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Home My WebLink About992339.tiff RESOLUTION RE: APPROVE IMPROVEMENTS AGREEMENT ACCORDING TO POLICY REGARDING COLLATERAL FOR IMPROVEMENTS (PRIVATE ROAD MAINTENANCE) AND ROAD MAINTENANCE AND IMPROVEMENTS AGREEMENT AND ACCEPT COLLATERAL - EDEN'S RESERVE PUD, c/o MARK AND JACQUELYN EBERL WHEREAS, the Board of County Commissioners of Weld County, Colorado, pursuant to Colorado statute and the Weld County Home Rule Charter, is vested with the authority of administering the affairs of Weld County, Colorado, and WHEREAS, on August 26, 1999 the Department of Planning Services staff did approve a Site Specific Development Plan and Planned Unit Development Final Plan, S #500, for Eden's Reserve PUD, do Mark and Jacquelyn Eberl on the following described real estate, to-wit: NE'/ of Section 21, Township 3 North, Range 68 West of the 6th P.M., Weld County, Colorado WHEREAS, pursuant to certain Conditions of Approval in said approval, the Board has been presented with an Improvements Agreement According to Policy Regarding Collateral for Improvements (Private Road Maintenance) and a Road Maintenance and Improvements Agreement between the County of Weld, State of Colorado, by and through the Board of County Commissioners of Weld County, and Eden's Reserve PUD, c/o Mark and Jacquelyn Eberl, with terms and conditions being as stated in said agreements, and WHEREAS, Mark and Jacquelyn Eberl have presented Irrevocable Letter of Credit #378, in the amount of $59,573.00 drawn on the First National Bank of Longmont, P. O. Box 1159, Longmont, Colorado 80502-1159, and WHEREAS, after review, the Board deems it advisable to approve said agreements, copies of which are attached hereto and incorporated herein by reference. NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld County, Colorado, that the Improvements Agreement According to Policy Regarding Collateral for Improvements (Private Road Maintenance) and Road Maintenance and Improvements Agreement between the County of Weld, State of Colorado, by and through the Board of County Commissioners of Weld County, and Eden's Reserve PUD, do Mark and Jacquelyn Eberl be, and hereby is, approved. BE IT FURTHER RESOLVED that Irrevocable Letter of Credit #378, in the amount of $59,573.00 drawn on the First National Bank of Longmont, P. O. Box 1159, Longmont, Colorado 80502-1159 be, and hereby is, accepted. 992339 PL1311 Fr: e L, Eke,r/ AGREEMENTS - S #500, EDEN'S RESERVE PUD, do MARK AND JACQUELYN EBERL PAGE 2 The above and foregoing Resolution was, on motion duly made and seconded, adopted by the following vote on the 20th day of September, A.D., 1999. BOARD OF COUNTY COMMISSIONERS WELD COUNTY, COLORADO ATTEST: Ityk iii EXCUSED if � a Daley K. Hall, Chair Weld County Clerk 'to the B•- d *C0) SG] yry D 4ZI bara J. Kirkmeyer, o-Tem v BY: *);‘. i• Deputy Clerk to the Bo ®U 7�t eorge ' . xter APPRFID AS TO F• ' M. Gei e County Attorney / w ` • � 1 Glenn 992339 PL1311 (2I 1i rnr TMTV OF \XTPT it STATE OF CO LOP AnO �J l�VV1Yl l OF Y1 LLL, STATE OF IiVLV1�AllV ROAD MAINTENANCE AND IMPROVEMENTS AGREEMENT THIS AGREEMENT, made and entered into this day of 1999, by and between the COUNTY of WELD, STATE OF COLORADO, hereinafter called "County" and Mark and Jackie Eberl (Eden's Reserve PUD), hereafter called "Eberl" and WHEREAS, Eberl has been granted a Weld County Planned Unit Development for eight residential/estate lots and one residential/agricultural lot on 108.9 acres, part of NE4, all in Section 21, Township 3 North of Range 68 West of the 6th PM WHEREAS, the PUD generates an increase in vehicle traffic, and WHEREAS, the existing County roads that serve the PUD will require increased maintenance and improvement due to the increase in vehicle traffic, and WHEREAS, the County and Eberl have reviewed maintenance and improvements proposals put forth by Eberl, and both parties agree that such maintenance and improvements will enhance the accessibility and safety of the roads that serve said PUD. NOW, 'THEREFORE, in consideration of the mutual covenants and conditions hereinafter set forth, the county and Eberl agree as follows: I . Term: The term of this agreement shall be from the date first written above to and until WCR 32 is paved. 2. Location: The county road which serves said PUD is WCR 32 between the western most property line and the west end of the bridge over the Highland Ditch. 3. Improvement and Maintenance to WCR 32: A. The County shall be responsible for general maintenance, Including grading and snow removal. B. The County shall prep and grade WCR 32 prior to applicant Applying dust suppression chemicals. C. Eberl will apply dust suppression chemicals on WCR 32, as Needed, as determined by Department of Public Works, not less than twice a year. 4. No Third Party Beneficiary Enforcement: It is expressly understood that enforcement of the terms and conditions of this Agreement, and 11111111111111111110 III III III 1111111 III 11111 Hill 2723648 09/30/1999 09:248 Weld County CO 1 of 2 R 0.00 D 0.00 JP Sukl Taukamoto all rights of action relating to such enforcement, shall be strictly reserved to the undersigned parties, and nothing contained in this Agreement shall give or allow any claim or right of actions whatsoever by any other person not included in this Agreement. It is the express intention of the undersigned parties that any entity other than the undersigned parties receiving services or benefits under this Agreement shall be deemed an incidental beneficiary only. 5. Indemnification: To the extent authorized by law, Eberl agrees to indemnify, save, defend, and hold harmless County from any and all Liability incurred as a result of acts, omissions, or failures to act by Eberl in the performance of the duties set forth in this Agreement on those portions of WCR 32 described in this Agreement. The term liability includes, but is not limited to, any and all claims, damages, and court awards, including costs, expenses, and attorneys' fees, incurred as a result of any act or omission by Eberl and its employees. 6. Modifications and Breach: This Agreement contains the entire agreement and understanding between the parties to this Agreement and supersedes any other agreements concerning the subject matter of this transaction, whether oral or written. No modifications, amendment, novation, renewal, or other alteration of or to this Agreement shall be deemed valid or any force or effect whatsoever, unless mutually agreed upon in writing by the undersigned parties. No breach of any term, provision, or clause of this Agreement shall be deemed, waived, or excused, unless such waiver or consent shall be in writing or signed by the party claimed to have waived or consented. Any consent by any party hereto, or waiver of, a breach by any other party, whether expressed or implied, shall not constitute a consent to, waiver of, or excuse for any different or subsequent breach. 7. Non-Assignment: This Agreement shall not be assignable without prior written consent of County or Eberl, whichever is the non-assigning party. IN WITNESS WHEREOF, the par-ties hereto have duly executed the r+K ent the day and year first above written. � T ' �`r"_� ►4 � �� BOARD OF COUNTY COMMISSIONERS ' 7? �` + �G%� WELD COUNTY, COLORADO - Clerk to th Board 7. ffi CEOà7&tts1 BY 99Barbara J. Kirkmeyer, Chait/ Yro-Tem ark and Jackie Eberl B : ! , : ice, TITLE: 2 of 2 8 R 0.00 I IIIIII VIII II'II"III IIIIIII 'II 'IIIIII III 'IIIID IIII IIII � 6 D 0.00 9 JA Suki Tsukamoto 1P CI" IMPROVEMENTS AGREEMENT ACCORDING f POLICY REGARDING COLLATERAL FOR IMPROVEMENTS (PRIVATE ROAD MAINTENANCE) THIS AGREEMENT, made and entered into this /qmday of .(1:11, by and between the County of Weld, State of Colorado, acting through its Board of County Commissioners, hereinafter called County", and Mark and Jackie Eberl hereinafter called "Applicant". WITNESSETH: WHEREAS, Applicant is the owner of or has a controlling interest in the following described property in the County of Weld, Colorado: EDEN'S RESERVE PUD, located in the NE/4 21-03-68 of the 6th P-M, Weld County, Colorado, WHEREAS, a final subdivision/PUD plat of said property, to be known as EDEN'S RESERVE PUD has been submitted to the County for approval; and WHEREAS, of the Weld County Subdivision Ordinance provides that no final plat shall be approved by the County until the Applicant has submitted a Subdivision Improvement Agreement guaranteeing the construction of the public improvements shown on plans, plats and supporting documents of the subdivision, which improvements, along with a time schedule for completion, are listed in Exhibits "A" and "B" of this Agreement. NOW, THEREFORE, IN CONSIDERATION OF the foregoing and of the acceptance and approval of said final plat, the parties hereto promise, covenant and agree as follows: 1.0 Engineering Services: Applicant shall furnish, at its own expense, all engineering services in connection with the design and construction of the subdivision improvements listed on Exhibit "A" which is attached hereto and made a part of this reference. 1.1 The required engineering services shall be performed by a Professional Engineer and Land Surveyor registered in the State of Colorado, and shall conform to the standards and criteria established by the County for public improvements. 1.2 The required engineering services shall consist of, but not be limited to, surveys, designs, plans and profiles, estimates, construction supervision, and the submission of necessary documents to the County. Revised 12/95 1111111 11111 IIII 1111111 III 1111111 III 11111 IIII IIII 2723649 09/30/1999 09:24A Weld County CO 1 of 12 R 0.00 D 0.00 JA Suki Tsukemoto 992339 PL l3l 1.3 Applicant shall furnish drawings and cost estimates for roads within the subdivision to the County for approval prior to the letting of any construction contract. Applicant shall furnish one set of reproducible "as-built" drawings and a final statement of construction cost to the County. 2.0 Rights-of-Way and Easements: Before commencing the construction of any improvements herein agreed upon,Applicant shall acquire,at its own expense,good and sufficient rights- of-way and easements on all lands and facilities traversed by the proposed improvements. 3.0 Construction; Applicant shall furnish and install, at its own expense, the subdivision improvements listed on Exhibit"A:which is attached hereto and made a part hereof by this reference,according to the construction schedule set out in Exhibit"B"also attached hereto and made a part hereof by this reference. 3.1 Said construction shall be in strict conformance to the plans and drawings approved by the County and the specifications adopted by the County for such public improvements. Whenever a subdivision is proposed within three miles of an incorporated community located in Weld County or located in any adjacent county, the Applicant shall be required to install improvements in accordance with the requirements and standards that would exist if the plat were developed within the corporate limits of that community. If the incorporated community has not adopted such requirements and standards at the time the subdivision is proposed, the requirements and standards of the County shall be adhered to. If both the incorporated community an the County have requirements and standards, those requirements and standards that are more restrictive shall apply. 3.2 Applicant shall employ,at its own expense,a qualified testing company previously approved by the County to perform all testing of materials or construction that is required by the County; and shall furnish copies of test results to the County. 3.3 At all times during said construction, the County shall have the right to test and inspect or to require testing and inspection of material and work at Applicant's expense. Any material or work not conforming to the approved plans and specifications shall be removed and replaced to the satisfaction of the County at Applicant's expense. 3.4 The Applicant shall furnish proof that proper arrangements have been made for the installation of sanitary sewer or septic systems,water, gas,electric and telephone services. 3.5 Said subdivision improvements shall be completed,according to the terms of this Agreement,within the construction schedule appearing in Exhibit"B". The Board of County Commissioners, at its option, may grant an extension of the time of completion shown on Exhibit"B"upon application by the Applicant subject to the terms of Section 6 herein. 2 Revised 12/95 1 111111 11111 111111 lIII 1111111 III 1111111 III 11111 IiII I'll 2723649 09/30/1999 09:24A Weld County CO 2 of 12 R 0.00 D 0.00 JA Suki Isuksmoto 4.0 Release of Liability: Applicant shall indemnify and hold harmless the County from any and all liability loss and damage county may suffer as a result of all suits,actions or claims of every nature and description caused by, arising from, or on account of said design and construction of improvements,and pay any and all judgments rendered against the County on account of any such suit, action or claim, together with all reasonable expenses and attorney fees incurred by County in defending such suit, action or claim whether the liability,loss or damage is caused by,or arises out of the negligence of county or its officers, agents, employees, or otherwise except for the liability, loss, or damage arising from the intentional torts or the gross negligence of the county or its employees while acting within the scope of their employment. All contractors and other employees engaged in construction of the improvements shall maintain adequate workman's compensation insurance and public liability insurance coverage, and shall operate in strict accordance with the laws and regulations of the State of Colorado governing occupational safety and health. (THERE IS NO SECTION 5) 6.0 Approval of Streets by the County: Upon compliance with the following procedures by the Applicant, streets within a subdivision may be approved by the County as public roads and will be maintained and repaired by a homeowners association or, in its absence,the owners of lots within the subdivision. 6.1 If desired by the County, portions of street improvements may be placed in service when completed according to the schedule shown on Exhibit"B",but such use and operation shall not constitute an approval of said portions. 6.2 County may, at its option, issue building permits for construction on lots for which street improvements detailed herein have been started but not completed as shown on Exhibit"B", and may continue to issue building permits so long as the progress of work on the subdivision improvements in that phase of the development is satisfactory to the Count: and all terms of this Agreement have been faithfully kept by Applicant. 6.3 Upon completion of the construction of streets within a subdivision and the filing of a Statement of Substantial Compliance, the applicant(s) may request in writing that the County Engineer inspect its streets and recommend that the Board of County Commissioners partially approve them. Not sooner than nine months after partial approval, the County Engineer shall, upon request by the applicant, inspect the subject streets, and notify the applicant(s) of any deficiencies. The County Engineer shall reinspect the streets after notification from the applicant(s)that any deficiencies have been corrected. If the County Engineer finds that the streets are constructed according to County standards, he shall recommend full approval. Upon a receipt of a positive unqualified recommendation from the County Engineer for approval of streets within the development,the Board of County Commissioners shall fully approve said streets as public but with private pay. 7.0 Genera!' Requirements for Collateral: 7.1 The value of all collateral submitted to Weld County must be equivalent to 100% of the value of the improvements as shown in this Agreement. Prior to Final Plat approval,the applicant shall indicated which of the five types of collateral prefered 3 Revised 12/95 1 IMO 11111111111 IIII 1111111 WOE III 11111 IIII IIII 2723649 09/30/1999 09:24A Weld County CO 3 of 12 R 0.00 D 0.00 JA Suk! Tsukamoto to be utilized to secure the improvements subject to final approval by the Board of County Commissioners and the execution of this Agreement. Acceptable collateral shall be submitted and the plat recorded within six (6) months of the Final Plat approval. If acceptable collateral has not been submitted within six(6)months then the Final Plat approval and all preliminary approvals shall automatically expire. An applicant may request that the County extend the Final Plat approval provided the cost estimates are updated and the development plans are revised to comply with all current County standards, policies and regulations. The improvements shall be completed within one (I) year after the Final Plat approval (not one year after acceptable collateral is submitted) unless the applicant(s) requests that this Agreement be renewed at least thirty (30) days prior to its expiration and further provides that cost estimates for the remaining improvements are updated and collateral is provided in the amount of 100% of the value of the improvements remaining to be completed. If improvements are not completed and the agreement not renewed within these time frames, the County, at its discretion, may make demand on all or a portion of the collateral and take steps to see that the improvements are made. 7.2 The applicant may choose to provide for a phased development by means of designating filings of a Planned Unit Development Plan or Final Plat Subdivision. The applicant would need only to provide collateral for the improvements in each filing as approved. The County will place restrictions on those portions of the property that are not covered by collateral which will prohibit the conveyance of the property or the issuance of building permits until collateral is provided or until improvements are in place and approved pursuant to the requirements for a Request for Release of Collateral. 7.3 The applicant intends to develop in accordance with Exhibits "A" and "13". 8:0 Improvements Guarantee: The five types of collateral listed below are acceptable to Weld County subject to final approval by the Board of County Commissioners. 8.1 An irrevocable Letter of Credit from a Federal or State licensed financial institution on a form approved by Weld County. The letter of credit shall state at least the following: 8.1.1 The Letter of Credit shall be in an amount equivalent of 100% of the total value of the improvements as set forth in Section 6.0 and exhibits"A" and "B". 8.1.2 The Letter of Credit shall provide for payment upon demand to Weld County if the developer has not performed the obligations specified in the Improvements Agreement and the issuer has been notified of such default. 8.1.3 The applicant may draw from the Letter of Credit in accordance with the provisions of this policy. 4 Revised 12/95 I 11111 111111 NI 1111111 III 1111111 III 11111 illl IIII 24Tof649 12 R90.001999 D 0.00 JRRSukid County CO Tsukamoto 8.1.4 The issuer of the Letter of Credit shall guarantee that at all times the unreleased portion of the Letter of Credit shall be equal to a minimum of 100%of the estimated costs of completing the uncompleted portions of the required improvements, based on inspections of the development by the issuer. In no case shall disbursement for a general improvement item exceed the cost estimate in the Improvements Agreement (i.e., streets, sewers, water mains and landscaping, etc.). The issuer of the Letter of Credit will sign the Improvements Agreement acknowledging the agreement and its cost estimates. 8.1.5 The Letter of Credit shall specify that 15% of the total Letter of Credit amount cannot be drawn upon and will remain available to Weld County until released by Weld County. 8.1.6 The Letter of Credit shall specify that the date of proposed expiration of the Letter of Credit shall be either the date of release by Weld county of the final 15%, or one year from the date of Final Plat approval, whichever occurs first. Said letter shall stipulate that, in any event, the Letter of Credit shall remain in full force and effect until after the Board has received sixty (60) days written notice from the issuer of the Letter of Credit of the pending expiration. Said notice shall be sent by certified mail to the Clerk to the Board of County Commissioners. 8.2 Trust Deed upon all or some of the proposed development or other property acceptable to the Board of County Commissioners provided that the following are submitted: 8.2.1 In the event property within the proposed development is used as collateral, an appraisal is required of the property in the proposed development by a disinterested M.A.I. member of the American Institute of Real Estate Appraisers indicating that the value of the property encumbered in its current degree of development is sufficient to cover 100% of the cost of the improvements as set forth in the Improvements Agreement plus all costs of sale of the property. 8.2.2 In the event property other than the property to be developed has been accepted as collateral by Weld County,then an appraisal is required of the property by a M.A.I. member of the Institute of Real Estate Appraisers indicating that the value of the property encumbered in its current state of development is sufficient to cover 100% of the cost of the improvements as set forth in the Improvements Agreement plus all costs of sale of the property. 8.2.3 A title insurance policy insuring that the Trust Deed creates a valid encumbrance which is senior to all other liens and encumbrances. 8.2.4 A building permit hold shall be placed on the encumbered property. 8.3 Escrow Agreement that provides at least the following: 5 Revised 12/95 I Nil 11111 111111 1111111 III IIIIIII III 11111 IIII IIII 2723649 09/30/1999 00:24A Weld County CO 5 of 12 R 0.00 D 0.00 JA Suit! Tsukamoto 8.3.1 The cash in escrow is at least equal to 100% of the amount specified in the Improvements Agreement. 8.3.2 The escrow agent guarantees that the escrowed funds will be used for improvements as specified in the agreement and for no other purpose and will not release any portion of such funds without prior approval of the Board. 8.3.3 The escrow agent will be a Federal or State licensed bank or financial institution. 8.3.4 If the County of Weld County determines there is a default of the Improvements Agreement, the escrow agent, upon request by the County, shall release any remaining escrowed funds to the County. 8.4 A surety bond given by a corporate surety authorized to do business in the State of Colorado in an amount equivalent to 100% of the value of the improvements as specified in the Improvements Agreement. 8.5 A cash deposit made with the County equivalent to 100%of the value of the improvements. 9.0 Request for Release of Collateral: Prior to release of collateral for the entire project or for a portion of the project by Weld County, the Applicant must present a Statement of Substantial Compliance from an Engineer registered in Colorado that the project or a portion of the project has been completed in substantial compliance with approved plans and specifications documenting the following: 9.1 The Engineer or his representative has made regular on-site inspections during the course of construction and the construction plans utilized are the same as those approved by Weld County. 92 Test results must be submitted for all phases of this project as per Colorado Department of Transportation Schedule for minimum materials sampling, testing and inspections found in CDOT Materials Manual. 9.3 "As built" plans shall be submitted at the time the letter requesting release of collateral is submitted. The Engineer shall certify that the project "as built" is in substantial compliance with the plans and specifications as approved or that any material deviations have received prior approval from the County Engineer. 9.4 The Statements of Substantial Compliance must be accompanied,if appropriate,by a letter of acceptance of maintenance and responsibility by the appropriate utility company, special district or town for any utilities. 9.5 A letter must be submitted from the appropriate Fire Authority indicating the fire hydrants are in place in accordance with the approved plans. The letter shall indicate if the fire hydrants are operational and state the results of fire flow tests. 9.6 The requirements in 9.0 thru 9.5 shall be noted on the final construction plans. 6 Revised 12/95 1111111 IIIII 111111 EH 11111111 III 1111111 III 11111 IIII IIII 2723649 09/30/1999 09:24R Weld County CO 6 of 12 R 0.00 D 0.00 JP Suitt Tsukemoto 9.7 Following the submittal of the Statement of Substantial Compliance and recommendation of approval of the streets by the County, the applicant(s) may request release of the collateral for the project or portion of the project by the Board. This action will be taken at a regularly scheduled public meeting of the Board. 9.8 The request for release of collateral shall be accompanied by"Warranty Collateral" in the amount of 15%of the value of the improvements as shown in this Agreement excluding improvements fully accepted for maintenance by the responsible governmental entity, special district or utility company. 9.9 The warranty collateral shall be released to the applicant upon final approval by the • Board of County Commissioners. 10.0 Public Sites and Open Spaces: When the Board of County Commissioners, pursuant to a rezoning, subdivision or planned unit development, requires the dedication, development and/or reservation of areas or sites other than subdivision streets and utility easements of a character, extent and location suitable for public use for parks, greenbelts or schools, said actions shall be secured in accordance with one of the following alternatives,or as specified in the PUD plan, if any: 10.1 The required acreage as may be determined according to the Weld County Subdivision Regulations shall be dedicated to the County or the appropriate school district, for one of the above purposes. Any area so dedicated shall he maintained by the County or school district. 10.2 The required acreage as determined according to the Weld County Subdivision Regulations, may be reserved through deed restrictions as open area, the maintenance of which shall be a specific obligation in the deed of each lot within the subdivision. 10.3 In lieu of land,the County may require a payment to the County in an amount equal to the market value at the time of final plat submission of the required acreage as determined according to the Subdivision Ordinance. Such value shall be determined by a competent land appraiser chosen jointly by the Board and the Applicant. The cash collected shall be deposited in an escrow account to be expended for parks at a later date. 11.0 Successors and Assizns: This Agreement shall be binding upon the heirs, executors, personal representatives,successors and assigns of the Applicant,and upon recording by the County, shall be deemed a covenant running with the land herein described, and shall be binding upon the successors in ownership of said land. IN WITNESS WHEREOF,the parties hereto have caused this Agreement to be executed on the day and year first above written. 7 Revised 12/95 1 111111 11111 111111 I11I I111II"'I 1111111 III 11111 lIII ME 2723649 09/30/1999 09..24A Weld County CO 7 of 12 R 0.00 D 0.00 JA Sukt Tsukamoto BOARD OF COUNTY COMMISSIONERS D COUN OLORADO \ , P V /vat ,‘ -7 Cr. to the Board 6l_ "t=art• - �� ecI /• i[ 4A — D k the Board O9 `f S TO FORM: /�z' :, � —- County Attorney,.- APPLICA �( 1 (title) Subscribed and sworn to before me this /ytItiay of < L.� „ 19 qq . My Commission expires: 1iY p(/ /a,da r; k7 three 4P'--- --efie Notary Public e ESTHER E GESICK 4tOF CO''OPP .r1.90n Expres September 11.2001 M:FORM APRIVATf DB 8 Revised 12/95 1111111 M" 111111 1111 1111111 III 1111111 III 111111111 I'll 2723649 09/30/1999 09:24A Weld County CO 8 of 12 R 0.00 D 0.00 JA Suitt Tsukamoto EXHIBIT "A" Name of Subdivision Eden's Reserve Filing: _ Location: Pt. NE/4 21-03-68, located south and adjacent to WCR 32&approx. % mile west of WCR 7 Intending to be legally bound,the undersigned Applicant hereby agrees to provide throughout this subdivision and a≤s shown on the subdivision final plat County dated Recorded on _in Book _Page No. , Reception No.__ _the following improvements. (Leave spaces blank where they do not apply.) IMPROVEMENTS NUMBER OF UNITS UNIT COST TOTAL COST Street vading 3185 cu/yds $1.00 $3185.00 Street base 1341 tons $8.50 $11,398.00 Street paving 517.5 tons $28.00 $14,490.00 Curbs,gutters and culverts Sidewalk Storm sewer facilities Retention ponds Ditch improvements 500 ft. $6.50 $32501.011 Subsurface draina,e Sanitary sewers Truck and forced tines _ Mains Laterals(house connected) On-site sewage facilities On-site water supply and storage 2150 ft. $8.50 $18,275.00 Water mains—includes Bore Fire hydrants 2 $2000.00 $4000.00 Survey street monuments&boxes Street lighting Street name signs 2 $50.00 $100.00 Fencing requirements Landscaping fa drought tolerant grass mix has been seede. in the open space) $2875.00 Park improvements Road culvert 1 $2000.00 $2000.00 Grass Lined Swale Telephone Gas Electric Water Transfer SUB-TOTAL $59573.00 1111111111111111111111111111 III 1111111 III 11111 ION 2723849 09/30/1999 09:24A Weld County CO 9 of 12 R 0.00 D 0.00 JA Suitt Isukamoto Engineering and Supervision Costs NA (testing, inspection, as-built plans and work in addition to preliminary and final plat; supervision of actual construction by contractors) TOTAL ESTIMATED COST OF IMPROVEMENTS AND SUPERVISION$ 59573.00 _ The above improvements shall be contructed in accordance with all County requirements and spwification, and conformance with this provision shall be determined solely by Wed County,or its duly authorized agent. (.tJFa Said improv is shall be completed accordi to c .[ruction schedul set out in ibit Ef'. (In corporation, be si ed by President and attested to by Secretes er with corporate seal.) Datb�=_ ^/ /> /227 1 11111111111 111111 1111 1111111 III 1111111 111 111111 III 1111 2723649 09/30/1999 09:24A Weld County CO 10 of 12 R 0.00 D 0.00 JA Sukl Tsukamoto EXHIBIT "B" Name of Subdivision Eden's Reserve Filing: _ Location: Pt. NE/d 21-03-68, located south and adjacent to WCR 32 &approx. '/ mile west of WCR 7 Intending to be legally bound,the undersigned Applicant hereby agrees to construct the improvements shown on the final subdivision plat of Subdivision,dated _Recorded on in Book , Page No. —Reception No._ _the following schedule. All improvements shall be completed within two years from the date of approval of the final plat. Construction of the improvements listed in Exhibit"A" shall be completed as follows: (Leave spaces blank where they do not apply.) IMPROVEMENTS Time for Completion Site grading June 2001 Street base June 2001 Street paving June 2001 Curbs gutters and culverts Sidewalk -- --.-- ---.-- —_—__-- Storm sewer facilities Retention ponds Ditch improvements June 2001 Subsurface drainage Sanitary sewers Truck and forced lines Mains Laterals(house connected) On-site sewage facilities On-site water supply and storage June 2001 Water mains—includes Bore Fire hydrants _ June 2001 Survey,street monuments&boxes Street lighting _ Street name signs June 2001 Fencing requirements --_ Landscaping June 2001 Park improvements Telephone Gas Electric Water Transfer 11111 111111 1111 III Ilillll III 111111 III 1111 2723649 09/30/1999 09:248 Weld County CO 11 of 12 R 0.00 0 0.00 JR Suki Tsukamoto The County, at its option,and upon the request by the pplicant, may grant an extension of time for comple ' any_par[i ular improvements own 'e,upon a showing by the Applican at t5above schedu cann a met. , (In corpo ti ,to gned by President nd attested to by Seer; e er with corporate seal.) D fin n /!`i ji 1111111 11111 111111111/ 1111111 III 1111111 III 111111 111111 27122of4120R/0 00 D g 0.002 d JA Suki Tsukamoto First National 4UI Main ) Box I lit • First National °"_m°'° Co I'`' Telerho°c 0 80 first National ).Hovers Be i PFnv '.0.8or 19v Lon4mor:,Co..roJn BOSJ1.II5` IRREVOCABLE LETTER OF CREDIT NO. 3711Ph°"30' `''8°° September 10, 1999 Board of County Commissioners ATTN: Clerk to the Board P O Box 758 Greeley, CO 80632 Re: Mark A. Ebert and Jacquelyn A. Ebert—Eden's Reserve P.U.D. located South and adjacent to WCR 32 and approximately/ mile west of WCR 7, Mead, Colorado Dear Commissioners: We hereby open our Irrevocable Letter of Credit in your favor for the account of Mark A. Ebert and Jacquelyn A. Ebert, P O Box 668, Mead, Colorado 80542, for sum not to exceed the aggregate of$59,573.00. (Fifty-Nine Thousand Five Hundred Seventy-Three and No/100). Each draft drawn must be marked "Drawn under FIRST NATIONAL BANK OF LONGMONT, 401 Main Street, P O Box 1159, Longmont, CO 80502, Letter of Credit No. 378" and be accompanied by a signed statement from the Board of County Commissioners of Weld County, Colorado stating the applicant has committed a material breach of specific improvements as described in attached Exhibit"A" of the Improvements Agreement according to Policy Regarding collateral for Improvements regarding Eden's Reserve P.U.D., dated the 23rd day of June, 1999 by and between Mark A. Ebert, Jacquelyn A. Ebert and the Board of County Commissioners of the County of Weld." This credit is subject so far as applicable, to "The Uniform Customs and Practice for Documentary Credit, 1993 Revision, International Chamber of Commerce Publication No. 500," hereinafter referred to as the "Uniform Customs." THE APPLICATION AND THESE TERMS AND CONDITIONS AND THE RIGHTS OF APPLICANT ANI) THE BANK HEREUNDER SHALL BE SUBJECTED TO AND GOVERNED BY THE LAWS OF COLORADO EXCEPT WHEN THE LAWS OF COLORADO CONFLICT WITH THE UNIFORM CUSTOMS, IN WHICH EVENT THE PROVISIONS OF THE UNIFORM CUSTOMS SHALL GOVERN. We hereby agree with you that all drafts drawn under and in compliance with the terms of this Letter of Credit will be duly honored and presented for payment to our main office, FIRST NATIONAL BANK OF LONGMONT, 401 Main Street, P O Box 1159, Longmont, CO 8C502. This Letter of Credit will expire on September 10, 2000 at 3:00 P.M. This Letter of Credit is automatically extended without amendment, for additional one year periods from the current expiration or any future expiration date unless 60 days prior to such current expiration date FIRST NATIONAL BANK OF LONGMONT notifies beneficiary in writing that the Letter of Credit will not be renewed. In the case you receive such a notification, you may draw by presentation of the following: (a) a draft at sight on First National Bank of Longmont; (b) a statement purportedly signed by an official of the Board of County Commissioners of Weld County, Colorado stating that notification has been received from FIRST NATIONAL BANK OF LONGMONT the Letter of Credit No. 378 will not be renewed and that Mark A. Eberl and Jacquelyn A. Eberl have failed :o provide proof of adequate collateral and substitution of the Letter of Credit No. 378; (c) copy of letter from FIRST NATIONAL BANK OF LONGMONT stating non-renewal of Letter of Credit No. 378 and the original Letter of Credit. Yours truly, Charles E. Allen, Jr. L- Vice President CEA/jki COVENANTS DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS FOR EDEN'S RESERVE A PLANNED COMMUNITY TABLE OF CONTENTS PREAMBLE 1 ARTICLE I DEFINITIONS 2 Section 1 -Association 2 Section 2 -Assessment 2 Section 3. - Board 2 Section 4 - Common Area 2 Section 5 - Non-Exclusive Easement 2 Section 6 - Residential Lot 2 Section 7 - Member 3 Section 8 - Owner 3 ARTICLE P.E PROPERTY SUBJECT TO THIS DECLARATION 3 Section 1 - Existing Property 3 ARTICLE Id ASSOCIATION STRUCTURE AND FORMAT 3 Section 1 - Organization 3 Section 2 - Membership 3 Section 3 - Board of Directors 4 ARTICLE IV USE AND OTHER RESTRICTIONS 4 Section 1 - Nuisances 4 Section 2 - Restriction on Further Subdivision 4 Section 3 -Single-Family Residences 4 Section 4 - Common Area Restrictions 4 Section 5 -Appearance 4 Section 6 -Restrictions on Signs 4 Section 7 - Conditions for Architectural Control 4 Section 8 - Rules and Regulations 5 Section 9 -Maximum/Minimum Lot Coverage 5 Section 10 - Restrictions on Parking and Storage 5 Section 11 - Animals Within Project 5 Section 12- Control of Antennas and Receiving Equipment 5 Section 13 - Underground Electric Lines 6 Section 14 - No Annoying Light, Sound or Odor 6 Section 15 - Dog Runs, Clotheslines and Storage Areas 6 Section 16 - Garbage and Refuge Disposal 6 Section 17 - Repair 6 Section 18 - Storage 6 Section 19 - Trash Burning 6 Section 20 - Maintenance of Site Views Within Eden's Reserve 6 Section 21 -Weed Control 6 ARTICLE V RIGHTS IN COMMON PROPERTIES AND ASSESSMENTS FOR EXPENSES 7 Section 1 -Members' Easements of Enjoyment 7 Section 2 -Title to Common Properties 7 Section 3 - Extent of Members'Easements 7 Section 4 - Covenant and Personal Obligation for Assessments 7 1 ARTICLE VI ARCHITECTURAL REVIEW 8 Section 1 -Membership and Activation of the Association Architectural Review Committee 8 Section 2 - Improvement to Property Defined 8 Section 3 -Approval of Improvements Required 8 Section 4 - Committee Guidelines or Rules 8 Section 5 - Submission of Plans 8 Section 6 - Criteria for Approval 9 Section 7 -Architectural Review Fee 9 Section 8 - Decision of Committee 9 Section 9 -Failure of Committee to Act on Plans 9 Section 10 - Obtaining Governmental Approvals 9 • Section 11 - Prosecution of Work After Approval 10 Section 12 - Notice of Completion 10 Section 13 -Inspection of Work 10 Section 14 - Notice of Noncompliance 10 Section 1.5 - Failure of Committee to Art After Completion 10 Section 16 - Correction of Noncompliance 10 Section 17 - No Implied Waiver or Estoppel 11 Section 18 - Committee Power to Grant Variances 11 Section 19 - Compensation of Members 11 Section 20 - Meetings of Committee 11 Section 21 -Records of Actions 12 Section 22 - Estoppel Certificates 12 Section 23- Nonliability of Committee Action 12 Section 24 - Construction Period Exception 12 Section 25 - Septic Envelope 12 ARTICLE VII TERMINATION AND AMENDMENT OF DECLARATION 12 Section 1 -Termination 12 Section 2 -Amendment 12 ARTICLE VIII CONDEMNATION, DAMAGE OR DESTRUCTION TO COMMON AREA 13 Section 1 -Damage or Destruction to Common Area 13 Section 2 - Owner-Caused Damage 13 Section 3 - Condemnation Procedure 13 ARTICLE IX REQUIREMENTS OF THE FIRE DISTRICT 14 ARTICLE X WELD COUNTY RIGHT TO FARM COVENANT 14 ARTICLE XI RIGHTS RESERVED BY DECLARANT 15 Section 1 - Special Declarant Rights 15 Section 2 -Additional Reserved Rights 15 Section 3 -:lights Transferrable 16 Section 4 - Development and Withdrawal Rights 16 Section 5 -Amendment of the Declaration 16 Section 6 -Amendment of the Map 16 Section 7 -::nterpretation 16 Section 8 - Construction Easement 17 ARTICLE XII. REQUIRED ALLOCATION OF IN tathsTS 17 Section 1 -Allocated Interests 17 ARTICLE X'.[II GENERAL PROVISIONS 17 Section 1 -Enforcement 17 Section 2 - Severability 17 Section 3 - Claims 18 Section 4 -Waiver 18 Section 5 - Conflicts of Provisions 18 Section 6 - Owners Right to Examine 18 • Section 7 -Registration by Owner of Mailing Address 18 • 111 DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR EDEN'S RESERVE A PLANNED COMMUNITY PREAMBLE THIS DECLARATION,made on the date hereinafter set forth,by Mark A.Eberl and Jacquelyn Eberl, 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: A parcel of land located in the NE1/4 of Section 21, Township 3 North, Range 68 West of the 6th P.M., County of Weld, State of Colorado, said parcel being more particularly described as follows: Beginning at a point on the North line of the NE1/4 of Section 21, from whence the Northeast corner of said section bears North 89 degrees 22 minutes 40 seconds East, 1382.7 feet and with all other bearings contained herein relative thereto; thence South 00 degrees 37 minutes 20 seconds East, 165.00 feet; thence South 29 degrees 47 minutes 57 seconds East, 2080.95 feet; thence South 04 degrees 44 minutes 41 seconds East, 672.58 feet to the South line of the NE1/4 of Section 21; thence South 89 degrees 23 minutes 39 seconds West along said South line, 2293.41 feet; thence North 00 degrees 00 minutes 59 seconds West 50 feet East of and parallel to the West line of said NE1/4 of Section 21, a distance of 1786.17; thence 653 feet along the arc of a curve to the right, said arc having a central angle of 20 degrees 51 minutes 04 seconds, a radius of 1808.10 feet, and whose chord bears North 10 degrees 24 minutes 32 seconds East, 654.38 feet; thence North 20 degrees 50 minutes 04 seconds East, 240.41 feet to the North line of the NE1/4 of Section 21; thence along said section line North 89 degrees 22 minutes 40 seconds East, 715.10 feet; thence South 00 degrees 37 minutes 20 seconds East, 214.00 feet; thence North 89 degrees 22 minutes 40 seconds East, 255.00 feet; thence North 34 degrees 13 minutes 32 seconds West, 256.94 feet; thence North 89 degrees 22 minutes 40 seconds East, 170.64 feet to the True Point of Beginning. -1- • WHEREAS, this Declaration is executed pursuant to and in furtherance of a common and general plan to protect and enhance the quality, value, desirability and attractiveness of all property which may be subject to 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. WHEREAS,Declarant has incorporated under the laws of the State of Colorado. as a non-profit corporation. The name of the corporation is Eden's Reserve Homeowners'Association. 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 hens hereinafter set forth. ARTICLE I DEFINITIONS Section 1. "Association" shall mean and refer to Eden's Reserve Homeowner's, a Colorado corporation, not-for-profit, its successors and assigns. Section 2. "Assessment" shall mean and refer to any assessment levied, charged, or assessed against an Owner in accordance with the provisions of this Declaration. Section 3. "Board" shall mean the Board of Directors of the Association Section 4. "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 limitations, any open space area adjacent to Lot lines,and exterior signs identifying the subdivision,any pathways built adjacent to Lots. This definition shall expressly exclude any public streets as shown on the Plat with the exception of the lake. The Common Areas shall be owned by the association at the time of the conveyance of the first Lot. Section 5. "Non-exclusive easement" shall mean the Association's non-exclusive easement on the surface area of the lake as identified on the plat. Section 6. "Residential Lot" shall mean and refer to Lots 1 through and including Lot 8 as shown upon any recorded final filing plat required by Weld County, Colorado. -2- Section 7. "Member"shall mean and refer to the Person designated as such pursuant to Article III. Section 8. "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 interest in one or more Lots. ARTICLE II PROPERTY SUBJECT TO THIS DECLARATION Section 1 - Existing Property. The real property which is and shall be held, transferred, sold, conveyed and occupied subject to this Declaration is located in Weld County, Colorado, and is more particularly described in the Preamble and represents the area which will be subject to this]Declaration. ARTICLE III CORPORATE STRUCTURE Section 1-Organization. A non-profit,non-stock corporation shall be formed and 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. Membership in the corporation to be formed shall provide that: (a)Basis. Membership shall be appurtenant to each Lot giving rise to such membership, and shall not be assigned,transferred,pledged,hypothecated,conveyed or alienated in any way except as provided in the Declaration, Articles of Incorporation or Bylaws. (b) Member's Rights and Duties. Each Member shall have the rights, duties and obligations set forth in this Declaration, the Articles of Incorporation or Bylaws. (c) Voting Rights. The Association shall have two (2) classes of voting membership: Class A: Class A members shall be all Owners of Lots 1 through and including 8 set forth on the recorded plat. Class A Members shall be entitled to one (1) vote for each Lot owned. Class B: Class B Members shall be the owner(s) of Lot 9 set forth on the recorded plat. Class B members shall be entitled to nine (9) votes. (d) Exercise of Vote. 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 more than one (1) -3- person may only be exercised by one (1) person, or if the Owner is a corporation, by an officer of such corporation. Section 3 - Board of Directors. (a) Composition. The number of Directors shall be as provided in the Articles of Incorporation and Bylaws. (b) Extent of Power. (1)The Board of Directors 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 Board of Directors shall exercise its powers in accordance with this Declaration of Covenants, Articles of Incorporation and its Bylaws. ARTICLE IV 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. Section 2- Restriction on Further Subdivision. Lots 1 through and including Lot 8 shall not 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. Lots 1 through and including Lot 8 shall not 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 \Veld County Zoning Coda. Section 4 - Common Area Restriction. All use and occupancy of the Common Areas within the subdivision shall be subject to the rights of the easement holders. No damage or waste shall be committed to the Common Areas or Improvements located thereon. Section 5 -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 6-Restrictions on Signs. No signs or advertising devices of any nature shall be erected or maintained on any Lot. Section 7-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 Lots 1 through 8 and including Lot 8 or the improvements located thereon from their natural or improved state existing on the date of such property was first subject to this Declaration shall be made or done -4- without compliance with the procedures set forth in this Declaration regarding Architectural control. Section 8-Rules and Regulations. 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 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 property. Section 9 - Iviaximum/Minimum Lot Coverage. (a) The maximum lot coverage by all structures on each Lot shall not exceed fifteen percent (15%) of the total Lot size. (b) The maximum number of square feet allowed for any dwelling on any Lot shall not exceed 9,000 square feet. (c)The minimum foot print of each dwelling, as measured at ground level,shall be 2,400 square feet, excluding garage. Section 10 - Restrictions of Parking and Storage. Except as expressly herein provided, no Lot, including the private drives,or parking areas,unless specifically designated by the Association therefor, 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, motor-driven cycle, truck, self-cor.tained motorized vehicle or any type of van except as a temporary expedience for loading, delivery or emergency. The same shall be stored, parked or maintained within the garage of each Lot. This restriction, however, shall not restrict trucks or other commercial vehicles within the Properties which are necessary for the construction of residential dwellings or the maintenance of the Common Area or Lots. This restriction, however, shall not prevent Owners of Lots from having guests who park in the private drives or parking areas of a Lot. This section shall not apply to Lot 9. Section 11 - Animals Within Project. Animals shall be kept or harbored within the Project subject to the existing ordinances of Weld County, Colorado. It shall be the obligation of each Owner owning a pet to control said pet in accordance with existing ordinances of Weld County, Colorado. 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. The Board of the Association may, at any time, create rules and regulations regarding the keeping of animals within the subdivision,and all Owners shall be subject to this covenant which requires that the Owners comply with the terms and conditions of those rules and regulations regarding animals within the Project. Any rules and regulations regarding animals shall be established in accordance with the Bylaws of the Association. No more than four household or residential pets shall be allowed. No animals of any type which are non-household pets including by way of definition, but not limitation, horses, cows, sheep, goats, or llamas, shall be kept on Lot 1 through and including Lot 8. No animal shall be kept within the Project for any commercial purpose. This section shall not apply to Lot 9, Section 12 - Control of Antennas and Receiving Equipment. As of the date of recording, the Declarant can not represent that cable television service will be provided to the subdivision. Exterior television receiving or transmitting devices of any type including receiving or transmission equipment for microwave transmission and any radio receiving or transmitting device of any type are expressly prohibited unless approved in writing by the Architectural Review Committee of the Association. -5- Section 13 - Underground Electric Lines. 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. This section shall not apply to Lot 9. Section 14- 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. Section 15 . Dog Runs, Clotheslines and Storage Areas. No clothesline, dog runs, 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. This section shall not apply to Lot 9. • Section 16 - Garbage and Refuse Disposal. No garbage, refuse, rubbish or cuttings shall be deposited on any street or Lot unless placed in a container suitably located solely for the purpose of garbage pickup. All equipment for the storage or disposal of such materials shall be kept in clean and sanitary condition. Section 17 - 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 on the Lot 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. This section shall not apply to Lot 9. Section 18-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. This Section shall not apply to Lot 9. Section 19 • Trash Burning. Trash, leaves and other similar materials shall not be burned within the Project. This section shall not apply to Lot 9. Section 20-Maintenance of Site Views Within Eden Reserve. No residential home,or ancillary building shall be placed or constructed within Eden Reserve without the prior written approval of the Architectural Review Committee. The location, height, width, and dimensions of all residences and ancillary buildings shall be subject to a site review by the Architectural Review Committee prior to construction and shall require the Lot Owner to stake on the Lot the proposed residence or other ancillary improvement for review and approval by the Architectural Review Committee prior to construction. All decisions regarding site views within Eden Reserve shall be made by the Architectural Review Committee and shall be site-specific to each Lot within the Development. This section shall not apply to Lot 9. Section 21 - 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 twelve (12)inches in height. Should a Lot Owner allow weeds to exceed twelve (12) 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(7)days after receiving said notice, or should the Association deem it necessary for immediate maintenance to occur, -6- 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 i.n Article V, Section 8 of these covenants. ARTICLE V RIGHTS IN THE COMMON PROPERTIES AND ASSESSMENTS FOR EXPENSES Section 1 -Members'Easements of Enjoyment. Every Member shall have a right and easement of enjoyment in and to the Common Properties, and such easement shall be appurtenant to and shall pass with the title to every Lot. Section 2-Title to Common Properties. The Declarant covenants for himself,his successors and assigns that the Common Properties shall be conveyed to the Association free of all liens. Section 3 - Extent of Members' Easements. The rights and easements of enjoyment created hereby shall be subject to: (a) All easements, reservations, restrictions, covenants and agreements of record affecting the PUD as of the date of the recording of this document; (b) The right of the Association, in accordance with its Articles and Bylaws, to borrow money for the purpose of improving the Common Properties and in aid thereof to mortgage the Common Properties, or parts thereof, provided that any such mortgage shall require the affirmative vote of seventy five percent (75%) of the members of the Association. In the event of a default upon any such mortgage, the lender's rights hereunder shall be limited to a right, after taking possession of such properties, to charge admissions and other fees as a condition to continued enjoyment by the Members until the mortgage debt is satisfied, whereupon the possession of such properties shall be returned to the Association,and all rights of the Members hereunder shall be fully restored; (c)The right of the Association to take such steps as are reasonably necessary to protect the Common Properties against foreclosure; (d)The right of the Association to prescribe reasonable rules and regulations governing use of the Common Property; and (e) The right of the Association as provided in its Articles and Bylaws, to suspend the enjoyment rights of any member or his family, for any period during which any assessment on the Member remains unpaid and for any period not to exceed thirty(30)days for any infraction of its published rules and regulations. Section 4- Covenant and Personal Obligation for Assessments. From and after the date of the first conveyance of a Lot to an Owner other than Declarant, all Owners, except Declarant, shall be obligated to pay the estimated common expense(hereinafter sometimes referred to as Common Expense Assessment or "Assessments") imposed by the Board of Directors of the Association to meet the Common Expenses and reserves. There shall be a regular annual Assessment,which shall be payable within forty-five (45) days after the date of notice of the Assessment. The Board shall also have the right to make a special Assessment, if necessary, to pay expenses associated with ownership of the Common area. -7- ARTICLE VI ARCHITECTURAL REVIEW Section 1-Membership and Activation of the Association Architectural Review Committee. The initial Architectural Review Committee and the membership of thereto shall be the Board of Directors of the Association. The Committee shall begin to function immediately. Section 2 - Improvement to Property Defined. "Improvement to Property," requiring approval of the Association Architectural Review Committee,shall mean and include,without limitation: (a)the construction, installation, erection or expansion of any building, structure or other Improvements, including utility facilities; (b) the demolition or destruction, by voluntary actions, of any building, structure or other Improvements; (c) the grading, 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 or change of irrigation ditches;(d)landscaping,planting,clearing or removing of trees, shrubs, grass or plants; and (e) any change or alteration of any previously approved Improvement to the 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 the Property on any Lot within the Project, except for any Improvements to the 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 of 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 Prcperty. 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 purposes herein relating to procedures and criteria for approval. Such guidelines or rules may specify rules and restrictions pertaining to the construction of Improvements to the 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 a part of this Declaration. Section 5 - Submission of Plans. Prior to commencement of work to accomplish any proposed Improvement to Property, the Owner or its duly authorized representative proposing to make such Improvement to Property("Applicant")shall submit to the Association Architectural Review Committee at its offices such description, 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 -8- proposed Improvement to Property, the Association Architectural Review Committee may postpone review of any materials submitted for approval. In addition to the submission of the Improvements the Owner, Builder, and Architectural Review Committee shall meet on the Lot upon which any proposed Improvement is to be made and shall review staking placed on that Lot by the Owner or Builder which outlines the Improvement, whether it is a residence or ancillary improvement so that a determination can be made by the Architectural Review Committee regarding preservation of site views for adjoining Lots to the one being improved. 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 interfere or alter the site views established by the Declarant with respect to building envelopes for any Lot within the Project, and that the upkeep and maintenance of the proposed Improvement to Property will not become a burden on the Association. No approval of any proposed Improvement shall be granted which fails to meet the set back requirements of' eld County concerning septic envelope for each Lot. 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. Section 7 -Architectural Review Fee. The Association Architectural Review Committee may, in its guidelines or rules,provide for the payment of a fee 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 determined in any other reasonable manner,such as based upon the estimated cost of the proposed Improvement to Property. Section 8 - Decision of Committee. The decision of the Association Architectural Review Committed.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 reason 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. Application 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. -9- 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 Committed and in compliance with the conditions and restrictions of this Declaration. Section 12 - Notice of Completion. Upon completion of any Improvement to Property, the Applicant shall give written Notice of Completion to the Association Architectural Review Committee. Until the date of receipt of such 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 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 therefor, 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 fthis Declaration. Should the Committee be 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 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 Association Architectural Review Committee. Section 14 - Notice of Noncompliance. If, as a result of inspection 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 writir.g 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 of 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 Board of the Association determines that a -10- 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 Board of the Association. If the Applicant does not comply with the Board of the Association ruling within such period, the 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 Improvements to the 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 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 variance 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 members of the Executive Board or a majority of the Members of the Association Architectural Review Committee- 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 guide; and zoning ordinances and setback lines or requirements imposed by any governmental authority having jurisdiction. 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 if approved by the Executive Board of the Association. Section 20-Meeting 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. -11- 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 liab Le. 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 all Living Units are built upon Lots with;n the Prcject, all actions regarding architectural control shall be decided by the Declarant without participation by the Executive Board of the Association. The Declarant may incorporate any utilize any or all of the provisions of this Article IX to arrive at its decision. Section 25 - Septic Envelope. There shall be no development, landscaping, construction of buildings or other improvements on the septic envelope as defined by the West County Department of Public Health. ARTICLE VII 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 amer.ded by Colorado Legislature. Section 2 -Amendment. Unless terminated as provided in Section 1, each and every provision of this Declaration shall run with and bind the land for a term of twenty (20) years from the date recording of this Declaration, after which time Declaration shall be automatically extended for successive periods of ten (10) years each except for provisions stated in Article XII, 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. -12- ARTICLE VIII CONDEMNATION, DAMAGE OR DESTRUCTION TO COMMON AREA Section 1 - Damage or Destruction to Common Area. 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 or 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 V, Section 7 of this Declaration. If such assessment is approved, the Association shall levy such assessment and proceed to make such repairs or reconstructions. If such assessment is not approved, the insurance proceeds may be applied in accordance with the wishes of the membership as expressed by the written consent of seventy-five percent (75%) of the Owners other than Declarant, except that the proceeds shall not be distributed to the Owners, unless made jointly payable to Owners and the First Mortgagees of their respective Lots,if any. Such assessment shall be due and payable as provided by resolution of the Executive Board, but not sooner than sixty (60) days after written notice thereof. The assessment provided for herein shall be a debt of each Owner and a lien on the Lot, and may be enforced and collected in the same manner as any assessment lien provided for in this Declaration. Section 2 - Owner Caused Damage. If, due to the act or neglect of an Owner or a Related User of an Owner, whether by virtue of the exercise by such Owner or Related User of any easement or right granted to him herein or otherwise, loss or damage shall be caused to any property, including the Common Area and. in the case of damage to property, if such Owner does not promptly repair and restore any such damaged property to the condition it was in prior to such damage at such Owner's sole cost and expense,such Owner shall be liable and responsible for the same except to the extent that such damage or loss is covered by insurance obtained by the Association and the carrier of the insurance has waived its rights of subrogation against such Owner. The amount of such loss or damage may be collected by the Association from such Owner as a Reimbursement Assessment against such Owner, by legal proceedings or otherwise, and such amount shall be secured by a lien on the Residential Lot of such Owner as provided elsewhere in this Declaration for assessments or other charges. Section 3 - Condemnation Procedure. In the event proceedings are initiated by any government or agency thereof, seeking to take by eminent domain the Common Area, any part thereof, or any interest therein,any improvements 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 improvements thereon or any part thereof or interest therein is relinquished without 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, subjec': 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. -13- ARTICLE IX REQUIREMENTS OF THE FIRE DISTRICT All Lots are required to meet the then applicable requirements of the Fire District. Such requirements may include, but not be limited to: all buildings shall be designed and constructed in accordance with the provisions of the 1994 Edition of the Uniform Fire Code and the 1994 Edition of the Uniform Building Code, as ratified by the Weld County Commissioners and enforced by Weld County; building plans for the remodel of any building must be submitted to the Fire District for review and approval.. If at the time of the recording of these Covenants, the minimum required water flow of 1,000 gallons per minute cannot be provided by the existing water system,all residences within the PUD must be protected with a residential fire sprinkler system;plans for the residential fire sprinkler system must be reviewed and approved by the Fire District prior to installation;all residences must be inspected and approved by the Fire District before a Certificate of Occupancy is issued by Weld County. Approved address numbers shall be placed on all residences in such a position to be plainly visible and legible from the street Fronting the property. Address numbers or letters shall contrast with their background. ARTICLE X WELD COUNTY RIGHT TO FARM COVENANT Weld County is one of the most productive agricultural counties in the United States. The rural areas of Weld County may be open and spacious,but they are intensively used for agriculture. Persons moving into a rural area must recognize there are drawbacks, including conflicts with longstanding agricultural practices and a lower level of services than in town. Agricultural users of the land should not be expected to change their long-established agricultural practices to accommodate the intrusion of urban users into a rural area. Well run agricultural activities will generate off-site impacts, including noise from tractors and equipment;dust of animal pens, field work, harvest, and gravel roads, odor from animal confinement, silage, and manure, spoke from ditch burning, flies and mosquitoes; the use of pesticides and fertilizers in the fields, including those of aerial spraying. Ditches and reservoirs cannot simply be moved "out of the way" of residential development without threatening the efficient delivery of irrigation to fields which is essential to farm production. Weld County covers a land are of over 4,000 square miles in size (twice the State of Delaware) with more than 3,700 miles of state and county roads outside of the municipalities. The sheer magnitude of the area to be served stretch available resources. Law enforcement is based on responses to complaints more than on patrols of the county and the distances which must be traveled may delay all emergency responses, including law enforcement, ambulance, and fire. Fire protection is usually provided by volunteers who must leave their jobs and families to respond to emergencies. County gravel roads, no matter how often they are bladed, will not provide the same kind of surface expected from a paved road. Snow removal priorities mean that roads from subdivisions to arterials may not be cleared for several days after a major snowstorm. Snow removal for roads within subdivisions are of the lowest priority for public works or may be the private responsibility of the homeowners. Service in rural areas, in many cases, will not be equivalent to municipal services. Children are exposed to different hazards in the county than in an urban or suburban setting. Farm equipment and oil field equipment, ponds and irrigation ditches, electrical power for pumps and -14- center pivot operations, high speed traffic, sand burs, puncture vines, territorial farm dogs, and livestock present real threats to children. Controlling children's activities is important, not only for their own safety, but also for the protection of the farmer's livelihood. ARTICLE XI 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) Master Association. The right to make the Project subject to a Master Association. (0 Merger. The right to merger or consolidate the Project with another project of the same form cf ownership. (g) Control of Association and Executive Board. The right to appoint or remove any officer of the Association or any Executive Board member. (h)Amendment of Declaration. The right to amend this Declaration in connection with the exercise of any Development Rights. (0 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 -15- • deal with contracts and agreements for the use, lease, repair, maintenance or regulation of parking, which may or may not be a prat 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. Section 4 - 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 Unit will be apportioned according to the total number of Units submitted to the Declaration. The Allocated Interests appurtenant to each Unit 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 Units in the Project as expanded. Section 5 -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 6 - 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 7 - Maximum Number of Lots. The maximum number of Lots in the project shall not -16- exceed nine (9) Lots or the maximum number of Lots allowed by any governmental entity having jurisdiction over the Property,pursuant to any development plan for the Property and the Development Property. Declarant shall not be obligated to expand the Project beyond the number of Lots initially submitted to this Declaration. Section 8-Construction Easement. Declarant expressly reserves the right to perform warranty work, repairs and construction work and to store materials in secure areas in Lots and in Common 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 tins 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 finishing utility and other services to buildings and improvements to be constructed on the property. 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. ARTICLE XII 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 of Lots 1 through 8 and nine(9)votes being allocated to Lot 9, as determined by the total number of Lots that have been submitted to this original Declaration or any subsequent amendments 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 XIII 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 provision which shall remain in full force and effect. -17- 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 Rights to Examine. Each Lot Owner shall have a right to examine the books and records of the Association at any reasonable time. Section 7 - Registration by Owner of Mailing Address. Each Owner shall register a mailing address with the As3ociation, 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 prepa:.d, 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. IN WITNESS WHEREOF, Declarant has executed this Declaration on the _._ day of July, 1999. Declarant EDEN'S RESERVE a Colorado corporation --I�— MARK EBERL, Prep 7 JACQ +LYNEBERL STATE OF COLORA.DO ) SS: COUNTY OF WELD The foregoing instrument was acknowledged before me this/47 d y of 1999, by -18- MARK E13ERL, known to me to be the President and JACQUELYN EBERL of EDEN'S RESERVE, a Colorado corporation. WITNESS by hand and official seal. Qj .•.' Notary Public _. ...:n i Address: 9/S /t� f _.S --'2-e Qj- CAROL A. ; 1 HARDING a , ( -� �0� ? / My Commission-Expires: .4):%. :'p tdi......... p co%O Y My Canmissbn Expires June 8.2002 -19- atat 4119 Granby Ct. Fort Collins,Colorado 80526/(970)207-0272 Letter of Transmittal Date: 1-Sep-99 To: Ben Patton Ct. :rt;/ Planning Dept. Project: Eden's Reserve PUD- packets for acceptance by Board 3-1-1 1999 Via: Fax UPS RECEIVED « ' Mail Overnight Pick Up Courier Hand Delivery X We Transmit for your: Information Files Approval X Correction Signature Return Number of Copies: 8 Number of Pages: 41 Remarks: Ben, these are the packets for the Board's acceptance I3ou have any questions, please give me a call at the number above. We are requesting that this go before the Board on Wednesday, September 8th. From: Todd Hodges Hello