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HomeMy WebLinkAbout3.0 Covenants 09.07.2004BOCC 09/07/04 MLB STAFF MEMORANDUM REQUEST: Restated Covenants for the Four Mile Ranch Subdivision OWNER: CSA 2, LLC and CSA 3, LLC REPRESENTATIVE: Lee Leavenworth LOCATION: A subdivision located on the southwest side of Glenwood Springs off of County Road 117, Four Mile Road. The applicants are requesting that the County approve the proposed Restated Declaration of Protective Covenants for the Four Mile Ranch subdivision. The County is a third party beneficiary of the covenants due to existence of a public hiking/biking trail on the open space easement contained in the development. Normally, the County is not a party to the covenants, but in this case it was appropriate given the County's interest in the trail. The County will not enforce the covenants related to architectural control, building siting and other similar provisions. County Planning staff and County Attorney staff have reviewed the proposed amendments and recommend that the Commissioners approve the proposed Restated Declaration of Protective Covenants for the Four Mile Ranch subdivision. 4‘2, (27, 7=0-- fr 1- a,&,',v-7 LOYAL E. LEAVENWORTH SANDER N. KARP DAVID H. McCONAUGHY JAMES S. NEU JULIE C. BERQUIST-HEATH SUSAN W. LAATSCH NICOLE D. GARRIMONE ANNA S. ITENBERG MICHAEL J. SAWYER TERESA L. HOCK EDWARD B. OLSZEWSKI LEAVENWORTH & KARP, P.C. ATTORNEYS AT LAW 201 14T" STREET, SUITE 200 P. O. DRAWER 2030 GLENWOOD SPRINGS, COLORADO 81602 Telephone: (970) 945-2261 Facsimile: (970) 945-7336 ejg@lklawfirm.com September 2, 2004 Mark Bean, Director Garfield County Building & Planning Department 108 8th, Suite 201 Glenwood Springs, CO 81601 Re: Four Mile Ranch Subdivision Dear Mark: DENVER OFFICE:* WAZEE EXCHANGE BUILDING 1900 WAZEE STREET, STE. 203 DENVER, COLORADO 80202 Telephone: (303) 825-3995 Facsimile: (303) 825-3997 *(Please direct all correspondence to our Glenwood Springs Office) Hand Delivered At Ed Olszewski's request, enclosed is another revised redline version of the Restated Declaration of Protective Covenants for the Four Mile Ranch Subdivision. Also enclosed is a clean copy of the revised covenants. If you have any questions, please feel free to contact me. Very truly yours, LEAVENWORTH & KARP, P.C. Ellen J. Paral /ej g Enclosures cc: MidFirst Bank w/enc. \2004\Clients\MidFirst-2-534\Letters\Beancovenants.wpd SEP 0 2 2004 LOYAL E. LEAVENWORTH SANDER N. KARP DAVID H. McCONAUGHY JAMES S. NEU JULIE C. BERQUIST-HEATH SUSAN W. LAATSCH NICOLE D. GARRIMONE ANNA S. ITENBERG MICHAEL J. SAWYER TERESA L. HOCK EDWARD B. OLSZEWSKI LEAVENWORTH & KARP, P.C. ATTORNEYS AT LAW 201 14TH STREET, SUITE 200 P. O. DRAWER 2030 GLENWOOD SPRINGS, COLORADO 81602 Telephone: (970) 945-2261 Facsimile: (970) 945-7336 lel@lklawfirm.com AUG 1 2004 August 31, 2004 Don DeFord, Esq. Garfield County Attorney's Office 108 Eighth Street, Suite 219 Glenwood Springs, CO 81601 Mark Bean, Director Garfield County Building & Planning Department 108 8`h' Suite 201 Glenwood Springs, CO 81601 Re: Four Mile Ranch Subdivision Dear Don and Mark: DENVER OFFICE:* WAZEE EXCHANGE BUILDING 1900 WAZEE STREET, STE. 203 DENVER, COLORADO 80202 Telephone: (303) 825-3995 Facsimile: (303) 825-3997 *(Please direct all correspondence to our Glenwood Springs Office) Hand Delivered Hand Delivered Enclosed for your review is a revised copy of the Restated Declaration of Protective Covenants for the Four Mile Ranch Subdivision, with the changes we would like the Commissioners to approve. We would very much like to be on the agenda on September 7th as we have 57 closings pending in September. I would appreciate any feed back you have on the proposed changes. If you have any questions, please feel free to contact me. Very truly yours, LEAVENWORTH & KARP, P.C. Loya/ 1. Leavenworth LEL: eg Enclosure cc: Guy Harrell w/enc. 1:\2004\Clients\MidFGst-2-534\Letters\DeFord & Bean.wpd RESTATED DECLARATION OF PROTECTIVE COVENANTS, CONDITIONS AND RESTRICTIONS FOR FOUR MILE RANCH SUBDIVISION and entered mto this This Restated Declaration of Protective Covenants, Conditions and Restrictions for Four Mile Ranch Subdivision ("Restated 2000. , 2004, by CSA Covenants") made this day of 2 LLC an Oklahoma limited liabilit com.an and CSA 3 LLC an Oklahoma limited liabilit com•an hereinafter collectivel the "Declarant fl as owners in fee of certain real ro ert situated within Garfield County, Colorado, known as Lots 1-39 and Lots 41-58 of the Four Mile Ranch Subdivision (hereinafter "Subdivision" or "Four Mile Ranch"), revokes and sus ercedes in its entirety the Declaration of Protective Covenants for Four Mile Ranch Subdivision, recorded July 30, 2000 as Rece lion No. 565739. as amended by First Amendment, recorded Aril 30, 2002. as Reception No. 602421, and Second Amendment, recorded February 6, 2003, as Rece tion No. 620288 (hereinafter collectively referred to as the "Revoked Covenants") in the Office of the Clerk and Recorder of Garfield County . Colorado. The Revoked Covenants shall be re s laced by these Restated Covenants.' ARTICLE I GENERAL PURPOSE OF COVENANTS, SUBMISSION, DEFINED TERMS, DESCRIPTION 1. Purpose. These Covenants shall govern and be applicable to that certain real property situated primarily -within Garfield County, Colorado, known as Lots 1-39 and Lots 41-58 within the Four Mile Ranch Subdivision " + ' , as defined and described in the Final Plat (hereinafter "Final Plat") therefor recorded as Reception No. 565737 in the office of the Clerk and Recorder of Garfield County, Colorado, which Final Plat is incorporated herein by reference. It is the intention of I Developn.cnt Company, a Colorado corporation (herclnaftcr "Declarant", expressed by itsthe execution of this instrument, that the lands within Four Mile Ranch be developed and maintained as a highly desirable scenic residential area. It is the purpose of these Covenants to preserve the present natural beauty and character of the property along with the views and setting of the Subdivision to the greatest extent reasonably possible, and the lots therein shall always be protected as much as possible with respect to uses, structures, landscaping, and general development as permitted by this instrument. 2. Property Submission. Declarant hereby submits the Four Mile Ranch Subdivision as now shown on the Final Plat together with all easements, rights-of-way, and appurtenances thereto and any buildings, fixtures, and improvements thereon (hereinafter "Property") to the l Lot 40 within the Four Mile Ranch Subdivision is excluded from the terms and conditions of these Restated Covenants and these Restated Covenants are subject to the First Amendment of Declaration of Protective Covenants for Four Mile Ranch Subdivision recorded as Reception No. 602421 in the office of the Clerk and Recorder of Garfield County, Colorado. @PFDesktop\:MyComputer\I:\2004\Clients\MidF rst-2-534\Documents\Restated Cp�yenantsd6. wpd September 2, 2004 L provisions of the Colorado Common Interest Ownership Act, which is set forth at C.R.S. §38-33.3- 101 et seq. (hereinafter "Act") and to this Declaration. In the event the Act is repealed, the provision of the Act on the effective date of this Declaration shall remain applicable hereto. Declarant further declares that the Property shall be held, leased, mortgaged, sold, and conveyed subject to the following terms, easements, reservations, restrictions, covenants, and conditions. Declarant further declares that this Declaration shall run with the land and shall be binding upon all parties having any right, title, or interest in the Property or any part thereof, their heirs, devisees, legal representatives, successors, and assigns and shall inure to the benefit of each and every Owner. 3. Pre -Annexation Agreement. On September 25, 1997, Declarant entered into a Pre - Annexation Agreement with the City of Glenwood Springs, which agreement is recorded as Reception No. 566034 in the Office of the Clerk and Recorder of Garfield County, Colorado (hereinafter "Pre -Annexation Agreement") which Pre -Annexation Agreement is incorporated herein by reference. The Pre -Annexation Agreement relates to the possible annexation of the Subdivision to the City of Glenwood Springs and sets forth the terms and conditions thereof. The Declarant, the Four Mile Ranch Homeowners Association and all persons or entities who own or acquire title in fee to any of the rft ei-ghtfifty-seven (587) single family lots in the Subdivision hereby acknowledge the provisions thereof and agree that in the event the Subdivision is annexed to the City of Glenwood Springs, each lot within the Subdivision shall be benefitted and burdened by the provisions of the Pre -Annexation Agreement. 4. Defined Terms. Each capitalized term not otherwise defined in this Declaration shall have the meaning specified or used in the Act. 5. Name of Common Interest Community. The name of the Common Interest Community is "Four Mile Ranch." 6. Type of Common Interest Community. The type of Common Interest Community is a planned community. 7. Association Name. The name of the Association is the "Four Mile Ranch Homeowners Association," a Colorado nonprofit corporation (hereinafter "Association"). 8. Property Location. The Property constituting the Common Interest Community is located within the County of Garfield, State of Colorado. 9. Property Description. The Property shall consist of fifty-cightfifty-seven (587) single-family lots (hereinafter "Lot" or "Lots") which are more particularly described on the Final Plat of the Four Mile Ranch Subdivision as Lots 1-39 and Lots 41-58. ARTICLE II OWNERS - HOMEOWNERS ASSOCIATION 1. Membership. All persons or other entities, including Declarant (hereinafter referred to as "Owners"), who own or acquire the title in fee to any of the Lots in Four Mile Ranch by @PFDesktop\:MyComputer\I:\2004\ClientsMidFirst-2-534\Documents\Restated Cenantsd6.wpd September 2, 2004 whatever means acquired shall automatically become members of Four Mile Ranch Homeowners Association, a Colorado non-profit corporation, in accordance with the Articles of Incorporation of Four Mile Ranch Homeowners Association, as may be duly amended from time to time and which Articles and any amendments thereto shall be filed with the Colorado Secretary of State and recorded in the real estate records of the Garfield County, Colorado, Clerk and Recorder. The Articles of Incorporation shall be filed no later than the date of conveyance of the first Lot in Four Mile Ranch. 2. Purpose. The Association, through its Executive Board, shall be authorized and empowered to take each and every step necessary or convenient for the implementation and enforcement of the Covenants contained in this Declaration. The Association shall have the right and responsibility to maintain, preserve, repair, insure, and otherwise protect and promote the interests of the Owners with respect to all common properties and interests of the Owners and the Association. The Association shall be governed by its Articles of Incorporation and Bylaws as may be amended from time to time. 3. Common Elements. The Association shall own, operate, and maintain all common elements within the Subdivision. These common elements shall include, among other things, the potable water system, the raw water irrigation system, the portion of the internal trail system not dedicated to Garfield County as shown on the Final Plat, the sewage lines located within the Subdivision until such time as the City of Glenwood Springs requests said lines be dedicated to it, the fitness equipment and landscape nodes located at stations along the internal trail system, any sidewalks within the Subdivision, and any landscaping undertaken by Declarant or the Association in accordance with Article VI, Paragraph 5 hereof. The roads and the Public Trail and Bike Path (located along the western property boundary) located within the Subdivision shall be dedicated to Garfield County but shall be maintained by the Association. Road "E," the emergency access easement as shown on the Final Plat, shall be maintained year round. 4. Limited Common Elements. The portion of each Lot which is burdened by the Open Space Easement, as described in Article III, paragraph 4, below, and as shown on the Final Plat for the Subdivision, shall be deemed a Limited Common Element as it is privately owned but reserved for the benefit of each Owner for the limited purposes of perpetuating open space and the rural character of the Subdivision and to access any and all Recreational Facilities located therein. This Limited Common Element shall be subject to any reserved rights of the Declarant or the Association as set forth herein. 5. Executive Board. The affairs of the Association shall be governed by an Executive Board consisting of three (3) members elected by the Owners. 6. Declarant Control. The Declarant shall have the reserved power, pursuant to the Act, to appoint and remove officers and members of the Executive Board. This period of Declarant control ("period of Declarant Control") terminates no later than the earlier of (a) sixty (60) days after conveyance of seventy-five percent (75%) of the Lots to Owners other than the Declarant or (b) two (2) years after the last conveyance of a UiritLot by the Declarant in the @PFDesktop\:MyComputer\I:\2004\Clients WidFirst-2-534\Documents\Restated Coyenantsd6.wpd September 2, 2004 �F ordinary course of business to an Owner other than Declarant. During the period of Declarant Control, the Declarant's Control shall be subject to the following limitations: A. Not later than sixty (60) days after conveyance of twenty-five percent (25%) of the UnitsLots that may be created to Owners other than the Declarant, at least one (1) member and not less than twenty-five percent (25%) of the members of the Executive Board must be elected by Owners other than the Declarant. B. Not later than sixty (60) days after conveyance of fifty percent (50%) of the UnitsLots that may be created to Owners other than the Declarant, not less than thirty-three and one-third percent (33 1/3%) of the members of the Executive Board must be elected by Owners other than the Declarant. @PFDesktop\:MyComputerll:\2004\Clients\MidF rst-2-534\Documents\Restated CQvenantsd6.wpd September 2, 2004 J C. The Declarant may voluntarily surrender the right to appoint and remove officers and members of the Executive Board before termination of the period of Declarant Control, but in the event the Declarant may require, for the duration of the period of Declarant Control, that specified actions of the Association or Executive Board, as described in a recorded instrument executed by the Declarant, be approved by the Declarant before they become effective. 7. Indemnification. To the full extent permitted by law, each officer and director of the Association shall be and is hereby indemnified by the Owners and the Association against all expenses and liabilities, including attorneys' fees, reasonably incurred by or imposed upon them in any proceeding to which they may be a party, or in which they may become involved, by reason of being or having been an officer or director of the Association, or any settlements thereof, whether or not they are an officer or director of the Association at the time such expenses are incurred; except in such cases wherein such officer or director is adjudicated guilty of wilful misfeasance or malfeasance in the performance of his or her duties; provided that in the event of a settlement the indemnification shall apply only when the Executive Board approves such settlement and reimbursement as being in the best interests of the Association. 8. Notice to Owners. Notice to an Owner of matters affecting Four Mile Ranch by the Association or by another Owner shall be sufficiently given if such notice is in writing and is delivered personally, by courier, or private service delivery or on the third business day after deposit in the mails for registered or certified mail, return receipt requested, at the address of record for real property tax assessment notices with respect to that Owner's Lot. ARTICLE III EASEMENTS AND LICENSES 1. Unit Owners' Easements. Every Owner shall have a right of enjoyment and easement for access to their Lot through or over the Common Elements, and such easement shall be appurtenant to and shall pass with the title to every Lot, subject to the following provisions: A. The right of the Association to promulgate and publish rules and regulations with which each Owner and their guests shall strictly comply. B. The right of the Association to suspend the voting rights and rights to use the Common Elements by any Owner for any period during which any assessment against their Lot remains unpaid and for a period not to exceed sixty (60) days for any infraction of its rules and regulations. C. The right of the Association to grant easements, leases, licenses, and concessions through or over the Common Elements. D. The right of the Association to convey or subject a Common Element to a Security Interest in accordance with and to the extent permitted by the Act. @PFDesktop\:MyComputer\l:\2004\ClTentsWidFirst-2-534\Documents\Restated Cgvenantsd6.wpd September 2, 2004 U E. The right of the Association to close or limit the use of the Common Elements while maintaining, repairing, or replacing such Common Elements. F. Any Owner may delegate their right of enjoyment to the Common Elements and facilities to the members of their family, their tenants, or guests who reside on or rent their Lot. 2. Easements Shown on Final Plat. The Association is entitled to use such easements as are reflected on the Final Plat for the Subdivision. Except by agreement with a property Owner, the Association shall have no obligation to pay any amount for the use and enjoyment of such easement. The Association shall pay for the cost of maintaining and repairing any improvements which it places on any easements. 3. Easements for Access and Repairs. The Association shall be entitled to an easement across any of the Lots within the Subdivision, including the Open Space Easements located thereon, for the purposes of accessing any of the Association's property, protecting any Association property, or for necessary repairs or emergency circumstances. The Association may access all Lots within the Subdivision at reasonable times to determine compliance with the conditions of approvals of the Subdivision granted by the Garfield County Commissioners and to determine and enforce compliance with all of the provisions of these Covenants. 4. Open Space Easement. Each Lot within the Subdivision shall be burdened by an easement designed to perpetuate open space and the rural character of the Subdivision ("Open Space Easement"). Each and every Lot Owner is hereby granted an easement for the access, use, and enjoyment of any and all Recreational Facilities located in the Open Space Easement as more specifically identified and shown on the Final Plat for the Subdivision. Lot Owners may not place or construct any structures or fences within the Open Space Easement portion of their Lot, exti,et,t .. , . . Except as otherwise approved by the Architectural Committee, Lot Owners shall be required to maintain the Open Space Easement portion of their Lot in a manner consistent with the historic use of each Lot. The Declarant and/or the Association shall have the right to construct recirculation ponds, lakes, and underground utility lines within the Open Space Easement. IP ,. .I . • 1 A. Driveways. Any Lot Owner within the Subdivision whose Lot contains an Open Space Easement contiguous to an internal access road shall have the right to construct a driveway across the Open Space Easement. The location and specifications of any such driveway must also be approved by the Architectural Committee prior to the commencement of construction thereof. B. Recreational Facilities. The Association shall have the right to construct recreational facilities, including but not limited to a fitness course, landscape nodes, and an internal trail system, on or across the Open Space Easement and, except as specifically provided herein, shall thereafter be responsible for the repair and maintenance of such facilities. @PFDesktop\:MyComputer\I:\2004\Clients\MidFirst-2-534\Documents\Restated C7enantsd6. wpd September 2, 2004 — / 5. Homeowners Association Easement. The Homeowners Association easement, as shown on the Final Plat, is hereby granted to the Association for the purposes of accessing and maintaining certain potable water and raw water irrigation facilities, including the irrigation ponds, ditches, water storage tank and related treatment facilities, potable water wells, and pump house. The Irrigation Easement, as shown on the Final Plat, is included within the Homeowners Association easement. All improvements located within the Homeowners Association easement shall be deemed common elements as defined in Article II, Paragraph 3, above. ARTICLE IV USE RESTRICTIONS 1. Permitted Uses. Only one (1) single-family dwelling, together with structures appurtenant thereto, shall be constructed on any Lot in Four Mile Ranch. The minimum size of Lm ports, an garages. 2. Duplexes/Multi-Family Structures. Duplexes and multi -family structures are strictly prohibited in Four Mile Ranch. 3. Outbuildings. ' • u ' cvidciiccd by Rcsolution No , as Rcccption No. in the officc of the - .vo .•: e•v. i i i i .: i .. . . .. • . -1 i.. 11 mgsOutbuildings ti�at thcy do not exccea �uu sq . No greerrlrouse or auxihary buridmg strait excc of the py nee.be allowed 4. Modular/Mobile Homes. No modular, mobile, or manufactured homes shall be constructed or placed within the Subdivision. This prohibition shall not apply to construction trailers which shall be permitted for eighteen (18) months from the date of commencement of construction, or until the issuance of a certificate of occupancy, whichever first occurs; provided, however, construction trailers may only be used for construction, office, and storage purposes and shall not be occupied as a residence for any period of time. All other trailer homes or temporary structures of any kind shall be prohibited. ARTICLE V ARCHITECTURAL COMMITTEE 1. Architectural Committee. The Architectural Committee shall be composed of between three (3) and five (5) persons. Prior to Declarant's sale of eighteen (18) Lots in the Subdivision, Declarant may appoint the members of the Architectural Committee which may include officers, directors, or shareholders of Declarant, in Declarant's sole discretion, and the @PFDesktop\:MyComputer\l:\2004\Clients\MidF rst-2-534\Documents\Restated C enantsd6.wpd September 2, 2004 Executive Board of the Homeowners Association shall have no authority to remove any member so appointed. Upon the sale of the last Lot in the Subdivision, or at an earlier time as determined by Declarant, the members of the Architectural Committee shall be appointed by the Executive Board of the Association. The persons serving on the Architectural Committee shall serve at the pleasure of the Executive Board who may remove a member of the Architectural Committee, except a member appointed by Declarant, and appoint a new member at any time, provided there shall at all times be at least three (3) persons serving on the Architectural Committee. The members of the Architectural Committee may also be directors of the Association and need not be Owners. The Architectural Committee shall have and exercise all the powers, duties, and responsibilities set out in this instrument. 2. Approval by Architectural Committee.- No improvements of any kind, including but not limited to dwelling units, garages, accessory buildings, swimming pools, ponds, parking areas, fences, walls, driveways, landscaping, antennae, satellite dishes, and walks shall be constructed, erected, altered, or permitted to remain within Four Mile Ranch, nor shall any excavating, tree cutting, and clearing or landscaping be done within Four Mile Ranch, unless the complete architectural plans and specifications, and a site plan showing the location and orientation thereof, for such erection or alteration and landscaping are approved by the Architectural Committee prior to the commencement of such work, except as Declarant may be specifically permitted to do by these Covenants or required to do by any subdivision improvements agreement between the Declarant and Garfield County. Revegetation of all infills and cuts will be required. Plans addressing the revegetation of infills and cuts will be submitted to the Architectural Committee prior to any excavation. At least three (3) complete sets of the architectural and site development plans and specifications shall be submitted to the Architectural Committee along with a complete list of all exterior materials and colors to be used. All copies of the complete plans and specifications shall be signed and dated for identification by the Owner or the Owner's architect. The Architectural Committee shall have the right to request whatever additional specification information, plans, reports, and the like it deems necessary to evaluate the development proposal throughout the approval and construction process. In addition, the Architectural Committee may adopt rules and regulations which shall specify the information, reports, plans, specifications, and the like required to be submitted to the Architectural Committee. In the event the Architectural Committee fails to take any action within forty-five (45) days after three (3) copies of the complete architectural and site development plans, specifications, materials, and colors have been submitted to it and the submittal has been certified in writing by the Architectural Committee as complete, then all of such submitted architectural plans shall be deemed to be approved. The Architectural Committee shall not unreasonably disapprove the architectural plans. The majority vote of the members of the Architectural Committee shall be required for approval of plans. In the event the Architectural Committee shall disapprove any architectural plans, the person or entity submitting such architectural plans may appeal the matter to the next annual or special meeting of the members of the Four Mile Ranch Homeowners Association where a vote of seventy-five percent (75%) of the members' votes entitled to be cast at said members' meetings shall be required to change the decision of the Architectural Committee. @PFDesktop\:MyComputer\I:\2004\Clients\MidFirst-2-534\Documents\Restated Cpyenantsd6.wpd September 2, 2004 7 3. Improvements - Site Location. Pre -approved building envelopes for the primary dwelling structures for each Lot shall be idcntificd on the Final Plat. Site review by the Architectural Committee for the primary dwelling structure is not required if the structurc is to l,c acid nriprovom is nidsH,cauLitaxen by to Article V.6.C. herein. Lchitecturafeommittee. Site locations are subject ^" 4. Building Permits. An Owner may apply for a building pe it from the Garfield County Building Department at any time; provided, however, the plans.arrerred-y the Building Department shall not differ in any substantial way from, or be less restrictive than, the plans approved by the Architectural Committee. If the plans aao 4by the Building Department differ m in any substantial way, or are less restrictive, as determeby the Architectural Committee, then all approvals of the Architectural Committee shall be deemed automatically revoked. Owners must comply with all Garfield County zoning and subdivision regulations relating to off-street parking. 5. Variances. The Architectural Committee may, by an affirmative vote of a majority of the members of the Architectural Committee, allow reasonable variances as to any of the covenants and restrictions governing architectural control contained in this instrument and/or policies or rules promulgated by the Architectural Committee, on such terms and conditions as it shall require. No variance shall be granted which contravenes any provisions of these Covenants required by an approval obtained by Declarant from Garfield County for Four Mile Ranch or which violates the Garfield County Land Use and Building Codes. No variance shall be granted without written notice of the request for such variance provided ten (10) days prior to the hearing for said variance to all Lot Owners within the Subdivision. Notice to such Lot Owners shall be deemed complete when placed in the United States Mail, first-class postage prepaid, to the last known address for each Lot Owner as provided to the Association. 6. General Requirements. The Architectural Committee shall exercise its best judgment to see that all improvements, construction, landscaping, and alterations within Four Mile Ranch harmonize to the greatest extent possible with the surroundings and with other structures as to design, materials, color, height, grade, finished ground elevation of neighboring lots, and other design features. The Architectural Committee shall strive to protect the seclusion and view of each Lot insofar as possible (taking into account final buildout of all Lots in the Subdivision) in the development of Four Mile Ranch pursuant to these Covenants and shall endeavor to protect and preserve the visual character of the property and preserve and maintain any trees in Four Mile Ranch. A. Soils and Foundation Report, and Grading and Drainage Plan. Prior to the issuance of a building permit by Garfield County, a Lot Owner shall cause to be prepared and submit to Garfield County and the Architectural Committee a soils and foundation report and a grading and drainage plan prepared by a professional engineer. All improvements and structures shall be constructed in accordance with the recommendations and conditions of such report and plan which are included by Garfield County as conditions of the building permit or are made requirements or conditions of the approval of the Architectural Committee. @PFDesktop\:MyComputer\I:\2004\Clients\MidFirst-2-534\Documentsaestated Cpyynantsd6.wpd September 2, 2004 1U B. Materials and Landscaping. In its review of any proposed development activity, the Architectural Committee shall evaluate, among other things, the materials to be used on the outside of buildings or structures, including exterior colors, location with respect to topography and finished grade elevations, and harmony of landscaping with the natural setting and native trees and other vegetation within Four Mile Ranch. The Committee shall encourage "xeriscape" landscaping which emphasizes the use of indigenous foliage and decreased water consumption. The Committee shall encourage that vegetable and other seasonal gardens be located so as not to interfere with the views of neighboring property owners. C. Site Location. In reviewing the proposed location of any structure to be placed or built on any Lot, the Architectural Committee shall exercise its judgment so as to maximize the view plane of each Lot while preserving to the greatest extent possible the natural characteristics of each Lot and all natural vegetation, including trees and bushes and the natural setting of each building site. Except as set forth in Paragraph 3, above, the Architectural Committee must approve the location of all structures and improvements to be located on each Lot. No above grade structures whatsoever shall be approved for placement within fifty (50) feet of the ridgeline, shown as a setback line on the Final Plat on Lots 15 through 25 of the Subdivision. D. Fencing. The Architectural Committee must approve all fencing prior to installation. The type and location of all fencing must be approved by the Architectural Committee. One basis for consideration by the Architectural Committee of fencing will be how it affects the movement of wildlife throughout the Subdivision. Fencing shall be constructed to Colorado Division of Wildlife specifications, shall be of a round orspiitrail variety, shall not exceed forty-eight (48) inches in height, shall not have more than three (3) horizontal poles, the bottom pole of which shall be at least eighteen (18) inches off the ground, and no two poles shall be less than eighteen (18) inches apart. The Colorado Division of Wildlife shall not be liable to any Owner for any damage to gardens, flowers, shrubs, trees, or any other greenery caused by the actions of any wild animal. E. Wildfire. The Four Mile Ranch Architectural Committee shall follow the recommendations of the Colorado State Forester wildfire prevention guidelines, specified by the pamphlet "Wildfire Protection in the Wildland Urban Interface" prepared by the Colorado State Forest Service (CSFS #143-691) attached hereto as Exhibit A, in granting approvals for construction of residences and other structures submitted to it for approval. The Architectural Committee shall, incorporate the guidelines set forth in that pamphlet into the plans approved for Lots in the Subdivision to protect the Subdivision, and all of the buildings constructed therein, from the danger of wildfire. The Architectural Committee will consider the guidelines in the most current wildfire publication by the Colorado State Forest Service. ®PFDesktop\:MyComputer\l:\2004\Clients\MidFicst-2-534\Documents\Restated Cpv�enantsd6.wpd September 2, 2004 1 1 No shake or "treated" shake roofs will be allowed in the Subdivision. Metal roofs or other fire resistant roofs will be required. Siding of all stLlzenres shall be either (1) constructed of fire rctardant matcrials or materials "treatcd" to be firc rctardant, F. Water. The Homeowners Association will provide domestic water from a common distribution system to all residences constructed within the Subdivision. The Homeowners Association will have the power to own, operate, maintain, and repair the potable water system that will serve the Subdivision. The Homeowners Association will also have the power to levy assessments on each Lot to cover the costs of such system. Additionally, the Homeowners Association shall allocate specific quantities of irrigation water to the open spaces and to specific Lots in the Subdivision and shall allocate irrigation costs accordingly. The potable water supply and raw water irrigation rights and restrictions are more specifically discussed in Article VI, below. G. Lighting. The Architectural Committee shall consider exterior lighting plans and will require that all exterior lighting (with possible exceptions for lighting necessary for safety) be directed towards each applicant's property and consist solely of down lighting. It will also require that all Lot Owners make every effort possible to limit the use of exterior lighting at night. It shall require Owners to build in such a fashion that all light sources not be directly visible from outside of the Owner's property. The intent behind these considerations is to preserve the rural character of the Subdivision by limiting exterior lighting as much as possible while maintaining a safe atmosphere. 7. Preliminary Approvals. Lot Owners who anticipate constructing improvements on lands within Four Mile Ranch may submit preliminary sketches of such improvements to the Architectural Committee for informal and preliminary approval or disapproval. All preliminary sketches should be submitted in at least three (3) sets and should contain sufficient general information on those matters required to be in the complete architectural and site development plans and specifications to allow the Architectural Committee to grant an informed preliminary approval or disapproval. The Architectural Committee shall never be fmally committed or bound by any preliminary or informal approval or disapproval until such time as complete architectural and site development plans, specifications, materials, and colors are submitted and approved or disapproved. The preliminary approval is offered as an accommodation only, and the Architectural Committee may set fees for this service. 8. Architectural and Site Development Plans. The Architectural Committee shall disapprove any architectural and site development plans submitted to it which do not contain sufficient information for it to exercise the judgment required of it by these Covenants. ®PFDesktop\:MyComputer\I:\2004\Clients\MidFirst-2-534\Documents\Restated Cp}renantsd6.wpd September 2, 2004 1 L 9. Architectural Committee Not Liable. The Architectural Committee shall not be liable for damages to any person or entity submitting any plans for approval, or to any Owner or Owners of land within Four Mile Ranch, by reason of any action, failure to act, approval, disapproval, or failure to approve or disapprove with regard to such plans. The Architectural Committee shall have no liability or responsibility for any representations made to any Owner or prospective Owner by any third parties. The decisions of the Architectural Committee shall be governed by these Covenants and any rules or regulations duly adopted by the Architectural Committee pursuant to these Covenants. 10. Written Records. The Architectural Committee shall keep and safeguard for at least five (5) years complete permanent written records of all approved applications, including one (1) set of the final approved architectural and site development plans, and of all actions of approval or disapproval and all other formal actions taken by it under the provisions of this instrument. 11. Authority to Promulgate Design Guidelines, Rules and Regulations. The Architectural Committee may promulgate and adopt design guidelines and rules and regulations necessary to implement these Covenants. The design guidelines may include requirements relating to acceptable building materials, architectural styles, allowable colors for home exteriors, and the like. The rules and regulations may include submission requirements concerning the type of information, reports, plans and specifications, and other information necessary to make an informed decision regarding requests for development, modifications to buildings, and the like. ARTICLE VI PROPERTY USE RESTRICTIONS AND PROTECTIVE COVENANTS 1. No Further Subdivision. No Lot described on the recorded Final Plat of Four Mile Ranch Subdivision shall ever be further subdivided into smaller Lots or conveyed or encumbered in less than the full dimensions as shown on the recorded Final Plat of Four Mile Ranch; provided, however, conveyances or dedications of easements for utilities if approved by the Architectural Committee may be made for less than all of one (1) Lot. Notwithstanding the foregoing, a Lot line adjustment between two (2) Lots in Four Mile Ranch shall be deemed a permitted subdivision, subject, however, to any reviews or approvals that may be required by the Garfield County Land Use Code and to the prior approval of the Architectural Committee. 2. Domestic Animals and Livestock. Except as expressly limited herein, domestic animals shall be permitted within the Subdivision and shall be subject to any rules and regulations which may be promulgated by the Executive Board or Garfield County. No livestock, including horses, shall be permitted within the Subdivision. A Lot Owner shall be entitled to keep a maximum of one (1) dog on his property. For the purposes of this Article, the definition of "Dog" or "Dog(s)" shall not include dogs under the age of six (6) months. Dogs shall be kept under the control of the owner at all times and shall not be permitted to run free or to cause a nuisance in the Subdivision. No dog shall be allowed beyond the boundaries of the Lot owned by the persons where the dog is housed unless accompanied by a person in full control of such dog. Dogs shall be leashed, chained, fenced, "electric fenced," @PFDesktop\:MyComputer\l:\2004\Clients WidFirst-2-534\Documents\Restated Cpyenantsd6.wpd September 2, 2004 Li kenneled, or housed at all times. Location of kennels shall be subject to review of the Architectural Committee. The Homeowners Association shall have the right to assess and enforce penalties against Owners violating these restrictions applying to dogs as follows: One Hundred Dollars ($100.00) for the first violation committed by an Owner's dog, and One Hundred Dollars ($100.00) plus an additional Fifty Dollars ($50.00) for each subsequent violation, such that the fine increases in Fifty Dollar ($50.00) increments for each succeeding violation. If any dog commits four (4) violations or any dog is caught chasing or molesting deer, elk, or any domestic animals, the Homeowners Association shall be authorized to prohibit the property Owner from continuing to maintain the offending animal on the Owner's property. Areas where an Owner keeps any animals shall be kept reasonably clean and free of refuse, insects, and waste at all times. Notwithstanding the foregoing, no animal(s) may be kept within a Lot or a dwelling which, in the good -faith judgment of the Executive Board, result(s) in any annoyance to residents in the vicinity or to Lot Owners within the Subdivision. Except as expressly limited herein, domestic animals shall be permitted subject to any rules and regulations which may be promulgated by the Executive Board. 3. Underground Utility Lines. With respect to the new construction or extension of any utilities, all water, sewer, gas, electrical, telephone, cable television, and other utility pipes or lines within the limits of Four Mile Ranch shall be buried underground and not be carried on overhead poles or above the surface of the ground. Any areas of natural vegetation or terrain in Four Mile Ranch disturbed by the burying of utility lines shall be revegetated by and at the expense of the Owner or Owners causing the installation of the utilities no later than the next growing season following installation. 4. Mining, Drilling, or Quarrying. Mining, quarrying, tunneling, excavating, or drilling for any substance within the earth, including oil, gas, minerals, gravel, sand, rock, and earth, shall not be permitted within the limits of Four Mile Ranch. Individual wells shall not be permitted on any Lot, and no Owner shall be permitted to drill for water on his Lot, unless prior approval shall have been obtained from the Architectural Committee. 5. Trees. Each Owner shall be required to plant a minimum of three (3) trees on their respective Lots aCt YfdaitCc wAlt le Lan eapt-Plan dcvclopcdof a certain size and type and in an area designated by the Architectural Committee. No Owner shall remove any healthy, living trees without first having obtained the approval of the Architectural Committee. All construction, landscaping, and development on any Lot shall seek to minimize the removal of trees and to preserve the natural trees and vegetation to the greatest extent possible while bearing in mind wildfire considerations. Declarant and the Association shall retain the right to landscape the boundary of the Open Space Easement, as said easement is defined in Article IX below and as shown on the Final Plat, to minimize impacts on wildlife. This landscaping shall include native vegetative screening in and @PFDesktop\:MyComputer\l:\2004\Clients\MidFirst-2-534\Documents\itestated Cpvrnantsd6.wpd September 2, 2004 14 around wildlife foraging areas, the placement of a berm along the boundary of the Open Space Easement on Lots 37 through 40, and the planting of trees and shrubs thereon. 6. Shiny Materials. No building or improvements shall contain exterior roofs or siding materials which are reflective or shiny. 7. Hunting and Wildlife Control. Hunting shall be prohibited within the Subdivision. With the approval of the Association, and upon prior consultation with the Colorado Division of Wildlife, a Lot Owner may, consistent with the requirements of law, destroy or remove wildlife which constitutes a nuisance or which may die on their property. In the event bears become a nuisance with respect to trash containers kept on any Lot within the Subdivision, the Association will require Lot Owners to install bear -proof garbage containers. The Colorado Division of Wildlife is not responsible for the removal of bears and mountain lions just because they are spotted or seen in or near the Subdivision. 8. Addresses, Number, and Location of Buildings. No buildings shall be placed, erected, altered, or permitted to remain on any Lot except as approved by the Architectural Committee. All addresses shall be posted in conspicuous locations for ease of identification. 9. Completion of Construction. Any construction activity on any Lot in Four Mile Ranch shall be completed, fully cleaned up, and landscaped within eighteen (18) months from the issuance of a building permit, unless the Lot Owner shall first obtain a variance from the Architectural Committee to allow for a longer period of construction upon proof of due diligence. In the event a variance is not secured and eighteen (18) months from issuance of a building permit has passed, the Association may assess penalties in any amount it deems appropriate. Upon commencement of any construction on any Lot in Four Mile Ranch, the Lot Owner shall complete said construction with reasonable diligence. 10. Enclosure of Unsightly Facilities and Equipment. All unsightly structures, facilities, equipment, and other items, including but not limited to those specified below, shall be enclosed within a solid structure sufficient to screen such things from view from the common roads and neighboring homes to the greatest extent possible. Any motor home, trailer, boat, tractor, motorcycle, snow removal or garden equipment, and any similar item shall be kept at all times, except when in actual use, in an enclosed attached garage. Any refuse or trash containers, utility meters, propane tanks, fuel storage tanks, or other facilities, service area, or storage pile shall be enclosed within a structure or appropriately screened from view by planting or fencing approved by the Architectural Committee and adequate to conceal the same from neighbors, streets, and private roads. No lumber, metals, bulk materials, scrap, refuse, or trash shall be kept, stored, or allowed to accumulate on any Lot except building materials during the course of construction and only for such reasonable periods of time as are necessary prior to the collection of or disposal thereof. 11. Noxious or Offensive Activity or Sounds. No noxious or offensive activity or sounds shall be conducted or transmitted upon any portion of the Four Mile Ranch Subdivision at any time nor shall anything be done or permitted which may be or become a nuisance to other property or to the Owners thereof by sight or sound. @PFDesktop\:MyComputerT\2004\Clients\MidF rst-2-534\Doeumentsaestated Cpgenantsd6.wpd September 2, 2004 1 J 12. Common Areas and Open Space. All common areas and open space within the Subdivision shall be restricted to recreational, irrigation, and utility uses only, and shall not be used for residential purposes. The Association shall be responsible for the repair and maintenance of common areas and, except as specifically provided herein, shall require Owners of private open space to maintain such areas in a manner consistent with the nature and character of the Subdivision. In the event any Owner fails to adequately maintain the private open space appurtenant to the Owner's Lot, the Association shall maintain the open space and assess the Owner any charges or expenses associated therewith. 13. Adjacent Agricultural Uses. The historic agricultural uses of property adjacent to the Subdivision shall be deemed compatible with the rural residential character of the Subdivision. No Owner may object to the dust, odors or noise associated with normal agricultural uses of said adjacent property as noxious or offensive, and neither the Association, Garfield County, or any other municipality shall attempt to enjoin adjacent landowners from customary agricultural practices merely because an owner has registered a complaint. Garfield County has adopted a "Right to Farm" policy, (Garfield County Subdivision Regulations § 1.08) incorporated herein by this reference. The Four Mile Ranch Subdivision is subject to provisions of the Right to Farm policy. 14. Unauthorized Vehicles. No snowmobiles or all -terrain vehicles (ATVs) shall be operated within the Subdivision. No snowmobiles, boats, or inoperable motor vehicles shall be stored within the Subdivision unless stored within an . • : • • :. e • attached 2 -,arae. 15. Satellite Dishes. Satellite dishes shall be allowed within the Subdivision. Location and size of all satellite dishes shall be subject to Association approval, but in no event shall any satellite dish exceed three (3) feet in diameter. Any dish exceeding eighteen (18) inches in diameter shall be screened from view of any adjoining Lot or street within the Subdivision. 16. Commercial Activities. No commercial activities shall be permitted on any Lot in the Subdivision. The storage of materials, goods, equipment, and other items used or associated with commercial activities shall not be permitted on any Lot in the Subdivision; provided, however, personal vehicles with a business name placed thereon shall not be prohibited. If permitted by applicable zoning, Owners shall be permitted to maintain an office within their residences so long as it does not provide services to the public which result in the public going to and from such residence on a regular basis. @PFDesktop\:MyComputer\I:\2004\Clients\MidFirst-2-534\Documents\Restated Cp nantsd6.wpd September 2, 2004 1 17. Signs. Real estate sales and builders signs shall be limited to one sign per Lot, which sign shall be no larger than one (1) square foot. Real estate sales and builders signs shall be of a prescribed consistent design specified by the Architectural Committee. No real estate sign shall be located anywhere else within the Subdivision. This restriction shall not apply to the Declarant or to the initial sale of any Lot within the Subdivision. 18. General Restriction. All Lots in the Subdivision shall comply with restrictions contained in any other section of these Protective Covenants. ARTICLE VII WATER SUPPLY AND WATER RESTRICTIONS 1. Irrigation Water and Rights. A. Irrigation Rights. Declarant will convey to the Homeowners Association the following irrigation water rights: Four Mile Ditch water rights located on Four Mile Creek tributary to the Roaring Fork River, Water Division No. 5, State of Colorado, as follows: FOUR MILE DITCH Adjudication Date Appropriatio n Date Civil Action Grantor's Ownership Interest in cis. Total Amount of Decree Number 5/11/1889 12/29/1913 8/25/1936 10/24/1952 11/6/1881 12/7/1903 5/15/1919 6/1/1920 19 1475 3082 4033 +0.68 0.8 2.0 2.72 3-1.26 1.6 4.0 5.44 which rights shall be held by the Association for use pursuant to this Article VII.1. All water rights referred to in this paragraph shall be appurtenant to the Property and may not be conveyed or transferred separately therefrom. Each Lot Owner, including the Fire Station on Lot 40, shall have the right to access the raw water irrigation system at no charge. The Association may also irrigate any open space and common areas within the Subdivision with the Association's irrigation water pursuant to this Article VII.1. At the first annual meeting, and at every subsequent annual meeting thereafter, the Association shall designate an Association member who shall be the designated contact person concerning all irrigation issues within the Subdivision and with whom all other users, as well as the Colorado Division Engineer, may communicate. ®PFDesktop\:MyComputer\I:\2004\Clients\MidFirst-2-534\Documents\Restated Cpuenantsd6.wpd September 2, 2004 1 B. Irrigation System Maintenance. The Association and each and every Owner receiving an allocation of irrigation water pursuant to Paragraph A, above ("Irrigation Owners"), shall bear the cost of operation, maintenance, repair, and replacement of the irrigation system in accordance with their pro rata right of use as determined by the Homeowners Association. The Irrigation Owners shall consult with each other regarding operation, maintenance, repair, and replacement of the raw water irrigation system and, to the greatest extent possible, shall reach unanimous decisions regarding such costs; however, an agreement of a majority of the Irrigation Owners is sufficient to make decisions in this regard. In the event the Irrigation Owners fail to reach a majority decision regarding any issue related to operation, maintenance, repair, or replacement of the raw water irrigation system, the Association's Executive Board shall have the authority to make such decision that will be binding on all of the Irrigation Owners. Any improvement to the raw water irrigation system exceeding the amount of $-1,000.00 requires the prior approval of a majority of the Irrigation Owners. In an emergency situation, any of the Irrigation Owners may make a decision concerning the raw water irrigation system and act thereon, so long as the remaining Irrigation Owners are given notice of such action within a reasonable time. The Association shall keep an accurate account of the costs and expenses incurred in operation, maintenance, repair, and replacement of the system and, upon the completion of the work, shall deliver to each of the Irrigation Owners an itemized statement of such costs and expenses. The Irrigation Owners shall maintain the raw water irrigation system in good order and repair so far as can be accomplished by the exercise of reasonable care and diligence. The Irrigation Owners shall have the duty of maintaining all headgate structures, ditches, laterals, pipelines, and appurtenant structures (both within and outside of the Subdivision and those portions of the ditch and headgate structure outside of Subdivision) and keeping such in good working order throughout the year. The Association shall have the express obligation to operate, maintain, repair and replace those portions of the Four Mile Ditch located outside the Subdivision in conjunction with other owners of Four Mile Ditch water rights and Four Mile Ditch structures, including without limitation headgate structures. The Association shall cooperate with such other owners for this purpose and shall assume a pro rata share of such operation, maintenance, repair and replacement, including the costs and expenses thereof. All Owners within the Subdivision shall be prohibited from dumping, diverting, or in any way depositing any trash, wastewater, or other foreign substances into the ditch. All Owners, with the exception of the Irrigation Owners, shall be prohibited from accessing the raw water irrigation system and/or diverting water from the system at any time. @PFDesktop\:MyComputer\I:\2004\Clients\MidF rst-2-534\Documentsaestated Cpvgnantsd6.wpd September 2, 2004 1 a C. Special Assessments for Irrigation Water. Prior to each annual meeting of the Executive Board of the Homeowners Association, the Irrigation Owners and the Board, on behalf of the Subdivision open space and common area, will convene and discuss the costs involved in the operation, maintenance, repair, and replacement of the raw water irrigation system for the previous year. As special assessments may be levied from time to time in connection with the Subdivision irrigation water, the Association shall maintain records of such accounts, yet keep a separate accounting of any costs incurred in connection with routine operation, maintenance, repair, and replacement. All provisions of Article VII, below, shall be applicable to said assessments. D. Lien for Raw Water Irrigation Assessments. All Irrigation Owners shall promptly pay any and all assessments for costs of operation, maintenance, repair, and replacement of the raw water irrigation system in the proportions set forth above. In the event that such assessments are not paid promptly, the co-owners of the raw water irrigation system shall have a lien pursuant to C.R.S. §38-23-101 et seq., which may be enforced pursuant to said statute, and the Association shall have the right to turn off irrigation water to said Lot Owner's property. 2. Subdivision Water System. A. Potable Water Supply. Water will be provided to the frfty-eightfifty-seven (5$2) residential Lots planned for the Subdivision and the fire station located on Lot 40 from wells to serve the domestic needs of the proposed single-family subdivision, which wells shall be known as the Four Mile Wells. These wells have been certified by an engineer as a sufficient source by which to supply the Subdivision with an adequate quantity of water and shall be owned and maintained by the Association. Each Lot Owner shall have the right to access the potable water system at no charge. The Association shall have the power and authority to require each Lot Owner served by the subdivision wells, at their sole expense, to install a meter to measure all water used by that Lot and to curtail or restrict, as deemed necessary by the Association, water usage by a Lot Owner from the Four Mile Wells. The Association's authority to meter and curtail water usage in the Subdivision shall be utilized to ensure that the total diversions for the Subdivision from the Association's well(s) for in-house uses and lawn and garden irrigation not exceeding 2500 square feet per Lot do not exceed an average daily usage of 750 gallons per Lot. Said water supply is based on an approximation that there will be no more than fifty= eightfifty-seven (5$2) single-family homes within the Subdivision and the fire station located on Lot 40. The Association shall maintain and pay the costs of the West Divide Water Conservancy District Water Allotment Contract. B. Additional Connections. Declarant reserves the right to allow additional connections to the Subdivision's potable water supply so long as such connections do not interfere with service to the Property as determined by the Declarant. @PFDesktop\:MyComputer\I:\2004\Clients\MidFirst-2-534\Documents\Restated Cpl+gnantsd6.wpd September 2, 2004 1 y ARTICLE VIII COLLECTION OF ASSESSMENTS - ENFORCEMENT 1. Assessments. All Lot Owners shall be obligated to pay any assessments lawfully imposed by the Executive Board of the Association. To the extent the Association is responsible therefor, assessments may be lawfully imposed for any items of common expense which may include, among other things: expenses and costs of maintaining, repairing, and plowing of roads within and accessing the Subdivision; expenses for maintaining, improving, and preserving the Association's common property; expenses of the Architectural Committee; and insurance, accounting, and legal functions of the Association. Such assessments shall be deemed general assessments and shall be borne pro rata by all Owners. Assessments for water and water -related services shall be assessed separately based upon the allocation of such services by the Homeowners Association to the Owners. The Executive Board may establish contingency and reserve funds for the maintenance and improvement of the Association's common property and any other anticipated costs and expenses of the Association to be incurred in pursuit of its purpose. Contingency and reserve funds shall be in such an amount as the Executive Board may deem necessary and appropriate for the aforesaid purposes. Each Owner shall be required to pay his pro rata portion of these funds. As used herein, an Owner's pro rata portion of common expenses shall mean a fraction formed by the number of Lots purchased and held by the Lot Owner (numerator) and the number of Lots in the Subdivision (denominator). The Executive Board shall have the right during any calendar year to levy and assess against all of the Owners a special assessment for such purpose or purposes, in accordance with these Covenants, or the Articles or Bylaws of the Association, as may be necessary. Such special assessment shall be paid for in equal portions by the Owners obligated to pay such assessment and shall be due and payable as determined by the Executive Board. 2. Lien for Non -Payment of Assessments. All sums assessed by the Executive Board, including without limitation the share of common expense assessments chargeable to any Lot Owner, any fines which may be levied on a Lot Owner, and unpaid utility fees and assessments charged to a Lot Owner shall constitute a lien against such Lot superior (prior) to all other liens and encumbrances, excepting only: A. Tax and special assessment liens on the Lots in favor of any governmental assessing unit. B. All sums unpaid on a first mortgage of record, including any unpaid obligatory sums as may be provided by encumbrance. C. Each Owner hereby agrees that the Association's lien on a Lot for assessments has hereinabove described shall be superior to the Homestead Exemption provided by C.R. S. §38-41-201 et seq., and each Owner hereby agrees that the acceptance of the deed or other instrument of conveyance in regard to any Lot within Four Mile Ranch shall signify such grantee's waiver of the homestead right granted in said section of the Colorado statutes. @PFDesktop\:MyComputer\I:\2004\Clients\MidFirst-2-534\Documents\Restated Cpyenantsd6.wpd September 2, 2004 zu D. Any recorded lien for non-payment of the common expenses may be released by recording a release of lien executed by a member of the Executive Board. If any assessment shall remain unpaid after thirty (30) days after the due date thereof, such unpaid sums shall bear interest from and after the due date thereof at the maximum rate of interest permitted by law, or at such rate as is determined by the Executive Board, and the Executive Board may impose a late charge on such defaulting Owner as may be established by the Board. In addition, the Executive Board shall be entitled to collect reasonable attorneys' fees incurred in connection with any demands for payment and/or collection of delinquent assessments. To evidence such lien, the Executive Board shall prepare a written notice setting forth the amount of such unpaid indebtedness, the name of the Owner of the Lot, and its legal description. Such a notice shall be signed by one (1) member of the Executive Board and shall be recorded in the Office of the Clerk and Recorder of the County of Garfield, Colorado. Such lien may be enforced by foreclosure of the defaulting Owner's Lot by the Association in like manner as a mortgage on real property, upon the recording of a notice of claim thereof. In any such foreclosure, the Owner shall be required to pay the costs and expenses of such proceedings, the costs and expenses for filing the notice or claim of lien, and all reasonable attorneys' fees. The Owner shall also be required to pay to the Association any additional assessments against the Lot during the period of foreclosure, and the Association shall be entitled to the appointment of a receiver to collect the same. The Executive Board, for the Association, shall have the power to bid on the Lot at foreclosure sale and acquire and hold, lease, mortgage, and convey same. The Association, at its election, and in addition to any other remedies it may have at law or in equity, may also sue an Owner personally to collect any monies owed the Association. 3. Enforcement Actions. The Association, acting by and through its Executive Board, shall have the right to prosecute any action to enforce the provisions of all of these Covenants by injunctive relief, on behalf of itself and all or part of the Owners of the lands within Four Mile Ranch. In addition, each Owner of land within Four Mile Ranch, including the Association, shall have the right to prosecute any action for injunctive relief and for damages by reason of any violation of these Covenants. The prevailing party in any enforcement action shall be entitled to an award of its reasonable costs and attorneys' fees. The Executive Board shall be entitled to assess penalties for late payment of assessments due the Association and to collect interest thereon at rates to be determined from time to time by the Executive Board but not to exceed 1.5 percent per month. After thirty (30) days, upon written notice to any Owner of a violation of these Covenants, and the Owner's failure to eliminate or cure said violation, the Association may levy, in addition to the other remedies set forth herein, a penalty of $25.00 per day for every day the violation exists or continues after the expiration of said 30 -day period. 4. Limitations on Actions. In the event any construction or alteration or landscaping work is commenced upon any of the lands in Four Mile Ranch in violation of these Covenants and no action is commenced within one (1) year thereafter to restrain such violation, then injunctive or equitable relief shall be denied, but an action for damages shall still be available to any party aggrieved. This one-year limitation shall not apply to injunctive or equitable relief against other violations of these Covenants. ARTICLE IX n PFDesktop\:MyComputer\I:\2004\Clients\MidF rst-2-534\Documents\Restated C,Quenantsd6.wpd September 2, 2004 1 INSURANCE 1. Types of Insurance. The Association shall obtain and keep in full force and effect the following insurance coverage: A. The Executive Board, at its discretion, may elect to secure fidelity coverage against the dishonesty of employees, destruction or disappearance of money or securities, and forgery. This policy shall also cover persons who serve the Association without compensation. B. Coverage for members of the Board and officers of the Association, including committee members, against libel, slander, false arrest, invasion of privacy, errors and omissions, and other forms of liability generally covered in officers and directors liability policies. C. Coverage against such other risks of a similar or dissimilar nature as the Board deems appropriate. ARTICLE X GENERAL PROVISIONS 1. Covenants to Run. All of the covenants contained in this instrument shall be a burden on the title to all of the lands in Four Mile Ranch, and the benefits thereof shall inure to the Owners of the lands in Four Mile Ranch and the benefits, and burdens of all said covenants shall run with the title to all of the lands in Four Mile Ranch. 2. Termination of Covenants. In the event these Covenants have not been sooner lawfully terminated pursuant to any applicable laws of the State of Colorado and Garfield County, Colorado, and the provisions herein contained, these Covenants may be terminated on January 1 of the year 2036 by a vote of seventy-five percent (75%) of the votes entitled to be cast by the members of the Association. If these Covenants are not so terminated, then they shall continue to be in full force and effect for successive twenty-five (25) year periods unless, at the close of a 25 -year period, the Covenants are terminated by a vote of seventy- five percent (75%) of the votes entitled to be cast by the members of the Association at a meeting of the members duly held. In the event of any such termination by the members, a properly certified copy of the resolution of termination shall be placed on record in Garfield County, Colorado, not more than six (6) months after the meeting at which such vote is cast. 3. Amendment of Covenants. These Covenants may be amended by a vote of seventy-five percent (75%) of the votes entitled to be cast by the members of the Association, said vote to be cast at a meeting of the members duly held, provided a properly certified copy of the resolution of amendment be placed on record in Garfield County, Colorado, no more than six (6) months after said meeting. In addition, the prior written consent of Garfield County shall be required prior to amending these Covenants, which consent shall not be unreasonably withheld or delayed. In the event the Subdivision is annexed to the City of Glenwood Springs in accordance @PFDesktop\:MyComputer\I:\2004\Clients\MidFirst-2-534\Documents\Restated Cownantsd6.wpd L September 2, 2004 with the terms and conditions of the Pre -Annexation Agreement, the consent of Garfield County shall not be required to amend these Covenants. Rather, upon annexation of the Subdivision, in addition to the vote set forth hereinabove, the prior written consent of the City of Glenwood Springs shall be required to amend the Covenants. 4. Severability. Should any part or parts of these Covenants be declared invalid or unenforceable by any court of competent jurisdiction, such decision shall not affect the validity of the remaining covenants. 5. Paragraph Headings and Underlining. The paragraph headings and underlining within this instrument are for convenience only and shall not be construed to be a specific part of the covenants contained herein. 6. Limited Liability. The Association and the Board shall not be liable to any party for any action or for any failure to act with respect to any matter if the action taken or failure to act was in good faith and without malice. The Owners jointly and severally agree to indemnify the Association and the Board against loss resulting from such action or failure to act if the Association and the Board acted or failed to act in good faith and without malice. 7. County as Third -Party Beneficiary. Garfield County shall be a third -party beneficiary to this Declaration and may, at its option and in its sole discretion, enforce any provision in this Declaration, as amended, which affects County residents or property within the County. In no event shall the Count be re•uired to enforce the buildini desism or site location restrictions and requirements of the Architectural Committee, said enforcement res )onsibility to rest solely with the Architectural Committee. In the event the Subdivision is annexed to the City of Glenwood Springs, Garfield County shall cease to be a third party beneficiary to this Declaration and the City of Glenwood Springs shall be the third party beneficiary hereto with the right to enforce any provision contained herein. IN WITNESS WHEREOF, this Declaration of Protective Covenants for Four Mile Ranch has been executed as of the day and year first written above. DECLARANTS: T y I) 10 CSA 2, LLC, an Oklahoma limited liability company By Mid -First Bank. its sole Member. by R. Wayne Booth, Senior Vice President @PFDesktop\:MyComputer\l:\2004\Clients WidFirst-2-534\Documents\Restated Coyemantsd6.wpd September 2, 2004 LJ By cstci u. oiocny, vtaiy Blo.,k Oi i 11lIOW1ii @PFDesktop\:MyComputer\l:\2004\Clients\MidFirst-2-534\Documents\Restated �vnantsd6.wpd September 2, 2004 COUNTY O SS. low tcagca, suoscnDca, o beton e me gins aay oI , , bcha}f of The FAL Mile Rauch Develophient Company. WITNESS my hand and official seal. y L;bimins non expnes: Guy Han -ell. his attorney-in-fact STATE OF COLORADO ss. CSA 3..LLC, an. Oklahoma limited liability company Mid -First Bank, its sole Member, by R. Wayne Booth, Senior Vice President Guy Harrell, his attorney-in-fact COUNTY OF GARFIELD Acknowledged. subscribed, and sworn to before me this da of , 2004, by Guy Harrell attorney-in-fact for R. Wayne Booth Senior Vice President, Mid -First Bank, sole Member of CSA 2, LLC, an Oklahoma limited liability company. WITNESS my hand and official seal. My Commission. expires: Notary Public STATE OF COLORADO , ) ss. COUNTY OF GARFIELD @FFDesktop\:MyComputer\I:\2004\Clnems\MidFirst-2-534\Documents\Restated Cgyenantsd6.wpd September 2, 2004 L Acknowledged, subscribed., and sworn to before me this day of , 2004, by Guy Harrell, attorney-in-fact for R. Wayne Booth, Senior Vice President, Mid -First Bank, sole Member of CSA 3, LLC, an Oklahoma limited liability company. WITNESS my hand and official seal. My Commission expires: Notary Public @PFDesktop\:MyComputer\I:\2004\Clients\MidFirst-2-534\Documents\Restated Co nantsd6.wpd September 2, 2004 L RESTATED DECLARATION OF PROTECTIVE COVENANTS, CONDITIONS AND RESTRICTIONS FOR FOUR MILE RANCH SUBDIVISION This Restated Declaration of Protective Covenants, Conditions and Restrictions for Four Mile Ranch Subdivision ("Restated Covenants") made this day of 2004, by CSA 2, LLC, an Oklahoma limited liability company and CSA 3, LLC, an Oklahoma limited liability company (hereinafter collectively the "Declarant"), as owners in fee of certain real property situated within Garfield County, Colorado, known as Lots 1-39 and Lots 41-58 of the Four Mile Ranch Subdivision (hereinafter "Subdivision" or "Four Mile Ranch"), revokes and supercedes in its entirety the Declaration of Protective Covenants for Four Mile Ranch Subdivision, recorded July 30, 2000, as Reception No. 565739, as amended by First Amendment, recorded April 30, 2002, as Reception No. 602421, and Second Amendment, recorded February 6, 2003, as Reception No. 620288 (hereinafter collectively referred to as the "Revoked Covenants") in the Office of the Clerk and Recorder of Garfield County, Colorado. The Revoked Covenants shall be replaced by these Restated Covenants.' ARTICLE I GENERAL PURPOSE OF COVENANTS, SUBMISSION, DEFINED TERMS, DESCRIPTION 1. Purpose. These Covenants shall govern and be applicable to that certain real property situated within Garfield County, Colorado, known as Lots 1-39 and Lots 41-58 within the Four Mile Ranch Subdivision, as defined and described in the Final Plat (hereinafter "Final Plat") therefor recorded as Reception No. 565737 in the office of the Clerk and Recorder of Garfield County, Colorado, which Final Plat is incorporated herein by reference. It is the intention of Declarant, expressed by the execution of this instrument, that the lands within Four Mile Ranch be developed and maintained as a highly desirable scenic residential area. It is the purpose of these Covenants to preserve the present natural beauty and character of the property along with the views and setting of the Subdivision to the greatest extent reasonably possible, and the lots therein shall always be protected as much as possible with respect to uses, structures, landscaping, and general development as permitted by this instrument. 2. Property Submission. Declarant hereby submits the Four Mile Ranch Subdivision as now shown on the Final Plat together with all easements, rights-of-way, and appurtenances thereto and any buildings, fixtures, and improvements thereon (hereinafter "Property") to the provisions ofthe Colorado Common Interest Ownership Act, which is set forth at C.R.S. §38-33.3- 101 et seq. (hereinafter "Act") and to this Declaration. In the event the Act is repealed, the provision of the Act on the effective date of this Declaration shall remain applicable hereto. Declarant further declares that the Property shall be held, leased, mortgaged, sold, and conveyed subject to the following terms, easements, reservations, restrictions, covenants, and conditions. 1 Lot 40 within the Four Mile Ranch Subdivision is excluded from the terms and conditions of these Restated Covenants and these Restated Covenants are subject to the First Amendment of Declaration of Protective Covenants for Four Mile Ranch Subdivision recorded as Reception No. 602421 in the office of the Clerk and Recorder of Garfield County, Colorado. I:\2004\Clients\MidFirst-2-534\Documents\Restated Covenantsd6.wpd September 2, 2004 -1- Declarant further declares that this Declaration shall run with the land and shall be binding upon all parties having any right, title, or interest in the Property or any part thereof, their heirs, devisees, legal representatives, successors, and assigns and shall inure to the benefit of each and every Owner. 3. Pre -Annexation Agreement. On September 25, 1997, Declarant entered into a Pre - Annexation Agreement with the City of Glenwood Springs, which agreement is recorded as Reception No. 566034 in the Office of the Clerk and Recorder of Garfield County, Colorado (hereinafter "Pre -Annexation Agreement") which Pre -Annexation Agreement is incorporated herein by reference. The Pre -Annexation Agreement relates to the possible annexation of the Subdivision to the City of Glenwood Springs and sets forth the terms and conditions thereof. The Declarant, the Four Mile Ranch Homeowners Association and all persons or entities who own or acquire title in fee to any of the fifty-seven (57) single family lots in the Subdivision hereby acknowledge the provisions thereof and agree that in the event the Subdivision is annexed to the City of Glenwood Springs, each lot within the Subdivision shall be benefitted and burdened by the provisions of the Pre -Annexation Agreement. 4. Defined Terms. Each capitalized term not otherwise defined in this Declaration shall have the meaning specified or used in the Act. 5. Name of Common Interest Community. The name of the Common Interest Community is "Four Mile Ranch." 6. Type of Common Interest Community. The type of Common Interest Community is a planned community. 7. Association Name. The name of the Association is the "Four Mile Ranch Homeowners Association," a Colorado nonprofit corporation (hereinafter "Association"). 8. Property Location. The Property constituting the Common Interest Community is located within the County of Garfield, State of Colorado. 9. Property Description. The Property shall consist of fifty-seven (57) single-family lots (hereinafter "Lot" or "Lots") which are more particularly described on the Final Plat of the Four Mile Ranch Subdivision as Lots 1-39 and Lots 41-58. ARTICLE II OWNERS - HOMEOWNERS ASSOCIATION 1. Membership. All persons or other entities, including Declarant (hereinafter referred to as "Owners"), who own or acquire the title in fee to any of the Lots in Four Mile Ranch by whatever means acquired shall automatically become members of Four Mile Ranch Homeowners Association, a Colorado non-profit corporation, in accordance with the Articles of Incorporation of Four Mile Ranch Homeowners Association, as may be duly amended from time to time and which Articles and any amendments thereto shall be filed with the Colorado Secretary of State and recorded in the real estate records of the Garfield County, Colorado, Clerk and Recorder. The I:\2004\Clients\MidFirst-2-534\Documents\Restated Covenantsd6.wpd September 2, 2004 -2- Articles of Incorporation shall be filed no later than the date of conveyance of the first Lot in Four Mile Ranch. 2. Purpose. The Association, through its Executive Board, shall be authorized and empowered to take each and every step necessary or convenient for the implementation and enforcement of the Covenants contained in this Declaration. The Association shall have the right and responsibility to maintain, preserve, repair, insure, and otherwise protect and promote the interests of the Owners with respect to all common properties and interests of the Owners and the Association. The Association shall be governed by its Articles of Incorporation and Bylaws as may be amended from time to time. 3. Common Elements. The Association shall own, operate, and maintain all common elements within the Subdivision. These common elements shall include, among other things, the potable water system, the raw water irrigation system, the portion of the internal trail system not dedicated to Garfield County as shown on the Final Plat, the sewage lines located within the Subdivision until such time as the City of Glenwood Springs requests said lines be dedicated to it, the fitness equipment and landscape nodes located at stations along the internal trail system, any sidewalks within the Subdivision, and any landscaping undertaken by Declarant or the Association in accordance with Article VI, Paragraph 5 hereof. The roads and the Public Trail and Bike Path (located along the western property boundary) located within the Subdivision shall be dedicated to Garfield County but shall be maintained by the Association. Road "E," the emergency access easement as shown on the Final Plat, shall be maintained year round. 4. Limited Common Elements. The portion of each Lot which is burdened by the Open Space Easement, as described in Article III, paragraph 4, below, and as shown on the Final Plat for the Subdivision, shall be deemed a Limited Common Element as it is privately owned but reserved for the benefit of each Owner for the limited purposes of perpetuating open space and the rural character of the Subdivision and to access any and all Recreational Facilities located therein. This Limited Common Element shall be subject to any reserved rights of the Declarant or the Association as set forth herein. 5. Executive Board. The affairs of the Association shall be governed by an Executive Board consisting of three (3) members elected by the Owners. 6. Declarant Control. The Declarant shall have the reserved power, pursuant to the Act, to appoint and remove officers and members of the Executive Board. This period of Declarant control ("period of Declarant Control") terminates no later than the earlier of (a) sixty (60) days after conveyance of seventy-five percent (75%) of the Lots to Owners other than the Declarant or (b) two (2) years after the last conveyance of a Lot by the Declarant in the ordinary course of business to an Owner other than Declarant. During the period of Declarant Control, the Declarant's Control shall be subject to the following limitations: A. Not later than sixty (60) days after conveyance of twenty-five percent (25%) of the Lots that may be created to Owners other than the Declarant, at least one (1) member and not less than twenty-five percent (25%) of the members of the Executive Board must be elected by Owners other than the Declarant. I:\2004\Clients\MidFirst-2-534\Documents\Restated Covenantsd6. wpd September 2, 2004 -3- B. Not later than sixty (60) days after conveyance of fifty percent (50%) of the Lots that may be created to Owners other than the Declarant, not less than thirty-three and one-third percent (33 1/3%) of the members of the Executive Board must be elected by Owners other than the Declarant. C. The Declarant may voluntarily surrender the right to appoint and remove officers and members of the Executive Board before termination of the period of Declarant Control, but in the event the Declarant may require, for the duration of the period of Declarant Control, that specified actions of the Association or Executive Board, as described in a recorded instrument executed by the Declarant, be approved by the Declarant before they become effective. 7. Indemnification. To the full extent permitted by law, each officer and director of the Association shall be and is hereby indemnified by the Owners and the Association against all expenses and liabilities, including attorneys' fees, reasonably incurred by or imposed upon them in any proceeding to which they may be a party, or in which they may become involved, by reason of being or having been an officer or director of the Association, or any settlements thereof, whether or not they are an officer or director of the Association at the time such expenses are incurred; except in such cases wherein such officer or director is adjudicated guilty of wilful misfeasance or malfeasance in the performance of his or her duties; provided that in the event of a settlement the indemnification shall apply only when the Executive Board approves such settlement and reimbursement as being in the best interests of the Association. 8. Notice to Owners. Notice to an Owner of matters affecting Four Mile Ranch by the Association or by another Owner shall be sufficiently given if such notice is in writing and is delivered personally, by courier, or private service delivery or on the third business day after deposit in the mails for registered or certified mail, return receipt requested, at the address of record for real property tax assessment notices with respect to that Owner's Lot. ARTICLE III EASEMENTS AND LICENSES 1. Unit Owners' Easements. Every Owner shall have a right of enjoyment and easement for access to their Lot through or over the Common Elements, and such easement shall be appurtenant to and shall pass with the title to every Lot, subject to the following provisions: A. The right of the Association to promulgate and publish rules and regulations with which each Owner and their guests shall strictly comply. B. The right of the Association to suspend the voting rights and rights to use the Common Elements by any Owner for any period during which any assessment against their Lot remains unpaid and for a period not to exceed sixty (60) days for any infraction of its rules and regulations. C. The right of the Association to grant easements, leases, licenses, and concessions through or over the Common Elements. I:\2004\Clients\MidFirst-2-534\Documents\Restated Covenantsd6.wpd September 2, 2004 -4- D. The right of the Association to convey or subject a Common Element to a Security Interest in accordance with and to the extent permitted by the Act. E. The right of the Association to close or limit the use of the Common Elements while maintaining, repairing, or replacing such Common Elements. F. Any Owner may delegate their right of enjoyment to the Common Elements and facilities to the members of their family, their tenants, or guests who reside on or rent their Lot. 2. Easements Shown on Final Plat. The Association is entitled to use such easements as are reflected on the Final Plat for the Subdivision. Except by agreement with a property Owner, the Association shall have no obligation to pay any amount for the use and enjoyment of such easement. The Association shall pay for the cost of maintaining and repairing any improvements which it places on any easements. 3. Easements for Access and Repairs. The Association shall be entitled to an easement across any of the Lots within the Subdivision, including the Open Space Easements located thereon, for the purposes of accessing any of the Association's property, protecting any Association property, or for necessary repairs or emergency circumstances. The Association may access all Lots within the Subdivision at reasonable times to determine compliance with the conditions of approvals of the Subdivision granted by the Garfield County Commissioners and to determine and enforce compliance with all of the provisions of these Covenants. 4. Open Space Easement. Each Lot within the Subdivision shall be burdened by an easement designed to perpetuate open space and the rural character of the Subdivision ("Open Space Easement"). Each and every Lot Owner is hereby granted an easement for the access, use, and enjoyment of any and all Recreational Facilities located in the Open Space Easement as more specifically identified and shown on the Final Plat for the Subdivision. Lot Owners may not place or construct any structures or fences within the Open Space Easement portion of their Lot. Except as otherwise approved by the Architectural Committee, Lot Owners shall be required to maintain the Open Space Easement portion of their Lot in a manner consistent with the historic use of each Lot. The Declarant and/or the Association shall have the right to construct recirculation ponds, lakes, and underground utility lines within the Open Space Easement. A. Driveways. Any Lot Owner within the Subdivision whose Lot contains an Open Space Easement contiguous to an internal access road shall have the right to construct a driveway across the Open Space Easement. The location and specifications of any such driveway must also be approved by the Architectural Committee prior to the commencement of construction thereof. B. Recreational Facilities. The Association shall have the right to construct recreational facilities, including but not limited to a fitness course, landscape nodes, and an internal trail system, on or across the Open Space Easement and, except as specifically provided herein, shall thereafter be responsible for the repair and maintenance of such facilities. I:\2004\Clients\MidFfirst-2-534\Documents\Restated Covenantsd6.wpd September 2, 2004 -5- 5. Homeowners Association Easement. The Homeowners Association easement, as shown on the Final Plat, is hereby granted to the Association for the purposes of accessing and maintaining certain potable water and raw water irrigation facilities, including the irrigation ponds, ditches, water storage tank and related treatment facilities, potable water wells, and pump house. The Irrigation Easement, as shown on the Final Plat, is included within the Homeowners Association easement. All improvements located within the Homeowners Association easement shall be deemed common elements as defined in Article II, Paragraph 3, above. ARTICLE IV USE RESTRICTIONS 1. Permitted Uses. Only one (1) single-family dwelling, together with structures appurtenant thereto, shall be constructed on any Lot in Four Mile Ranch 2. Duplexes/Multi-Family Structures. Duplexes and multi -family structures are strictly prohibited in Four Mile Ranch. 3. Outbuildings. Outbuildings shall not be allowed 4. Modular/Mobile Homes. No modular, mobile, or manufactured homes shall be constructed or placed within the Subdivision. This prohibition shall not apply to construction trailers which shall be permitted for eighteen (18) months from the date of commencement of construction, or until the issuance of a certificate of occupancy, whichever first occurs; provided, however, construction trailers may only be used for construction, office, and storage purposes and shall not be occupied as a residence for any period of time. All other trailer homes or temporary structures of any kind shall be prohibited. ARTICLE V ARCHITECTURAL COMMITTEE 1. Architectural Committee. The Architectural Committee shall be composed of between three (3) and five (5) persons. Prior to Declarant's sale of eighteen (18) Lots in the Subdivision, Declarant may appoint the members of the Architectural Committee which may include officers, directors, or shareholders of Declarant, in Declarant's sole discretion, and the Executive Board of the Homeowners Association shall have no authority to remove any member so appointed. Upon the sale of the last Lot in the Subdivision, or at an earlier time as determined by Declarant, the members of the Architectural Committee shall be appointed by the Executive Board of the Association. The persons serving on the Architectural Committee shall serve at the pleasure of the Executive Board who may remove a member of the Architectural Committee, except a member appointed by Declarant, and appoint a new member at any time, provided there shall at all times be at least three (3) persons serving on the Architectural Committee. The members of the Architectural Committee may also be directors of the Association and need not be Owners. The Architectural Committee shall have and exercise all the powers, duties, and responsibilities set out in this instrument. I:\2004\Clients\MidFirst-2-534\Documents\Restated Covenantsd6.wpd September 2, 2004 -6- 2. Approval by Architectural Committee No improvements of any kind, including but not limited to dwelling units, garages, accessory buildings, swimming pools, ponds, parking areas, fences, walls, driveways, landscaping, antennae, satellite dishes, and walks shall be constructed, erected, altered, or permitted to remain within Four Mile Ranch, nor shall any excavating, tree cutting, and clearing or landscaping be done within Four Mile Ranch, unless the complete architectural plans and specifications, and a site plan showing the location and orientation thereof, for such erection or alteration and landscaping are approved by the Architectural Committee prior to the commencement of such work, except as Declarant may be specifically permitted to do by these Covenants or required to do by any subdivision improvements agreement between the Declarant and Garfield County. Revegetation of all infills and cuts will be required. Plans addressing the revegetation of infills and cuts will be submitted to the Architectural Committee prior to any excavation. At least three (3) complete sets of the architectural and site development plans and specifications shall be submitted to the Architectural Committee along with a complete list of all exterior materials and colors to be used. All copies of the complete plans and specifications shall be signed and dated for identification by the Owner or the Owner's architect. The Architectural Committee shall have the right to request whatever additional specification information, plans, reports, and the like it deems necessary to evaluate the development proposal throughout the approval and construction process. In addition, the Architectural Committee may adopt rules and regulations which shall specify the information, reports, plans, specifications, and the like required to be submitted to the Architectural Committee. In the event the Architectural Committee fails to take any action within forty-five (45) days after three (3) copies of the complete architectural and site development plans, specifications, materials, and colors have been submitted to it and the submittal has been certified in writing by the Architectural Committee as complete, then all of such submitted architectural plans shall be deemed to be approved. The Architectural Committee shall not unreasonably disapprove the architectural plans. The majority vote of the members of the Architectural Committee shall be required for approval of plans. In the event the Architectural Committee shall disapprove any architectural plans, the person or entity submitting such architectural plans may appeal the matter to the next annual or special meeting of the members of the Four Mile Ranch Homeowners Association where a vote of seventy-five percent (75%) of the members' votes entitled to be cast at said members' meetings shall be required to change the decision of the Architectural Committee. 3. Improvements - Site Location. Pre -approved building envelopes for the primary dwelling structures for each Lot shall be on the Final Plat. Site review by the Architectural Committee for the primary dwelling structure is required. Site locations are subject to Article V.6.C. herein. 4. Building Permits. An Owner may apply for a building pe it from the Garfield County Building Department at any time; provided, however, the plans the Building Department shall not differ in any substantial way from, or be less restrictive than, the plans approved by the Architectural Committee. If the plans approved by the Building Department differ in any substantial way, or are less restrictive, as determined by the Architectural Committee, then all approvals of the Architectural Committee shall be deemed automatically revoked. Owners must comply with all Garfield County zoning and subdivision regulations relating to off-street parking. I:\2004\ClTents\MidFirst-2-534\Documents\Restated Covenantsd6.wpd September 2, 2004 -7- 5. Variances. The Architectural Committee may, by an affirmative vote of a majority of the members of the Architectural Committee, allow reasonable variances as to any of the covenants and restrictions governing architectural control contained in this instrument and/or policies or rules promulgated by the Architectural Committee, on such terms and conditions as it shall require. No variance shall be granted which contravenes any provisions of these Covenants required by an approval obtained by Declarant from Garfield County for Four Mile Ranch or which violates the Garfield County Land Use and Building Codes. No variance shall be granted without written notice of the request for such variance provided ten (10) days prior to the hearing for said variance to all Lot Owners within the Subdivision. Notice to such Lot Owners shall be deemed complete when placed in the United States Mail, first-class postage prepaid, to the last known address for each Lot Owner as provided to the Association. 6. General Requirements. The Architectural Committee shall exercise its best judgment to see that all improvements, construction, landscaping, and alterations within Four Mile Ranch harmonize to the greatest extent possible with the surroundings and with other structures as to design, materials, color, height, grade, finished ground elevation of neighboring lots, and other design features. The Architectural Committee shall strive to protect the seclusion and view of each Lot insofar as possible (taking into account final buildout of all Lots in the Subdivision) in the development of Four Mile Ranch pursuant to these Covenants and shall endeavor to protect and preserve the visual character of the property and preserve and maintain any trees in Four Mile Ranch. A. Soils and Foundation Report, and Grading and Drainage Plan. Prior to the issuance of a building permit by Garfield County, a Lot Owner shall cause to be prepared and submit to Garfield County and the Architectural Committee a soils and foundation report and a grading and drainage plan prepared by a professional engineer. All improvements and structures shall be constructed in accordance with the recommendations and conditions of such report and plan which are included by Garfield County as conditions of the building permit or are made requirements or conditions of the approval of the Architectural Committee. B. Materials and Landscaping. In its review of any proposed development activity, the Architectural Committee shall evaluate, among other things, the materials to be used on the outside of buildings or structures, including exterior colors, location with respect to topography and finished grade elevations, and harmony of landscaping with the natural setting and native trees and other vegetation within Four Mile Ranch. The Committee shall encourage "xeriscape" landscaping which emphasizes the use of indigenous foliage and decreased water consumption. The Committee shall encourage that vegetable and other seasonal gardens be located so as not to interfere with the views of neighboring property owners. C. Site Location. In reviewing the proposed location of any structure to be placed or built on any Lot, the Architectural Committee shall exercise its judgment so as to maximize the view plane of each Lot while preserving to the greatest extent possible the natural characteristics of each Lot and all natural vegetation, including trees and bushes and the natural setting of each building site. Except as set forth I:\2004\Clients\MidFirst-2-534\Documents\Restated Covenantsd6.wpd September 2, 2004 -8- in Paragraph 3, above, the Architectural Committee must approve the location of all structures and improvements to be located on each Lot. No above grade structures whatsoever shall be approved for placement within fifty (50) feet of the ridgeline, shown as a setback line on the Final Plat on Lots 15 through 25 of the Subdivision. D. Fencing. The Architectural Committee must approve all fencing prior to installation. The type and location of all fencing must be approved by the Architectural Committee. One basis for consideration by the Architectural Committee of fencing will be how it affects the movement of wildlife throughout the Subdivision. Fencing shall be constructed to Colorado Division of Wildlife specifications, shall be of a round rail variety, shall not exceed forty-eight (48) inches in height, shall not have more than three (3) horizontal poles, the bottom pole of which shall be at least eighteen (18) inches off the ground, and no two poles shall be less than eighteen (18) inches apart. The Colorado Division of Wildlife shall not be liable to any Owner for any damage to gardens, flowers, shrubs, trees, or any other greenery caused by the actions of any wild animal. E. Wildfire. The Four Mile Ranch Architectural Committee shall follow the recommendations of the Colorado State Forester wildfire prevention guidelines, specified by the pamphlet "Wildfire Protection in the Wildland Urban Interface" prepared by the Colorado State Forest Service (CSFS #143-691) attached hereto as Exhibit A, in granting approvals for construction of residences and other structures submitted to it for approval. The Architectural Committee shall, incorporate the guidelines set forth in that pamphlet into the plans approved for Lots in the Subdivision to protect the Subdivision, and all of the buildings constructed therein, from the danger of wildfire. The Architectural Committee will consider the guidelines in the most current wildfire publication by the Colorado State Forest Service. No shake or "treated" shake roofs will be allowed in the Subdivision. Metal roofs or other fire resistant roofs will be required. F. Water. The Homeowners Association will provide domestic water from a common distribution system to all residences constructed within the Subdivision. The Homeowners Association will have the power to own, operate, maintain, and repair the potable water system that will serve the Subdivision. The Homeowners Association will also have the power to levy assessments on each Lot to cover the costs of such system. Additionally, the Homeowners Association shall allocate specific quantities of irrigation water to the open spaces and to specific Lots in the Subdivision and shall allocate irrigation costs accordingly. The potable water supply and raw water irrigation rights and restrictions are more specifically discussed in Article VI, below. G. Lighting. The Architectural Committee shall consider exterior lighting plans and will require that all exterior lighting (with possible exceptions for lighting I:\2004\Clients\MidFirst-2-534\Documents\Restated Covenantsd6.wpd September 2, 2004 -9- necessary for safety) be directed towards each applicant's property and consist solely of down lighting. It will also require that all Lot Owners make every effort possible to limit the use of exterior lighting at night. It shall require Owners to build in such a fashion that all light sources not be directly visible from outside of the Owner's property. The intent behind these considerations is to preserve the rural character of the Subdivision by limiting exterior lighting as much as possible while maintaining a safe atmosphere. 7. Preliminary Approvals. Lot Owners who anticipate constructing improvements on lands within Four Mile Ranch may submit preliminary sketches of such improvements to the Architectural Committee for informal and preliminary approval or disapproval. All preliminary sketches should be submitted in at least three (3) sets and should contain sufficient general information on those matters required to be in the complete architectural and site development plans and specifications to allow the Architectural Committee to grant an informed preliminary approval or disapproval. The Architectural Committee shall never be finally committed or bound by any preliminary or informal approval or disapproval until such time as complete architectural and site development plans, specifications, materials, and colors are submitted and approved or disapproved. The preliminary approval is offered as an accommodation only, and the Architectural Committee may set fees for this service. 8. Architectural and Site Development Plans. The Architectural Committee shall disapprove any architectural and site development plans submitted to it which do not contain sufficient information for it to exercise the judgment required of it by these Covenants. 9. Architectural Committee Not Liable. The Architectural Committee shall not be liable for damages to any person or entity submitting any plans for approval, or to any Owner or Owners of land within Four Mile Ranch, by reason of any action, failure to act, approval, disapproval, or failure to approve or disapprove with regard to such plans. The Architectural Committee shall have no liability or responsibility for any representations made to any Owner or prospective Owner by any third parties. The decisions of the Architectural Committee shall be governed by these Covenants and any rules or regulations duly adopted by the Architectural Committee pursuant to these Covenants. 10. Written Records. The Architectural Committee shall keep and safeguard for at least five (5) years complete permanent written records of all approved applications, including one (1) set of the final approved architectural and site development plans, and of all actions of approval or disapproval and all other formal actions taken by it under the provisions of this instrument. 11. Authority to Promulgate Design Guidelines, Rules and Regulations. The Architectural Committee may promulgate and adopt design guidelines and rules and regulations necessary to implement these Covenants. The design guidelines may include requirements relating to acceptable building materials, architectural styles, allowable colors for home exteriors, and the like. The rules and regulations may include submission requirements concerning the type of information, reports, plans and specifications, and other information necessary to make an informed decision regarding requests for development, modifications to buildings, and the like. I:\2004\Clients\MidFirst-2-534\Documents\Restated Covenantsd6.wpd September 2, 2004 -10- ARTICLE VI PROPERTY USE RESTRICTIONS AND PROTECTIVE COVENANTS 1. No Further Subdivision. No Lot described on the recorded Final Plat of Four Mile Ranch Subdivision shall ever be further subdivided into smaller Lots or conveyed or encumbered in less than the full dimensions as shown on the recorded Final Plat of Four Mile Ranch; provided, however, conveyances or dedications of easements for utilities if approved by the Architectural Committee may be made for less than all of one (1) Lot. Notwithstanding the foregoing, a Lot line adjustment between two (2) Lots in Four Mile Ranch shall be deemed a permitted subdivision, subject, however, to any reviews or approvals that may be required by the Garfield County Land Use Code and to the prior approval of the Architectural Committee. 2. Domestic Animals and Livestock. Except as expressly limited herein, domestic animals shall be permitted within the Subdivision and shall be subject to any rules and regulations which may be promulgated by the Executive Board or Garfield County. No livestock, including horses, shall be permitted within the Subdivision. A Lot Owner shall be entitled to keep a maximum of one (1) dog on his property. For the purposes of this Article, the definition of "Dog" or "Dog(s)" shall not include dogs under the age of six (6) months. Dogs shall be kept under the control of the owner at all times and shall not be permitted to run free or to cause a nuisance in the Subdivision. No dog shall be allowed beyond the boundaries of the Lot owned by the persons where the dog is housed unless accompanied by a person in full control of such dog. Dogs shall be leashed, chained, fenced, "electric fenced," kenneled, or housed at all times. Location of kennels shall be subject to review of the Architectural Committee. The Homeowners Association shall have the right to assess and enforce penalties against Owners violating these restrictions applying to dogs as follows: One Hundred Dollars ($100.00) for the first violation committed by an Owner's dog, and One Hundred Dollars ($100.00) plus an additional Fifty Dollars ($50.00) for each subsequent violation, such that the fine increases in Fifty Dollar ($50.00) increments for each succeeding violation. If any dog commits four (4) violations or any dog is caught chasing or molesting deer, elk, or any domestic animals, the Homeowners Association shall be authorized to prohibit the property Owner from continuing to maintain the offending animal on the Owner's property. Areas where an Owner keeps any animals shall be kept reasonably clean and free of refuse, insects, and waste at all times. Notwithstanding the foregoing, no animal(s) may be kept within a Lot or a dwelling which, in the good -faith judgment of the Executive Board, result(s) in any annoyance to residents in the vicinity or to Lot Owners within the Subdivision. Except as expressly limited herein, domestic animals shall be permitted subject to any rules and regulations which may be promulgated by the Executive Board. 3. Underground Utility Lines. With respect to the new construction or extension of any utilities, all water, sewer, gas, electrical, telephone, cable television, and other utility pipes or I:\2004\Clients\MidFirst-2-534\Documents\Restated Covenantsd6. wpd September 2, 2004 -11- lines within the limits of Four Mile Ranch shall be buried underground and not be carried on overhead poles or above the surface of the ground. Any areas of natural vegetation or terrain in Four Mile Ranch disturbed by the burying of utility lines shall be revegetated by and at the expense of the Owner or Owners causing the installation of the utilities no later than the next growing season following installation. 4. Mining, Drilling, or Quarrying. Mining, quarrying, tunneling, excavating, or drilling for any substance within the earth, including oil, gas, minerals, gravel, sand, rock, and earth, shall not be permitted within the limits of Four Mile Ranch. Individual wells shall not be permitted on any Lot, and no Owner shall be permitted to drill for water on his Lot, unless prior approval shall have been obtained from the Architectural Committee. 5. Trees. Each Owner shall be required to plant a minimum of three (3) trees on their respective Lots of a certain size and type and in an area designated by the Architectural Committee. No Owner shall remove any healthy, living trees without first having obtained the approval of the Architectural Committee. All construction, landscaping, and development on any Lot shall seek to minimize the removal of trees and to preserve the natural trees and vegetation to the greatest extent possible while bearing in mind wildfire considerations. Declarant and the Association shall retain the right to landscape the boundary of the Open Space Easement, as said easement is defined in Article IX below and as shown on the Final Plat, to minimize impacts on wildlife. This landscaping shall include native vegetative screening in and around wildlife foraging areas, the placement of a berm along the boundary of the Open Space Easement on Lots 37 through 40, and the planting of trees and shrubs thereon. 6. Shiny Materials. No building or improvements shall contain exterior roofs or siding materials which are reflective or shiny. 7. Hunting and Wildlife Control. Hunting shall be prohibited within the Subdivision. With the approval of the Association, and upon prior consultation with the Colorado Division of Wildlife, a Lot Owner may, consistent with the requirements of law, destroy or remove wildlife which constitutes a nuisance or which may die on their property. In the event bears become a nuisance with respect to trash containers kept on any Lot within the Subdivision, the Association will require Lot Owners to install bear -proof garbage containers. The Colorado Division of Wildlife is not responsible for the removal of bears and mountain lions just because they are spotted or seen in or near the Subdivision. 8. Addresses, Number, and Location of Buildings. No buildings shall be placed, erected, altered, or permitted to remain on any Lot except as approved by the Architectural Committee. All addresses shall be posted in conspicuous locations for ease of identification. 9. Completion of Construction. Any construction activity on any Lot in Four Mile Ranch shall be completed, fully cleaned up, and landscaped within eighteen (18) months from the issuance of a building permit, unless the Lot Owner shall first obtain a variance from the Architectural Committee to allow for a longer period of construction upon proof of due diligence. In the event a variance is not secured and eighteen (18) months from issuance of a building permit has passed, the Association may assess penalties in any amount it deems appropriate. Upon I:\2004\Clients\MidFirst-2-534\Documents\Restated Covenantsd6.wpd September 2, 2004 -12- commencement of any construction on any Lot in Four Mile Ranch, the Lot Owner shall complete said construction with reasonable diligence. 10. Enclosure of Unsightly Facilities and Equipment. All unsightly structures, facilities, equipment, and other items, including but not limited to those specified below, shall be enclosed within a solid structure sufficient to screen such things from view from the common roads and neighboring homes to the greatest extent possible. Any motor home, trailer, boat, tractor, motorcycle, snow removal or garden equipment, and any similar item shall be kept at all times, except when in actual use, in an enclosed attached garage. Any refuse or trash containers, utility meters, propane tanks, fuel storage tanks, or other facilities, service area, or storage pile shall be enclosed within a structure or appropriately screened from view by planting or fencing approved by the Architectural Committee and adequate to conceal the same from neighbors, streets, and private roads. No lumber, metals, bulk materials, scrap, refuse, or trash shall be kept, stored, or allowed to accumulate on any Lot except building materials during the course of construction and only for such reasonable periods of time as are necessary prior to the collection of or disposal thereof. 11. Noxious or Offensive Activity or Sounds. No noxious or offensive activity or sounds shall be conducted or transmitted upon any portion of the Four Mile Ranch Subdivision at any time nor shall anything be done or permitted which may be or become a nuisance to other property or to the Owners thereof by sight or sound. 12. Common Areas and Open Space. All common areas and open space within the Subdivision shall be restricted to recreational, irrigation, and utility uses only, and shall not be used for residential purposes. The Association shall be responsible for the repair and maintenance of common areas and, except as specifically provided herein, shall require Owners of private open space to maintain such areas in a manner consistent with the nature and character of the Subdivision. In the event any Owner fails to adequately maintain the private open space appurtenant to the Owner's Lot, the Association shall maintain the open space and assess the Owner any charges or expenses associated therewith. 13. Adjacent Agricultural Uses. The historic agricultural uses of property adjacent to the Subdivision shall be deemed compatible with the rural residential character of the Subdivision. No Owner may object to the dust, odors or noise associated with normal agricultural uses of said adjacent property as noxious or offensive, and neither the Association, Garfield County, or any other municipality shall attempt to enjoin adjacent landowners from customary agricultural practices merely because an owner has registered a complaint. Garfield County has adopted a "Right to Farm" policy, (Garfield County Subdivision Regulations § 1.08) incorporated herein by this reference. The Four Mile Ranch Subdivision is subject to provisions of the Right to Farm policy. 14. Unauthorized Vehicles. No snowmobiles or all -terrain vehicles (ATVs) shall be operated within the Subdivision. No snowmobiles, boats, or inoperable motor vehicles shall be stored within the Subdivision unless stored within an attached garage. I:\2004\Clients\MidFirst-2-534\Documents\Restated Covenantsd6.wpd September 2, 2004 -13- 15. Satellite Dishes. Satellite dishes shall be allowed within the Subdivision. Location and size of all satellite dishes shall be subject to Association approval, but in no event shall any satellite dish exceed three (3) feet in diameter. Any dish exceeding eighteen (18) inches in diameter shall be screened from view of any adjoining Lot or street within the Subdivision. 16. Commercial Activities. No commercial activities shall be permitted on any Lot in the Subdivision. The storage of materials, goods, equipment, and other items used or associated with commercial activities shall not be permitted on any Lot in the Subdivision; provided, however, personal vehicles with a business name placed thereon shall not be prohibited. If permitted by applicable zoning, Owners shall be permitted to maintain an office within their residences so long as it does not provide services to the public which result in the public going to and from such residence on a regular basis. 17. Signs. Real estate sales and builders signs shall be limited to one sign per Lot, which sign shall be no larger than one (1) square foot. Real estate sales and builders signs shall be of a prescribed consistent design specified by the Architectural Committee. No real estate sign shall be located anywhere else within the Subdivision. This restriction shall not apply to the Declarant or to the initial sale of any Lot within the Subdivision. 18. General Restriction. All Lots in the Subdivision shall comply with restrictions contained in any other section of these Protective Covenants. ARTICLE VII WATER SUPPLY AND WATER RESTRICTIONS 1. Irrigation Water and Rights. A. Irrigation Rights. Declarant will convey to the Homeowners Association the following irrigation water rights: Four Mile Ditch water rights located on Four Mile Creek tributary to the Roaring Fork River, Water Division No. 5, State of Colorado, as follows: FOUR MILE DITCH Adjudication Date Appropriatio n Date Civil Action Grantor's Ownership Interest in c.fs. Total Amount of Decree Number 5/11/1889 12/29/1913 8/25/1936 10/24/1952 11/6/1881 12/7/1903 5/15/1919 6/1/1920 19 1475 3082 4033 0.8 0.8 2.0 2.72 1.6 1.6 4.0 5.44 I:\2004\Clients\MidFirst-2-534\Documents\Restated Covenantsd6.wpd September 2, 2004 -14- which rights shall be held by the Association for use pursuant to this Article VII.1. All water rights referred to in this paragraph shall be appurtenant to the Property and may not be conveyed or transferred separately therefrom. Each Lot Owner, including the Fire Station on Lot 40, shall have the right to access the raw water irrigation system at no charge. The Association may also irrigate any open space and common areas within the Subdivision with the Association's irrigation water pursuant to this Article VII.1. At the first annual meeting, and at every subsequent annual meeting thereafter, the Association shall designate an Association member who shall be the designated contact person concerning all irrigation issues within the Subdivision and with whom all other users, as well as the Colorado Division Engineer, may communicate. B. Irrigation System Maintenance. The Association and each and every Owner receiving an allocation of irrigation water pursuant to Paragraph A, above ("Irrigation Owners"), shall bear the cost of operation, maintenance, repair, and replacement of the irrigation system in accordance with their pro rata right of use as determined by the Homeowners Association. The Irrigation Owners shall consult with each other regarding operation, maintenance, repair, and replacement of the raw water irrigation system and, to the greatest extent possible, shall reach unanimous decisions regarding such costs; however, an agreement of a majority of the Irrigation Owners is sufficient to make decisions in this regard. In the event the Irrigation Owners fail to reach a majority decision regarding any issue related to operation, maintenance, repair, or replacement of the raw water irrigation system, the Association's Executive Board shall have the authority to make such decision that will be binding on all of the Irrigation Owners. Any improvement to the raw water irrigation system exceeding the amount of $5,000.00 requires the prior approval of a majority of the Irrigation Owners. In an emergency situation, any of the Irrigation Owners may make a decision concerning the raw water irrigation system and act thereon, so long as the remaining Irrigation Owners are given notice of such action within a reasonable time. The Association shall keep an accurate account of the costs and expenses incurred in operation, maintenance, repair, and replacement of the system and, upon the completion of the work, shall deliver to each of the Irrigation Owners an itemized statement of such costs and expenses. The Irrigation Owners shall maintain the raw water irrigation system in good order and repair so far as can be accomplished by the exercise of reasonable care and diligence. The Irrigation Owners shall have the duty of maintaining all headgate structures, ditches, laterals, pipelines, and appurtenant structures (both within and outside of the Subdivision and those portions of the ditch and headgate structure outside of Subdivision) and keeping such in good working order throughout the year. The Association shall have the express obligation to operate, maintain, repair and replace those portions of the Four Mile Ditch located outside the Subdivision in conjunction with other owners of Four Mile Ditch water rights and Four Mile Ditch structures, including without limitation headgate structures. The Association I:\2004\Clients\MidFirst-2-534\Documents\Restated Covenantsd6.wpd September 2, 2004 -15- shall cooperate with such other owners for this purpose and shall assume a pro rata share of such operation, maintenance, repair and replacement, including the costs and expenses thereof. All Owners within the Subdivision shall be prohibited from dumping, diverting, or in any way depositing any trash, wastewater, or other foreign substances into the ditch. All Owners, with the exception of the Irrigation Owners, shall be prohibited from accessing the raw water irrigation system and/or diverting water from the system at any time. C. Special Assessments for Irrigation Water. Prior to each annual meeting of the Executive Board of the Homeowners Association, the Irrigation Owners and the Board, on behalf of the Subdivision open space and common area, will convene and discuss the costs involved in the operation, maintenance, repair, and replacement of the raw water irrigation system for the previous year. As special assessments may be levied from time to time in connection with the Subdivision irrigation water, the Association shall maintain records of such accounts, yet keep a separate accounting of any costs incurred in connection with routine operation, maintenance, repair, and replacement. All provisions of Article VII, below, shall be applicable to said assessments. D. Lien for Raw Water Irrigation Assessments. All Irrigation Owners shall promptly pay any and all assessments for costs of operation, maintenance, repair, and replacement of the raw water irrigation system in the proportions set forth above. In the event that such assessments are not paid promptly, the co-owners of the raw water irrigation system shall have a lien pursuant to C.R.S. §38-23-101 et seq., which may be enforced pursuant to said statute, and the Association shall have the right to turn off irrigation water to said Lot Owner's property. 2. Subdivision Water System. A. Potable Water Supply. Water will be provided to the fifty-seven (57) residential Lots planned for the Subdivision and the fire station located on Lot 40 from wells to serve the domestic needs of the proposed single-family subdivision, which wells shall be known as the Four Mile Wells. These wells have been certified by an engineer as a sufficient source by which to supply the Subdivision with an adequate quantity of water and shall be owned and maintained by the Association. Each Lot Owner shall have the right to access the potable water system at no charge. The Association shall have the power and authority to require each Lot Owner served by the subdivision wells, at their sole expense, to install a meter to measure all water used by that Lot and to curtail or restrict, as deemed necessary by the Association, water usage by a Lot Owner from the Four Mile Wells. The Association's authority to meter and curtail water usage in the Subdivision shall be utilized to ensure that the total diversions for the Subdivision from the Association's well(s) for in-house uses and lawn and garden irrigation not exceeding 2500 square feet per Lot do not exceed an average daily usage of 750 gallons per Lot. Said water supply is based on an approximation that there will be no more than fifty- I:\2004\Cllents\MidFirst-2-534\Documents\Restated Covenantsd6.wpd September 2, 2004 -16- seven (57) single-family homes within the Subdivision and the fire station located on Lot 40. The Association shall maintain and pay the costs of the West Divide Water Conservancy District Water Allotment Contract. B. Additional Connections. Declarant reserves the right to allow additional connections to the Subdivision's potable water supply so long as such connections do not interfere with service to the Property as determined by the Declarant. ARTICLE VIII COLLECTION OF ASSESSMENTS - ENFORCEMENT 1. Assessments. All Lot Owners shall be obligated to pay any assessments lawfully imposed by the Executive Board of the Association. To the extent the Association is responsible therefor, assessments may be lawfully imposed for any items of common expense which may include, among other things: expenses and costs of maintaining, repairing, and plowing of roads within and accessing the Subdivision; expenses for maintaining, improving, and preserving the Association's common property; expenses of the Architectural Committee; and insurance, accounting, and legal functions of the Association. Such assessments shall be deemed general assessments and shall be borne pro rata by all Owners. Assessments for water and water -related services shall be assessed separately based upon the allocation of such services by the Homeowners Association to the Owners. The Executive Board may establish contingency and reserve funds for the maintenance and improvement of the Association's common property and any other anticipated costs and expenses of the Association to be incurred in pursuit of its purpose. Contingency and reserve funds shall be in such an amount as the Executive Board may deem necessary and appropriate for the aforesaid purposes. Each Owner shall be required to pay his pro rata portion of these funds. As used herein, an Owner's pro rata portion of common expenses shall mean a fraction formed by the number of Lots purchased and held by the Lot Owner (numerator) and the number of Lots in the Subdivision (denominator). The Executive Board shall have the right during any calendar year to levy and assess against all of the Owners a special assessment for such purpose or purposes, in accordance with these Covenants, or the Articles or Bylaws of the Association, as may be necessary. Such special assessment shall be paid for in equal portions by the Owners obligated to pay such assessment and shall be due and payable as determined by the Executive Board. 2. Lien for Non -Payment of Assessments. All sums assessed by the Executive Board, including without limitation the share of common expense assessments chargeable to any Lot Owner, any fines which may be levied on a Lot Owner, and unpaid utility fees and assessments charged to a Lot Owner shall constitute a lien against such Lot superior (prior) to all other liens and encumbrances, excepting only: A. Tax and special assessment liens on the Lots in favor of any governmental assessing unit. B. All sums unpaid on a first mortgage of record, including any unpaid obligatory sums as may be provided by encumbrance. I:\2004\Clients\MidFirst-2-534\Documents\Restated Covenantsd6.wpd September 2, 2004 -17- C. Each Owner hereby agrees that the Association's lien on a Lot for assessments has hereinabove described shall be superior to the Homestead Exemption provided by C.R.S. §38-41-201 et seq., and each Owner hereby agrees that the acceptance of the deed or other instrument of conveyance in regard to any Lot within Four Mile Ranch shall signify such grantee's waiver of the homestead right granted in said section of the Colorado statutes. D. Any recorded lien for non-payment of the common expenses may be released by recording a release of lien executed by a member of the Executive Board. If any assessment shall remain unpaid after thirty (30) days after the due date thereof, such unpaid sums shall bear interest from and after the due date thereof at the maximum rate of interest permitted by law, or at such rate as is determined by the Executive Board, and the Executive Board may impose a late charge on such defaulting Owner as may be established by the Board. In addition, the Executive Board shall be entitled to collect reasonable attorneys' fees incurred in connection with any demands for payment and/or collection of delinquent assessments. To evidence such lien, the Executive Board shall prepare a written notice setting forth the amount of such unpaid indebtedness, the name of the Owner of the Lot, and its legal description. Such a notice shall be signed by one (1) member of the Executive Board and shall be recorded in the Office of the Clerk and Recorder of the County of Garfield, Colorado. Such lien may be enforced by foreclosure of the defaulting Owner's Lot by the Association in like manner as a mortgage on real property, upon the recording of a notice of claim thereof. In any such foreclosure, the Owner shall be required to pay the costs and expenses of such proceedings, the costs and expenses for filing the notice or claim of lien, and all reasonable attorneys' fees. The Owner shall also be required to pay to the Association any additional assessments against the Lot during the period of foreclosure, and the Association shall be entitled to the appointment of a receiver to collect the same. The Executive Board, for the Association, shall have the power to bid on the Lot at foreclosure sale and acquire and hold, lease, mortgage, and convey same. The Association, at its election, and in addition to any other remedies it may have at law or in equity, may also sue an Owner personally to collect any monies owed the Association. 3. Enforcement Actions. The Association, acting by and through its Executive Board, shall have the right to prosecute any action to enforce the provisions of all of these Covenants by injunctive relief, on behalf of itself and all or part of the Owners of the lands within Four Mile Ranch. In addition, each Owner of land within Four Mile Ranch, including the Association, shall have the right to prosecute any action for injunctive relief and for damages by reason of any violation of these Covenants. The prevailing party in any enforcement action shall be entitled to an award of its reasonable costs and attorneys' fees. The Executive Board shall be entitled to assess penalties for late payment of assessments due the Association and to collect interest thereon at rates to be determined from time to time by the Executive Board but not to exceed 1.5 percent per month. After thirty (30) days, upon written notice to any Owner of a violation of these Covenants, and the Owner's failure to eliminate or cure said violation, the Association may levy, in addition to the other remedies set forth herein, a penalty of $25.00 per day for every day the violation exists or continues after the expiration of said 30 -day period. 1:\2004\Clients\MidFirst-2-534\Documents\Restated Covenantsd6.wpd September 2, 2004 -18- 4. Limitations on Actions. In the event any construction or alteration or landscaping work is commenced upon any of the lands in Four Mile Ranch in violation of these Covenants and no action is commenced within one (1) year thereafter to restrain such violation, then injunctive or equitable relief shall be denied, but an action for damages shall still be available to any party aggrieved. This one-year limitation shall not apply to injunctive or equitable relief against other violations of these Covenants. ARTICLE IX INSURANCE 1. Types of Insurance. The Association shall obtain and keep in full force and effect the following insurance coverage: A. The Executive Board, at its discretion, may elect to secure fidelity coverage against the dishonesty of employees, destruction or disappearance of money or securities, and forgery. This policy shall also cover persons who serve the Association without compensation. B. Coverage for members of the Board and officers of the Association, including committee members, against libel, slander, false arrest, invasion of privacy, errors and omissions, and other forms of liability generally covered in officers and directors liability policies. C. Coverage against such other risks of a similar or dissimilar nature as the Board deems appropriate. ARTICLE X GENERAL PROVISIONS 1. Covenants to Run. All of the covenants contained in this instrument shall be a burden on the title to all of the lands in Four Mile Ranch, and the benefits thereof shall inure to the Owners of the lands in Four Mile Ranch and the benefits, and burdens of all said covenants shall run with the title to all of the lands in Four Mile Ranch. 2. Termination of Covenants. In the event these Covenants have not been sooner lawfully terminated pursuant to any applicable laws of the State of Colorado and Garfield County, Colorado, and the provisions herein contained, these Covenants may be terminated on January 1 of the year 2036 by a vote of seventy-five percent (75%) of the votes entitled to be cast by the members of the Association. If these Covenants are not so terminated, then they shall continue to be in full force and effect for successive twenty-five (25) year periods unless, at the close of a 25 -year period, the Covenants are terminated by a vote of seventy- five percent (75%) of the votes entitled to be cast by the members of the Association at a meeting of the members duly held. In the event of any such termination by the members, a properly certified copy of the resolution of termination shall be placed on record in Garfield County, Colorado, not more than six (6) months after the meeting at which such vote is cast. I:\2004\Clients\MidFirst-2-534\Documents\Restated Covenantsd6. wpd September 2, 2004 -19- 3. Amendment of Covenants. These Covenants may be amended by a vote of seventy-five percent (75%) of the votes entitled to be cast by the members of the Association, said vote to be cast at a meeting of the members duly held, provided a properly certified copy of the resolution of amendment be placed on record in Garfield County, Colorado, no more than six (6) months after said meeting. In addition, the prior written consent of Garfield County shall be required prior to amending these Covenants, which consent shall not be unreasonably withheld or delayed. In the event the Subdivision is annexed to the City of Glenwood Springs in accordance with the terms and conditions of the Pre -Annexation Agreement, the consent of Garfield County shall not be required to amend these Covenants. Rather, upon annexation of the Subdivision, in addition to the vote set forth hereinabove, the prior written consent of the City of Glenwood Springs shall be required to amend the Covenants. 4. Severability. Should any part or parts of these Covenants be declared invalid or unenforceable by any court of competent jurisdiction, such decision shall not affect the validity of the remaining covenants. 5. Paragraph Headings and Underlining. The paragraph headings and underlining within this instrument are for convenience only and shall not be construed to be a specific part of the covenants contained herein. 6. Limited Liability. The Association and the Board shall not be liable to any party for any action or for any failure to act with respect to any matter if the action taken or failure to act was in good faith and without malice. The Owners jointly and severally agree to indemnify the Association and the Board against loss resulting from such action or failure to act if the Association and the Board acted or failed to act in good faith and without malice. 7. County as Third -Party Beneficiary. Garfield County shall be a third -party beneficiary to this Declaration and may, at its option and in its sole discretion, enforce any provision in this Declaration, as amended, which affects County residents or property within the County. In no event shall the County be required to enforce the building design or site location restrictions and requirements of the Architectural Committee, said enforcement responsibility to rest solely with the Architectural Committee. In the event the Subdivision is annexed to the City of Glenwood Springs, Garfield County shall cease to be a third party beneficiary to this Declaration and the City of Glenwood Springs shall be the third party beneficiary hereto with the right to enforce any provision contained herein. IN WITNESS WHEREOF, this Declaration of Protective Covenants for Four Mile Ranch has been executed as of the day and year first written above. I:\2004\Clients\MidFirst-2-534\Documents\Restated Covenantsd6.wpd September 2, 2004 -20- I:\2004\Clients\MidFirst-2-534\Documents\Restated Covenantsd6.wpd September 2, 2004 DECLARANT: CSA 2, LLC, an Oklahoma limited liability company By Mid -First Bank, its sole Member, by R. Wayne Booth, Senior Vice President By Guy Harrell, his attorney-in-fact CSA 3, LLC, an Oklahoma limited liability company By Mid -First Bank, its sole Member, by R. Wayne Booth, Senior Vice President By -21- Guy Harrell, his attorney-in-fact STATE OF COLORADO ) COUNTY OF GARFIELD ) ss. Acknowledged, subscribed, and sworn to before me this day of , 2004, by Guy Harrell, attorney-in-fact for R. Wayne Booth, Senior Vice President, Mid -First Bank, sole Member of CSA 2, LLC, an Oklahoma limited liability company. WITNESS my hand and official seal. My Commission expires: STATE OF COLORADO ) COUNTY OF GARFIELD ) ss. Notary Public Acknowledged, subscribed, and sworn to before me this day of , 2004, by Guy Harrell, attorney-in-fact for R. Wayne Booth, Senior Vice President, Mid -First Bank, sole Member of CSA 3, LLC, an Oklahoma limited liability company. WITNESS my hand and official seal. My Commission expires: I:\2004\Clients\MidFirst-2-534\Documents\Restated Covenantsd6.wpd September 2, 2004 -22- Notary Public