HomeMy WebLinkAbout971292.tiffRESOLUTION
RE: APPROVE IMPROVEMENTS AGREEMENT ACCORDING TO POLICY REGARDING
COLLATERAL FOR IMPROVEMENTS (PRIVATE ROAD MAINTENANCE) AND
ACCEPT COLLATERAL - DOUGLAS MYERS, CIO JAMES S. HILLHOUSE FOR
GANDER VALLEY PUD
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, by Resolution dated June 25, 1997, the Board approved a Site Specific
Development Plan and Planned Unit Development (PUD) Final Plan, S #423, for Gander Valley
PUD on the following described real estate, to -wit:
Lot B of RE #1211, located in the SE% of Section
4, Township 6 North, Range 67 West of the 6th
P.M., Weld County, Colorado
WHEREAS, pursuant to certain Conditions of Approval in said Resolution, the Board
has been presented with an Improvements Agreement According to Policy Regarding Collateral
for Improvements (Private Road Maintenance) between the County of Weld, State of Colorado,
by and through the Board of County Commissioners of Weld County, and Douglas Myers, c/o
James S. Hillhouse, with terms and conditions being as stated in said agreement, and
WHEREAS, after review, the Board deems it advisable to approve said agreement, a
copy of which is attached hereto and incorporated herein by reference, and to accept
Irrevocable Standby Letter of Credit No. 1062, drawn on the Colorado Business Bank, 1900
Fifteenth Street, Boulder, Colorado 80302, in the amount of $30,000.
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) between the County of Weld, State of
Colorado, by and through the Board of County Commissioners of Weld County, and Douglas
Myers, c/o James S. Hillhouse be, and hereby is, approved.
BE IT FURTHER RESOLVED by the Board that collateral, in the form of Irrevocable
Standby Letter of Credit #1062, drawn on the Colorado Business Bank of Boulder, in the
amount of $30,000, be, and hereby is, accepted.
971292
(L' Pt) Pa); ffL] Fl frNen/ffrlhozice PL1165
IMPROVEMENTS AGREEMENT - DOUGLAS MYERS, CIO JAMES S. HILLHOUSE
PAGE 2
The above and foregoing Resolution was, on motion duly made and seconded, adopted
by the following vote on the 9th day of July, A.D., 1997.
APP
TO FORM:
W. H. Webster
ty sttorne
BOARD OF COUNTY COMMISSIONERS
WELD C,)UNTY, COLORADO
Gegfge E. Baxter, Chair
(AYE)
Constance L. Harbert, Pro -Tern
EXCUSED
Dale K. Hall
EXCUSED DATE OF SIGNING (AYE)
Barbara J. Kirkmeyer
971292
PL1165
COLORADO
6tvo.
MEMORANDUM
TO: Board of County Commissioners July 7, 1997
From: Todd A. Hodges, Current Planner II
SUBJECT: S-423, Acceptance of improvements agreement
and form of collateral for Gander Valley PUD.
The Department of Planning Services, Public Works Department and Attorneys office have reviewed
the improvements agreement and form of collateral for the Gander Valley PUD. The form of
collateral is a Letter of Credit in the amount of $30,000 for the on -site improvements. An off -site
improvements agreement is not required for this development.
The Department of Planning Service's staff recommends that the Board of County Commissioners
accept the improvements agreement and the form of collateral.
Attached is a copy of the improvements agreement and Letter of Credit.
aY)
IMPROVEMENTS AGREEMENT ACCORDING
POLICY REGARDING COLLATERAL FOR IMPROVEMENTS
(PRIVATE ROAD MAINTENANCE)
THIS AGREEMENT, made and entered into this q day of by and between
the County of Weld, State of Colorado, acting through its Board of County Comnissioners, hereinafter called
"County", and Douglas E. Myers hereinafter called"Applicant".
WITNESSETH:
WHEREAS, Applicant is the owner of or has a controlling interest in the following described
property in the County of Weld, Colorado:
Lot B of recorded exemption No. 0807-04-4-RE1211,
Being a part of the SE a, Sec. 4, T6N, R67W of 6th P.M.
WHEREAS, a final subdivision/PUD plat of said property, to be known as
Gander Valley P.U.D. 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 foregoigg 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.
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.
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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 restriLLive 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.
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Revised 12/95
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
construa.ion 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 Coun y: 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 optical, issue building permits for construction on lots for ttihich 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 County;
and all terms of this Agreement have been faithfully kept by Applicant.
6.3 Upon completion of the construction of streets within a subdivision and the filing of a
Statement of Substantial Compliance, the applicant(s) may request in writing that the
County Engineer inspect its streets and recommend that the Board of County
Commissioners 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 Generl.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
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approval, the applicant shall indicated which of the five types of collateral prefered
to be utilized to secure the improvements subject to final approval by the Board of
County Commissioners and the execution of this Agreement. Acceptable collateral
shall be submitted and the plat recorded within six (6) months of the Final Plat
approval. If acceptable collateral has not been submitted within six (6) months then
the Final Plat approval and all preliminary approvals shall automatically expire. An
applicant may request that the County extend the Final Plat approval provided the
cost estimates are updated and the development plans are revised to comply with
all current County standards, policies and regulations. The improvements shall be
completed within one (1) year after the Final Plat approval (not one year after
acceptable collateral is submitted) unless the applicant(s) requests that this
Agreement be renewed at least thirty (30) days prior to its expiration and further
provides that cost estimates for the remaining improvements are updated and
collateral is provided in the amount of 100% of the value of the improvements
remaining to be completed. If improvements are not completed and the agreement
not renewed within these time frames, the County, at its discretion, may make
demand on all or a portion of the collateral and take steps to see that the
improvements are made.
7.2 The applicant may choose to provide for a phased development by means of
designating filings ofa 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 "B".
8.0 Jmpro'ments 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.
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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
filial 15°,, co- one year from the date of Final Plat approval_ wiiiThever
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:
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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 saute as those
approved by Weld County.
9.2 Test results must be submitted for all phases of this project as per Colorado
Department of Transportation Schedule for minimum materials sampling, testing
and inspections found in CDOT Materials Manual.
9.3 "As built" plans shall be submitted at the time the letter requesting release of
collateral is submitted. The Engineer shall certify that the project "as built" is in
substantial compliance with the plans and specifications as approved or that any
material deviations have received prior approval from the County Engineer.
9.4 fhe 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.
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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 S tes 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 Re 'ulations shall he dedicated to the County or the appropriate school
district, for one of the above purposes. Any area so dedicated shall be maintained
by the County or school district.
10.2 The required acreage as determined according to 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 Assigns: This Agreement shall be binding upon the heirs, executors,
personal representatives, successors and assigns of the Applicant, and upon recording by the
County, shall be deemed a covenant running with the land herein described, and shall be
binding upon the successors in ownership of said land.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
on the day and year first above written.
7 Revised 12/95
2560267 B-1618 P-304 07/29/1997 01:48P PG 7 OF 12
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLO DO
APPROVED AS TO FORM:
BY:-1)o,,G,as
Subscribed and sworn to before me this 9 day of
My CVNIIIISiMigttinSitteatES
aNUAR, 9^0
Jr FILr.nti, 10, 1�sd
M. FORN0AYFIYALF. Od
E i6n&es, OLA) A/4C
8 Revised 12/95
2560267 B-1618 P-304 07/29/1997 01:48P PG 8 OF 12
EXHIBIT "A"
Name of Subdivision: GANDER VALLEY P P. U.D.
Filing:
Location: A part of Section 4, Township 6 North, Range 67 W., Weld Co., Colorado
Intending to be legally bound, the undersigned Applicant hereby agrees to provide throughout this
subdivision and as shown on the subdivision final plat County dated , 19 ,
recorded on - , 19_ , in Book , Page No. , Reception No.
, the fallowing improvements.
(Leave spaces biank where they do not apply)
aij rovernentg
Street. adui
Sirect base
St= paving.
Curbs. gutters. et cul•Lerte
th 1 LCc)st
Estimated
Units Construction Cost
500 Cu. yd. $2,080
290 Cuyd. 7_900
Sidewalk
Storm_:iey er lacilitie.;_
j'etention.s ends
pitch intgrov. eats _
subsurface drainage
anitaty sewers_
daajt►►.o• sellers
Trunk ez forced lines
Mains
Laterals (hsc connected)
On -site sewage films
On-uttLuster su iplyy &.. tnrage
u/�)sr mains-l�clu ies E,ore 6"PVC-848 LF $8.480
Fire hvdrants - —_ 1 $7 7QQ
Survey &ctretmo sets . _bQYes 2 300
�Stree11iXl n.
Street name sighs
FencingleQuirements
J.andscaping $ F , flan
)'ark improvements
Road C ilyert 18"C tP-70LF $ 840
Grass Lined Swale
Zcjcphone_
Gal
J:Iectrisw
Water Tlunsfer
Wet Tj
22 Thegree bend - 6"
90 degree Elbow -f."
6" Valve and Box
1-12"x6" Tap $ 8011
$ 'i54
9 $ 350
2 550
6" Tee
1 200
4
3/4" Water Servi c��
SUB -TOTAL.
$2.000
$27 050
Revised I2105
2560267 B-1618 F'-:304 07/29/1997 01 :4SP PC 9 OF 12
Engineering and Supervision Costs $1 .500 .00
(testing, inspection, as -built plans and work in addition to preliminary and final plat; supervision of actual
construction by contractors)
TOTAL ESTIMATED COST OF IMPROVEMENTS AND SUPERVISION $ $ 2 8 , 5 50. 00
The above improvements shall be constructed in accordance with all County requirements and specifications,
and conformance with this provision shall be determined solely by Weld. County, or its duly authorized
agent.
Said improv nts shall be completed according to the construction schedule set out in Exhibit "B".
(In corporation, to be signed by President and attested to by Secretary, together with corporate seal.)
Date: G/3o , 19 9 % .
2560267 B-1618 P-304 07/29/1997 01:48P PG 10 OF 12
10 Revised 12/95
EX111131T "B"
Name of Subdivision: Gander Valley P.U.D.
filing:
Location: A part of Sec.4, T6N, R67W, Weld County
Intending to be legally bound, the undersigned Applicant hereby agrees to construct the
improvementsshown on the final subdivision plat of Gander Valley P . U . D . Subdivision,
dated , 19 , Recorded on , 19 , in Book
, Page No. , Reception No. , the following schedule.
All improvements shall be completed within 1 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
Site grading
Street base
Street paving
Curbs. gutters, and culverts
Sidewall;
Storm sewer facilities
Retention ponds
Ditch improvements
Subsurface drainage
Sanitary sewers
Trunk and forced lines
Mains
Time for Completion
Aug. 30, 1997
Sept. 15, 199/
Laterals [hl?use connected)
On -site yzwage facilities
.On -site water supply aad storage
Water mains
Fire hydrants
Survey & street monuments & boxes
Street lighting
Street name signs
Fencing requirements
J .andscaling
ritEk improvements
Telephone
(]as
Water Transfer
Sub-Tottt
July 15, 1997
July 15, 1997
Sept. 15, 1997
Sept. 15, 1997
Sept. :io, 1Y9/
2560267 B-1618 P-304 07/29/1997 01:48P PG 11 OF 12
11 Revised 12/95
The County, at its option, and upon the request by the Applicant, may grant an extension of time for
completion for any particular improvements shown above, upon a showing by the Applicant that the
above schedu sannot be met.
as M s
(If corporation, to be signed by President and attested to by Secretary, together with corporate seal.)
Date:
m 1fowuuleptrv.w db
2560267 B-1618 P-304 07/29/1997 01:48P PG 12 OF 12
, 195`7.
12 Revised 12/95
ra W COLORADO
BUSINESS BANK
BOULDER
IRREVOCABLE STANDBY LEI IER OF CREDIT
To: Mr. Todd Hodges
Weld County Department of Planning Services
1400 North 17th Avenue
Greeley, CO 80631
L/C NO: 1062
EFF DATE: 2/11/97
EXPIRATION: 2/11/98
AMOUNT: $30,000.00
We hereby establish our Irrevocable Standby Letter of Credit Number 1062 in your favor
for the account of Gander Valley, a minor subdivision of Weld County, in the amount not
to exceed Thirty Thousand Dollars and no/100 U.S. Dollars ($30,000.00) available by
draft at sight on us accompanied by certification of the County Administrator, that Gander
Valley failed to complete installation of the improvements in accordance with the
Improvements Agreement and the issuer has been notified of such default.
We hereby further agree that:
1. Drafts under and in compliance with the terms of this Irrevocable Letter of Credit will
be duly honored if presented at our office at 1900 15th Street, Boulder, Colorado
80302, on or before 3:00 P.M. February 11 ,1998, or any extended expiry date as
indicated below.
2. Funds available under this Irrevocable Letter of Credit may be drawn in such amounts
and at such times as determined by Weld County, provided that the amount drawn
shall not exceed the aggregate amount specified herein.
3. We shall have no right, duty, obligation, or responsibility to evaluate the performance
or non performance of the underlying contract between Gander Valley and the
beneficiary of this credit.
4. All drafts must be marked "Drawn under Irrevocable Letter of Credit Number 1062,
Gander Valley".
This Irrevocable Letter of Credit shall have a FULL AND FINAL EXPIRATION DATE
OF FEBRUARY 11,1998. Except so far as otherwise stated, this credit is subject to the
Uniform Customs and Practice for Documentary Credits (1993 Revision, International
Chamber of Commerce Publication No. 500).
Sincerely,
Charles.. Holmes
President
1900 Fifteenth Street, Boulder, Colorado 80302 (303) 413-6000 Fax (303) 786-9701
DECLARATION OF
COVENANTS, CONDITIONS AND RESTRICTIONS
OF
GANDER VALLEY
A SUBDIVISION AND PUD
THIS DECLARATION is made on the date hereinafter set forth
by DOUGLAS E. MYERS, hereinafter called "Declarant."
WITNESSETH:
WHEREAS, Declarant is the owner of the real property
described in Article II of this Declaration ("Property") and
desires to create thereon a residential community ("Subdivision")
with common areas and facilities ("Common Properties") for the
benefit of the said community; and
WHEREAS, Declarant desires to provide for the preservation
and maintenance of the Common Properties; and, to this end,
desires to subject the Property to the covenants, restrictions,
easements, charges and liens, hereinafter set forth, each and all
of which is and are for the benefit of the Property and each
owner thereof; and
WHEREAS, Declarant has deemed it desirable, for the
efficient preservation of the values and amenities in the
Subdivision, to create an agency to which should be delegated and
assigned the powers of maintaining and administering and
enforcing the covenants and restrictions and collecting and
disbursing the assessments and charges hereinafter created; and
WHEREAS, Declarant has incorporated under the laws of the
State of Colorado, as a nonprofit corporation, the GANDER VALLEY
HOMEOWNERS ASSOCIATION, for the purpose of exercising the
functions aforesaid;
NOW, THEREFORE, Declarant declares that the Property is, and
shall be held, transferred, sold, conveyed and occupied subject
to the covenants, restrictions, easements, charges and liens
("Covenants" or "Declaration") hereinafter set forth, all of
which shall be covenants running with the Property.
ARTICLE I
DEFINITIONS
Section 1. Definitions. The following words when used in
this Declaration (unless the context shall prohibit) shall have
the following meanings:
(a) "Association" shall mean and refer to the GANDER VALLEY
HOMEOWNERS ASSOCIATION, a non-profit Colorado corporation, and
its successors and assigns.
(b) "Board of Directors" shall mean the Board of Directors
of the Association.
(c) "Common Expenses" means and includes expenses for
maintenance, repair, operation, management and administration of
the Common Properties and the Association as more fully described
in Article V.
(d) "Common Properties" shall mean and refer to those
parcels of land designated as Outlots A and B on the recorded
plat ("Plat") of Gander Valley, Weld County, Colorado, and the
right to use and obligations to maintain Street as
shown on the Plat, which areas are intended to be devoted to the
common use and enjoyment of the owners of the Lots.
(e) "Declarant" shall mean and refer to Douglas E. Myers
and his successors and assigns if any such successors or assigns
should acquire all unsold Lots from Declarant for the purpose of
development.
(f) "Living Unit" shall mean and refer to a building
situated upon a Lot and all easements appurtenant thereto.
(g) "Lot" shall mean designated building sites shown upon
the recorded subdivision map of the Property or any subsequent
recorded replat of a portion of the Property.
(h) "Member" shall mean and refer to all those Owners who
are members of the Association as provided in Article III,
hereof, or the Declarant.
(i) "Mortgage" shall include a deed of trust or other form
of hypothecation.
2
(j) "Owner" shall mean and refer to the record owner,
whether one or more persons or entities, of the fee simple title
to any Lot but, notwithstanding any applicable theory of the
mortgage, shall not mean or refer to the mortgagee unless and
until such mortgagee has acquired fee simple title to the Lot
pursuant to foreclosure or a proceeding in lieu of foreclosure.
(k) "Property" shall mean the same as described in Article
II.
(1) "Subdivision" shall mean Gander Valley, a Minor
Subdivision and PUD situated in Weld County, Colorado.
ARTICLE II
PROPERTY SUBJECT TO THIS DECLARATION
Section 1. The Property. The Property (the "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 as follows:
Lots 1, 2, 3, 4 and 5 and Outlots A and B, Gander
Valley, a subdivision located in the County of Weld,
State of Colorado, together with the right to use
Street within the Subdivision.
Section 2. No Expansion of Definitions or Removal of Lands
from the Property. Declarant reserves no right to expand or
remove the definition of the Property from that herein contained.
Section 3. Mergers. Upon a merger or consolidation of the
Association with another association, the properties, rights and
obligations of the merged or consolidated association(s) shall be
added to and become the properties, rights and obligations of the
surviving association. The surviving or consolidated association
shall administer the covenants established by this Declaration
within the Property. No such merger or consolidation shall
affect a revocation, change or addition to the covenants
established by this Declaration with respect to the Property.
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ARTICLE III
MEMBERSHIP AND VOTING RIGHTS IN THE ASSOCIATION
Section 1. Classes of Membership and Voting Rights. There
shall be two classes of Association membership designated Class
A and Class B, which membership shall correspond to the type of
Owner for each Lot as hereinafter set forth. The rights of
members of each class shall differ only as to the voting rights
set forth as follows:
(a) Class A: Class A members shall be all Owners,
with the exception of the Declarant. Class A members shall be
entitled to one (1) vote for each Lot. If more than one person
holds such interest in any Lot, all such persons shall be
members. The vote for such Lot shall be exercised as they among
themselves determine, but in no event shall more than one (1)
vote be cast with respect to any Lot.
(b) Class B: The Class B member shall be the
Declarant. It is the desire and intention of Declarant to retain
voting control over the affairs of the Association until such
time as all _five lots have been developed and sold. The Class
B member shall, therefore, be entitled to five votes for each Lot
in which it holds an interest required for membership. The Class
B membership shall cease and be converted to a Class A membership
upon the arrival of the following date or the happening of the
following events, whichever occurs earliest:
(1) Upon the conveyance of the last Lot situated
on the Property to a third party, Class A member;
or
(2) Upon written notice from Declarant
relinquishing his or its Class B status; or
(3) February 1, 1999.
All members shall be entitled to vote on all matters, as provided
above or as otherwise provided in the Articles of Incorporation,
the Bylaws or this Declaration.
Section 2. Proxies. At all meetings of members votes may
be cast in person or by proxy, but no proxy shall be valid after
eleven months from the date of its execution unless otherwise
provided in the proxy. All proxies shall be in writing and must
be filed with the Secretary of the Association at or before the
appointed time of each meeting. Every proxy shall be revocable
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and shall automatically cease upon conveyance by the member of
his Lot.
Section 3. Designation of Voting Representative-Proxv. If
title to a Lot is held by more than one individual, by a firm,
corporation, partnership, association, or other legal entity, or
any combination thereof, a proxy must be executed and filed with
the Association appointing and authorizing one person or
alternate persons to attend all annual and special meetings of
Association Members and thereat to cast the voting interest
allocated to that Lot as provided in this Declaration. Such
proxy shall be effective and remain in force until voluntarily
revoked, amended, or sooner terminated by operation of law;
provided, however, that the Association shall continue to
recognize a proxy until it receives notice of such revocation,
amendment or termination.
Section 4. Olnrum. Except as otherwise provided in this
Declaration or by the Articles of Incorporation or the By -Laws,
the presence in person or by proxy of Association Members
possessing a sufficient voting interest to constitute fifty
percent (50%) of the votes shall constitute a quorum, and such
members present in person or by proxy shall constitute the
Members entitled to vote upon any issue presented at a meeting at
which a quorum is present. If a quorum exits, the action of a
majority of the votes present shall be sufficient to make
decisions binding on all Owners, unless a different number or
method of voting is expressly required by statute or by this
Declaration, the Articles of Incorporation or the By -Laws.
Section 5. Cumulative Voting. Cumulative voting is
prohibited.
Section 6. No Voting Rights for Tenants. Tenants shall
have no vote in Association affairs on account of their status as
tenants. Tenants shall have such right to appear at Association
meetings and be heard as may be determined by the Association
through its bylaws or other rules adopted by it.
ARTICLE IV
PROPERTY RIGHTS IN THE COMMON PROPERTIES
Section 1. Members' Easements of Enjoyment. Subject to the
provisions of Section 3 of this Article IV, 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. Members may assign their
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easement and right of enjoyment with respect to any Lot to a
tenant occupying the Living Unit located thereon. However, no
right or easement of enjoyment shall arise in the Common
Properties until the same has been conveyed to the Association
and the deed conveying the same has been recorded on the records
of the Clerk and Recorder of Weld County.
Section 2. Title to Common Properties. The Declarant
covenants for himself, his successors and assigns that Outlots A
and B of the Common Properties shall be conveyed to the
Association free of all liens. The right of way for
Street shall be dedicated to the public or to Weld County, with
the understanding and agreement that Weld County shall have no
obligations to repair and maintain the same.
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 Subdivision as
of the date of the recording of this document; and
(b) The right of the Declarant and 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 same vote of the members of
the Association as are required for the levying of special
assessments under Article V, Section 9. 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; and
(c) The right of the Association to take such steps as
are reasonably necessary to protect the Common Properties against
foreclosure; and
(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, tenant or tenant's family for any period
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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; and
(f) The right of duly authorized representatives of
the County of Weld to access the property for purposes of
assuring compliance with the governing recorded Subdivision
Agreement and making routine inspections as they may be
authorized to make, including assuring themselves that any
repairs that may be required by the Weld County Board of County
Commissioners to correct unsafe conditions are performed.
ARTICLE V
COVENANT FOR ASSESSMENTS
Section 1. 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 Assessments
or "Assessments") imposed by the Board of Directors of the
Association to meet the Common Expenses and reserves. Declarant
shall have no obligation to pay the estimated Common Expense
Assessment imposed by the Board of Directors of the Association
to meet the Common Expenses and reserves on Lots owned by
Declarant, however, Declarant shall, in lieu of paying the
Estimated Common Assessment, pay the Association a sum equal to
the difference between the monthly cost of operating and
maintaining the Common Properties, exclusive of reserves, and the
amount of funds payable by the other Owners to the Association.
This alternative obligation of Declarant to subsidize the
operations of the Association shall terminate at such time as its
Class B membership is converted to a Class A membership.
Subsequent to such time, Declarant shall be obligated, as any
other Owner, in reference to Lots then owned by Declarant, to pay
the estimated Common Expense Assessments imposed by the Board of
Directors to meet the Common Expenses and reserves.
Section 2. Establishment of Annual Assessment.
(a) The initial Annual Assessment provided for herein
shall commence prior to occupancy of the first residence
constructed on the Property and shall become due and payable on
the day fixed by the Board of Directors of the Association for
such commencement (which shall be the first day of a month).
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(b) In the last quarter of the first year in which
assessments shall be made and in the last quarter of every
ensuing year, the Board of Directors shall prepare and adopt an
annual budget for the Association, and based thereon shall fix
the amount and due dates of the assessment against each Lot for
the year next following (the "Regular Annual Assessment") and
shall, at that time, prepare a roster of the Lots and assessments
applicable thereto which shall be kept in the office of the
Association and shall be open to inspection by any Owner.
(c) If the regular Annual Assessment is to be paid in
a single payment, it shall be due and payable within thirty (30)
days after written notice thereof is mailed to each Owner. If
regular Annual Assessments are to be paid in monthly
installments, such installments shall be due and payable on or
before the 10th day of each month, without notice or billing. If
regular Annual Assessments are to be paid in quarterly
installments, such installments shall be due and payable on or
before the 1st day of the second month of each quarter, without
notice or billing. Written notice of the Annual Assessment shall
be sent to every Owner promptly after the assessment is
established. However, failure of the Association to give timely
notice of any assessment shall not affect the liability of an
Owner for such assessment.
Section 3. Rates of Assessment. In recognition of the fact
that a more intense use of the Common Properties will be made by
those Owners who have constructed improvements on their Lot
(Living Units) and reside therein, and that unserviced Lots will
also have less intensive use than those that are benefited by
roads, water, sewer lines, etc., the Association may established
and levy different assessment rates applicable to those Lots
which have no services or those Lots which are serviced but
unimproved with Living Units from those Lots which are improved
with Living Units. All Lots within each category shall, however,
pay equal amounts regardless of the location or size of the Lot.
Section 4. Proration of Common Expense Assessments. In the
event the Ownership of a Lot, title to which is derived from
Declarant, commences on a day other than the first day of the
assessment period, the Common Expense Assessments for that period
will be prorated.
Section 5. Common Expenses. Common expense assessments
shall be based upon the expenses deemed to be such aggregate sum
as the Board of Directors of the Association shall from time to
time determine is necessary to provide for the payment of all
estimated expenses relating to or connected with the
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administration, maintenance, ownership, repair, operation,
addition, alteration and improvement of the Common Properties and
personal property owned by the Association, and of the other
repair and maintenance responsibilities of the Association. Said
sum may include, but shall not be limited to, expenses of
management; taxes and special assessments on Common Properties;
premiums for insurance; landscaping and care of grounds; repairs
and renovations; trash collection; snow removal; security; wages;
expenses and liabilities incurred by the Association's Board of
Directors on behalf of the Lot Owners under or by reason of this
Declaration and the Articles of Incorporation and By -Laws of the
Association; for the creation of reasonable contingency reserves,
working capital and/or sinking funds; and any and all other costs
and expenses relating to the Common Properties or the
Association.
Section 6. Utility Charges. Each Owner
to pay all charges for any separately metered
electricity and gas, servicing his Lot. In
utilities, such as water, electricity or
metered, then such utility service shall be
Expense Assessments.
shall be obligated
utilities, such as
the event that any
sewer, are master
part of the Common
Section 7. Obligation to Pay Assessments. The omission or
failure to fix the assessment or deliver or mail a statement for
any period shall not be deemed a waiver, modification or a
release of the Owners from their obligations to pay the same.
Any assessments which are not paid when due shall be delinquent.
If the assessment is not paid within thirty (30) days after the
due date, the Board of Directors may assess a "late charge"
thereon to cover the extra costs and expenses involved in
handling such delinquent assessments. The amount of such charge
shall be determined from time to time by the Board of Directors.
In addition to the late charge, the delinquent assessment shall
bear interest from the date of delinquency at the rate of
eighteen percent (18%) per annum. Additionally, each Owner who
is delinquent in the payment of assessments shall be obligated to
reimburse the Association, on demand, all costs, fees and
expenses, including reasonable attorneys' fees, expended or
incurred by the Association in its efforts to collect such
delinquent assessment.
Section 8. Reserve Fund. The Association shall be
obligated to establish a reserve fund for the maintenance, repair
and replacement of those Common Properties that must be replaced
periodically and such reserve fund shall be funded through the
payments of the Common Expense Assessments and not be
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extraordinary special assessments. All such reserve funds shall
be held by the Association and accounted for separately.
Section 9. special Assessments. In addition to the
assessments authorized above, the Association, through its Board
of Directors, may at any time and from time to time, determine,
levy and assess in any assessment year, which determination, levy
and assessment may be made by the Association's Board of
Directors with or without vote of the members of the Association,
a special assessment for the purpose of defraying, in whole or in
part, the unbudgeted costs or payments for any deficit remaining
from a previous period, for fees and expenses of any
construction, reconstruction repair, demolition, replacement or
maintenance of the Common Properties or any facilities or
improvements located thereon, specifically including any fixtures
and personal property related thereto. In the event any special
assessment will exceed Five Hundred Dollars ($500.00) per Lot for
all Lots, applicable to that particular assessment year, then
said assessment, if proposed by the Association's Board of
Directors, shall be subject to a vote of the members of the
Association holding at least 75% of the votes entitled to be
cast. The limitations set forth herein shall not apply to any
emergency repair or maintenance. The amounts determined, levied
and assessed pursuant hereto shall be due and payable as set
forth in the any notice of assessment promulgated by the
Association's Board of Directors.
Section 10. Liability for Assessments. All Owners of a
particular Lot shall be jointly and severally liable to the
Association for the payment of all assessments attributable to
such Lot, including the Common Expense Assessment and special
assessments assessed against their particular Lot, and for all
late charges, interest, costs, fees and expenses provided for
herein.
Section 11. Exe pt Pronertv. All property dedicated to and
accepted by a local public authority and all Common Properties in
the Subdivision shall be exempt from the assessments created
herein.
Section 12. Tien for Assessments.
(a) All sums assessed but unpaid for the share of
Common Expenses, whether general or special, chargeable to any
Lot, together with late charges and interest and costs, fees and
expenses due hereunder shall constitute a lien on such Lot
superior to all other liens and encumbrances, except only for:
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(1) Real estate taxes and special assessment
liens on the Lot in favor of any public or quasi
public assessing entity; and
(2) All sums unpaid on a first Mortgage or first
deed of trust of record, including advances and
all unpaid obligatory sums as may be provided by
such encumbrances; provided however, that
notwithstanding the foregoing, the lien securing
the unpaid assessment, penalties, interest and
costs, fees and expenses shall have priority over
the lien securing any such first mortgage or
first deed of trust in an amount equal to the sum
of regular Annual Assessments which would become
due, in the absence of any acceleration, during
the six months immediately preceding institution
of an action to enforce the lien of the
Association, but in no event shall the priority
accorded the lien for assessments exceed one
hundred fifty percent of the average monthly
assessment during the immediately preceding
fiscal year multiplied by six.
To evidence such lien, the Board of Directors may prepare a
written notice of lien assessment setting forth the amount of
such unpaid indebtedness, the amount of the accrued interest and
late charges thereon, the name of the Owner and the Lot and a
description of the Lot. Such a notice shall be signed by one of
the Board of Directors or by one of the officers of the
Association and may be recorded in the office of the Clerk and
Recorder of the County of Weld, Colorado. The recording of any
written notice of lien shall not constitute a condition precedent
nor delay the attachment of the lien, but such lien is a
perpetual lien upon the Lot and attaches without notice at the
beginning of the first day of any period for which any assessment
is levied or assessed. Such lien may be enforced by the
foreclosure of the defaulting Owner's Lot by the Association or
in an action at law against the Owner personally obligated to pay
the same or both.
(b) An Owner shall be required to pay the costs,
expenses and attorney's fees incurred by the Association in
regard to any such default, including the costs of preparation
and filing the lien, and, in the event of foreclosure proceeding,
all additional costs, expenses and attorney's fees incurred. An
Owner of the Lot being foreclosed shall be required to pay to the
Association the Common Expense Assessment for the Lot payable
during the period of foreclosure, and the Association shall be
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entitled to request a receiver to collect the same. The
Association shall have the power and authority to bid for the Lot
at a foreclosure or other legal sale and to acquire and hold,
lease, mortgage, vote the votes appurtenant to, convey or
otherwise deal with the same during such proceeding and its
Ownership thereof.
(c) Any mortgagee holding a lien on a Lot may pay, but
shall not be required to pay, any unpaid Common Expenses payable
with respect to such Lot, and upon such payment, such mortgagee
shall have a lien on such Lot for the amounts paid of the same
rank as the lien of his encumbrance without the necessity of
having to record a notice or claim of such lien. The Association
shall report to the first mortgagee of a Lot, upon written
request, any unpaid Common Expense Assessment remaining unpaid
for longer than thirty (30) days after the same is due or other
default of any covenant, condition, obligation, or term of this
Declaration not cured within thirty (30) days; provided, however,
that such mortgagee shall have furnished to the Association
notice of such encumbrance.
(d) Any recorded lien for nonpayment of the Common
Expenses may be released by recording a Release of Lien executed
by an officer or managing agent of the Association. The cost of
preparing, filing and recording any release shall be paid by the
affected Lot Owner to the Association in advance of obtaining the
release.
(e) Notwithstanding the terms and conditions of this
Declaration in the event of any default on the part of any Owner
under any first Mortgage which entitles the holder thereof to
foreclose the same, any sale under such foreclosure, including
delivery of a deed to the first mortgagee in lieu of such
foreclosure, shall be made free and clear of the provisions of
this Declaration relating to the liability of a grantee for the
unpaid Common Expense Assessments of his grantor. Further, no
first mortgagee shall be liable for any unpaid Common Expense
Assessments accruing prior to the time such mortgagee becomes the
Owner of any Lot pursuant to the remedies in its mortgage.
(f) Each Owner hereby agrees that the Association's
lien on a Lot for assessments as hereinafter described shall be
superior to the Homestead Exemption provided by §38-41-201,
C.R.S., 1973 and other similar state and federal laws and each
Owner hereby agrees that the acceptance of the deed or other
instrument of conveyance in regard to any Lot within this Project
shall signify such grantee's waiver of the exemption right
granted by the Colorado statues and similar federal laws.
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ARTICLE VI
OBLIGATION TO MAINTAIN COMMON PROPERTIES
Section 1. Association Duties. The Association agrees
to accept the Common Properties as conveyed and to operate,
maintain and repair all streets, curbs, gutters structures,
landscaping, paths, drainage structures and facilities and
related facilities and amenities now or hereafter constructed,
installed or planted thereon, using its power or assessment
granted herein to raise funds with which to do so. Specifically,
but without limiting the generality of the foregoing, the
Association shall be responsible for:
(a) The operation, maintenance, repair and replacement of
any road surface, paving, curbs, gutters, sidewalks, landscaping,
structures, signs, sprinklers, drainage or storm sewer facilities
and inlet and outlet structures therefor, and related facilities
now or hereafter constructed, installed or planted upon Common
Properties owned by the Association;
(b) The maintenance, weeding and cleaning of the Common
Properties, unless and until the same may be dedicated as public
right of way and the maintenance, weeding and cleaning thereof
assumed by a public body;
(c) The maintenance, repair, cleaning and upkeep of all
drainage ways located within Common Properties or within drainage
easements over Lots as shown on the plat or any subsequent replat
of the Subdivision, except to the extent of the Owner's
obligations with respect thereto, all of which shall be at all
times kept and maintained free of obstructions, paper, trash,
debris and pollutants so as not to alter the flow characteristics
of the drainage or otherwise adversely affect the proper
functioning of these facilities;
(d) The operation, repair, maintenance and utility costs of
irrigation systems within the Common Properties and street
lighting within the Subdivision.
Section 2.
and Drainage Facilities. The Association shall establish a
regular maintenance program for the drainage facilities and other
improvements and landscaping located in or on Common Properties
or drainage easements shown on the plat of the Subdivision.
t
on
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Section 3. Homeowner's Obligations. To the extent
surface storm drainage facilities exist on any Lot, the Owner of
said Lot shall, at his expense, be responsible for the surface
landscaping thereof and for keeping the same clear of
obstructions, paper, trash, debris and pollutants so as to not
pollute the water in the facilities and so as not to alter the
flow characteristics of the drainage or otherwise adversely
affect the proper functioning of said facilities.
ARTICLE VII
INSURANCE
Section 1. Insurance Requirements Generally. The
Association shall obtain and maintain in full force and effect
such casualty, liability and other insurance as the Board of
Directors from time to time deems proper and appropriate or as
may be required by contracts or agreements entered into by the
Association with third parties. All such insurance shall be
obtained from companies duly authorized and licensed to do
insurance business in the State of Colorado.
Section 2. Premium Cost and Expense of Insurance. The cost
and expense of all insurance obtained by the Association shall be
a Common Expense and paid for out of Association funds collected
by assessments or otherwise as elsewhere provided in this
Declaration.
ARTICLE VIII
CONDEMNATION AND DESTRUCTION
Section 1. Condemnation. In the event proceedings are
initiated by any government, or agency thereof, seeking to take
by eminent domain the Common Properties, any part or interest
thereof or any improvement therein or thereon, with a value
(including loss of value to the balance of the Common Properties
and improvements thereon) 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 Properties or improvement thereon sought
to be so condemned, to all first mortgagees and to all Members.
The Association shall have full power and authority to defend in
said proceeding, provided that the Association shall not enter
into any settlement or other non -adversary disposition of said
proceedings pursuant to which the Common Properties or any part
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or any interest thereof, or any improvement or interest therein,
is relinquished without giving all first mortgagees and all
Members 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 Properties, the award made for such taking shall be
payable to the Association. If seventy-five percent (75%) or
more of the Members duly and promptly approve the repair and
restoration of the Common Properties, the Association shall
arrange for the same and shall disburse the proceeds of such
award to the contractors engaged in such repair and restoration
in appropriate progress payments. In the event seventy-five
percent (75%) or more of the Members do not duly and promptly
approve the repair and restoration of such Common Properties, the
Association shall disburse the net proceeds of such award to the
Members, the Owner of each Lot receiving one equal share,
provided that the Association shall first pay out of the share of
each Member the amount of any unpaid liens or encumbrances on his
Lot in the order of priority of such liens or encumbrances. No
Provision of this Declaration or of any other document relating
to the Subdivision shall be deemed to give a Member or any other
party priority over the rights of a first mortgagee pursuant to
the mortgage on such Member's Lot in the case of a distribution
to a Member of insurance proceeds or condemnation award for
losses to or a taking of Lots or Common Properties, or both.
Section 2. Destruction. In the event of any casualty or
occurrence which causes damage or destruction to the Common
Properties or any part thereof or any improvement thereon in
excess of $10,000 as reasonably determined by the Association,
the Association shall give all first mortgagees and all Members,
or their assigns, prompt written notice thereof. The Association
shall have full power and authority to adjust any such loss with
the insurance carrier and to bring suit or negotiate for
reimbursement of such loss, provided that no non -adversary
adjustment or settlement of any such loss shall be made by the
Association without giving all first mortgagees and all Members
at least fifteen (15) days' prior written notice thereof.
In the event of damage or destruction to improvements due to
fire or other disaster, the insurance proceeds, if sufficient to
reconstruct the improvements, shall be applied by the Association
to such reconstruction, and the improvements shall be promptly
repaired and reconstructed. The Association shall have fully
authority, right and power to cause the repair and restoration of
the improvements.
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If the insurance proceeds are insufficient to repair and
reconstruct the improvements, such damage or destruction shall be
promptly repaired and reconstructed by the Association using the
proceeds of insurance on the improvements which have been damaged
or destroyed and the proceeds of an assessment against the
Members, each Members being assessed his share of the difference
between the insurance proceeds and the cost of repairing the
improvements. Any such assessments shall be made by the Board of
Directors after consultation with such Members, appraisers,
contractors and other persons as it deems appropriate. Any
assessments so made shall be due and payable as provided by the
Board of Directors' resolution. The Association shall have full
authority, right and power to cause the repair or restoration of
the improvements using all of the insurance proceeds for such
purpose, notwithstanding the failure of a Member to pay the
assessment. Any assessment not paid shall be collected as
provided in Article V.
Section 3. Appointment of Attorney -in -Fact. All of the
members irrevocably constitute and appoint the Association their
true and lawful attorney in their name, place and stead for the
purpose of repairing and reconstructing improvements should they
be damaged or destroyed as set forth above. Repair and
reconstruction of the improvements, as used in this Article,
means restoring the improvements to substantially the same
condition in which they existed prior to the damage, with each
improvement having the same boundaries as before. The proceeds
of any insurance collected shall be available to the Association
for the purpose or repair, restoration or replacements as is
provided herein. As attorney -in -fact, the Association shall have
full and complete authorization, right and power to make, execute
and deliver any contract, deed or any other instrument with
respect to the interest of any Member which may be necessary and
appropriate to exercise the powers herein granted.
ARTICLE IX
MANAGEMENT SERVICES AND COMPLAINTS
Section 1. Management Contracts. Any agreement for
professional management of the affairs and property of the
Association made by the Association with any person or entity, or
any other contract entered into by the Association providing for
other services, shall provide for termination by either party to
such agreement or contract without cause or payment of a
termination fee on ninety (90) days' or less written notice. Any
such contract or agreement shall be in effect for a term not to
exceed one (1) year.
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Section 2. Complaints. Complaints shall be made to the
President of the Association, or his delegate, or to the Board of
Directors of the Association. All complaints made to the
Association shall be disposed of pursuant to policies established
by the Board of Directors of the Association.
ARTICLE X
FASEMRNTfl
Section 1. Public Utilities Easements. Easements for
public utilities and storm drainage over and across the Lots and
Common Properties shall be those shown upon the recorded
Subdivision plat, and such other easements as may be established
pursuant to the provisions of this Declaration or as may
hereinafter be granted over and across the Common Properties by
the Board of Directors.
Section 2. Declarant's Easements. Anything to the contrary
herein notwithstanding, the Declarant hereby reserves an easement
and right-of-way over all Common Properties, for the purpose of
constructing improvements, utilities and other matters, including
the right to erect temporary buildings to store any and all
materials. Declarant further reserves the right to use, any
completed structure or Lot for the purpose of a sales office,
model home or sign. This easement shall cease when Declarant has
conveyed the last Lot in the Property to a third party.
ARTICLE XI
ARCHITECTURAL CONTROL,
Section 1. The Committee. There is hereby established an
Architectural Control Committee (hereinafter referred to as the
"Committee") which shall be responsible for the establishment and
administration of design guidelines (hereinafter referred to as
"Design Guidelines") to carry out the purposes and intent of this
Declaration. The initial Architectural Control Committee shall
be comprised of two representatives appointed by the Declarant,
who are the Declarant and James Hillhouse. The Declarant shall
continue to appoint the Committee as long as Declarant owns a Lot
within the Property; however the Declarant may relinquish its
powers to determine the number and members of the Committee at
any time. Such relinquishment may be accomplished by recording
a Declaration of such relinquishment in the office of the County
Clerk and Recorder of said County of Weld. From and after such
relinquishment or after the Declarant no longer owns a Lot, the
members of the Committee shall be an Owner of each Lot or a
representative appointed by the Owner of each Lot such that there
shall always be serving at least five members of the Committee.
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At the time the Committee is comprised of owners or their
representatives, there shall be one vote per Lot.
Section 2. Purpose of the Committee. The Committee shall
review, study and either approve or reject plans and
specifications for proposed construction, reconstruction,
remodeling, additions and alterations of structures, landscaping
and improvements (hereinafter collectively referred to as
"Improvements") proposed on the Property, all in compliance with
this Declaration and as further set forth in the rules and
regulations of the Committee and the Design Guidelines as may be
adopted and established from time to time by the Committee.
(a) The Committee shall have discretion to approve or
disapprove any Improvement. The Committee shall exercise such
discretion with the following objectives in mind, among others:
(i) to carry out the general purposes expressed in this
Declaration; (ii) to prevent violation of any specific provision
of this Declaration; (iii) to minimize obstruction or diminution
of the view of others; (iv) to preserve visual continuity and to
prevent any marked or unnecessary transition between improved and
unimproved areas; (v) to assure that any change will be of good
and attractive design and in harmony with development on other
portions of the Property; and (vi) to assure that materials and
workmanship for all Improvements are of high quality comparable
to other Improvements in the area.
(b) No Improvement on the Property shall be erected,
placed or altered on any Lot nor shall any construction be
commenced thereon until plans for such Improvement shall have
been approved by the Committee, provided, however, that
Improvements and alterations which are completely within a Living
Unit may be undertaken without such approval.
(c) The Committee may, by its signed written
instrument, waive, release or vary any provision of the
Declarations as they pertain to any part of all of the Lots
encumbered, which waiver, release or variance shall be effective
as to all parties otherwise entitled to enforce the within
protective covenants. No member of the Committee shall incur any
liability whatsoever to any owner or other party aggrieved or
injured on account of the grant of such release, waiver or
variance. In return for such waiver, release or variance, the
Committee may impose on the Lot involved such additional or
altered covenants as the Committee deems proper and appropriate
in the circumstances. Each owner agrees by accepting title or
any interest in any Lot that Declarant, his employees or agents
and each member of the Committee shall be immune from suit or
liability in accordance with the foregoing. Any variance, waiver
or release of these conditions and restrictions granted by the
Committee pursuant to Section 2(c) hereof, or any acquiescence or
failure to enforce any violation of the conditions and
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restrictions herein, shall not be deemed to be a waiver of any of
the conditions and restrictions in any other instance.
(d) The actions of the Committee in the exercise of
its discretion by its approval or disapproval of plans and other
information submitted to it, or with respect to any other matter
before it, shall be conclusive and binding on all interested
parties.
Section 3. Organization and Operation of Committee.
(a) Term. The term of the office of each member of
the Committee shall commence when appointed, and shall continue
until a successor shall be appointed. Should a Committee member
die, retire, become incapacitated, or in the event of a temporary
absence of a member, a successor may be appointed as provided in
Section 1.
(b) Chairman. So long as the Declarant appoints the
Committee, the Declarant shall appoint the chairman. At such
time as the Committee is comprised of the Owners, the chairman
shall be elected annually from among the members of the Committee
by a majority vote of said members.
(c) Operations. The chairman shall take charge of and
conduct all meetings and shall provide for reasonable notice to
each member of the Committee prior to any meeting. Such notice
shall set forth the time and place of said meeting, which notice
may be waived by any member. In the absence of a chairman, the
parties appointing or electing the chairman may appoint or elect
a successor, or if the absence is temporary, a temporary
successor.
(d) Voting. The affirmative vote of a majority of the
members of the Committee shall govern its actions and be the act
of the Committee, with each Owner or representative of each Owner
having one vote. A quorum shall consist of a majority of the
members.
(e) Expert Consultation. The Committee may avail
itself of technical and professional advice and consultants as it
deems appropriate, and may charge an applicant for said costs in
addition to the standard application fees.
(f) Expenses. Except as otherwise provided, all
expenses of the Committee shall be paid by the Owners. The
Committee shall have the right to charge a fee for each
application submitted to it for review, in an amount which may be
established by the Committee from time to time. Such fees shall
be used to help defray the expenses of the Committee's operation
and enforce the restrictions set forth herein.
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Section 4. Design Guidelines and Rules. The Committee
shall adopt, establish and publish, from time to time, Design
Guidelines. Said Design Guidelines shall not be inconsistent
with this Declaration but shall more specifically define and
describe the design standards for the Subdivision and the various
uses within it. The Design Guidelines may also set forth rules
and regulations including specific rules regarding construction
methods. The Design Guidelines may be modified or amended from
time to time by a majority of those Committee members voting
either in person or by proxy at any meeting called for the
purpose of said modification or amendment. All prospective
Owners and builders are advised to contact the Committee to
obtain the most current copy of the Design Guidelines.
Section 5. Procedures. The Committee shall make such rules
and regulations as it may deem appropriate to govern its
proceedings. Except to the extent modified or amplified in the
Design Guidelines or rules and regulations, the following general
procedures shall apply:
(a) pre -Design Conference. Project developers,
Owners, architects and others desiring to construct any
Improvements on the Property are encouraged to meet with the
Committee in a pre -design meeting, while plans are tentative and
preliminary, in order to assure full understanding of the
requirements of this Declaration and the Design Guidelines.
(b) schematic Plan. A schematic plan satisfying the
Committee's requirements shall be submitted to the Committee in
order to obtain approval of the initial design following the pre -
design conference, and shall be reviewed by the Committee within
fourteen (14) days after submission. The Committee may approve,
reject, or approve with conditions the schematic plan, and such
approval and compliance with any conditions imposed shall be a
precondition to the preliminary submittal.
(c) preliminary Submittal. Initial plans,
specifications and schedules, in such form and containing such
information as may be required by the Committee, shall be
submitted in writing to the Committee at the time of the
preliminary architectural design of Improvements. The number of
copies, the content thereof, and a reasonable filing fee shall be
set forth in the Design Guidelines. The preliminary designs
should include a preliminary construction schedule with an
estimated date of completion for each phase of construction. The
Committee reserves the right to require reasonable additional
information from time to time to assist in its decisions. The
preliminary submittal shall be approved, rejected, or approved
with conditions within twenty-one (21) days after receipt by the
Committee of the necessary submittal and all information
requested. Upon final approval or disapproval of the preliminary
submittal by the Committee, written notice of said approval or
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disapproval will be given by the Committee according to its
procedures. Should the Committee disapprove any preliminary
submittal, it shall state the reasons for such disapproval with
sufficient detail as to enable the submitter to understand the
reasons for disapproval and what must be done in order to obtain
approval. Preliminary submittals which have been disapproved may
be resubmitted with necessary modifications or revisions in
accordance with the notice of disapproval.
(d) Final Submittal. Final plans, specifications, and
working drawings, in such form and containing such information as
may be required by the Committee, shall be submitted in writing
to the Committee for its approval after approval of the
preliminary submittal. The Committee shall respond with its
approval, approval with conditions, or disapproval within twenty-
one (21) days after receipt of all information and fees required
for the final submittal. If no response is given within said
twenty-one (21) day period, the party making the submittal shall
notify the Committee, in writing, that no response has been
received and if the Committee then fails to respond within
fifteen (15) days of receipt of the non -response notice (provided
all necessary information and fees have been submitted) the
plans, specifications and drawings will be deemed to comply with
the submittal requirements hereunder.
(e) Fast -Track Submittal. Any project developer,
Owner, architect, or other person desiring to construct any
Improvements on the property and required to submit plans
pursuant hereto may, at his option, be able to waive any of the
steps set forth in paragraphs (a), (b) and (c) of this Section 3
and proceed directly to final submittal in which case the time
frames set forth in paragraph (d) shall apply. The submitter
shall, however, not be relieved of any requirements set forth
herein as to the content of his final submittal. Further, any
person submitting a plan who has not first complied with the pre -
design, schematic and preliminary submittal process shall proceed
to final submittal at his own risk and should be cognizant of
this fact.
(f) Building Permit. Compliance with this design
review process is not a substitute for compliance with Weld
County building, zoning and subdivision regulations and each
Owner is responsible for obtaining all approvals, licenses and
permits as may be required thereunder prior to construction
commencement. In like manner, mere compliance with the Weld
County building codes may not conform to the requirements
hereunder.
Section 6. Hold Harmless. Neither Declarant nor any
architect or agent of Declarant nor any member of the Committee
by virtue of his membership thereon or discharge of his duties
required thereby shall be responsible in any way for any defects
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in any plans or specifications submitted, revised or approved in
accordance with the foregoing, nor for any structural or other
defects in any work done according to such plans or
specifications.
Section 7. Construction and Alteration of Improvements.
The right of an Owner, developer, or other entity to construct,
reconstruct, refinish, alter or maintain any Improvement upon,
under or above any of the Property or to make or create any
excavation or fill thereon, or to make any change in the natural
or existing surface contour or drainage thereof, or install any
utility line or conduit thereon or thereover, shall be subject to
the Design Guidelines and to the general restrictions set forth
herein.
Any construction or reconstruction, or the refinishing or
alteration of any part of the exterior of any Living Unit or
other Improvement on the Property including fences and walls is
absolutely prohibited until and unless the Owner or developer
first obtains approval thereof from the Architectural Control
Committee and otherwise complies with the provisions hereof. All
Improvements shall be constructed only in accordance with
approved plans.
Section 8. inspection of Work/Project Completion Review.
(a) Inspection of completed work and correction of
defects therein shall proceed as follows:
(1) Upon the completion of any Improvement for
which approved plans or specifications are
required under this Declaration, the Owner
shall give written notice of completion to
the Committee.
(2) Within such reasonable time as the Committee
may set in its rules but not to exceed
fifteen (15) days thereafter, the Committee
or its duly authorized representative shall
inspect such Improvement and notify the
Owner, in writing, whether the work is
approved. If the Committee finds that such
work was not done in strict compliance with
all approved plans and specifications
submitted or required to be submitted for
its prior approval, it shall notify the
Owner in writing of such noncompliance
within such period, specifying in reasonable
detail the particulars of noncompliance, and
shall require the Owner to remedy the same.
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(3)
If upon the expiration of thirty (30) days
from the date of notification of
noncompliance the Owner shall have failed to
remedy such noncompliance, the committee
shall, upon notice and hearing, determine
whether there is a noncompliance and, if the
conclusion of the Committee is that
noncompliance exists, the Owner shall remedy
or remove the same within a period of not
more than forty-five (45) days from the date
of announcement of the Committee ruling. If
the Owner does not comply with the Committee
ruling within such period, the Committee, at
its option, may either remove the
noncomplying Improvement or remedy the
noncompliance, and the Owner shall reimburse
the Committee for all expenses incurred in
connection therewith. If such expenses are
not promptly repaid by the Owner to the
Committee, the Committee shall levy an
assessment against such Owner and the
Improvement in question and the land upon
which the same is situated for reimbursement
and the same shall constitute a lien upon
such land and Improvement.
(b) If for any reason after receipt of said written
notice of completion from the Owner, the Committee fails to
notify the Owner of its approval or disapproval and the reasons
therefore, within the period provided above in paragraph (a)(2)
of this Section 6, the Owner shall again notify the Committee, in
writing, of the completion and if the Committee does not then
give written notification of approval or disapproval within
fifteen (15) days after receipt of the second notification, the
Improvement shall be deemed to be in compliance with the approved
plans and specifications.
Section 9. Enforcement of Covenants/Violations Deemed a
Nuisance. Every violation hereof or of any of the Guidelines
adopted by the Architectural Control Committee is deemed to be a
nuisance and is subject to all the remedies provided for the
abatement thereof. In addition, all public and private remedies
allowed at law or equity against anyone in violation of these
Covenants shall be available.
(a) Compliance. Each Owner, or other occupant of any
part of the Property shall comply with the provisions of these
Covenants and the Guidelines as the same may be amended from time
to time.
(b) Failure to Comply. Failure to comply herewith
shall be grounds for an action to recover damages or for
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injunctive relief to cause any such violation to be remedied, or
both. Reasonable notice and an opportunity for a hearing shall
be given to the Owner prior to commencing any legal proceedings.
(c) Who May Enforce. Any action to enforce the
Covenants and the Architectural Control Committee Design
Guidelines may be brought by the Declarant or the Committee on
behalf of the Owners. If, after written request from an
aggrieved Owner and a reasonable time to act upon said request,
none of the foregoing persons or entities commence an action to
enforce the Covenants and the Architectural Control Committee
Design Guidelines then the aggrieved Owner may bring such an
action.
(d) Remedies. In addition to any other remedies set
forth herein violation of these Covenants and the Architectural
Control Committee Design Guidelines shall give to the Committee
or the Declarant, on behalf of the Owners, the right to enter
upon the offending premises or take appropriate peaceful action
to abate, remove, complete, modify or replace, at the expense of
the offending Owner, any structure, landscape, drainage or other
things or condition that may exist thereon contrary to the
interest and meaning of these Covenants and the Design
Guidelines. The cure shall be at the expense of the Owner or
other person responsible for the offending condition. The cost
of all such work shall be assessed against the Owner and may be
enforced in any manner provided by law or this Declaration for
collection of Assessments.
(e) Nonexclusive Remedies. All the remedies set forth
herein are cumulative and not exclusive.
(f) No Waiver. The failure of the Declarant, the
Architectural Control Committee or any aggrieved Owner to enforce
these Covenants and the Architectural Control Committee Design
Guidelines shall not be deemed a waiver of the right to do so for
any subsequent violations or of the right to enforce any other
part of these Covenants and the Architectural Control Committee
Guidelines at any future time. Further, no variances or
adjustments of these conditions shall be deemed to be a waiver in
any other instance.
(g) No Liability. No member of the Board, the
Declarant, the Architectural Control Committee nor any Owner
shall be liable to any other Owner for the failure to enforce any
of these Covenants and the Architectural Control Committee
Guidelines at any time.
(h) Recovery of Costs. If legal assistance is
obtained to enforce any of the provisions hereof, or in any legal
proceeding (whether or not suit is brought) for damages or for
the enforcement of or to restrain the violation of these
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Covenants and the Architectural Control Committee Guidelines, the
prevailing party shall be entitled to recover all costs incurred
by it in such action, including reasonable attorneys' fees as may
be incurred, or if suit is brought, as may be determined by the
Court.
ARTICLE XII
USE_RESTRICTIONS
Section 1. Restrictions Which Apply to Lots. The following
building restrictions and aesthetic standards are imposed
uniformly on the Lots and the use thereof as a common scheme for
the benefit of each Lot and may be enforced by the Association,
by the Architectural Control Committee or by any Lot Owner.
(a) Building Type/Use. Each and every one of the Lots
shall be used for private residential purposes only, except that
Declarant may, for so long as Declarant owns a Lot, conduct real
estate sales of Lots from the Property. Only one single family
residence structure shall be permitted to be constructed and
maintained on each of Lots 1, 2, 3 and 4 (see particular
provisions dealing with Lot 5 in Article XV of this Declaration).
Garages or carports must be part of the principal structure or
attached to the principal structure by arbor or breezeway and
must conform to the architecture of the principal structure. No
other structure, including but not limited to, swimming pools,
gazebos, detached patios, pet facilities, dog runs, and storage
sheds, shall be permitted on any Lot without the express written
approval of the Architectural Control Committee. Further, any
building placed, erected or maintained upon any Lot in the
Subdivision shall be entirely constructed thereon and the same
shall not, nor shall any part thereof, be moved or placed thereon
from elsewhere without specific approval of the Committee.
(b) Building Size and Style. Dwellings on the Lots
shall be primarily one or two story far -style structures. Lofts
or other similar second floor areas within the dwelling may be
allowed by special review of the Architectural Committee after
ensuring that no perimeter wall of the structure is more than one
story or higher than 15 feet, and that the second floor comprises
no more than 60% of the first floor area, and is set back from
the first floor perimeter walls at least eight feet. Dwellings
on all Lots may have one elevation (side) of the structure of two
story height, provided that the architectural intent is to
provide a walk -out basement. Grading of the other three
elevations (sides) must conform to the requirements of this
paragraph.
Every principal residence constructed on a Lot shall have
not less than 2,000 square feet of finished floor area devoted to
living purposes (exclusive of roofed or unroofed porches,
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terraces, basements and garages) and shall have a garage of
sufficient size to house not less than two cars; furthermore,
there shall be constructed on each Lot, at time of construction
of the principal residence and kept in place thereafter, paved
off-street parking spaces (which may be a driveway on the Lot)
sufficient for two cars in addition to the space in the garage.
All driveways shall consist of materials specifically approved by
the Committee. No vehicles shall be parked on any Lot except on
the paved areas unless otherwise approved in writing by the
Architectural Control Committee. Vehicles shall not be parked on
any common driveway.
Additional specific requirements for all dwellings
constructed on any Lot are further defined and described in the
Design Guidelines promulgated by the Architectural Committee.
(c) Building Location/Setbacks. All Living Units shall
be constructed within the building envelopes shown on the
Subdivision and PUD map. In all cases, the location of any
building shall be subject to the approval of the Architectural
Control Committee.
(d) Landscaping. No landscaping or any subsequent
material change, alteration or modification of landscaping from
that shown on any initially approved landscape plan, shall occur
unless a landscape plan showing such landscaping or change,
alteration or modification is submitted and approved in
accordance with the procedures prescribed in Section 5 of Article
XII. Approval or disapproval of such landscaping plans shall be
in the same manner as set forth in said section. A material
change, alteration or modification of landscaping will not
include the replacement of any materials in accordance with the
originally approved plan or the planting of any materials which
will not have a mature height in excess of six feet. After a
Living Unit has been constructed on any Lot, the remaining
unpaved portion of the Lot shall promptly be placed in grass or
other vegetation or covered with decorative materials and
maintained in that condition so as to prevent the blowing of dust
and dirt from the exposed soil. All landscaping as approved
shall be maintained with adequate watering to assure good color
and appearance. All landscaping shown on an approved landscaping
plan shall be completed and installed within 6 months (weather
permitting) after substantial completion of the residential
improvements on the Lot, or in the event of a subsequent change,
alteration or modification of landscaping from that shown on an
initially approved landscape plan within 6 months after approval
of such change, alteration or modification.
(d) Signs. No sign of any kind other than a name
plate of the occupant and a street number shall be displayed to
the public view without the approval of the Architectural
Committee; provided, however, that one sign not more than six (6)
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square feet in a form and of materials prescribed by the
Architectural Committee may be displayed on or from a residence
advertising the Lot or a residence for sale or lease. No
flashing or moving signs shall be permitted on the Property.
(e) Trees. No tree or trees, whether now growing or
hereafter grown upon any part of the Property shall be cut down
or removed without prior written approval of the Architectural
Control Committee; provided, however, that this restriction shall
not apply unless such tree is more than two (2) inches in
diameter as measured one (1) feet above grade, and provided
further that this restriction shall not be construed to limit in
any way reasonable trimming of any trees within the Property.
(f) Temporary Structures. No temporary house trailer,
tent, garage or outbuilding shall be placed or erected upon any
part of the Property and no residence placed or erected on any
Lot shall be occupied in any manner at any time prior to its
being fully completed in accordance with approved plans nor shall
any residence when completed be in any manner occupied until
there is compliance with all requirements, conditions, covenants
and restrictions herein set forth; provided, however, that during
the actual construction or alteration of a Living Unit on any
Lot, reasonable and necessary temporary buildings for storage of
materials may be erected and maintained by the person doing such
work provided that their type and placement are approved by the
Architectural Control Committee. Such temporary storage
buildings shall be removed upon completion of the construction,
alteration or remodeling. The work of constructing, altering and
remodeling any Improvement on the Property shall be prosecuted
diligently from its commencement and completed in accordance with
the work schedules submitted to the Architectural Control
Committee in no event later than one year from commencement.
(g) Trash and Debris. All trash, garbage or other refuse
shall be kept in a fully enclosed area. Each Owner must provide
for regular removal of garbage, and each Lot at all times shall
be kept in a clean, sightly, and wholesome condition and weeds
shall be kept mowed. No trash, litter, junk, boxes, containers,
bottles, cans, implements, machinery, lumber or other building
materials shall be permitted to remain exposed upon any Lot so it
is visible from any neighboring Lot, road or street, except as
reasonably necessary during the period of construction. In the
event any structure is destroyed either wholly or partially by
fire or other casualty, said structure shall be promptly rebuilt
or remodeled to conform to this Declaration and all debris and
remaining portions of the structure including the foundations
shall be promptly removed from the Property. No noxious or
offensive activity shall be carried on upon the Property, nor
shall anything be done thereon which may be or may become an
annoyance or nuisance to the neighborhood.
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(h) Motor homes. Boats. Trailers, Ca pers. Etc. No
vehicles, motorcycles, motorbikes, mopeds, Motor homes, boats,
trailers or campers shall be stored or parked on any street nor
on any Lot unless enclosed within a garage. No inoperative or
wrecked cars, tractors, equipment, etc., shall be kept or stored
on any Lot unless approved, in writing, by the Architectural
Control Committee. No vehicle, motorcycle, motorbike or similar
equipment shall be parked on any Lot or street adjacent thereto
while it is undergoing repairs which immobilize the vehicle for
a period of more than two consecutive days, unless the vehicle
(or other item undergoing repairs) is within an enclosed garage
during the entire period of such repairs.
(i) Underground Utilities - Antennas. All electric,
television, radio and telephone line installations and
connections from the Owner's property line to the residence shall
be placed underground. All antennas must be specifically
approved by the Architectural Control Committee unless contained
within the structure and not exposed to public view. No aerial
masts shall be allowed. Elevated tanks of any kind shall not be
erected, placed or permitted upon any part of said property
without prior written consent of the Architectural Committee,
except that such tanks may be placed on any Lot for use in
connection with construction of a building thereon. All types of
refrigerating, cooling or heating apparatus must be concealed in
a manner which has the prior written approval of the
Architectural Committee. No overhead utility lines shall be
installed or maintained on any portion of the Lots covered by
these restrictions except that during the construction of a
residence the contractor or builder may install a temporary
overhead utility line which shall be promptly removed upon
completion of construction.
(j) Animals. Owners may keep such animals as
approved in writing by the Architectural Committee, and in
conformance with all applicable governmental rules, regulations
and ordinances. Shelters for approved animals must be in the
same style as the residence and must be between 100 and 500
square feet per animal and must be approved by the Architectural
Committee. The following animals will be allowed initially,
however, this list may be expanded, reduced or modified by the
Architectural Committee at any time, with changes to be effective
after reasonable notice to Owners: two dogs and/or two cats per
Lot are allowed; Horses, cattle and/or sheep are allowed,
provided that there shall be no more that 4 "animal units" per Lot
(for the purposes of these Covenants, one animal unit shall be
one horse, one cow/steer or two sheep). No bulls shall be kept
on any Lot. No other animals, with the exception of pets kept
strictly indoors, shall be allowed without the express written
approval of the Architectural Committee. No boarding of animals
for commercial or other business purposes shall be allowed.
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(k) Nuisances. No noxious of offensive activity shall
be carried on upon Lot, nor shall anything be done thereon which
may be or may become an annoyance or nuisance to the
neighborhood. Specifically, but not by way of limitation, no
owner of any Lot subject to the provisions of these covenants
shall permit weeds to grow and remain uncut so that the same
appear unsightly to the surrounding area; nor shall there by
permitted the storage of lumber, bricks or other building
material for a period of time longer than reasonably required for
the completion of a residential structure thereon; nor shall any
noise or sounds be allowed to emanate from any Lot to constitute
an annoyance or nuisance to the neighborhood; nor shall exterior
lights or reflective surfaces be installed to create glare or
unusual lighting on or of adjoining Lots. All corrals, paddocks
and pasture areas of any livestock area shall be kept clean and
free of noxious weeds, built-up manure, feed, flies, or other
odor -producing or health hazardous byproduct.
(1) Fences. The construction, placement or planting
of all fences, walls and hedges shall require the prior approval
of the Architectural Control Committee and shall be in accordance
with Design Guidelines.
(m) Home Occupations. Home occupations, consisting of
a vocational activity conducted inside a dwelling unit by the
residents who reside therein, are permitted provided that: (i)
any such activity is not in violation of any local government
laws having jurisdiction over the Property, (ii) no accessory
structure shall be used primarily for the home occupation, (iii)
it does not result in noise or vibration, light, odor, dust,
smoke, or other air pollution beyond the residence or accessory
structure, which is noticeable from any point within the
Property, (iv) it does not result in pollution of any kind being
discharged from the residence or any accessory structure, (v) no
signage of any nature shall be installed identifying or
advertising the home occupation, and (vi) no more than two
vehicles for customers, clients or patrons are allowed at the
site at one time, and adequate off-street parking screened from
view from the street and other Lots be provided to accommodate
the two vehicles.
(n) Child Care. No licensed day care, child care or
elder care facilities or businesses shall be permitted without
the prior written consent of the Architectural Committee.
ARTICLE XIII
GENERAL PROVISIONS
Section 1. Severability. In the event that any one or more
of the provisions, conditions, restrictions, and covenants herein
set forth shall be held by any Court of competent jurisdiction to
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be null and void, all remaining provisions, conditions,
restrictions and covenants herein set forth shall continue
unimpaired and in full force and effect.
Section 2. Effect. Each grantee of a Lot or property
included within this Declaration, by acceptance of a deed
conveying any of the Lots or properties, shall accept title
thereto upon and subject to each and all of the restrictions,
conditions, covenants and agreements herein contained, and by
such acceptance, shall for himself, his heirs, personal
representatives, successors and assigns, covenant, agree and
consent to and with the grantees and subsequent Owners of each of
said other Lots, to keep, observe, comply with and perform said
restrictions, covenants, conditions and agreements and each
thereof. Said restrictions, covenants and agreements are
intended and proposed for the direct and mutual and reciprocal
benefit of each and all of said Lots and subsequent Owners
thereof, and to create mutual and equitable servitudes upon each
of said Lots in favor of each other Lot, and reciprocal rights
and obligations and privity of contract and estate between the
grantees of said Lots, their respective heirs, successors and
assigns.
Section 3. Notices. Any notice required to be sent to any
Member or Owner under the provisions of this Declaration shall be
deemed to have been properly sent when mailed, postpaid, to the
last known address of the person who appears as a member or owner
on the records of the Association at the time of such mailing.
Section 4. Enforcement. Enforcement of these covenants and
restrictions shall be by a proceeding at law or in equity brought
by Declarant, the Association, the Architectural Control
Committee or an Owner against any person or persons violating or
attempting to violate any covenant or restriction, either to
restrain violation or to recover damages, and against the land to
enforce any lien created by these covenants; and failure by the
Declarant, the Association, the Committee or any member to
enforce any covenant or restriction herein contained shall in no
event be deemed a waiver of the right to do so thereafter.
Section 5. Titles and Section Headings. Titles of articles
and section headings shall be disregarded in the interpretation
of this document and shall have no binding effect.
Section 6. Liberal Construction. The provisions of this
Declaration shall be liberally construed to effectuate its
purpose.
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ARTICLE XIV
DURATION AND AMENDMENT
Section 1. Duration. This Declaration shall run with and
bind the Property and shall inure to the benefit of and be
enforceable by the Declarant, the Association, or any Owner of
any Lot subject to this Declaration, their respective legal
representatives, heirs, successors and assigns, for a term of
twenty (20) years from the date this Declaration is recorded,
after which time this Declaration shall be automatically extended
for successive periods of ten (10) years unless terminated or
revoked as hereinafter provided.
Section 2. Amendment. This Declaration may be amended at
any time by the holder of the Class B membership, for so long as
the Class B membership exists. Following cessation of the Class
B membership, this Declaration can be amended by a vote of two-
thirds (2/3) of the votes of the Class A members of the
Association, present, in person or by proxy, and constituting a
quorum at any regular or special meeting. A statement of any
proposed amendment shall accompany the notice of any regular or
special meeting at which such proposed amendment shall be voted
on. Amendments may be proposed by the Board of Directors, the
Declarant or by a petition signed by at least fifty-one percent
(51%) of the Class A members.
Section 3. Limitations on Amendment. Notwithstanding
anything contained in this Article or any other provision of this
Declaration to the contrary, unless all Owners and all first
mortgagees of Lots (based upon one vote for each first mortgage
owned or held) have given their prior written approval, this
Declaration shall not be amended to:
(m) terminate or revoke this Declaration;
(b) abandon, partition, subdivide, encumber, sell or
transfer the Common Properties, provided however, that granting
easements for public utilities or for other public purposes
consistent with the intended use of the Common Properties shall
not be deemed a transfer within the meaning of this clause;
(c) except as provided in Article VIII, use hazard
insurance proceeds received for loss to the Common Properties for
other than repair, replacement or reconstruction of the Common
Properties;
(d) dissolution or abandonment of the Association;
(e) elimination or diminution of the responsibilities
of the Association to repair and maintain the Common Properties
or any other property or property rights with respect to which
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the Association is charged with the responsibility of repair,
maintenance or upkeep by these Covenants;
(f) elimination of or restriction upon the rights and
duties of the Association to enforce these Covenants or upon the
rights of the Association to raise sufficient funds with which it
can carry out the functions and duties assigned to it herein.
(g) any amendment inconsistent with the terms and
conditions imposed at the time of the County's approval of the
Subdivision.
ARTICLE XV
Declarant, for himself and his successors and assigns as to
ownership of Lot 5 of the Subdivision, covenants and agrees to
and with the Owners of Lots 1, 2, 3 and 4 of the Subdivision
that, for a period of twenty (20) years following the date these
Covenants are recorded, Lot 5 shall be used solely for
agricultural and hunting purposes, and that no residential
structures shall be erected thereon during said 20 -year term.
The foregoing restriction and limitation upon the use of Lot 5
shall automatically cease and terminate 20 years following the
date these Covenants are first recorded in the office of the
Clerk and Recorder for Weld County, Colorado.
IN WITNESS WHEREOF, the undersigned, being the Declarant
herein, has executed this Declaration this 3Lr' day of 3ehr113rv"
1997. YUc`t
Douglas . Myers
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STATE OF COLORADO
COUNTY OF BOULDER
ss.
)
The foregoing was acknowledged before me this day of
February, 1997, by Douglas E. Myers.
Witness my hand and official seal.
My commission expires:
Notary Public
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