial address of the Architectural Control Committee shall
be 1100 10th Street, Suite 301, Greeley, Colorado 80631, and hereafter may be changed
from time to time by the members of the Architectural Control Committee. The members
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of the Architectural Control Committee can engage such professional services of architects,
engineers and attorneys as they deem from time to time appropriate, and may pay the cost
thereof from the filing fees required to be paid by those seeking Architectural Control
Committee review.
3.02 Architectural Control. Other than Declarant's Facilities, no Improvement shall
be erected, placed, maintained or altered on any Residential Lot until the construction plans
and specifications and a plan showing the location of the Improvements have been
approved by the Architectural Control Committee as to quality of workmanship, quality and
color and type of materials, the esthetics and harmony of exterior design with the character
of the community and the existing structures, and as to location of Improvements and
finished grade elevation, and compliance with this Declaration. At, or within six months
of, the time of submission of plans for the Dwelling on any Residential Lot, the Owner shall
also submit a final landscape plan. If a final landscape plan is not submitted with the plans
for the dwelling, a preliminary landscape sketch shall be included with the submission of
the dwelling plans. Each plan submitted to the Architectural Control Committee shall bear
the stamp or certification of an architect or engineer licensed in the State of Colorado;
provided, that, the Architectural Control Committee may waive this requirement if in the
exercise of its discretion it determines such certification is not reasonably appropriate for
the plan to be reviewed, and such determination is evidenced by a written waiver of the
requirement signed by the members of the Architectural Control Committee.
Notwithstanding the waiver of requirement of certification by an architect or engineer, the
Architectural Control Committee may at any time, before or after submission of the plan,
determine that the plan submitted without certification should be so certified, and may
require the party submitting such plan to obtain such certification before any further action
by the Architectural Control Committee.
3.03 Rules of Procedure and Guidelines. The Architectural Control Committee
may, but is not required to, adopt guidelines and rules and regulations from time to time
establishing procedures and design criteria in furtherance of this Declaration. The
Architectural Control Committee shall meet at the convenience of the members thereof as
often as necessary to transact its business. Request for approval of design shall be made
to the Committee in writing, accompanied by two (2) complete sets of plans and
specifications for any and all proposed Improvements to be constructed on any Residential
Lot. Such plans shall include plot plans showing drainage and grading plans, the location
on the Residential Lot of the Dwelling, building, wall, fence, or other Improvement
proposed to be constructed, altered, placed, or maintained thereon, together with the
proposed construction materials, color scheme for roofs and exteriors thereof, architectural
renderings, and proposed landscape plantings. The Architectural Control Committee may
require submission of additional plans, specifications, and of samples of materials and
colors prior to approving or disapproving the proposed Improvement. Until receipt by the
Architectural Control Committee of all the required materials in connection with the
proposed Improvement to the Residential Lot, the Committee may postpone review of any
material submitted for approval.
Notwithstanding any other provision of this Declaration, the guidelines or rules
adopted by the Architectural Control Committee may specify circumstances under which
a variance to the strict application of the provisions of this Declaration to a proposed
Improvement may be granted where strict application would be in the opinion of the
Architectural Control Committee unreasonable or unduly harsh under the circumstances.
The guidelines or rules adopted by the Architectural Control Committee may elaborate or
expand upon the provisions of this Declaration relating to procedures and criteria for
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approval and they also specify rules and restrictions pertaining to the construction of
Improvements, including, for example, the storage of construction materials and hours of
construction operations. Such guidelines and rules adopted by the Architectural Control
Committee shall have the same force and effect as if they were set forth in and were a
part of this Declaration. Nothing herein shall authorize the Architectural Control Committee
to make any variance with respect to provisions of this Declaration which restrict the
character of uses to which Residential Lots may be placed, such as, without limitation,
provisions restricting animals, commercial activities and other restrictions of this Declaration
regarding use, and the ability to grant variances is solely restricted to the location and
construction of Improvements.
3404 Approval of Plans. The Architectural Control Committee shall approve or
disapprove plans, specifications, and details within thirty (30) days from the receipt all
materials requested by the Committee and shall notify the Owner submitting them of such
approval or disapproval in writing. If all samples, plans, specifications, and details
requested by the Committee have been submitted and are not approved or disapproved
within such thirty (30) day period they shall be deemed approved as submitted. One set
of plans and specifications and details with the approval or disapproval of the Architectural
Control Committee endorsed thereon shall be returned to the Owner submitting them and
the other copy thereof shall be retained by the Architectural Control Committee for its
permanent file. Applicants for Architectural Control Committee action may, but need not,
be given the opportunity to be heard in support of their application. Refusal of approval
of plans, location, or specifications may be based by the Architectural Control Committee
upon any reasonable grounds, including purely aesthetic considerations, which in the sole
and uncontrolled discretion of the Architectural Control Committee shall seem sufficient,
reasonable, and not capricious. The Committee may condition its approval of any proposed
Improvement to property upon the making of such changes therein as the Committee may
deem appropriate. All applications to Weld County for issuance of building permits must
be accompanied by a letter from the Architectural Control Committee evidencing review
and approval of the plans by the Architectural Control Committee.
3.05 Filing Fees. As a means of defraying its expenses, the Architectural Control
Committee may require a reasonable filing fee to accompany the submission of plans to it
in an amount to be fixed by the Architectural Control Committee from time to time,
provided that the fee shall not exceed $500.00 for any plan submitted within twenty-four
(24) months of the date of recording of this Declaration. No additional fees shall be
required for one (1) resubmission of plans revised in accordance with Architectural Control
Committee recommendations if such resubmission is made within twenty (20) days of the
Architectural Control Committee response to the initial plans submitted. Additional
resubmissions shall require payment of additional fees, unless waived by the Architectural
Control Committee for such reasons as the Architectural Control Committee in the exercise
of its sole discretion deems appropriate.
3.06 Completion of Improvements. Any Improvement approved by .the
Architectural Control Committee shall be timely commenced and in no event commenced
later than nine (9) months from the date of such approval. If not commenced within such
time, the approval of the Committee shall automatically expire and the applicant must
thereafter resubmit all plans to the Committee for reconsideration. The fact that a
proposed Improvement has previously been approved by the Committee shall not require
the Committee to again approve such proposed Improvement if the approval has expired
pursuant to the terms of this paragraph. Once an approved Improvement has been
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commenced, the Improvement shall be completed no later than nine (9) months from the
date of commencement.
3.07 Governmental Approvals. Each Owner shall obtain, prior to commencement
of construction of any Improvement, all permits, licenses, certificates, consents and other
approvals necessary or required pursuant to any law, ordinance, resolution, order, rule or
regulation of any governmental authority having jurisdiction in order for the Owner to
construct, operate and maintain the Improvement; and before commencing work on any
such Improvement, the Owner shall provide to the Architectural Control Committee a copy
of such governmental approval. The Owner shall also furnish the Architectural Control
Committee on a timely basis with copies of permits or certifications showing that the work
being performed has, where required, been inspected and approved by the governmental
authority having jurisdiction and a copy of the certificate of occupancy or final inspection
or certification shall be timely provided to the Architectural Control Committee.
3.08 Inspection of Work and Notice of Completion. The members of the
Architectural Control Committee, and any agent or representative thereof, shall have the
right to inspect any Improvement to any Residential Lot prior to and after completion,
provided that the right of inspection shall terminate three (3) days after the Committee has
received from the applicant a notice of completion.
3.09 Estoppel Certificates. Upon the reasonable request of any interested party,
and after confirming any necessary facts, the Architectural Control Committee, shall furnish
a certificate with respect to the approval or disapproval of any Improvement to any
Residential Lot or with respect to whether any Improvement to a Residential Lot is•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.
3.10 Non -Liability. No member of the Architectural Control Committee, or any
other agents of the Architectural Control Committee, shall be liable for any loss, damage
or injury arising out of or in any way connected with the performance or nonperformance
of the Architectural Control Committee. In reviewing any matter, the Architectural Control
Committee is not responsible for reviewing, nor shall its approval of any Improvement to
a Residential Lot be deemed to be, an approval of the Improvement to a Residential Lot
from the standpoint of safety, whether structural or otherwise, or conformance with any
building, zoning or other codes or governmental laws or regulations.
3.11 No Implied Waiver or Estoppel. No action or failure to act by the
Architectural Control Committee shall constitute a waiver or estoppel with respect to future
action by the Architectural Control Committee, or the Association or its members with
respect to any Improvement. By example, and not in any way a limitation, the approval
by the Architectural Control Committee of any Improvement shall not be deemed a waiver
of any right or an estoppel to withhold approval or consent for any similar Improvement or
any similar proposals, plans, specifications or other materials submitted with respect to any
other Improvement.
ARTICLE IV
PROPERTY RIGHTS IN THE COMMON ELEMENTS
4.01 Owners' Easement of Eniovment of Common Elements. Subject to the other
provisions of this Declaration, every Owner of a Lot in the Property shall have a right and
easement of enjoyment in and to the Common Elements in common with the other Owners
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of Lots and the Association, and if not elsewhere reserved in this Declaration, an easement
for the uses hereafter identified is hereby reserved to each of the Owners of Lots and to
the Association.
4.02 Title to the Common Elements. The Declarant hereby covenants that he will
convey to the Association the title to all the Common Elements.
4.03 Assignment of Use by Owners. Any Owner of a Lot may assign, in
accordance with the Bylaws and any rules and regulations from time to time adopted by
the Association, the right of enjoyment to the Common Elements to the members of the
Owner's family, and tenants, guests or purchasers under installment land contracts who
reside on Lot.
4.04 Extent of Owners' and Association's Easements-Outlot A. The rights and
easements of enjoyment of the Owners of Lots, and the Owners Association, created in
the Common Element identified on the recorded Plat as "Outlot A" "Common Open Space",
created hereby shall be subject to the following:
4.04.1 No use shall be made of the area which is Inconsistent with its
purpose as common private open space for the benefit of the Owners of Lots.
Notwithstanding any other provision of this Declaration to the contrary, except for those
installed by Declarant, no permanent structure shall be placed in the area unless a majority
of the Owners of Lots have consented to such structure.
4.04.2 The Association shall have the right to adopt and enforce rules and
regulations for usage and to limit the number of guests of Owners of Residential Lots
utilizing the Outlot A provided such rules and regulations and limitations are the same for
all Owners of Lots who are otherwise in compliance with this Declaration and the rules and
regulations.
4.04.3 The Association shall not have any right to encumber, pledge, assign
or transfer its ownership or easement rights unless written approval for the same is given
by the Owners of every Lot.
4.04.4 The Association shall have the right, as provided in its Articles and
Bylaws, to suspend the enjoyment rights in Outlet A of any Owner of a Lot for any period
during which any assessment remains unpaid, and for any period not to exceed thirty (30)
days for any infraction of its published rules and regulations.
ARTICLE V
OWNERS ASSOCIATION
5.01 Formation of the Association. The Declarant has formed, or will form after
the recording of this Declaration, a Colorado non-profit corporation ("The Association").
Each Owner of each Lot within the Property shall be a member of the Association. Status
as an Owner of a Lot is the sole qualification for membership, such membership, being
deemed an incident of Ownership of a Lot. Individuals who jointly own a Lot, shall be
deemed to constitute a single Owner of a Lot. An Owner's membership in the Association
shall commence as of the date that fee title to a Lot is conveyed to the Owner and shall
terminate on the date of termination of Ownership of a Lot.
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5.02 Classes of Membership and Voting Rights. The Association shall have two
(2) classes of voting membership. Class A shall be composed of the Declarant. Class B
shall be composed of the Owners of Lots other than Declarant. For matters upon which
Owners of Lots are entitled to vote, the Class A member shall be entitled to cast two (2)
votes for each Lot owned by the Class A member, and Class B members shall each be
entitled to cast one (1) vote for each Lot owned by the member. In the event a Lot is
owned by (2) or more persons, whether by joint tenancy, tenancy in common, or
otherwise, the vote for such Lot shall be exercised as the Owners thereof shall determine
but the vote attributable to such Lot shall be cast by only one (1) of the Owners of such
Lot who shall be designated by the several Owners of such Lot in writing prior to or at the
time the vote is cast. In the absence of such designation by such multiple Owners the
vote for such Lot may be cast in accordance with the agreement of a majority in interest
of the persons having ownership interest in the Lot. There shall be deemed to be a
majority agreement if any one of the multiple Owners casts the vote allocated to the Lot
without protest being made promptly to the person preceding over the meeting by any of
the other Owners of the Lot. No vote may be cast or counted for any Lot for which
assessments, fees, dues, or other monies are in default of payment at the time votes are
counted.
5.03 Board of Directors. The affairs of the Association shall be conducted by a
Board of Directors (the "Board"). The powers and duties of the Board shall include, but
not be limited to the following:
A. To enforce all of the applicable provisions of this Declaration.
B. To maintain the Common Elements.
C. To contract for and pay for the cost of providing the functions of the
Association out of funds collected by the Board.
D. To levy and collect the costs of maintenance as provided in this
Declaration and to make or authorize the expenditures therefrom.
E. To receive and process complaints from Owners with respect to any
provisions of this Declaration.
F. To adopt such rules and regulations as the Board from time to time may
deem necessary or appropriate to carry out the provisions of this Declaration.
G. To render such discretionary decisions as are vested in the Board
pursuant to this Declaration.
H. To impose charges for late payment of assessments, recover costs of
enforcement including reasonable attorney fees and other legal costs for collection of
assessments and other actions to enforce the power of the Association, regardless of
whether or not suit was initiated, and, after notice and an opportunity to be heard, levy
reasonable fines for violations of the Declaration, Bylaws, and Rules and Regulations of the
Association, and to establish the rate of interest to be assessed for all sums which may
be payable to the Association.
I. To obtain and keep in force such insurance as the Board may from time
to time deem appropriate including, but not limited to, casualty and liability, worker's
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compensation, errors and omissions coverage for officers, directors, employees, agents and
members of the Association, insurance for indemnification of officers, directors and
members of the Association acting on behalf of and for the benefit of the Association, and
such other insurance that the Board may deem appropriate.
J. Subject to the other provisions of this Declaration, to exercise all powers
and rights granted to the Association by the provisions of any applicable law.
K. To take such other action or to incur such other obligations whether or
not herein expressly specified as shall be reasonably necessary to perform the Association's
obligations hereunder.
L. To adopt Bylaws for the Association, and to amend or repeal or otherwise
modify such Bylaws from time to time.
5.04 Number and Election of Board Members, Declarant Control. The initial Board
of Directors shall consist of one (1) or more persons appointed by the Declarant, each of
whom shall serve at the pleasure of the Declarant or until his or her successor(s) is
appointed by the Declarant. The Declarant shall, for the period of time hereafter provided,
retain the right to appoint and remove the members of the Board of Directors and the
officers of the Association and the members of the Architectural Control Committee and
to fill any vacancy occurring in any such position and to make amendments to this
Declaration ("Declarant Control").
5.04.1 Period of Declarant Control. The period of Declarant Control with
respect to the Board and Officers of the Association, and with respect to appointment of
the members of the Architectural Control Committee, and with respect to Declarant's rights
to amend this Declaration, shall continue until no Lot in the Property is owned by Declarant
or any successor to Declarant (other than a Purchaser) to whom the right to exercise
Declarant Control has been assigned, and dwellings have been built upon each Lot and
occupied. Declarant may at any time voluntarily surrender the right to appoint and remove
the members of the Board of Directors, or the Officers of the Association, or the
Architectural Control Committee and may do so by written instrument.
5.04.2 Termination of Declarant Control. Unless otherwise provided in the
Bylaws, upon termination of the period of Declarant Control with respect to the Board or
Officers of the Association, the Owners shall elect a Board of Directors of at least three
(3) members initially, and the Board members so elected shall elect the Officers of the
Association. The Board members and Officers, unless otherwise required by applicable law
shall take office upon election. Thereafter, the number, term and qualifications of the
Directors and Officers shall be as provided in the Bylaws. Upon termination of the period
of Declarant Control with respect to the Architectural Control Committee, the Board shall
establish the number of members of such Committee and appoint such members.
5.05 Meetings of the Association and Officers. Meetings of the Association shall
be held at least once each year. Special meetings of the Association may be called by the
President, by a majority of the Board, or by Owners having twenty percent (20%) of the
votes in the Association. Not less than ten (10) nor more than fifty (50) days in advance
of any meeting, the Secretary or other Officer specified in the Bylaws shall cause notice
to be hand delivered or sent prepaid by United States mail to the mailing address of each
Lot or to any other mailing address designated in writing by the Lot Owner. The notice of
any meeting shall state the time and place of the meeting and the items on the agenda.
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The number and type of officers, and the provisions for regular and special meetings of the
Association not inconsistent with the foregoing shall be as provided from time to time by
the Bylaws and the Articles of Incorporation of the Association.
5.06 Quorum. Unless the Bylaws provide otherwise, a quorum is deemed present
throughout any meeting of the Association if persons entitled to cast twenty percent (20%)
of the votes which may be cast for election of the Board are present, in person or by
proxy, at the beginning of the meeting. Unless the Bylaws specify a larger percentage, a
quorum is deemed present throughout any meeting of the Board if persons entitled to cast
fifty percent (50%) of the votes on that Board are present at the beginning of the meeting.
5-.07 Coordination with Bylaws and Rules and Regulations. Except as may be
otherwise provided herein for action of the Board regarding interest upon unpaid
assessments, the provisions of this Declaration provide the minimum substantive terms for
the enforcement of this Declaration by the Board and the Architectural Control Committee.
Further and additional provisions for the operation of the Board and the Architectural
Control Committee may in the future be set forth by the Bylaws of the Association, and
by appropriate resolutions or rules and regulations adopted by the Board or the
Architectural Control Committee which supplement and further the intent and purposes of
this Declaration. In the event any conflict occurs between the provisions of this
Declaration and such Bylaws or resolutions, then this Declaration shall control and to the
extent possible, the conflicting Bylaws, resolutions or rules and regulations shall be
construed to be effective where it promotes the interest of the provisions of this
Declaration and invalid where in derogation of these Declarations.
5.08 Transfer. The membership held by any Owner shall not be transferred,
pledged or alienated in any way, except upon the sale of the Owner's Lot, and then only
to the purchaser of such Lot. A prohibited transfer is void and will not be reflected upon
the books and records of the Association.
5.09 Delegation of Use. The Board may from time to time establish rules and
regulations regarding the delegation by an Owner of rights of use and enjoyment of the
Common Elements to such Owner's guests, tenants or purchasers.
5.10 Notices. Notice of matters affecting the Property may be given to Owners
by the Association, or by other Owners, by personal delivery or by mailing with postage
prepaid to the mailing address of each Lot, or to any other mailing address designated by
the Owner in writing. Notice will be deemed given when delivered in person, or when
placed in the United States mail with sufficient postage prepaid.
ARTICLE VI
MAINTENANCE, BUDGET AND ASSESSMENTS
6.01 Maintenance of Common Elements. The Association shall be responsible for
the maintenance of the Common Elements until and unless such maintenance obligation
is assumed by Weld County, or by any other governmental or quasi -governmental body.
6.02 Allocation of Common Expenses to Lots. The expenses of functions imposed
on the Association pursuant to this Declaration, together with the expenses of
administration and operation of the Association and its Boards and Committees and the
Architectural Control Committee (including any appropriate indemnity to members of the
foregoing), and such other items of expense as contained in the budgets adopted by the
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Association, shall be allocated among the Lots, with each Lot to bear the following
percentages of the expenses of the Association: Lot 1 - five percent (5%); Lots 2, 3, 4,
5 and 6 - nineteen percent (19%) each. In the event of withdrawal of any Lot(s), or the
addition of any Lot(s), assessments will be re -allocated so that all Lots except Lot 1 will
have equal assessments, and Lot 1 will have an assessment one-fourth (1/4th) of that
applicable to any other Lot, and so that the sum of the percentage allocated to all Lots,
subject to minor variations for rounding, shall equal 100%. The assessments based on
such re -allocation shall commence on a date fixed by the Board in its discretion. Each
Owner, by the acceptance of a conveyance of a Lot, shall be personally obligated to pay
such percentage share of such expenses. An Owner shall be responsible for payment of
the full share of any assessments for a Lot whether or not the Lot has Improvements.
6.03 Establishment of Common Expenses Budget. The Board shall establish
periodic budgets for the Association. Appropriate notice of such budget and meetings
concerning such budget shall be provided to the Owners. The amount of each budget shall
be assessed against each Lot in the percentage provided in the paragraph above entitled
"Allocation of Common Expenses to Lots", and shall be payable in monthly, quarterly,
annual or such other periodic installments as adopted from time to time by the Board.
Should the Board fail to adopt a budget for any budget period, the- periodic budget last
adopted shall be continued until such time as the Board adopts a subsequent budget.
Without in any way limiting the nature and type of expenses upon which the budget may
be based, the budget may include anticipated expenses for reasonable contingency reserve
and working capital and sinking funds, legal and other professional expenses, premiums for
casualty and liability insurance for the Common Elements, and for errors and omission or
other insurance protection designed to provide defense and insurance coverage to the
Board members, members of the Architectural Control Committee, Officers, agents and
employees of the Association in connection with any matters arising from Association or
Architectural Control Committee business and the performance by such persons of their
duties or related to their status as Board members, Officers, employees or agents of the
Association or Architectural Control Committee.
6.04 Limitation on Assessments. In no event shall the annual average common
expense liability allocated to any Lot in the Property, exclusive of optional user fees and
any insurance premiums paid by the Association, ("Maximum Annual Assessment"), exceed
the maximum amount allowable by then applicable Colorado law for exception of the
Property and the Association from the general application of the provisions of the Colorado
Common Interest Ownership Act. The current Maximum Annual Assessment is $300.00
per Lot, pursuant to Section 38-33.3-116 C.R.S., and such amount shall not be exceeded
unless Colorado law hereafter allows a greater amount without requiring general application
of the Colorado Common Interest Ownership Act. In no event shall the Board adopt any
budget which will result in assessment of more than the said permissible Maximum Annual
Assessment. This limitation shall not affect, and does not include, any special assessments
assessed against a Lot as a result of default by an Owner of the Owner's obligations under
this Declaration.
6.05 Special Assessments. Acceleration of Payments on Default. In addition to
the Common Expenses to be assessed against each Lot, the Board may, from time to time,
levy and collect special assessments to remedy any default by an Owner of the Owner's
obligations under this Declaration. Such costs and expenses for an Owner's default may
be assessed against such Owner without establishment of any supplemental budget, and
may be collected from such Owner in the same manner as provided in the paragraphs
entitled "Creation of Lien and Foreclosure", and "Owner's Obligation for Payment of
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Assessments" below. Any charges imposed for late payment, attorney fees and costs, and
fines shall be deemed to be assessments against the Owner's Lot and recoverable and
subject to the same rights and remedies available to the Association for all other
assessments. In addition to all other penalties, fines, costs, fees, expenses and charges
which may be assessed, if an Owner is in default of payment of assessments as due, the
Officers of the Association may elect to accelerate and call due and payable in full all
installment payments of assessments to be paid by such defaulting Owner, for the budget
period for which the default exists. Such assessments are not subject to the limitation
contained in the paragraph above entitled "Limitation on Assessments" and are not a part
of the common expense liability of each Lot, but are special and in addition to such
common expense liability.
6.06 Accounting and Surplus Funds. All funds collected by the Association shall
be promptly deposited into a commercial bank account and/or a savings and loan account
in an institution to be selected by the Board. No withdrawal shall be made from said
account except to pay the obligations of the Association. The Board shall maintain
complete and accurate books and records of its income and expenses in accordance with
generally accepted accounting principles consistently applied and shall file such tax returns
and other reports as shall be required by any governmental entity. The books and records
shall be kept at the office of the Association and shall be open for inspection by any
Owner or by the holder of any first deed of trust or mortgage of record at any time during
normal business hours following reasonable advance notice of the request for inspection.
If surplus funds remain after payment of the Association's expenses and prepayment of or
provision for sinking funds and reserves, the Board may, but is not required to, pay all or
a portion of such surplus to the Owners or credit to the Owners' future assessments, in
proportion to each Owner's percentage liability for Common Expenses.
6.07 Creation of Lien and Foreclosure. The Common Expenses Assessments ,
together with any special assessment or other penalty, cost or charges which an Owner
is obligated to pay ("assessments"), shall be a debt of such Owner to the Association on
the date when each installment thereof becomes due. In the event of the default of any
Owner in the payment of any installment of assessments, such amount, any accelerated
payments called due, and any subsequently accruing unpaid assessments, together with
interest thereon at the rate of eighteen percent (18%) per annum, or such other rate as
may hereafter from time to time be established by the Board, and together with all costs
which may be incurred by the Association in the collection of such amount, together with
reasonable attorneys' fees shall be and become a lien on the interest of the defaulting
Owner in his Lot. The Association may, but is not required to, execute and record in the
Weld County Recorder's Office a Notice of Assessment Default setting forth the name of
the defaulting Owner as indicated by Association records, the amount of the delinquency,
and the fact that additional delinquencies may accrue and increase such amount, and the
legal description of the Lot or Lots affected. The lack of recording any such notice shall
not in anyway affect the priority, validity and enforceability of the lien in favor of the
Association or its rights with respect thereto. Such lien shall attach and be effective from
the due date of the assessment, and may be enforced by foreclosure by the Association
of the defaulting Owner's interest in the Property. The lien provided herein shall. be in
favor of the Association for the benefit of all Owners who are Association members. In
any such foreclosure, the defaulting Owner shall be required to pay the costs and expenses
of such proceedings, the costs and expenses for filing any notice or claim of lien, and all
reasonable attorneys' fees in connection with such foreclosure. The lien shall include and
the defaulting Owner shall also be required to pay to the Association the assessments for
the Lot whose payment comes due during the period of foreclosure, and the Association
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shall be entitled to a receiver to collect the assessments so coming due. The Association,
on behalf of the member Owners, shall have the power to bid on the Lot at foreclosure sale
and to acquire, hold, lease, mortgage, and sell the same. Such lien provided herein shall
have the same priority, date of attachment, period of time for enforcement and other
aspects as set forth in Section 38-33.3-316, C.R.S. as amended regarding liens arising
under the Colorado Common Interest Ownership Act. Reference to such Act, and
reference to the aforesaid statute do not constitute an election to make applicable the
provisions of the Colorado Common Interest Ownership Act, and it is hereby specifically
stated that application of the Colorado Common Interest Ownership Act is specifically
rejected. Reference is made to Section 38-33.3-316 C.R.S. as amended solely for the
purposes of clarity in describing the lien in favor of the Association. The Association may,
but is not required to send notice of default to an Owner, and a copy of such notice may,
but is not required to, be mailed to the holder of any deed of trust or mortgage of record
constituting a lien on such Lot. The lack of provision of such notice shall not in anyway
affect the priority, validity and enforceability of the lien or obligation of the Owner, or the
Association's rights with respect thereto. Upon the payment of the amounts due, if the
Association recorded a Notice of Assessment Default, the Association shall cause to be
recorded a certificate setting forth the satisfaction of such lien, the cost of preparation and
recording of which shall be paid by the Owner. The remedies of the Association for
recovery by foreclosure of its lien rights, and by action against the persons personally liable
for payment or for any other remedy available by law or in equity are cumulative and
independent of each other. Pursuit of one does not waive or restrict pursuit of another
remedy, and such remedies may be undertaken by the Association in any sequence and
without the necessity for joinder of any claims or remedies. The lien of the Association
shall not expire for the greater of six (6) years, or such longer period as may be provided
by any applicable statute, from the last date upon which the full amount of assessments
become due and if proceedings to enforce the lien are instituted within such period of time,
the lien shall continue until completion of such proceedings. The lien in favor of the
Association provided herein is not subject to any claim for homestead exemption or any
other exemption, right to elective share, allowances or other provisions of testate or
intestacy laws providing preferential treatment or exemptions, and each Lot Owner and that
Lot Owner's spouse, heirs, successors, representatives and assigns by acceptance by the
Lot Owner of ownership of a Lot hereby waives with respect to the lien of the Association
all claims for such exemptions or preferential treatment otherwise provided by state or
federal laws.
6.08 Owner's Obligation for Payment of Assessments. The amounts assessed by
the Association against each Lot and any interest, costs, and attorney fees in connection
with default in payment thereof, shall be the personal and individual debt of the Owner
thereof at the time the assessment is made. Each person, if more than one (1), composing
the Owner shall be jointly and severally liable therefore. Suit to recover a money judgment
for unpaid expenses shall be maintainable without foreclosing or waiving the lien securing
same. No Owner may be exempted from liability for assessments by a waiver of the use
or enjoyment of the Common Elements or by abandonment of the Lot against which the
assessment is made.
6.09 Statement of Assessment Status. Upon payment to the Association of a
reasonable fee, as may from time to time be established by the Board, accompanied by the
written request of the Owner or any mortgagee or prospective Owner of a Lot, the
Association shall issue a written statement setting forth the amount of unpaid assessments
and any other charges outstanding with respect to the subject Lot, and the date when the
same became due. Such statement shall also include credit for any advanced payments
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of assessments, but no credit shall be given for any accumulated amounts for reserves or
sinking funds, if any. The statement issued by the Association shall be binding upon the
Association and its officers and each Owner in favor of persons who rely thereon in good
faith. The manner and time for providing such statements shall be as provided by the
terms of the Bylaws of the Association, as from time to time amended.
6.10 Liability Upon Transfer. Any Owner who sells his or her Lot in good faith and
for value shall be relieved of the obligation for payment of assessments thereafter
attributable to the Lot, as of the date of the recordation of the deed transferring such Lot
to the subsequent purchaser. The Owner transferring, and the purchaser of the transferred
Lot, shall be jointly liable for payment of all assessments and any related interest, costs
and attorney fees attributable to the Lot accrued from the date of execution of the deed
through the date of such recordation, and the lien for recovery of the same shall remain
in force against such Lot.
ARTICLE VII
GENERAL PROVISIONS
7.01 Term. Subject to amendments hereafter duly made, this Declaration as set
forth in this Declaration are to run with the land and shall be binding on all parties and all
persons claiming under them for a period of twenty-five (25) years from the date it is
recorded after which time said Declaration shall be automatically extended for successive
periods of ten (10) years unless an instrument signed by sixty-seven percent (67%) of the
then Owners of the Lots has been recorded agreeing to terminate this Declaration..
7.02 Amendments.
7.02.1 Amendments by Declarant. During the Period of Declarant Control
set forth in the paragraph above entitled "Period of Declarant Control", Declarant, without
the necessity of consent by anyone else, shall have the right to amend this Declaration
from time to time for any purpose which Declarant deems appropriate. Such amendments
shall not be effective with respect to any person not having actual knowledge thereof, until
such time as notice of such amendment is filed for record in the Office of the Weld County
Clerk and Recorder.
7.02.2 Amendments by Owners, Consent of Declarant. The Owners of five -
sixths (5/6) of the Lots may at any time modify, amend, augment, or delete any of the
provisions of this Declaration provided however that:
a. While the Declarant, or any successor to Declarant (other than a
Purchaser), to whom the right to consent to amendment has been assigned by Declarant,
owns any Lot, no amendment may be made unless the Declarant (or Declarant's Successor)
has consented in writing thereto.
b. No amendment shall be effective with respect to any person not
having actual knowledge thereof, until such time as notice of such amendment is filed for
record in the. Office of the Weld County Clerk and Recorder.
c. No amendments may be adopted which would be inconsistent with
any condition or covenants imposed as a condition of approval of the platting and
subdivision of the Property.
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d. The Association may not be voluntarily dissolved without the prior
permission of the Board of Commissioners of the County of Weld.
e. Any of the following amendments to be effective must be
approved in writing by the record holders of all encumbrances on the Lots at the time of
such amendment:
I) Any amendment which affects or purports to affect the validity
or priority of any encumbrance; or
ii) Any amendment which would necessitate a mortgagee after it
has acquired a residential Lot to pay any portion of any unpaid assessment or assessments
accruing prior to foreclosure, to the extent the amounts would exceed the priority of such
assessments over that now provided by this Declaration.
f. Except for amendments made by Declarant pursuant to the paragraph
entitled "Amendments by Declarant" above, the provisions of the paragraph entitled
"Horses" above regarding the keeping of horses shall require unanimous approval by
Owners of all Lots of any amendment.
7.03 Mortaacaee Protection Clause. No breach of the covenants or restrictions
herein contained, shall defeat or render invalid the lien of any mortgage or deed of trust
made in good faith and for value, except as provided herein with regard to priority of liens
in favor of the Association, but all of said covenants and restrictions, together with any
amounts for assessments, shall be binding upon and effective against any Owner whose
title is derived through foreclosure or through trustee sale or through deed given in lieu
thereof.
7.04 Enforcement. The provisions of this Declaration may be enforced in
proceedings brought by any Owner or by the Board of Directors of the Association or the
Architectural Control Committee. In addition to the provisions for lien foreclosure and
recovery against Owners for assessments, enforcement may be by proceedings at law or
in equity against any person or persons violating or attempting to violate any provisions of
this Declaration either to restrain violation, or to recover damages, or both. All remedies
provided are cumulative, and pursuit of one shall not bar pursuit of any other,
independently, or jointly, and in any sequence.
7.05 Severability. Invalidation of any clause, sentence, phrase, or provision of this
Declaration by judgment or court order shall not affect the validity of any other provisions
of this Declaration which shall remain in full force and effect.
7.06 Non -Application of Colorado Common Interest Ownership Act. This
Declaration limits assessments, as set forth in the paragraph entitled "Limitation on
Assessments", so as not to exceed the maximum amount allowable from time to time by
applicable Colorado law for exception of the Property and the Association from a general
application of the provisions Colorado Common Interest Ownership Act. Declarant elects
that only the mandatory Sections 38-33.3-105, 38-33.3-106, and 38-33.3-107 C.R.S. of
the Colorado Common Interest Ownership Act shall be applicable.
7.07 Enforcement By Governmental Entity. In the event that the Association or
any successor to the Association fails to maintain the Common Elements in reasonably
good order and condition, the County of Weld, or if the Property has annexed to the
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municipality in which the Property is located, may serve written notice upon such
organization or upon the residents of the Property setting forth the manner in which the
organization has failed to maintain the Common Elements in reasonable condition, and said
notice shall include a demand that such deficiencies of maintenance be cured within thirty
days thereof and shall state the date and place of a hearing thereon which shall be held
within fourteen (14) days of the notice. At such hearing the county or municipality may
modify the terms of the original notice as to deficiencies and may given an extension of
time within which they shall be cured. If the deficiencies set forth in the original notice
or in the modifications thereof are not cured within said thirty (30) days or any extension
thereof, the county or municipality, in order to preserve the taxable values of the properties
within the Property and to prevent the Common Elements from becoming a public nuisance,
may enter upon said Common Elements and maintain the same for a period of one (1) year.
Said entry and maintenance shall not vest in the public any right to use the Common
Elements except when the same is voluntarily dedicated to the public by the Owners.
Before the expiration of said year, the county or municipality shall, upon its initiative or
upon the written request of the organization theretofore responsible for the maintenance
of the Common Elements, call a public hearing upon notice to such organization or to the
resident of the Property to be held by the board designated by the county or municipality,
at which hearing such organization or the residents of the Property shall show cause why
such maintenance by the county or municipality shall not, at the election of the county or
municipality, continue for a succeeding year. If the board designated by the county or
municipality determines that such organization is ready and able to maintain said Common
Elements in reasonable condition, the county or municipality shall cease to maintain said
Common Elements at the end of said year. If the board designated by the county or
municipality determines that such organization is not ready and able to maintain said
Common Elements in a reasonable condition, the county or municipality may, in its
discretion, continue to maintain said Common Elements during the next succeeding year
and, subject to a similar hearing and determination, in each year thereafter.
The cost of such maintenance by the county or municipality shall be paid by the
Owners of Lots within the Property that have a right of enjoyment of the Common
Elements, and any unpaid assessments shall become a tax lien on said properties. The
county or municipality shall file a notice of such lien in the office of the county clerk and
recorder upon the properties affected by such lien within the Property and shall certify such
unpaid assessments to the board of the county commissioners and county treasurer for
collection, enforcement, and remittance in the manner provided by law for the collection,
enforcement, and remittance of general property taxes.
IN WITNESS WHEREOF, this Declaration has been executed by the Declarant who
is the Owner of all lands in the Property, and mortgagees holding any lien against the
Property, whose signatures and identification of Ownership interest are set forth below.
DATED this /0v< day of f,.... a , 1997.
DECLARANTS:
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Protective Covenants for Little Thompson Valley Estates P.U.D.
4"
STATE OF COLORADO )
ss.
COUNTY OF LARIMER
The
foregoing instrument was acknowledged before me this irk— day of
1997, by KEVIN MCCARTY and DINA MCCARTY.
y hand and official seal.
n expires: 8/26/99.
Notary lice
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