HomeMy WebLinkAbout3.0 BOCC Staff Report 12.20.2010Board of County Commissioners —12/20/10 Public Meeting Exhibits
Nieslanik Rural Land Development
Exhibit
Letter
(Atop
us
Exhibit
A
Garfield County Unified Land Use Resolution of 2008, as amended
B
Garfield County Comprehensive Plan of 2000, as amended
Staff Memo
C
D
Resolution 2010-81
E
Proposed Improvements Agreement
F
Proposed Declaration of Covenants, Conditions and Restrictions
G
HOA Articles of Incorporation
H
Proposed easements to be conveyed to HOA
I
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PROJECT INFORMATION AND STAFF COMMENTS
REQUEST Rural Land Development Option
PROPERTY OWNER
REPRESENTATIVE
LOCATION
PROPERTY SIZE:
ACCESS
EXISTING ZONING
REQUEST
The John Nieslanik Ranch Rural
Land Development was approved
by the Board in a public hearing
held on September 20, 2010 with
the conditional approval
memorialized in Resolution
Number 2010-81 (EXHIBIT D).
The approvals were to allow for
the creation of six lots, one of
which is subject to a conservation
easement, and five of which are
planned for residential
development. The Applicant has
finalized the plat and
documentation, including the
Improvements Agreement
(EXHIBIT E), creation of the John
Nieslanik Ranch HOA (EXHIBIT G),
and easement documents for
Nieslanik Investment, LLC and Cecelia L. Nieslanik Bypass
Trust
Mark Nieslanik
Doug Pratte — The Land Studio
Southeast of the Town of Carbondale in Sections 2 and 11,
Township 8 South, Range 88 West
±180 -acres
CR 101— White Hill Road
Rural
conveyance to the HOA (EXHIBIT H). The documentation has been reviewed by Staff and determined to
have satisfied the Board conditions of approval and Staff therefore requests that the Chairman be
authorized to sign the mylar and Subdivision Improvements Agreement.
1
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STATE OF COLORADO )
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County of Garfield )
At a regular meeting of the Board of County Commissioners for Garfield County, Colorado,
held in the Commissioners' Meeting Room, Geld County Courthouse, in Glenwood Springs on,
Monday, the 20`bday of September A.D. 2010, there were present
Commissioner Chairman
TrJohn Martin Commissioner
MikeH l� Commissioner
Samm on , County Attorney
, Clerk of the Board
, County Manager
Don DeFord
Jean Alberico
Ed Green absen —
when the following proceedings, among others were had and done, to -wit
RESOLUTION NO. 2010-81
A RESOLUTION CONCERNED WITH THE AA RUN AL FOR OR A ARURAL -ACRE PARCEL
LAND
DEVELOPMENT EXEMPTION OPTION CECELIA L.
OF LAND OWNED BY NIESLANIK INVESTMENTS, LLC AND THE
NIESLANIK BYPASS CA�YL1OyUTHEAST 01?
THE TOWNTRUST
OF 4RSDNDALEGIE7 COUNTY
PARCEL NO# 2463424-00-009 AND 2463-022-00-010
eel S
A. Section 5-202 D. of the Unified Land Use Resolution of 2008, as amended, states that the
Board of County Commissioners may, on a case-by-case division basis, sland mptcfrom in the sole the opinion of
on of
subdivision and the subdivision review process certain regarding the presen` ation of niral lands as
the Board, advance the objectives of Garfield County re g
agricultural land and open space and maintain the reator r ort rtio land rin ofses e property for agricultural
purposes, natural resource utilization, op' c
13. Niesianik Investments, LLC and the Cecelia L. Nieslanik Bypass Trust petitioned the
Board of County Commissioners of Garfield County, Colorado, for approval of a Rural Land
Development Exemption Option application on the subject site. The request is to approve the
creation of five (5) parcels for single family development on 12 acres of the site while Lot 6, the
remainder of the property, 167 -acres or 93% of the property, is subject to a perpetual conservation
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easement to preserve the agricultural and open space character of the area.
C. The property is generally located in Sections 2 and 1 1, Township 8 South, Range 88 West
of the 6th P.M., County of Garfield, State of Colorado, and further described in attached Exhibit A.
D. The property is subject to a Deed of Conservation Easement described in a document
recorded at Reception Number 688879 in the office of the Garfield County Clerk and Recorder.
E, The property is located within the Rural zone district and is also located in Study Area 1 of
the Comprehensive Plan of 2000, in an area designated as "Residential Low Density" and
"Residential Medium. Density"
P. The Board is authorized to approve, deny or approve with conditions a Rural Land
Development Exemption Option pursuant to Section 5-404 of the Garfield County Unified Land Use
Resolution of 2008, as amended.
G. The Board of County Commissioners opened a public hearing on the 20th day of
September, 2010 upon the question of whether the above-described application should be granted or
denied, during which hearing the public and interested persons were giventbe opportunity to express
their opinions regarding the amendment.
H. The Board of County Commissioners closed the public hearing on the 20s` day of
September, 2010 to make a final decision on the application.
I. The Board, on the basis of substantial competent evidence produced at the aforementioned
hearing, has made the following determinations of fact:
1. Proper posting and public notice were provided as required for the hearing before the
Board of County Commissioners.
2. The hearing before the Board of County Commissioners was extensive and complete,
Haat all pertinent facts, matters and issues were submitted and that all interested parties
were heard at that meeting.
3. That for the above stated and other reasons, the proposed Rural Land Development
Exemption Option has been determined to be in the best interest of the health, safety,
morals, convenience, order, prosperity and welfare of the citizens of Garfield County, if
required conditions of approval are satisfied.
4. The application will meet the requirements of Unified Land Use Resolution of 2008, as
amended if required conditions of approval are satisfied.
2
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RESOL.i �1 TION
NOW THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Garfield
County, Colorado, that
A. The forgoing Recitals are incorporated by this reference as part of the resolution.
B. acre ard to da Development (5)t 2 t 3 acrreOption
and Lot 6, a ±167 -acre parcel subject to a
acre parcel to create five
perpetual conservation easement, is hereby approved subject to compliance with the
following conditions:
1. That all representations roade by the Applicant in the application, and at the public
hearing before the Planning Commission and. Board of County Commissioners sbal.l be
conditions of approval, unless specifically altered by the Board of County
Commissioners.
2. This approval shall be valid for a period of one year, within which time the following
documentation shall be finalized and submitted for review and approval by Garfield
County:
a. An Exemption Plat;
b. An Improvements Agreement;
c. Declaration of Covenants, Conditions and Restrictions;
d. Formation of the John Nieslanik Ranch Homeowner's Association.
3. Prior to signing of the plat the Applicant shall provide the following to the County:
a. A well -sharing agreement to be recorded with the plat; rofective
b. The Applicant shall include the following provisions as an element in the p
covenants to be managed and enforced by the HOA.
• The Weed Management Plan;
• The Fugitive Dust Plan;
• Lighting standards;
• Animal control (with one dog restriction removed);
• Solid fuel burning restriction.
The Applicant shall include provisions to this effect in the covenants to be
submitted and recorded with the final plat
c. The Applicant shall submit required fees to satisfy the "Fee In -lieu of School Land
Dedication' at the time of building permit on Lots 1 through 4. Lots 5 and 6 are
exempt from this Fee.
d. The Applicant shall be required to pay Carbondale and Rural Fire Protection
District Impact Fees at the time of building permit on Lots 1 through 4. Lots 5 and
6 are exempt from this fee. 3
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4. The plat shall contain the following notes:
a. No further divisions of Lots 1-6 by Exemption from Subdivision Regulations
shall be allowed. Lot 6 is burdened by a Conservation Easement recorded at
Reception Number 688879 in the office of the Garfield County Clerk and
Recorder and cannot be further subdivided.
b. The entirety of the land located within Lot 6 is governed by a perpetual
conservation easement granted to the Aspen Valley Land Trust and the Pitkin
County Board of County Commissioners. The terms and conditions of this
easement are fully described in the document entitled "Nieslanik Ranch Deed of
Conservation Easement" recorded at Reception Number 688879 in the office of
the Garfield County Clerk and Recorder. All future activity on Lot 6 shall be in
accordance to the terms and conditions of this document.
.c. No new open hearth solid -fuel fireplaces will be allowed anywhere within Lots 1-
6. One (1) new solid -fuel burning stove as defined in C.R.S. 25-7-101 Et. Seq.
and the regulations promulgated thereunder will be allowed in anydwelling unit.
All dwelling units are allowed an unrestricted number of natural gas burning
stoves and appliances.
d. All exterior lighting shall be the minimum amount necessary and shall be
directed downward and inward, towards the interior f b lots,
except that
rthe
provisions maybe made to allow for safety lighting Yop property
boundaries.
e. Colorado is a "Right -to -Farm State pursuant to C.R.S. 35-3-101, et seq.
Landowners, residents and visitors must be prepared to accept the activities,
sights, sounds and smells of Garfield County's agricultural operations as a normal
and necessary aspect of living in a County with a strong rural character and a
healthy ranching sector. Those with an urban sensitivity may perceive such
activities, sights, sounds and smells only as inconvenience, eyesore, noise and
odor. However, State law and County policy provide that ranching, farming or
other agricultural activities and operations within Garfield County shall not be
considered to be nuisances so long as operated in conformance with the law and
in a non -negligent manner. Therefore, all must be prepared to encounter noises,
odor, lights, mud, dust, smoke chemicals, machinery on public roads, livestock
on public roads, storage and disposal of manure, and the application by spraying
or otherwise of chemical fertilizers, soil amendments, herbicides, and pesticides,
any one or more of which may naturally occur as a part of a legal and non -
negligent agricultural operations.
f. All owners of land., whether ranch or residence, have obligations under Statelaw
and County regulations with regard to the maintenance of fences and irrigation
ditches, controlling weeds, keeping livestock and pets under control, using
property in accordance with zoning, and other aspects of using and maintaining
property. Residents and landowners are encouraged to learn about these rights
4
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and responsibilities and act as good neighbors and citizens of the County. A
good introductory source for such information is "A Guide to Rural Living &
Small Scale Agriculture" put out by the Colorado State University Extension
Office in Garfield County- will not be transferred with the
g. The mineral rights associated with this property
surface estate therefore allowing the potential for natural resource extraction on
the property by the mineral estate owner(s) or lessee(s).
h. All foundations shall be designed by a professional registered engineer licensed
to practice in the State of Colorado.
i. Due to varying site soil conditions, all lots are required to have an individual site-
specific geotechnical study which shall be submitted with the application for a
building permit.
j. Building permits applications for each lot shall include pians and specifications
for an onsite wastewater system (OWS). Each system shall be designed by a
professional.
k. Any excavation into slopes steeper than 30% shall be addressed on a site-specific
basis by a registered geotcchnical engineer licensed to practice in the State of
Colorado and the report shall be submitted along with permit application for
building or grading on the site.
L Building. permit applications for each lot shall include a letter from the
Carbondale and Rural Fire Protection District regarding the necessity for Wildfire
Defensible Space and the necessity for automatic tire sprinkler installation which
shall then be considered conditions of approval for issuance of the building
permit.
m. A fifteen foot (15') irrigation easement centered over all existing irrigation
ditches is hereby granted for purposes including access and maintenance rights
for the benefit of the holders of the water rights associated with said ditches.
n. Declaration of Covenants, Conditions and Restrictions, as recorded, are
applicable to this development; to this development;
o. An Improvements Agreement, as recorded, is applicable
p. Lots 1 through 4 as depicted on this plat, or any fractional interest therein, may
not be sold, conveyed or otherwise transferred until such time as a "RELEASE
OF COLLATERAL" is approved by the Board of County Commissioners and
recorded in the office of the Garfield County Cleric: and Recorder;
q. The conveyance of Lots 5 and 6 are exempt from the above plat note as adequate
infrastructure exists to serve those lots;
r. On-site water storage is required of each lot in the development an atian
plans
associated with that storage must be a part of the building p pP
s. Lots 5 and 6 are exempt from the "Fee In-lieu of School Land Dedication"
and Carbondale and Rural Fire Protection District Impact Fees as residential
structures already exist on those lots.
5
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Recept#an#' 792747 Jean Alberloo
i0/12/2010
of 14 RRap Fee:50.00Doc Fer'0.00 GARFIEID COUNTY CO
5. Prior to recordation of the Plat the Applicant shall form a homeowners association to
accept construction and maintenance responsibilities for all roads and utilities serving
the development. The Protective covenants shall be administered by the HOA
1171 day of O(140b.D.r , A.D. 20 It .
Dated this
ATTEST:
GARFIELD CO BOARD OF
COMMISS 1 NERS, f ARFIELD COUNTY,
COLO
Upon motion duly made and seconded the or ed by the
following vote:
COMMISSIONER CHAIR JOHN F. MARTIN
COMMISSIONER TRESI HOW'S
COMMISSIONER MIKE SAMSON
STATE OF COLORADO
)ss
County of Garfield
, Aye
Aye
, Aye
1, , County Clerk and ex -officio Clerk of the Board of
County Commissioners, in and for the County and State aforesaid, do hereby certify that the annexed
and foregoing Resolution is truly copied from the Records of the Proceeding of the Board of County
Commissioners for said Garfield County, now in my office.
IN WITNESS WHEREOF, I have hereunto set my hand and of ied the seal of said County,
at Glenwood Springs, this day of
County Clerk and ex -officio Clerk of the Board of County Commissioners
6.
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SCHEDULE A
LEGAL DESCRIPTION
A PARCEL OF LAND SITUATED IN SECTIONS 2 AND 11, TOWNSHIP 8 SOUTH, RANGE 88 WEST
OF THE SIXTH PRINCIPAL MERIDIAN, COUNTY OF GARFIELD, STATED SW CRADO, WITH B
ALL BEARINGS RELATIVE TO A BEARING OF S 89°2N15" E BETWEENRN ON 2, A #5
SAID SECTION 2, A STONE FOUND IN PLACE, AND THE. 61/4 CORNER OF SAID CE
RJBAR'FOUND TN PLACE, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT ON A FENCE LINE. WHENCE TEIE SOUTHWEST CORNER OF SAID
SECTION 2 BEARS S 15°46'37" W A DISTANCE OF 1120.92 FEET; IHENCE ALONG SAID FENCE
RECORDED AS RECEFT ON NUMBER 557266 OF ThE GARFI LD
LINE AND THE DSD RECD �G SES (7) COURSES:
COUNTY RECORDS; TAE FOLIA
1) N OI°44'35" w, 2,177.08 FEET;
2) S 89°52'55" E, 2.2.40 FEET;
3) N 48°35115" E, 21.7,0 MT;
4) 6 89°09'25" B, 1,144.21 FEET;
5) 6 89°08149" E, 613.03 PEET;
6)N 84°58'12" E., 43.43 FEET; Y BOUNDARY OF ASPEN CRYSTAL
7) N 90'04'00" E. 508.35 FEET TO A roma ON THE WESTERLY G,ARHTET.D COUNTY
RIVERESTATES HER.ECORDED
BOUNDARY
AS RICE DE ED IN THE AFFIDAVIT RECORDEDRECORDS;
N0VEMRECORDS AND T� gOUNDAAY LINE _
THENCE
LEAVING 14, 2005 AS RECEPTION SAID LINE AND SAID DEED AND ALONG G SAID WESTERLY
BOUND RNSAID BOUNDARY LINE TIB FOLLOWING TIRE' (3) COURSES:
BOUNDARY AND
I) S 00°13'20" E, 47.89 FBI';
2) N 89°31'10" E, 355.75 FEET;
3 S 01°34'10" E, 535.70 PEET TO THE NORTHWEST CORNER OF LOT 26 OF SAID ASP
EN
All ESTATES; E NOCERTHERLY
LEAVING 3C
SAID WESTERLY BOUNDARY AND SAID BOUNDARY
LINE AND ALONG THE NORTHE€O•Y BOT3Nf7ARY OF SAID LOT 26 THE FOLLOWING TWO (2)
COURSES:
1) N 77°36'I4" E, 205.06 FEET; HAVING A
2)115.06 FEET ALONG THE ARC OP A NON TANGENT CUR OO °� g"Er9130 PEET) TO
THE NST 50.00 OR A CENTRAL
SAID LOT 6;GT�CE LEAVING THE NORTHERLY BOUNDARY
OF A) LOT 26 CORNER Y BOUNDARY OF LOT 25 OF SAID ASPENT
OF SAID LOT 26 AND ALONG IH E, A DISTANCE
1STi L THE
CRYSTAL ESTATES N 88°S4140" OITRE NORT OF
BD ��Y � SAID LOT 25 AND CORNER
SAIDLOT 25; TSN LEAVINGDA
ALONG THE EASTERLY BOUNDARY OF SAID LOT 25 5 4IQ04'59" E, A DISTANCE OF 169.98
FEET TO THE SOUTHEAST CORNER OF SAID LOT 25, A POINT ON THE WESTERLY
BOUNDARY OF SAID ASPEN CRYSTAL ESTATES AND THE BOUNDARY 68 LINE OF DESCRIBED
� BE LOT
TAI? IELD ' RECORDS;
S; THI CE 14, 2005 S RECEPTION NO. .� EASTERLY BOUNDARY OF
25 AND A ONGCOUNTYT WESTERLY
THEN OF
25 AND ALONG T� �'�L BOUNDARY
DISTANCE �YOF ¢5� FEET; THENCE THENCE LEAS THE
SAID
BOUNDARY LINEN 88°54'44" 73,
=xQGALTA Ccmm11�u[ZR Schedule A L � Skla guarardY c NhpenY
Title Officer:
Page 2 °f3
BOUNDARY OF SAID ASPEN CRYSTAL RIVER ESTATES AND CONTINUING ALONG SAID
BOUNDARY LINE THE FOLLOWING NINETEEN (19) COURSES:
1) S16°23'O1"W, 630.97 PEET;
2) 508°72'40"W, 294.84 FEET;
3) 526'20'35"E, 178.61 FEET;
4) S06°25'15"E, 26.991`11;
5) S I7°09'50"W, 222.301k.T;
6) 514'51'34"W, 162.52 FEET;
7) S01°12'56"W, 51.29 FIST;
8) 512°09145"E, 205.92 FEET;
9) S08°04'10"W, 271.76 FEET;
10) S08°42'30"W, 233.96 H .T;
11) 51092102"W, 103.49 F1;
12) 515°4455"W, 300.101,I.T;
13) 539`03'30"W, 116.89 FEET;
14) 519'22'18"W, 216.84 FEET;
15) S35°21'38" E, 120.11 FEET;
16) S15°57156"E, 71.97 FEET;
17) 577°02'58"W, 14.95 FEET;
18) S09°341 8"W, 88.21 FEET;
19) 587°07'30"W, 478.18 FEET;
FINE (5) COURSES:
1) N00°57'52"E, 42.05 FEET;
2) N85°55'00"E, 30.10.LLT;
3) N00°3019"1,, 1,637.94 FEET;
4) N86°30'00"W, 30.04 FEET;
5) N001619"E, 51.33 FEET TO A POINT ON AN EXISTING FENCE LINE AND THE DEED
RECORDED AS RECEPTION NO, 685683 OF THE GARFiELD COUNTY RECORDS; THENCE
ALONG SAID EXISTING FENCE LINE AND SAID DEED TSE FOLLOWING THIRTEEN COURSES
(13):
1) 5 88°52'07" W, 175.45 FEET;
2) 5 89°04110" W, 929.10 FST;
3) 5 83°46'55" W, 174A9 FEET;
4) S 88°03'10" W, 364.41 FF.E.T;
5) N 67°47'49" W, 53.92 FEET;
6) N 46°5056" W, 253.64 FEET;
7) S 88°36'14" W, 212.98 FEET;
8) N 71`55'45" W, 14.58 FEET;
9)1438'38'25"W, 279.14 FEET;
10) S70°54.35 "W, 214.09 FEET;
11) S44°48'46"W, 38.18 FEET;
12) 522°30'19"W, 230.85 FEET;
13) 548'14'38"W, 101.251't.f.1 10 THE POINT OF BEGINNING.
CONTAINING 7,816,259 SQUARE 1,77E OR 179.437 ACRES, MORE OR LESS.
County of Garfield, State of Colorado
Si 101.10:100,43014L 1111
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• 6 o1 8 Roo Foe:UE.02 Dox
THENCE LEAVING SAID BOUNDARY LINE THE FOLLOWING
Order Number. 50OI032gws-C3
ALTACom (6'17!06) - Schedule A
MI; Officer:
Page 3 of 3
t
JOHN NIESLANIK RANCH
RURAL LAND DEVELOPMENT EXEMPTION
IMPROVEMENTS AGREEMENT
EXHIBIT
THIS RURAL LAND DEVELOPMENT EXEMPTION IMPROVEMENTS
AGREEMENT, ("Agreement") is made and entered into this day of December,
2010 by and between NIESLANIK INVESTMENTS, LLC, and CECELIA L.
NIESLANIK BYPASS TRUST, having an address of 0979 County Road 101,
Carbondale, CO 81623 and the BOARD OF COUNTY COMMISSIONERS OF
GARFIELD COUNTY, COLORADO, acting for the County of Garfield, State of
Colorado, as a body politic and corporate, directly or through its authorized
representatives and agents ("BOCC").
WHEREAS:
A. Nieslanik Investments, LLC and Cecelia L. Nieslanik Bypass Trust are the
developers of property and a development to be commonly known as the John Nieslanik
Ranch Rural Land Development Exemption (the "Development");
B. The Development is depicted on a plat entitled John Nieslanik Ranch
Rural Land Development Exemption Plat ("Exemption Plat");
C. The plan for the Development, as depicted on the Exemption Plat,
includes, among other things, (a) five (5) single-family residential lots identified as Lots
1-5 on the Exemption Plat and (b) an agricultural parcel, Identified on the Exemption Plat
as the "Remainder Ranch Parcel" or as "Lot 6" (hereinafter referred to as "Lot 6"). The
Lot 6 shall be burdened with certain development restrictions that include a conservation
easement in perpetuity recorded on 12/22/05 under Reception No. 688879 of the Garfield
County real property records;
D. Nieslanik Investments, LLC and the Cecelia L. Nieslanik Bypass Trust are
the current owners of Lots 1-6 ("Owners");
E. The Owners have agreed to certain restrictions and conditions regarding
the sale of certain properties and issuance of certain building permits to secure and
guarantee Owners' performance under this Agreement;
F. The Owners seek approval by the BOCC of the Development plan and
Exemption Plat pursuant to the Land Use Regulations of Garfield County, Section 5-
404(A)(4), Rural Land Development Exemption Option;
1
G. The Owners represent that at the time of recording this Agreement all
taxes and assessments upon all parcels of real estate described in this Agreement are paid
in full.
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, the parties agree as follows:
1. DEVELOPMENT PLAN. The Development shall consist of five single-
family residential lots, identified as Lots 1-5 on the Exemption Plat (collectively, "Lots"),
and Lot 6, an historical agricultural ranch operation which includes ancillary residences,
as further described below in paragraph 2.
2. REMAINDER RANCH PARCEL. In conformance with the Land Use
Regulations of Garfield County, Section 5-404(A)(4), Rural Land Development
Exemption Option, Lot 6 shall be occupied and used in accordance with the conservation
easement referenced on Exhibit A ("Conservation Easement").
3. IMPROVEMENTS. The Owners agree to cause to be constructed and
installed all development improvements ("Improvements"). No such Improvements shall
be constructed until such time as they arc identified on the plans marked "Approved for
Construction", prepared by Sopris Engineering and a grading permit submitted to
Garfield County for approval prior to commencing any work on the Improvements. Lots
1-4 shall not be sold until the Improvements are constructed and installed to the
satisfaction of the County. The Improvements shall be constructed and installed at the
Owners' expense, including payment of fees required by the County and/or other
governmental and quasi -governmental entities with jurisdiction. An estimate for the cost
of construction of the Improvements prepared by Sopris Engineering has been attached to
and incorporated herein as Exhibit B ("Development Improvements Estimated Cost of
Construction").
The Owners shall comply with all laws, regulations, orders, resolutions and
requirements of the State of Colorado, Garfield County, all special districts and any other
governmental or quasi -governmental authority with jurisdiction and this Agreement in
the construction and installation of the Improvements.
The BOCC agrees that if all Improvements are installed in accordance with this
Agreement; record drawings have been submitted upon completion of the Improvements,
as detailed in Paragraph 9, below; all other requirements of this Agreement have been
met; and all requirements of Rural Land Development Exemption Approval are satisfied,
then the Owners shall be deemed to have satisfied all terms and conditions of the Rural
Land Development Exemption Approval, the Exemption Plat Documents and the
Garfield County Unified Land Use Resolution of 2008, with respect to the installation of
Improvements.
2
4. PAYMENT AND SECURITY FOR IMPROVEMENTS.
a. Plat Restriction. As security for the obligation to complete the
Improvements, the Owners have included as a plat note on the first page of the
Exemption Plat the following plat restriction ("Plat Restriction") to guarantee completion
of the Improvements:
Lots 1 through 4 as depicted on this plat, or any fractional interest therein,
may not be sold, conveyed or otherwise transferred until such time as a
"RELEASE OF COLLATERAL" is approved by the Board of County
Commissioners and recorded in the office of the Garfield County Clerk
and Recorder.
The forgoing restriction on transfer does not apply to Lot 5 or to Lot 6, both of
which may be sold, conveyed or transferred at any time, regardless of the status of
commencement or completion of infrastructure improvements serving any of Lots 1
through 4.
b. Release of Plat Restriction. Upon completion of Improvements necessary
to serve any or all of the proposed lots, the Owners shall submit to the BOCC, through
the Building and Planning Department: 1) record drawings hearing the stamp of
Development's engineer certifying that all necessary Improvements have been
constructed in accordance with the requirements of this Agreement, in hard copy and a
digital format acceptable to the BOCC; 2) copies of instruments conveying real property
and other interests which the Owners are obligated by this Agreement or statute to
convey to the John Nieslanik Ranch Rural Land Development Exemption Option
Homeowners Association for the Development or any statutory special district or other
entity; and 3) a Written Request for Final Release, in the form attached to and
incorporated herein as Exhibit C ("Form of Written Request for Release of Restriction in
Plat Note No. 9") along with Development's engineer's Certificate of Final Completion
of Improvements. The BOCC will review the certification and inspect and review the
Improvements certified as complete to determine whether or not said Improvements have
been constructed in compliance with relevant specifications, as follows:
i. BOCC shall review and inspect the improvements and upon acceptance
shall release the plat note restriction in a public meeting with recordation
of all necessary documentation required prior to sale of Lots 1-4. A Form
of Release of Restriction in Plat Note No. 9 is attached to and incorporated
herein as Exhibit D ("Form of Release of Restriction in Plat Note No. 9").
c. Substitution of Security to Satisfy Plat Restriction. The BOCC, at its sole
discretion, may permit the Owners to substitute another security instrument, such as a
cash deposit under a treasurer's deposit agreement or a letter of credit, as collateral in the
place of the Plat Restriction for the purpose of securing the completion of the
Improvements. This process shall be approved by the BOCC through a public meeting,
3
with acceptance of the substitute security and recordation of all necessary documentation
required prior to sale of Lots 1-4.
5. WATER SUPPLY. The Owners shall install and connect a water
distribution system for potable water in accordance with this Agreement and the
Improvements Plans dated December 10, 2010 by Sopris Engineering and that are on
record at the Department of Building and Planning. All easements and rights-of-way
necessary for installation, operation, service and maintenance of such water supply and
distribution system shall be as shown on the Exemption Plat, and said easements and
rights-of-way conveyed to the appropriate homeowners' association at the time of
recording the Exemption Plat.
6. PRIVATE ROADS AND ACCESS FOR EMERGENCY SERVICE
PROVIDERS. The grantee homeowners' association shall be solely responsible for the
maintenance, repair and upkeep of said private access easements, including the traveled
surface of the roadways and areas outside of the traveled surface. The BOCC shall not be
obligated to maintain private road rights-of-way within the Development. Existence of
private roads shall be noted on the Exemption Plat, and deeds of conveyance to the
appropriate homeowners' association shall be made at the time of recording of the
Exemption Plat.
7. UTILITY EASEMENTS. Whether or not utility easements exist
elsewhere in the Development, all private road easements within the Development shall
contain rights-of-way for installation and maintenance of utilities. Utility easements shall
be dedicated by the Owner and accepted by the appropriate homeowners' association of
the Development, on behalf of the association's members, on the face of the Exemption
Plat and shall be identified in deeds conveying private roads to the appropriate
homeowners' association. The grantee homeowners' association of the Development
shall be solely responsible for the maintenance, repair and upkeep of said utility
easements, unless otherwise agreed to with the utility companies. The BOCC shall not be
obligated for the maintenance, repair and upkeep of any utility easements within the
Development. In the event a utility company, whether publicly or privately owned,
requires separate conveyance by deed or otherwise, the Owners shall also convey utility
easements by separate document to be recorded with the Exemption Plat.
8. CONVEYANCE OF WATER SUPPLY SYSTEM. The water supply
system shall be conveyed to the homeowners' association. It is the express, stated
intention of the parties that the water distribution system facilities for Lots 1 through 6
shall be conveyed to the Homeowners Association following construction, inspection and
acceptance by the Homeowners Association. For purposes of this paragraph, water
distribution system facilities includes all wells, water lines, storage tanks, pumps, valves
and appurtenant equipment associated with delivering domestic water supplies to the
residences located on such lots from Well No. 2 awarded Exempt Domestic Well Permit
#280848 and Well No. 3 awarded Exempt Domestic Well Permit #281789 by the
Colorado Division of Water Resources.
4
At the time of recording of the Exemption Plat the Owners shall execute and
deliver into escrow documents conveying easements for the water supply, the private
roads, and utilities shown on the Exemption Plat to the homeowners' association
(collectively, the "Easement Deeds"), The Easement Deeds shall be deposited into
escrow, pursuant to an escrow agreement to be executed by the Owners, the BOCC and
escrow agent ("Escrow Agreement") within a reasonable time following mutual
execution of this Agreement. The Owners shall deliver to the BOCC a copy of the fully
executed Escrow Agreement, within a reasonable time following mutual execution of this
Agreement, but need not record such instrument. The Escrow Agreement shall provide:
1) the Escrow Agent shall hold the Easement Deeds until
receipt of a written notice signed only by the Owners
noting escrow agent that the work required of the
Owners in this Agreement has been completed and
approved as complete by the BOCC; and
2) upon the occurrence of the foregoing event, the escrow
agent shall cause the appropriate Easement Deeds to be
recorded in the records of the Garfield County Clerk and
Recorder.
9. AS BUILT/RECORD DRAWINGS. Upon completion of private road
and water supply infrastructure, the Owners shall provide as built/record drawings to
Garfield County in hardcopy and digital format prepared by a licensed surveyor.
10. FEES IN LIEU OF DEDICATION OF SCHOOL LAND. Owner shall
make a cash deposit at the time of building permit application in lieu of dedicating land to
the RE -1 School District in accordance with the provisions of Section 7-405 D, Payment
In Lieu of Dedication of Public Sites, set forth in the Garfield County Unified Land Use
Resolution of 2008, as amended. Said fee shall be transferred by the BOCC to the school
district in accordance with the provisions of Section 30-28-133, C.R.S., as amended, and
the Garfield County Unified Land Use Resolution of 2008. The Owner agrees that it is
obligated to pay the above -stated fee, accepts such obligations, and waives any claim that
Owner is not required to pay the cash in lieu of land dedication fee. The Owner agrees
that Owner will not claim, nor is Owner entitled to claim, subsequent to recording of the
Final Plat of the Subdivision, a reimbursement of the fee in lieu of land dedication to the
RE -1 School District.
10. INDEMNITY. The Owners shall indemnify and hold the BOCC harmless
and defend the BOCC from all claims which may arise as a result of the Development's
installation of the Improvements and any other agreement or obligation of the Owners
related to the Development required pursuant to this Agreement. The Owners, however,
do not indemnify the BOCC for claims made asserting that the standards imposed by the
BOCC are improper or the cause of the injury asserted, or from claims which may arise
5
from the negligent acts or omissions of the BOCC or its employees. The BOCC shall be
required to notify the Owners of the BOCC's receipt of a notice of claim or a notice of
intent to sue, and the BOCC shall afford the Owners the option of defending any such
claim or action. Failure to notify and provide such written option to the Owners shall
extinguish the BOCC' s rights under this paragraph. Nothing in this paragraph shall be
construed to constitute a waiver of the Sovereign Immunity granted to the BOCC by
Colorado statutes and case law.
11. SALE OF LOTS. No Lot may be separately conveyed prior to recording
of the Exemption Plat in the records of the Garfield County Clerk and Recorder.
Conveyances of Lots 1-4 are further restricted pursuant to the terms of this Improvements
Agreement.
12. ENFORCEMENT. In addition to any rights which may be provided by
Colorado statute and the provisions for release of security, detailed in paragraph 4 above,
it is mutually agreed by the BOCC and the Owners without making an election of
remedies, or any purchaser of any lot within the Development shall have the authority to
bring an action in the Garfield County District Court to compel enforcement of this
Agreement. Nothing in this Agreement, however, shall be interpreted to require the
BOCC to bring an action for enforcement or to withhold permits or certificates or enforce
the Plat Restriction. Nor shall this paragraph or any other provision of this Agreement be
interpreted to permit the purchaser of a lot to file an action against the BOCC. In
addition, the BOCC may, but shall not be required to, pursue any of its enforcement
remedies as applicable, pursuant to Article XII of the Unified Land Use Resolution of
2008, as amended.
13. VACATING THE EXEMPTION PLAT. In the event the Owners fail
to comply with the terms of this Agreement, the BOCC shall have the ability to vacate
the Exemption Plat as it pertains to any lots that have not released from the Plat
Restriction and conveyed by the Owners.
14. NOTICE BY RECORDATION. This Agreement shall be recorded in
the Office of the Garfield County Clerk and Recorder and shall be a covenant running
with title to all lots, tracts, and parcels within the Development. Such recording shall
constitute notice to prospective purchasers or other interested parties as to the terms and
provisions thereof.
15. SUCCESSORS AND ASSIGNS. The obligations and rights contained
herein shall be binding upon and inure to the benefit of the successors and assigns of the
Owners and the BOCC.
16. IDENTIFICATION OF CONTRACT ADMINISTRATORS AND
NOTICE PROVISIONS. All notices required or permitted by this Agreement shall be
in writing and shall be deemed effective when received by the recipient party via personal
or messenger service delivery, facsimile transmission or United States certified mail
6
(postage prepaid, return receipt requested), in all cases addressed to the person for whom
it is intended at the address or facsimile number set forth below:
NIESLANIK
INVESTMENTS:
CECELIA L.
NIESLANIK
BYPASS TRUST:
BOCC:
Nieslanik Investments, LLC
1872 Prince Creek Road
Carbondale, Colorado, 81623
Cecelia L. Nieslanik Bypass Trust
1872 Prince Creek Road
Carbondale, Colorado, 81623
w/copy to representative:
Mark E. Hamilton, Esq.
Holland & Hart LLP
600 East Main Street, Suite 104
Aspen, Colorado 81611
(970) 925-3476
Board of County Commissioners
of Garfield County, Colorado
c/o Fred Jarman, Planning Director
108 Eighth Street, Room 401
Glenwood Springs, CO 81601
Phone: (970) 945-8212
Fax: (970) 384-3470
The Representatives of the Owner and the BOCC, identified above, are the authorized
representatives of the parties for purposes of contract administration and notice under this
Agreement.
17. AMENDMENT. This Agreement may be modified from time to time,
but only in writing signed by the parties hereto, as their interests then appear. The
parties, however, may change the identification of notice recipients and contract
administrators and the contact information, provided in Paragraph 16 above, in
accordance with the notice provisions and without formal amendment of this Agreement.
18. COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed an original, and all of which, when taken together, shall
be deemed one and the same instrument.
19. VENUE AND JURISDICTION. Venue and jurisdiction for any cause
arising out of or related to this Agreement shall lie with the District Court of Garfield
7
County, Colorado, and this Agreement shall be construed according to the laws of the
State of Colorado.
IN WITNESS WHEREOF, the parties have signed this Agreement to be
effective upon the date of recordation of this agreement and the Exemption Plat for the
Development.
ATTEST:
Clerk to the Board
BOARD OF COUNTY COMMISSIONERS
GARFIELD COUNTY, COLORADO
By:
Chairman
Date:
8
SIGNATURE AND ACKNOWLEDGEMENT PAGE
To
IMPROVEMENTS AGREEMENT
FOR
RURAL LAND DEVELOPMENT OPTION EXEMPTION
Nieslanik Investments, LLC and Cecelia L. Nieslanik Bypass Trust
By:
Date:
STATE OF COLORADO
) ss
COUNTY OF Garfield County
Subscribed and sworn to before me by
as of Nieslanik Investments, LLC and the Cecelia Nieslanik Bypass Trust
this day of December, 2010.
WITNESS my hand and official seal.
My commission expires:
Notary Public
9
RURAL LAND DEVELOPMENT OPTION EXEMPTION
IMPROVEMENT AGREEMENT EXHIBITS
The following Exhibits are attached hereto and made a part of this Development
Agreement for Rural Land Development Exemption:
Exhibit A - Conservation Easement
Exhibit B - Development Improvements Estimated Cost of Construction
Exhibit C - Form of Written Request for Release of Restriction in Plat Note No. 9
Exhibit D - Form of Release of Restriction in Plat Note No. 9
10
EXHIBIT "A"
Conservation Easement
DEED OF CONSERVATION EASEMENT recorded 12/22/2005 under Reception No.
688879, Book 1757, and Page 658, COUNTY OF GARFIELD, STATE OF
COLORADO.
11
EXHIBIT "B"
Development Improvements Estimated Cost of Construction
ENGINEER'S OPINION OF PROBABLE CONSTRUCTION COSTS
NIESLANIK RURAL LAND EXEMPTION PLAT
SE JOB NO, 24034
JULY 22,2010
ITEM
QUANTITY
UNIT
UNIT COST
COST
!
MC7RIi.1711T IDN
.MJB
LS
9.07 00
9 007 00
2
tAYl7UT O0SERVATICN,TESTING &A BU1LTS
JOS
LO
18,00000
•500000
3
CLEARANDGRU9
JOB
LS
1,500 00
1.50000
4
EXCAVATION AND EMBANKMENT
600
C.Y.
1000
8OW70
5
CLASS 6A6[3RECATE ROALWQAY
625
C Y.
2e OD
1s 70000
0
r HOPE WATER LINE INSTAL LED taint Irend+ wr2 Q .$I
3.200
L F
24 00
76 600 00
T
r HOPE WA1 ER LINE INSTALLED
500
f A.
18 00
11001000
0
WAIL SERVICES
4
E A.
500 DO
7 00000
9
Ir ADS N-12 STORM
60
LF
3000
150000
10
YitLL PUMP STATION INC PUMP
2
L 3
8,1100 00
14 00000
11
SILT FENCE
1,420
L F
238
3.551100
12
EROSION C0+4 1901. !S.1PAW BnLC5 1AL10 RAcei
JOB
L $
3.000 01)
3 00000
13
!'UTILITY TRENCH IELECT11IC 4 TELE ttorsEj
2.500
L F.
81 00
27 50400
14
P CDBI,u1r-T'li'RKtsH AND INSTALL ITELEPHONE i
2 500
L F:
250
0.25000
16
EmfCTRIC TRANSFORMERS
2
EA
7000D
1'0000
10
I, I.ECIRIC COMPANY FEES
JOB
L 9
50,000 00
50,00400
17
T6LEP11F3NFfMIPANYFEES (OWES TI,
JOB
L6
210o Go
260000
Is
TRAFFIC CONTROL
JOB
1 9
250 00
25060
Sltl1T[7TAL
ICOM 1.20
240.250 00
W%CON 1INOEItCY
24 e75 00
IOTA.
1 210,021.104
irlStl+cry 0
11
$77
NOTE This opinion of probable construction onst was prepared for budgeting purposes only. Sopris Eco-++eenng, LLC
cannot be held reapnnsibte for varsancee from Ibis eetimate as actual oohs may wary due to bet 4^4 market fluctuations
12
EXHIBIT "C"
Form of Written Request for Partial or Final Release of Restrictions in
Plat Note No. 9
[Declarant's Letterhead]
Garfield County Commissioners
C/O Fred A. Jarman, Director
Building and Planning Department
108 8th Street, Suite 401
Glenwood Springs, CO 81601
RE: John Nieslanik Ranch Rural Land Development Exemption Option
The undersigned hereby formally notifies the BOCC of the work completed for the John
Nieslanik Ranch Rural Land Development Exemption. As Owner (on behalf of the
Owner), I request that the BOCC review the attached Engineer's Certificate of
Completion and approval a full (or partial) release of the Plat Note Restriction for all (or
some) of the lots contained on the John Nieslanik Ranch Exemption Plat.
Attached is the certified original cost estimate and work completed schedule, showing
that all (or some) of the improvements required by the Improvements Agreement have
been completed.
Also enclosed are the following, required by the Improvements Agreement dated
between Owner and the BOCC, recorded at Reception No. in the office of the
Garfield County Clerk and Recorder (the "IA"):
1. Record drawings bearing the stamp of Owner's Engineer certifying that all
improvements have been constructed in accordance with the requirements of the
IA, both in hard copy and digital format acceptable to the BOCC; and
2. Copies of instruments conveying real property and other interests which Owner
was obligated to convey to the homeowner's association or other entity at the time
of Exemption Plat approval.
If further information is needed, please contact at
Owner
Or
Owner's Representative/Engineer
13
EXHIBIT "D"
Form of Release of Restriction in Plat Note No. 9
PUBLIC NOTICE:
Garfield County hereby releases the restriction contained in Plat Note No. of the
John Nieslanik Ranch Rural Lands Exemption Plat Map recorded , 2010 under
Reception No. of the Garfield County real property records only insofar as the
same applies to Lot(s)
Executed this _day of , 20
Garfield County, Colorado
By:
Chairman, Board of County Commissioners
14
JOHN NIESLANIK RANCH
RURAL LAND DEVELOPMENT EXEMPTION
DECLARATION OF COVENANTS, CONDITIONS
AND RESTRICTIONS
THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR
JOHN NIESLANIK RANCH RURAL LAND DEVELOPMENT EXEMPTION (hereafter the
"Declaration") is made this day of December, 2010 by Nieslanik Investments, LLC, and
Cecelia L. Nieslanik Bypass Trust (hereafter referred to as the "Declarant").
RECITALS
WHEREAS, Declarant is the owner of that certain real property known as the John
Nieslanik Ranch Rural Land Development Exemption (the "Development Exemption"), as the
same is laid out and described on the Plat thereof recorded as Reception No. in
the records of Garfield County, Colorado (the "Plat"); and
WHEREAS, the Development Exemption consists of Lots 1, 2, 3, 4, 5 and 6 (collectively
the "Lots"); and
WHEREAS, Declarant is also the owner of all water and water rights, ditches and ditch
rights, wells and well rights, well permits, easements and rights-of-way appurtenant to or used
upon or in connection with the Development Exemption and all other common facilities and
appurtenances related thereto, all of which shall be deemed to be included in the definition of
"Development Exemption" as set forth and used herein; and
WHEREAS, Declarant has created a homeowners' association known as the John
Nieslanik Ranch Rural Land Development Exemption Homeowners' Association (hereafter the
"Association"); and
WHEREAS, Declarant desires to provide a flexible and reasonable procedure for the
overall operation of the Development Exemption, and to establish a homeowners' association for
the administration, maintenance, preservation, control, use, and enjoyment of the Development
Exemption, as well as provide for the enforcement of the restrictions, covenants and conditions
hereinafter set forth.
1
DECLARATION
NOW THEREFORE, Declarant hereby declares that the Development Exemption, and all
Lots comprising the same, shall be held, transferred, sold, conveyed and occupied subject to the
following covenants, conditions and restrictions which are established for the purpose of
protecting the value and desirability of the Development Exemption and which shall run with
title to the Lots and be binding on all owners or other parties having any right, title or interest in
the Development Exemption. Additionally, a Declaration of Restrictive Covenants has been
previously recorded at Reception No. 686419 in the records of Garfield County, Colorado, which
prior Declaration is incorporated herein by reference. In the event of any conflict between the
previously recorded document and this document, the previously recorded document will govern.
ARTICLE I
DEFINITIONS
1. Annual Budget. "Annual Budget" shall mean the calendar year estimates of
Association expenses and expenditures upon which the Annual Assessment shall be based, which
budget shall be prepared by the Association Manager, all as more particularly provided in Article
VI below.
2. Annual Meeting. "Annual Meeting" shall mean the meeting of all members of the
Association to occur once a year for the primary purposes of approving the Annual Budget and
selecting the Association Manager, but at which meeting any other business matters of the
Association may be raised and addressed.
3. Annual and Special Assessments. "Assessments" shall mean all assessments,
Annual and Special, for Common Expenses of the Association, and all installments thereof, with
interest thereon and costs of collections, including reasonable attorney's fees, all as more
particularly defined and provided in Article VI below.
4. Association. "Association" shall mean the John Nieslanik Ranch Rural Land
Development Exemption Homeowners Association, a Colorado Nonprofit Corporation,
incorporated for purposes of owning, maintaining and administering the common facilities as
hereafter described and defined, the members of which Association shall be the owners of the
Lots and which Association shall also administer and enforce the covenants, conditions and
restrictions herein set forth and collect and disburse the assessments and charges all as
hereinafter provided in this document.
5. Association Manager. "Association Manager" shall mean a person who shall be a
Lot Owner and Member of the Association, and who shall be responsible for preparing the
Annual Budget, collecting Annual and Special Assessments and other revenues, disbursing funds
for Common Expenses, calling special meetings and otherwise managing the administrative
affairs of the Association. Subsequent to conveyance of the first Lot by Declarant, the
Association Manager shall be the Declarant or Declarant's successor in interest as herein
provided, at all times during which Declarant or its said successor shall own at least two (2) of
the Lots comprising the Development Exemption, and thereafter to be determined by Owners
2
Action.
6. Common Expenses. "Common Expenses" shall mean the expenses incurred by
the Association under the provisions of this Declaration and which are payable by the Lot
Owners upon assessment.
7. Common Facilities. "Common Facilities" shall mean all real property (exclusive
of the Lots) or interests in real property including but not limited to shared water facilities and
roads, improvements thereto, and personal property now or hereafter owned by the Association
through dedication, conveyance, or assignment by the Declarant to the Association or acquired
by the Association through Owners Action for the common use and enjoyment of all Lot
Owners, and more particularly described in Article IV below. There are expressly excluded from
the Common Facilities any easements, facilities, property and structures, the purpose and
appurtenant nature of which are to serve or benefit less than all of the Lots within the
Development Exemption, including without limitation, domestic water service lines, irrigation
pipe laterals, utilities and roads designed to serve, benefit and be appurtenant to one or more but
less than all of the Lots. Any such excluded facilities, easements, property and structures shall
be controlled, operated and maintained by the Owners of the Lot or Lots served thereby as
appurtenant thereto at such Owner or Owners' expense.
8. DRC. "DRC" shall mean DRC, a committee consisting of the Decalrant or other
Lot Owners pursuant to which shall implement and enforce architectural standards and design
guidelines within the Development Exemption pursuant to Article VIII, below.
9. Lot Owner or Owner. "Lot Owner" or "Owner" means the person, persons, entity
or entities who or which together shall comprise the record owner of fee simple title to a Lot.
10. Member. "Member" shall mean a person or entity that, by virtue of their status as
a Lot Owner, is deemed to enjoy the membership privileges and responsibilities in the
Association.
11. Owners Action. "Owners Action" shall mean a written statement of action to be
taken by the Association which statement shall be executed by no less than the Owners of three
(3) Lots or their respective authorized representatives.
12. Rules and Regulations. "Rules and Regulations" shall mean the rules, regulations,
guidelines, policies and standards as may be adopted and approved by Owners Action as
provided in this Declaration governing the use of the Lots and the use, operation, maintenance,
and administration of the Common Facilities in compliance with County approvals and
regulations.
ARTICLE II
PROPERTY RIGHTS AND USE OF PROPERTY
1. Lots. Lots 1, 2, 3, 4, 5 and 6 shall be used only for the construction, use and
3
occupancy of and as single-family dwellings and customary accessory uses as defined in the
Zoning Resolutions of Garfield County, Colorado, or as permitted by the further provisions
hereof. The foregoing notwithstanding, it is acknowledged that Lot 6 also reserves the right to
replace, improve, expand or otherwise modify existing residences, ranch buildings,
improvements and structures and other outbuildings, within the Ranch Headquarters Envelope,
as permitted by the Conservation Easement. Such structures may include barns, corrals, hay
storage and cattle feeding facilities, greenhouses, and such other improvements as may be
necessary, appropriate or convenient in connection with the conduct of agricultural operations on
the Property provided, however, that any such replacement, improvement, expansion or
modification activity shall be subject to review and approval by the DRC prior to commencement
of any such activity. The Ranch Headquarters Envelope shall remain as an active agricultural
property despite the development exemption of Lots 1, 2, 3, 4 and 5. Therefore, the Owner of
Lot 6 may utilize such property for agricultural purposes in addition to single family residential
purposes subject to the conditions set forth herein.
2. Cse of Common Facilities. Subject to the limitations set forth in this Declaration
and any Rules and Regulations adopted by the Association pursuant to the provisions of this
Declaration, each and every Lot Owner shall have the right to the use, enjoyment and benefit of
the Common Facilities.
3. Building Envelopes. As part of the Development Exemption process the Owner
has established the most efficient and practical building envelope upon each Lot. All above -
grade improvements to be constructed upon a Lot, with the exception of improvements which are
necessary to facilitate ingress and egress to and from a Lot, shall be located within the building
envelope established for such Lot. The DRC does not have the ability to allow structures to be
located outside of the building envelope. The County will not issue a building permit for any
structure wholly or partially located outside of the envelope including accessory structures,
decks, etc. Once the plat is approved any owner may seek to amend the building envelope. If an
amended plat is requested to amend the envelope the County will send a referral to the
Association.
4. Appurtenance of Interests. Any legal or beneficial interests in the Common
Facilities that inure to a Lot Owner by virtue of such ownership are appurtenant to the Lot
owned, with or without specific reference to such appurtenance in any deed which may convey
the Lot.
5. Governance of Development Exemption. Subject to rights, interests and authority
expressly reserved to the Declarant herein, all of the authority regarding the ownership,
operation, maintenance, repair, administration and control of the Common Facilities shall be
vested in the Association and the Lot Owners through their right to participate by Owners Action
in governance of the Development Exemption and all of its Common Facilities as said rights are
more fully described in this Declaration.
6. Waiver of Right to Partition. Each Lot Owner irrevocably waives his right to
statutory partition of the Common Facilities.
4
7. Enforcement. The Declarant, or the Association by Owners Action, or any Lot
Owner shall have the right to enforce the covenants, conditions and restrictions contained in this
Declaration by any legal or equitable means necessary and available including actions for
damages and injunctive relief. In the event of any such action, the Declarant, the Association or
Lot Owner or Owners, if they prevail in said action, shall be entitled to receive reasonable
attorney's fees and costs from the Lot Owner or Owners found to be in violation of this
Declaration.
ARTICLE III
MEMBERSHIP, VOTING RIGHTS AND OWNERS ACTION
1. The owner of record of fee simple title to each Lot shall be a Member of the
Association. For purposes of this Declaration, if a Lot is owned by more than one person, all of
the persons owning an interest in fee simple title to the Lot shall, in the aggregate, be the Lot
Owner thereof and such multiple persons comprising the Lot Owner shall, among themselves,
designate one of their number to participate in, and represent the others, in any Association
affairs or Owners Action as herein described. For purposes of participation in Owners Actions
and any other voting matters in the Association, a Member owning more than one Lot shall be
entitled to one vote for each Lot owned.
2. Except as otherwise herein provided, the ownership, operation, management,
maintenance and repairs of the Common Facilities and all Association actions taken with respect
thereto shall be undertaken and performed pursuant to Owners Action. The Association shall
have the exclusive power and authority to manage any affairs regarding the Common Facilities,
and such power and authority shall include, without limitation whatsoever, the following
authority:
a. To own, purchase, lease, install, operate, maintain, repair and replace all or any
part of the Common Facilities;
b. To adopt such Rules and Regulations as are necessary and appropriate for
governing the use and benefits of the Common Facilities;
c. To establish and oversee the Annual Budget, for purposes of paying anticipated
and contingent expenses related to the Common Facilities;
d. To make, determine and collect Annual and Special Assessments for the purpose
of paying all Common Expenses. Said Annual Assessments to be determined in
accordance with the establishment of the Annual Budgets and as the same are
necessary as Special Assessments for extraordinary or unforeseen expenses
related to said Common Facilities and which were not included in or provided for
under the Annual Budget. All Annual and Special Assessments shall be made on
a ratable basis among the Lot Owners, with a one-fourth (1/6th) share of the total
assessment to be paid by the Owner of each Lot;
e. Subject to the provisions of Article I(5), to elect at the Annual Meeting by Owners
5
Action, an Association Manager to act, during the upcoming year, on behalf of the
Association and in such capacity to exercise all powers of the Association
delegated to him by such Owners Action;
f. To enforce, by Owners Action, the provisions of this Declaration and any Rules
and Regulations adopted by the Association as provided herein, either through
Owners Action or by delegation of such enforcement authority to the Association
Manager;
g.
To establish a date certain for the Annual Meeting for the ensuing year and to
establish Special Meetings as appropriate and necessary. Written notice of the
date, time and place of all Annual and Special Meetings, shall be given to each
Member by mailing such notice to each such Member at least twenty (20) days
prior to the date of such Annual or Special Meeting at the address of each
respective Member as the same shall be maintained in the records of the
Association.
h. To receive and use for the joint and common benefit of all Lot Owners any
revenues received by the Association from whatever sources and determination of
the specific uses of such funds.
i. To take any other action necessary or appropriate to carry out the purposes herein
expressed and to properly maintain the Common Facilities for the use and benefit
of the Lot Owners.
ARTICLE IV
COMMON FACILITIES — OWNERSHIP, USE. MAINTENANCE
The Common Facilities which shall be owned by the Association include, but are not
limited to all common elements all designated roads and easements therefore, and improvements
thereto, utility easements, main ditch easements, water rights, well and pump easements, water
storage and pipeline easements, and drainage easements which serve or benefit all Lots in the
Development Exemption as shown on the Plat. The Association shall maintain and keep in good
repair the Common Facilities (and any personal property and improvements associated
therewith) and any other improvements to or upon the Common Facilities. Such maintenance
shall be funded through the Annual and Special Assessments as provided herein, and revenues
received from any other sources, and shall include, but not be limited to, maintenance, repair, and
replacement of all other structures and improvements situated upon the Common Facilities all to
the end that the safety, appearance and quality of the Common Facilities shall permanently
endure.
ARTICLE V
INSURANCE AND CASUALTY LOSSES
1. Insurance. If deemed necessary, the Association Manager shall have the authority
to obtain insurance for all insurable components of the Common Facilities against loss or damage
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by fire or other hazards, including extended coverage, vandalism, and malicious mischief. This
insurance shall be in an amount sufficient to cover the full replacement cost of any repair or
reconstruction in the event of damage or destruction from any such hazard. The Association
Manager may also obtain an adequate public liability policy insuring the Association, and its
individual Members and Association Manager for all damage or injury caused by the negligence
of the Association or any of its Members, the Association Manager or other agents of the
Association.
2. Repair and Reconstruction. If the damage or destruction for which the insurance
proceeds are paid is to be repaired or reconstructed and such proceeds are not sufficient to defray
the cost thereof, the Association Manager may, without the necessity of any Owners Action, levy
a Special Assessment to cover the amount of deficiency. If the funds available from insurance
exceed the cost of repair, such excess shall be retained to the benefit of the Association.
ARTICLE VI
ASSESSMENTS
1. Annual and Special Assessments. All Annual and Special Assessments, together
with interest at the legal or statutory rate, costs, and reasonable attorneys' fees, if any, shall be a
charge on the land and shall be a continuing lien upon the Lot against which each Annual or
Special Assessment and the aforesaid related costs and expenses, is made. Each such Annual or
Special Assessment, together with interest, costs and reasonable attorneys' fees, if any, shall also
be the personal obligation of the person who was the Owner of a particular Lot at the time the
Assessment was made. All such Annual and Special Assessments shall be due and payable
within thirty (30) days following the date upon which the Association Manager shall have mailed
notice of such Annual or Special Assessment to the Lot Owner obligated to pay the assessment at
the address of said Lot Owner as maintained in the Association records.
2. Liens and Foreclosure of Liens. All Annual and Special Assessments shall
constitute a lien on each Lot, respectively, prior and superior to all other liens, except (i) all ad
valorem taxes, bonds, assessments, and other levies which, by law, would be superior thereto,
and (ii) the lien or charge of any first mortgage of record (meaning any recorded mortgage or
deed of trust with first priority over other mortgages or deeds of trust) made in good faith and for
value. Suit to recover a money judgment for unpaid Assessments, interest and attorneys' fees
shall be maintainable without foreclosing or waiving the lien securing the same. Any lien
created pursuant to the provisions of this Article VI may be foreclosed under the laws of the
State of Colorado in the same manner as a mortgage.
3. Computation of Annual Budget and Annual Assessment. It shall be the duty of
the Association Manager, at least thirty (30) days prior to the Annual Meeting at which the
budget shall be presented to the Association's membership, to prepare a budget covering the
estimated costs and appropriate reserve fund amounts for operating the Association during the
coming year. The Association Manager shall cause a copy of the budget, and the estimated
amount of the Annual Assessments deriving therefrom and to be levied against each Lot for the
following year, to be delivered to each Lot Owner with notice of the Annual Meeting. Such
budgeting process shall take into account any revenues received or anticipated by the Association
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from sources other than Assessments.
ARTICLE VII
ADDITIONAL RESTRICTIONS ON USE AND BUILDING
All Lots shall be subject to the following covenants and restrictions on use and building
restrictions.
1. Violation of Law or Insurance. No Owner shall permit anything to be done or
kept in his Lot or in or upon any Common Facilities which will result in the cancellation of
insurance thereon; or which would be in violation of any law, or would constitute a violation of
any condition or requirement of approval of the Development Exemption by the Board of County
Commissioners of Garfield County.
2. Signs. No sign of any kind shall be displayed to the public view from any Lot or
any Common Facility without the approval of the Association or the DRC, except: a) such signs
as may be used by Declarant in connection with the development and sale of Lots; (b) such signs
as may be required by legal proceedings, or the prohibition of which is precluded by law; or (c)
one "for sale" sign which shall not exceed two (2') feet by three (3') feet. All required sign
permits shall be obtained from Garfield County.
3. Dogs. Dogs may be kept and maintained on a Lot and then only with the
following restrictions and conditions:
a. Dogs shall be kept under the control of the Owner at all times, shall not cause a
nuisance on neighboring properties, and shall not be permitted to run free except
for working dogs on the ranch.
b. Dogs shall not be allowed to bark continuously, which shall be defined as barking
for a continuous fifteen (15) minute period.
c. The Association shall assess and enforce penalties against Lot Owners violating
the foregoing restrictions applying to dogs, in such amounts as the Association
may set from time to time. Until the Association acts to set other penalties, they
shall be as follows: One Hundred Dollars ($100) for the first violation committed
by an Owner's dog; Two Hundred Dollars ($200) for the second violation; Three
Hundred Dollars ($300) for the third violation; and for each succeeding violation
the fine increases in One Hundred Dollars ($100) increments. Should any dog
chase or molest deer, elk or any domestic animals, or destroy or disturb property
of another Lot Owner, the Association shall be authorized to prohibit the Lot
Owner or resident from continuing to maintain the offending animal on his
property. All above penalties shall constitute Special Assessments against the
violating Lot Owner.
d. All Lot Owners shall keep their dogs and other household pets reasonably clean,
and all Lots shall be free of animal waste and refuse.
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e. The Association shall have the right to impose such penalties in addition to any
fines that may be imposed under the regulations of Garfield County or the State of
Colorado with respect to dogs or other animals.
4. Nuisances. No Lot Owner shall permit or suffer anything to be done or kept about
or within his Lot, which will obstruct or interfere with the rights of other Lot Owners or their
property, including generation of unreasonable noises or otherwise, nor will any Lot Owner
commit or permit any nuisance or commit or suffer any illegal act to be committed on his Lot.
Each Lot Owner shall comply with the Rules and Regulations, the requirements of all health
authorities and other governmental authorities having jurisdiction over the Development
Exemption. Pursuant to the allowed agricultural use upon Lot 6, as well as the County's existing
regulations regarding the right of County residents to farm and ranch agricultural property, no
use of Lot 6 for agricultural purposes or any result of such use, including without limitation
noises, sounds, and smells consistent with normal agricultural activities, shall be deemed to
constitute a noxious or offensive activity or otherwise be deemed a nuisance pursuant to this
Section.
5. Boats, RV's and Motor Vehicles. The Association shall be empowered to
regulate the storage of boats, RV's and motor vehicles on all Lots. Except that the minimum
Garfield County single-family parking requirements of two vehicle parking spaces per residence
must be maintained. No boats, trailers, buses, motor homes, campers, snowmobiles, all -terrain
vehicles or other vehicles shall be parked or stored in or upon a Lot except within an enclosed
garage or fully screened area as permitted by the Design Guidelines. The Association may
remove, or cause to be removed, any unauthorized vehicle at the expense of the owner thereof in
any manner consistent with law.
6. Lights. All exterior residential lighting must be shielded and directed downward.
7. Antennas. No radio, television or other antennas of any kind or nature, or device
for the reception or transmission of radio, microwave or other similar signals, shall be placed or
maintained upon any Lot except as may be permitted by the Association, Rules and Regulations
or in accordance with the Design Guidelines.
8. Garbage. No rubbish, garbage or trash, or other waste material, shall be kept or
permitted on any Lot so as to be visible from another Lot or the Common Facilities. No
incinerators shall be kept or maintained in any Lot. No refuse pile, garbage or unsightly objects
shall be allowed to be placed, accumulated or suffered to remain anywhere on a Lot. Trash
removal shall be accomplished through contract entered into by the Association and billed as part
of the Common Expense.
9. Safe Condition. Without limiting any other provision in this Section, each Owner
shall maintain and keep his Lot at all times in a safe, sound and sanitary condition and repair and
shall correct any condition or refrain from any activity which might interfere with the reasonable
enjoyment by other Owners of their respective Lots or the Common Facilities.
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10. Fires Outside Dwellings. Other than commercially manufactured barbecues or
properly constructed barbecue pits or grills and firepits in compliance with the Rules and
Regulations and Design Guidelines, or as otherwise expressly permitted by the Association, no
open fires shall be permitted on the Lots, nor shall any other similar activity or condition be
permitted which would tend to increase the insurance rates for the Common Facilities or for
other Owners.
11. Weed Control. It shall be each Lot Owner's responsibility to control all weeds
and thistle on their entire Lot. If the Association performs weed and thistle control, a Special
Assessment shall be made against the Lot and Lot Owner for the expense thereof The Weed
Management Plan has been attached to and incorporated herein as Exhibit A and will be
managed and enforced by the Association.
12. No Obstruction of Drainage. No Owner shall erect, construct, maintain, permit or
allow any fence or other improvement or other obstruction which would interrupt the normal
drainage of the land or within any area designated on the Plat, or other recorded document, as a
"drainage easement," except that, with the prior consent of the DRC, non- permanent structures,
including fences, may be erected in those areas which contain only underground closed conduit
storm drainage facilities.
13. Rental of Lots. An Owner who leases his Lot shall be responsible for assuring
compliance by his lessee with all of the provisions of this Declaration, the Rules and Regulations
and Design Guidelines, all as amended and supplemented from time to time, and shall be
responsible for any violations by his lessee thereof.
14. Resubdivision Prohibited. The resubdivision of a Lot by a Lot Owner is
prohibited. Lot line adjustments, which would require application to, and approval of an
amended exemption plat from Garfield County, and which do not result in the creation of
additional Lots shall not constitute resubdivision but shall require written approval of the DRC
and shall comply with all requirements of Garfield County.
15. Landscaping and Fencing. All areas of the Lots which are susceptible of access
by grazing livestock shall be fenced by the Lot Owner and the DRC must approve the type and
location of all fences and hedges prior to installation on any Lot. All landscaping shall be
completed within six months of issuance of either a TCO (temporary certificate of occupancy) or
a CO (certificate of occupancy) by Garfield County. Specifically, if a CO or TCO is obtained
from January through July then the landscaping must be completed in the same calendar year. If
a CO or TCO is obtained from August through December then the landscaping must be
completed before July of the following year. All landscaping shall be properly cared for and
maintained. All disturbed areas must be revegetated with vegetation approved by the DRC.
16. Woodburning Stoves and Fireplaces. No open-hearth solid -fuel fireplaces will be
allowed anywhere within the Development Exemption. One (1) new solid -fuel burning stove as
defined by C.R.S. 25-7-401, et seq., and the regulations promulgated thereunder, will be allowed
in any dwelling unit. All dwelling units will be allowed an unrestricted number of natural gas
burning stoves and appliances.
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17. Underground U tilitics. All utilities serving the Lots, including without limitation,
electric power, telephone, cable television, natural gas lines and water lines shall be installed and
maintained underground. This restriction shall include main transmission lines and all service
lines to the individual Lots. This restriction shall not apply to existing main electric and
telephone overhead transmission lines located on Lots 5 and 6.
18. Firearms. The discharge or shooting of firearms is prohibited.
19. Mineral Exploration and Extraction. Lot Owners agree not to separate or sell
from the Property any portion of mineral rights. However, if a third party owner, lessor or
interest -holder of mineral rights associated with the Property requires entry onto the Property in
order to develop such mineral rights, Lot Owners may permit or lease to a third party the right to
develop minerals beneath the Property by those methods of mineral development having only
limited, localized, temporary and reclaimable impacts on the Property, which impacts must not
be irremediably destructive. (For example, drilling for oil or natural gas beneath the Property
from an offsite location, or from the surface of the Property in a manner that does not result in
water contamination, destruction of wetlands or significant habitat, or damage to scenic views
from public rights-of-way, may be permitted.) In addition, any surface alterations or disturbance
caused by or associated with mineral development must be restored to as close to its original
state as possible upon completion of drilling, exploration or extraction operations. The Owner of
Lot 6, which is encumbered by a Conservation Easement, shall notice the Aspen Valley Land
Trust prior to entering into, permitting or leasing the right to develop any mineral resource on the
Property, and before entering into any appurtenant surface use agreements, non -surface use
agreements, damage agreements or other related agreements, easements or rights-of-way
affecting Lot 6 (collectively hereafter "SUAs" ) as may be necessary. Specifically, any mineral
leases or SUAs affecting Lot 6 entered into after the date of the Conservation Easement shall:
a. incorporate the Easement by reference and summarize the Conservation Values;
b. be subordinate to the Easement (with regard to the Owner's share of the mineral
rights, and with deference to previously executed leases and agreements);
c. permit no more structures or infrastructure upon, or impacts to Lot 6 than are
reasonably necessary to development of mineral rights beneath the Property in a
method consistent with the above paragraphs; and where possible and feasible,
non -surface occupancy methods of mineral development shall be employed to
avoid surface impact to the Lot 6;
d. require that any impacted sites are recontoured, revegetated, and restored as
described above.
20. Reflective Finishes. Reflective finishes and reflective glass shall not be used on
any exterior improvement surfaces, including without limitation walls, roofs, windows, doors,
trim, retaining walls and fences; provided, however, that the foregoing restrictions shall not
prohibit skylights to be installed in residences.
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21. Enclosure of Unsightly Facilities and Equipment. All unsightly facilities,
equipment and other items, including but not limited to those specified below, shall be enclosed
within a covered structure or otherwise wholly screened from view. Any refuse or trash
containers, tanks, pumps, utility meters or other facilities, service areas, or storage piles shall be
enclosed within a structure or appropriately screened from view by planting or fencing approved
by the DRC, which planting or fencing shall be adequate to conceal the same from neighbors and
public and private roads. No lumber, metals, 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 is necessary prior to the collection of or disposal
thereof.
22. Private Driveways. Each Lot shall be served by its own individual private
driveway extending off of the interior Development Exemption roadways and shall be for the
exclusive use of the respective Owners. Each Owner shall be solely responsible for any and all
maintenance, repair, replacement or other costs related to their respective private driveways.
23. Enforcement. The Association Manager or his authorized agent may enter any
Lot in which a violation of this Declaration and these restrictions exists and may correct such
violation at the expense of the Owner of such Lot. Any expenses in connection with such
correction shall be a Special Assessment against and be secured by a lien upon such Lot
enforceable in accordance with the provisions of Article VI hereof. All remedies described in
Article VI hereof and all other rights and remedies available at law or equity shall be available to
the Association, the Declarant or any Lot Owner in the event of any breach of any provision of
this Article VII by any Owner.
24. Restrictions/Conditions Imposed By Garfield County. The use of all Lots shall be
in strict accordance with the conditions of approval and Plat restrictions contained in Resolution
2010-81 recorded at Reception No. 792747 in the office of the Garfield County Clerk and
Recorder as and enacted by the Board of County Commissioners of Garfield County, Colorado,
approving the Development Exemption and the Plat.
25. Fugitive Dust Management Plan. It shall be each Lot Owner's and land
developer's responsibility to follow the Fugitive Dust Management Plan attached to and
incorporated herein as Exhibit B. The Fugitive Dust Management Plan will be managed and
enforced by the Association.
ARTICLE VIII
DESIGN REVIEW
1. Approval of Improvements Required. No improvement to the property shall be
constructed on any Lot without Design Review Committee ("DRC") approval, except where
approval is not reasonably required to carry out the purposes of this Declaration as determined by
the DRC any improvements upon Lot 6 that are permitted pursuant to the Conservation Easement
recorded in the Garfield County real property records at Reception No. 688879. "Improvement
to property" shall mean the construction, erection, installation or expansion of any building,
12
structure or utility facilities, and fences or destruction or removal of any building, structure, tree,
vegetation or other improvement, or the grading, excavation, filling or similar disturbance to the
surface of land, or any change of any previously approved improvement to a Lot, including any
change of exterior appearance, color or texture.
2. DRC. The DRC shall consist solely of the Declarant until such time as primary
residences have been constructed on Lots 1 through 6. Thereafter, the Association by Owners
Action shall appoint such number of Lot Owners and for such terms as it deems appropriate to
serve as the DRC.
3. Design Guidelines. The DRC shall establish reasonable procedural rules,
regulations, architectural standards and design guidelines (the "Design Guidelines") that the
DRC may, from time to time in its discretion, amend, repeal or augment. The Design Guidelines
may include, among other things, the following restrictions and limitations:
a. Procedure for submittal of all construction plans to the DRC.
b. Time limitations for the completion, within specified periods after approval and
commencement of construction, of the improvements for which approval is
required pursuant to the Design Guidelines.
c. To preserve the views from other Lots and to preserve the natural beauty and
condition of each Lot, the designation of a "building envelope" where needed
within the discretion of the DRC, establishing the location and maximum
developable area of the Lot. Provided that no structure shall be sited anywhere on
a Lot outside of the designated envelopes established for each Lot as part of the
Development Exemption process. The DRC shall, within its discretion, approve
the building's location within the envelope as near to the location selected by the
Owner as it deems appropriate. With respect to Lot 6, the foregoing provision is
subject to the provisions of Article II, Section 1, above.
d. Approval of plans and specifications prior to the commencement of all
construction. In addition to other use and building restrictions contained in
Article VII hereof, no building shall be erected by means of other than new
construction, it being the purpose of this covenant and restriction to ensure that
old buildings will not be moved from previous locations and placed upon a Lot.
Further, all structures shall be constructed of either brick, stone, lumber, stucco,
logs or a combination thereof. The use of cinderblock shall not be allowed unless
it is faced with another approved material. No residential buildings commonly
known as "modular homes," "factory built housing," "HUD homes" or "mobile
homes" shall be permitted to be constructed or installed on any Lot.
e. The DRC shall list the varieties of plants and trees that shall be permitted to be
planted on any Lot. A list of such plants and trees shall be kept on file at all times
by the Association. The Association may, from time to time, amend the list of
permitted plants and trees to add or delete certain varieties.
13
£ The DRC or the Association may make rules prohibiting the use of all chemical
pesticides and herbicides during certain periods of the year.
g. Such other limitations and restrictions as the DRC in its reasonable discretion
shall adopt, including without limitation, the regulation of all exterior lighting,
landscaping (including without limitation, absolute prohibition of certain types of
landscaping, trees and plants), construction, reconstruction, exterior addition,
change or alteration to or maintenance of any building, structure, foundation
system, wall or fence, including, without limitation, the nature, style, shape,
height, materials, exterior color, surface texture, location of any such
improvement and prohibition of construction during certain periods of the year.
4. General Provisions.
a. The DRC may assess reasonable fees in connection with the review of plans and
specifications. In the event that an application requires extraordinary legal,
engineering or other fees, the DRC will notify the applicant of the amount of such
fees, and the DRC will not be required to take further action until such
extraordinary fees are paid by the applicant. Any costs incurred by the DRC in
processing an individual application shall be considered a Special Assessment
against the Lot involved.
b. The DRC may delegate its plan review responsibilities, except final review and
approval as may be required by the Design Guidelines, to one or more of its
members or architectural consultants retained by the DRC. Upon such delegation,
the approval or disapproval of plans and specifications by such members or
consultants shall be equivalent to approval or disapproval by the entire DRC.
c. The address of the DRC shall be the address established for giving notice to the
Association, unless otherwise specified in the Design Guidelines. Such address
shall be the place for the submittal of plans and specifications and the place where
the current Design Guidelines shall be kept.
d. The DRC shall approve or disapprove any plans and specifications submitted to it,
in writing, in accordance with the Design Guidelines within a period of thirty (30)
days.
ARTICLE IX
DOMESTIC AND IRRIGATION WATER
1. Domestic Water Supply.
a. Each of the six Lots will be served domestic water from one of two existing
ground water wells. Well No. 2 has been awarded Exempt Domestic Well Permit
#280848 and Well No. 3 has been awarded Exempt Domestic Well Permit
14
#281789 by the Colorado Division of Water Resources.
b. Both wells are located on the ranch. According to the Well Permits, each well
may pump up to 15 g.p.m. for allowed uses including fire protection, ordinary
household uses in up to three single family dwellings, the watering of poultry,
domestic animals and livestock on a farm or ranch, and the irrigation of not more
than one acre of gardens and lawns per Lot.
c. One single-family residence per Lot constructed on Lots 1, 5, and 6 of the
Development Exemption shall be entitled to jointly use Well No. 2 and one
single-family residence per Lot constructed on Lots 2, 3, and 4 of the
Development Exemption shall be entitled to jointly use the Well No. 3. No single
Lot shall irrigate more than 5,000 square feet of lawn or garden area with well
water. In times of shortage of well water, in-house domestic uses shall have
priority over outdoor irrigation uses. The Association shall have authority to
implement additional regulations concerning the allocation and use of well water,
including the right to require individual metering of each Lot Owner's usage, the
construction of additional individual water storage tanks upon each Lot, and other
reasonable water conservation measures, as determined in the discretion of the
Association.
d. Declarant hereby establishes an easement for the use and benefit of Lots 1, 2, 3, 4,
and 5 over, across and through Lot 6, for the non-exclusive use and enjoyment of
the Wells, for purposes of collecting and transporting the water produced
therefrom for all domestic purposes incidental to the lawful use and enjoyment of
Lots 1 through 6, and for such other and further purposes as may from time to
time be lawfully authorized and permitted. This easement shall be in addition to
any other easements granted on the Plat in connection with the Wells.
e. The easement described above shall include the right of the owner of Lots 1
through 6 to gain reasonable access as is necessary for purposes of installing and
maintaining any Well improvements and an underground water line to transport
the water from the Well to the improvements that may be constructed upon Lots 1
through 6, said easement to be located as described on the Plat.
f. The John Nieslanik Ranch Rural Land Development Exemption Homeowner's
Association shall be responsible for any applications for a well permit or for the
application for an adjudication of water rights for the Wells, as required by
applicable statutes and regulations. No such applications shall be submitted by
the John Nieslanik Ranch Rural Land Development Exemption Homeowner's
Association without delivery of written notice to all of the owners of Lots 1
through 6.
g.
The owners of Lots 1 through 6 shall share equally in the common costs of
maintenance, upkeep and capital improvements of the Wells, including but not
limited to the costs and expenses of any and all pumps, storage facilities and other
15
equipment used in connection with increasing the depth of the Wells and
installing a replacement pump, storage tank or additional improvements to enable
the residences on Lots 1 through 6 to be adequately served with water of sufficient
quality and quantity.
h. Upon construction of any new residence on Lots 1 through 6, the Lot owner is
required to provide on site water storage to accommodate in house use, irrigation,
and fire protection water storage per the Carbondale and Rural Fire Protection
District's requirements. Plans for the on site water storage must accompany any
application for Building Permit from Garfield County.
Any common work to be performed and paid for under the provisions of this
Declaration shall not commence until a cost estimate of work to be done has been
presented to and approved in writing by the owners of Lots 1 through 6. The
approval of a lot owner shall not be unreasonably withheld, and it is not the
intention of the Declarant to allow this clause to be used to prevent or
unreasonably delay work authorized by this Declaration.
All common work authorized by this Declaration shall be promptly paid for by the
owners of Lots 1 through 6. It is understood that the work done at any given time
may inure to the immediate benefit of only one (1) party. However, under the
terms of this Declaration, all bills shall be promptly paid by the owners of Lots 1
through 6 in equal shares, regardless of whether the benefit inures only to one (1)
party at a given time or to the benefit of both parties.
k. In the event a lawsuit is necessary to collect monies due under this Declaration, an
aggrievance party shall have the right to pursue a mechanic's lien foreclosure or
any other legal or equitable remedy, and the prevailing party in any litigation shall
be awarded all costs, including a reasonable attorney's fee.
J-
1. The covenants, conditions and restriction contained herein shall be binding upon
and inure to the benefit of the owners of Lots 1 through 6 and their successors in
interest and these covenants, conditions and restrictions shall be deemed to be
covenants running with the land.
m. All notices required hereunder shall be in writing and shall be delivered
personally or by certified mail, return receipt requested. Notices shall be deemed
effective upon delivery but not later than ten (10) days after posting.
2. Irrigation Water Supply. Lots 1 through 5 shall not have any surface water rights from
the East Mesa Ditch Only Lot 6 shall have the right to irrigate with water delivered
through the East Mesa Ditch system.
ARTICLE X
CONDEMNATION
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Whenever all or any part of the Common Facilities shall be taken (or conveyed in lieu of
and under threat of condemnation, by the Association through Owners Action) by any authority
having the power of condemnation or eminent domain, each Lot Owner shall be entitled to notice
thereof and to participate in the proceedings incident thereto, unless otherwise prohibited by law.
The award made for such taking shall be payable to the Association and used for its purposes
herein enumerated.
ARTICLE XI
GENERAL PROVISIONS
1. Term. The covenants, conditions and restrictions of this Declaration shall run
with title to Lots 1, 2, 3, 4, 5 and 6 and shall inure to the benefit of the Lot Owners and shall be
enforceable by the Declarant, the Association, its Association Manager or any of the Lot Owners.
2. Indemnification. The Association shall indemnify Declarant and any persons
acting in the capacity of Association Manager against any and all expenses, including attorneys'
fees and costs reasonably incurred by or imposed upon said Declarant or Association Manager in
connection with any action, suit or other proceeding (including settlement of any suit or
proceeding) to which the Declarant or Association Manager may be a party by reason of any
actions, contracts, agreements or other activity undertaken by the Declarant or Association
Manager before or after the making of this Declaration, other than those acts or omissions of
Declarant or Association Manager taken or done in violation of the provisions hereof. The
Declarant or Association Manager shall not be liable for any mistake of judgment, negligent or
otherwise, except for willful misfeasance, malfeasance, misconduct or bad faith. The Declarant
or Association Manager shall have no personal liability with respect to any contract or other
commitment made by them with third parties, in good faith, with respect to the Development
Exemption or Common Facilities or otherwise, on behalf of the Association, and the Association
shall indemnify, save and forever hold such Declarant or any Association Manager free and
harmless against any and all liability to any third party on account of any such contract or
commitment. Any right to indemnification provided for herein shall not be exclusive of any
other rights to which Declarant or any Association Manager may be entitled in this regard.
Nothing herein shall be construed as relieving Declarant or Association Manager of their
respective obligations and duties to the Lot Owners enjoined upon each under the provisions
hereof.
3. Amendment or Modifications. At any time subsequent to the conveyance of one
(1) of the Lots by Declarant, the Lot Owners may amend or modify this Declaration in any
particular by a written instrument executed by the Owners of not less than four (4) of the Lots,
and recorded in the records of the County; provided that no such amendment or modification of
this Declaration affects or purports to affect any rights accorded to or reserved by the Declarant
herein or requirements of Garfield County. No amendments to these Declarations shall conflict
with the requirements of the Board of County Commissioners as contained in the Preliminary
Plan approved by the Board of County Commissioners recorded as Reception No. 686419 in the
records of the Garfield County Clerk and Recorder's Office and the provisions of the Unified
Land Use Resolution of 2008, as amended, unless such amendment is approved by the Board of
County Commissioners.
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4. Severability. Invalidation of any one of these covenants or restrictions by
judgment or court order shall in no way affect any other provisions which shall remain in full
force and effect.
5. Perpetuities. If any of the covenants, conditions and restrictions of this
Declaration shall be unlawful, void or voidable for violation of the rule against perpetuities, then
such provisions shall continue only until twenty-one (21) years after the death of the longest
lived members of the Declarant.
6. Non -Waiver. The failure of Declarant, the Association, the Association Manager
or a Lot Owner to object to any breach of or failure to comply with the provisions of this
Declaration or any Rules and Regulations by a person subject thereto shall in no event be deemed
a waiver of any right to object to the same and to seek compliance therewith at any time.
7. Captions. Article and section captions, headings or titles inserted throughout this
Declaration are intended solely as a means of convenience and reference and in no way shall
such captions, headings or titles define, limit or in any way affect any of the substantive terms
and provisions of this Declaration.
8. Context. Whenever the context requires, any pronoun used herein shall be
deemed to mean both the feminine and masculine gender, and the singular shall be deemed to
also encompass the corresponding plural.
IN WITNESS WHEREOF, the undersigned Declarant has executed this Declaration this
10 day of December, 2010.
Nieslanik Investments, LLC
1872 Prince Creek Road
Carbondale, Colorado, 816 3---,A_ ,-
By:
Date: j)ec e (Aa o �n/o
Cecelia L. Nieslanik Bypass Trust
1872 Prince Creek Road
Carbondale Colorado, 8162
By:
Date:
STATE OF COLORADO
1er1.uo94910
18
) ss
COUNTY OF Garfield County )
Subscribed and sworn to before me by 1\16, .14 e.sickvi
as (-en iderect %e{i of Nieslanik Investments, LLC and the Cecelia Nieslanik Bypass Trust this
ti C) day of December, 2010.
WITNESS my hand and official seal.
My commission expires: - 3
Notary 1%Ibli c
19
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C mission E1.06.
EXHIBIT "A"
JOHN NIESLANIK RANCH
RURAL LAND DEVELOPMENT EXEMPTION
WEED MANAGEMENT PLAN
Individual property owners of the John Nieslanik Ranch shall be responsible for the following
weed management strategies to prevent or stop the spread of noxious weeds.
1. Individual property owners are responsible for the timely revegetation and reclamation of
disturbed sites using appropriate native plant species. Disturbed areas from construction
such as roads, driveways, and new utility areas shall have the existing topsoil stockpiled
and then replaced on the disturbed areas to the extent possible. Imported soils are more
likely to be contaminated with other weed seeds and therefore should be avoided. The
following strategies shall be utilized for the revegetation of disturbed areas at the John
Nieslanik Ranch:
a. Study all vegetation in the area and surrounding areas.
b. Preserve plant species native to Colorado.
c. Test the soil for pH balance. Try to retain and utilize as much on-site topsoil as
possible.
d. Select a predominant species that is appropriate to the site. Then choose a few
complimentary species to provide a balanced plant community.
e. Choose plants that are healthy, vigorous and pest free.
f. Use weed -free seeds. Use non -hybrid seeds. Avoid commercial seed packets
containing exotic plant species.
g. Choose plants that are horticulturally appropriate, i.e. plant species that are
adaptable to climate, soil and topographical conditions of the designated area.
h. Consider the use of water, its availability and the vegetative requirements.
i. To landscape for wildlife, choose native plants that provide cover, forage, browse,
seeds for birds and rodents, and shade.
j. Be site-specific; revegetation strategies may vary for small lots, farms, ranches or
construction sites.
k. Establish a vegetative cover that is diverse, effective and long lasting, capable of
self- regeneration.
1. Stabilize the surface.
2. After final grades are established and topsoil is spread, property owners must reseed
using a native plant species seed mix. A sprinkler system should be used following
planting to encourage healthy plants.
3. Individual property owners are responsible for identification and eradication of all
noxious weed infestations as well as continuous monitoring and evaluation to prevent
recurrence. The Garfield County Designated Noxious Weed List includes the following:
20
a. Canada thistle (Cirsium arvense)
b. Chicory (Cichorium intybus)
c. Common burdock (Arctium minus)
d. Dalmatian toadflax (Linaria dalmatica)
e. Diffuse knapweed (Centaurea diffusa)
f. Hoary cress (Cardaria draba)
g. Houndstongue (Cynoglossum offinale)
h. Jointed goatgrass (Aegilops cylindrica)
i. Leafy spurge (Euphorbia esula)
j. Musk thistle (Carduus acanthoides)
k. Oxeye daisy (Chrysantheum leucanthemum)
1. Plumeless thistle (Carduus acanthoides)
m. Purple loosestrife (Lythrum salicaria)
n. Russian knapweed (Acroptilon repens)
o. Russian olive (Elaeagnus angustifolia)
P. Salt cedar (Tamarix ramosissima)
q. Salt cedar (Tamarix parviflora)
r. Scotch thistle (Onopordum acanthium)
s. Spotted knapweed (Centaurea maculosa)
t. Yellow starthistle (Centaurea solstitialis)
u. Yellow toadflax (Linaria vulgaris)
4. In the seasons following planting, noxious weed control shall take place twice yearly in
the disturbed and newly planted areas until well established plants are healthy and cover
the bare soil. Other weed management beyond the disturbed areas should be done twice
each year. This should include locating and either cutting or selective spot spraying any
noxious weeds.
21
EXHIBIT "B"
JOHN NIESLANIK RANCH
RURAL LAND DEVELOPMENT EXEMPTION
FUGITIVE DUST MANAGEMENT PLAN
All land developers of the John Nieslanik Ranch Rural Land Development Exemption are
required to apply to the Colorado Department of Public Health and Environment/Air Pollution
Control Division for an Air Pollutant Emission Notice (APEN) and Application for Construction
Permit.
The John Nieslanik Ranch intends to follow a dust control plan to minimize emissions of fugitive
dust to a level that is technologically feasible and economically reasonable within the ranch and
on any access roads used for travel to and from proposed home sites within the ranch.
1. During the land development process, fugitive dust control of unpaved roads at The John
Nieslanik Ranch will include watering at a frequency of 1 or 2 times per day or as
needed. The application of chemical stabilizer is not advised due to the close proximity
of the land development areas to active agricultural lands. Vehicle speed control will be
enforced with speeds limited to a maximum of 20 mph. Speed limit signs will be posted.
The John Nieslanik Ranch roads will ultimately be surfaced with clean gravel to
minimize dust.
2. Fugitive dust control of disturbed surface areas on site will include watering as needed.
Revegetation of these areas must occur within one year of soil disturbance. All areas to
be revegetated shall be seeded with a native grass seed and mulched. If furrowing is
applicable for seeded areas, furrows shall be at a right angle to the prevailing wind and
the depth of furrow must be greater than 6". All disturbed foundation areas must be
compacted to within 90% of maximum compaction on a daily basis. Snow or silt fence
may be used as wind breaks if necessary. All disturbed steep areas shall be netted or
mulched when reseeded,
3. Prevention of mud and dirt carried out onto paved surfaces will include gravel at all
entryways. The cleanup of paved areas will occur as needed with a street sweeper or a
hose with water.
22
Document must be filed electronically.
Paper documents will not be accepted.
Document processing fee
Fees & forms/cover sheets
are subject to change.
To access other information or print
copies of filed documents,
visit www.sos.state.co.us and
select Business Center.
-Filled'
Colorado Secretary of State
Date and Time: 12/10/2010 (]
ID Number: 20101673336
1
EXHIBIT
$50.00 Document number: 20101673336
Amount Paid: $50.00
ABOVE SPACE FOR OFFICE USE ONLY
Articles of Incorporation for a Nonprofit Corporation
filed pursuant to § 7-122-101 and § 7-122-102 of the Colorado Revised Statutes (C.R.S.)
1. The domestic entity name for the nonprofit corporation is
John Nieslanik Ranch Rural Land Development Exemption Homeowners Association
(Caution: The use of certain terms or abbreviations are restricted by law. Read instructions for more information.)
2. The principal office address of the nonprofit corporation's initial principal office is
1872 Prince Creek Road
Street address
Mailing address
(leave blank if same as street address)
(Street number and name)
Carbondale CO 81623
(City) (State) (ZIP/Postal Code)
United States
(Province — if applicable) (Country)
(Street number and name or Post Office Box information)
(City)
(State) (ZIP/Postal Code)
(Province — if applicable) (Country)
3. The registered agent name and registered agent address of the nonprofit corporation's initial registered agent
are
Name
(if an individual)
OR
(if an entity)
Nieslanik
Mark
(Last)
(First)
(Middle) (Suffix)
(Caution: Do not provide both an individual and an entity name.)
1872 Prince Creek Road
Street address
ARTINC_NPC
(Street number and name)
Carbondale
co 81623
(City) (State) (ZIP Code)
Page 1 of 3 Rev. 02/28/2008
Malting address
(leave blank if same as street address) (Street number and name or Post Office Box information)
(City)
CO
(State)
(The following statement is adopted by marking the box.)
❑✓ The person appointed as registered agent above has consented to being so appointed.
4. The true name and mailing address of the incorporator are
Name
(if an individual)
OR
(if an entity)
Hamilton Mark
(ZIP Code)
(Last) (First) (Middle) (Suffix)
(Caution: Do not provide both an individual and an entity name.)
c/o Holland & Hart LLP
Mailing address
(Street number and name or Post Office Box information)
600 E. Main Street, Suite 104
Aspen CO 81611
(City')
tat J (ZIP/Postal Code)
Un tech States
(Province if applicable) (Country)
(If the folloiving statement applies, adopt the statement by marking the box and include an attachment)
❑ The corporation has one or more additional incorporators and the name and mailing address of each
additional incorporator are stated in an attachment.
5. (If the following statement applies, adopt the statement by marking the box.)
❑✓ The nonprofit corporation will have voting members.
6. (The following statement is adopted by marking the box.)
O Provisions regarding the distribution of assets on dissolution are included in an attachment.
7. (If the following statement applies, adopt the statement by marking the box and include an attachment)
Q This document contains additional information as provided by law.
8. (Caution: Leave blank if the document does not have a delayed effective date. Stating a delayed effective date has
significant legal consequences. Read instructions before entering a date.)
(If the following statement applies, adopt the statement by entering a date and, if applicable, time using the required format)
The delayed effective date and, if applicable, time of this document is/are
(nim/dd/yyyy hour: minute am/pm)
Notice:
Causing this document to be delivered to the Secretary of State for filing shall constitute the affirmation or
acknowledgment of each individual causing such delivery, under penalties of perjury, that the document is the
individual's act and deed, or that the individual in good faith believes the document is the act and deed of the
person on whose behalf the individual is causing the document to be delivered for filing, taken in conformity
with the requirements of part 3 of article 90 of title 7, C.R.S., the constituent documents, and the organic
statutes, and that the individual in good faith believes the facts stated in the document are true and the
document complies with the requirements of that Part, the constituent documents, and the organic statutes.
ARTINC NPC Page 2 of 3 Rev. 02/28/2008
This perjury notice applies to each individual who causes this document to be delivered to the Secretary of
State, whether or not such individual is named in the document as one who has caused it to be delivered.
9. The true name and mailing address of the individual causing the document to be delivered for filing are
Hamilton Mark
(Last) (First) (Middle) (Suffix)
c/o Holland & Hart LLP
(Street number and name or Post Office Box information)
600 E. Main Street, Suite 104
Aspen CO 81611
(City) (Stale) (ZIP/Postal Code)
United States
(Province - if applicable) (Country)
(lf the following statement applies, adopt the statement by marking the box and include an attachment.)
❑ This document contains the true name and mailing address of one or more additional individuals
causing the document to be delivered for filing.
Disclaimer:
This form/cover sheet, and any related instructions, are not intended to provide legal, business or tax advice,
and are furnished without representation or warranty. While this form/cover sheet is believed to satisfy
minimum legal requirements as of its revision date, compliance with applicable law, as the same may be
amended from time to time, remains the responsibility of the user of this form/cover sheet. Questions should
be addressed to the user's legal, business or tax advisor(s).
ARTINC_NPC
Page 3 of 3 Rev. 02/28/2008
ARTICLES OF INCORPORATION
OF
JOHN NIESLANIK RANCH
RURAL LAND DEVELOPMENT EXEMPTION
HOMEOWNERS ASSOCIATION
(a Colorado Nonprofit Corporation)
The person listed below in Article XV, acting as incorporator of the John
Nieslanik Ranch Rural Land Development Exemption Homeowners Association, a
Colorado nonprofit corporation, (the "Corporation") under the Colorado Revised
Statutes, Title 7, Articles 121-137, as amended from time to time (the "Colorado
Nonprofit Corporation Act"), adopts the following Articles of Incorporation for such
Corporation. Capitalized terms not otherwise defined herein shall have the meanings
set forth in the Declaration of Covenants, Easements, Conditions and Restrictions for
the JOHN NIESLANIK RANCH RURAL LAND DEVELOPMENT EXEMPTION
recorded in the Office of the Clerk and Recorder of Garfield County, Colorado, and any
supplement or amendment thereto (the "Declaration"). All of the lands that become
subject to said Declaration from time to time are hereinafter referred to as the
"Development.
ARTICLE I
NAME
The name of the corporation is JOHN NIESLANIK RANCH RURAL LAND
DEVELOPMENT EXEMPTION HOMEOWNERS ASSOCIATION.
ARTICLE II
DURATION
The period of its duration shall be perpetual.
ARTICLE III
PURPOSES
The business, objects and purposes for which the Corporation is organized are
for the acquisition, construction, management, maintenance and care of "association
property" (as that term is used and defined in Section 528 of the Internal Revenue Code
and its regulations), including, but not limited to, the following:
- 1 -
1. To be and constitute the Association to which reference is made in the
Declaration made, executed and recorded by Nieslanik Investments, LLC and Cecelia L.
Nieslanik Bypass Trust, (hereinafter collectively referred to as the "Declarant")
pursuant to the Colorado Nonprofit Corporation Act, and to perform all obligations and
duties of the Corporation and to exercise all rights and powers of the Corporation
described in said Declaration, as it may be amended from time to time.
2. To provide an entity for the furtherance of the interests of all of the
Owners and Occupants in the Development, including the Declarant named in the
Declaration, with the objective of establishing and maintaining the Development as a
residential project of high quality and value and enhancing and protecting its value,
desirability and attractiveness, and to promote the health, safety and welfare of the
Owners and Occupants within the Development and any additions thereto as may
hereafter be brought within the jurisdiction of this Corporation.
ARTICLE IV
POWERS
In furtherance of its purposes, the Corporation shall have all of the powers
conferred upon nonprofit corporations by the statutes and common law of the State of
Colorado in effect from time to time, including all of the powers necessary or desirable
to perform the obligations and duties and exercise the rights and powers of the
Corporation under the Declaration. Such powers shall include, but shall not be limited
to, the following:
1. The Corporation shall have all of the powers, authority and duties
permitted pursuant to the Colorado Nonprofit Corporation Act and the Colorado
Common Interest Ownership Act;
2. The Corporation shall have all of the powers, authority and duties
necessary and proper to manage the business affairs of the Development, including
without limitation those conferred upon it by the Declaration, as it may be amended
from time to time;
3. Subject to applicable law, the Corporation shall have all of the powers,
authority and duties necessary and proper to acquire, own, operate, improve, maintain,
repair, replace, manage, lease, encumber and otherwise deal with the Common Areas, as
defined in the Declaration.
4. The Corporation shall be prohibited from engaging in any regular business
or activity of a kind ordinarily carried on for profit.
-2-
ARTICLE V
BOARD OF DIRECTORS
1. Except where otherwise provided in the Declaration, the Bylaws, and the
Colorado Nonprofit Corporation Act, the affairs of the Corporation shall be conducted,
managed and governed by a Board of Directors. The duties, qualifications, number and
term of members of the Board of Directors (the "Directors") and the manner of their
election and removal shall be as set forth in the Bylaws.
2. The initial Board of Directors shall consist of four (4) members. The
names and addresses of the persons who shall serve until the first election of Directors
and until their successors are duly elected and qualified are as follows:
Mark Nieslanik
1872 Prince Creek RD
Carbondale, Colorado 81623
Marty Nieslanik
977 County Road 101
Carbondale, Colorado 81623
Matt Nieslanik
472 County Rd 153
Carbondale, Colorado 81623
Mike Nieslanik
757 County Road 101
Carbondale, Colorado 81623
ARTICLE VI
PERIOD OF DECLARANT CONTROL
1. In the Declaration, Declarant has reserved the right to appoint and remove
Directors and officers until the date which is sixty (60) days after conveyance of 100%
of the Lots that may be created to Owners other than Declarant (the "Turnover Date").
The period of time from the adoption of these Articles of Incorporation until the
Turnover Date is defined as the Period of Declarant Control. After termination of the
Period of Declarant Control, Declarant, if still an Owner, will have all of the rights and
duties given to Owners under the Declaration and will retain all of the rights belonging
to Declarant under the Declaration other than those that expire by their terms upon
expiration of the Period of Declarant Control.
-3-
2. At any time prior to the Turnover Date, the Declarant may voluntarily
surrender and relinquish the right to appoint and remove officers and members of the
Board of Directors pursuant to a recorded statement of termination executed by
Declarant. In such event, Declarant may require, for the duration of the Period of
Declarant Control, that specified actions of the Corporation or the Board of Directors,
as described in a recorded instrument executed by Declarant, be approved by Declarant
before they become effective. As to such actions, Declarant may give its approval or
disapproval in its sole discretion and option, and its disapproval shall invalidate any
such action by the Board of Directors or the Corporation.
3. Not later than the Turnover Date, the Lot Owners (including Declarant)
shall elect a Board of Directors of at least three (3) members, at least a majority of
whom must be Owners other than Declarant or designated representatives of Owners
other than Declarant, and the Board of Directors shall elect the officers, with such
Board of Directors members and officers to take office upon election.
4. Within sixty (60) days after the Owners other than Declarant elect a
majority of the Directors, Declarant shall deliver to the Association all property of the
Association in the possession or control of Declarant.
ARTICLE VII
MEMBERS AND VOTING RIGHTS
1. There shall be one "Membership" in the Corporation for each Lot within
the Development. The Person or Persons who constitute the Owner of a Lot shall
automatically be the holder of the Membership appurtenant to that Lot, and shall
collectively be the "Member" of the Corporation with respect to that Lot, and the
Membership appurtenant to that Lot shall automatically pass with fee simple title to the
Lot. Declarant shall hold a Membership in the Corporation for each Lot owned by
Declarant. Membership in the Corporation shall not be assignable separate and apart
from fee simple title to a Lot, and may not otherwise be separated from ownership of a
Lot.
2. Each Lot in the Development shall have one (1) vote in the Corporation.
Occupants of Lots shall not have voting rights. If title to a Lot is owned by more than
one (1) Person, such persons shall collectively cast their vote.
-4-
ARTICLE VIII
PROXY VOTING
A Member shall be entitled to vote in person on any matters on which such
Member is entitled to vote, and may vote on such matters by proxy in the manner set
forth in the Bylaws.
ARTICLE IX
CUMULATIVE VOTING
Cumulative voting by Members in the election of Directors shall not be
permitted.
ARTICLE X
INITIAL REGIS'I'ERED OFFICE AND AGENT
The address of the initial registered office of the Corporation shall be 1872
Prince Creek Road, Carbondale, Colorado 81623. The initial registered agent at such
address shall be Mark Nieslanik.
ARTICLE XI
PRINCIPAL OFFICE
The address of the principal office of the Corporation is 1872 Prince Creek Road,
Carbondale, Colorado 81623.
ARTICLE XII
INUREMENT AND DISSOLUTION
No part of the income or net earnings of the Corporation shall inure to the
benefit of, or be distributable to, any Member, Director, or officer of the Corporation or
to any other private individual, except that: (i) reasonable compensation may be paid
for services rendered to or for the Corporation affecting one or more of its purposes; (ii)
reimbursement may be made for any expenses incurred for the Corporation by any
officer, Director, Member, agent or employee, or any other person or corporation,
pursuant to and upon authorization of the Board of Directors; and (iii) rebates of excess
membership dues, fees, or Assessments may be paid.
-5-
In the event of dissolution of the Corporation, the property and assets thereof
remaining after providing for all obligations shall then be distributed pursuant to the
Colorado Nonprofit Corporation Act at Article 134.
ARTICLE XIII
ELIMINATION OF CERTAIN LIABILITIES OF DIRECTORS
There shall be no personal liability, either direct or indirect, of any Director of
the Corporation to the Corporation or to its Members for monetary damages for any
breach or breaches of fiduciary duty as a Director; except that this provision shall not
eliminate the liability of a Director to the Corporation or to its Members for monetary
damages for any breach, act, omission or transaction as to which the Colorado
Nonprofit Corporation Act prohibits expressly the elimination of liability. This
provision is in the Corporation's original Articles of Incorporation and thus is effective
on the date of the Corporation's incorporation. This provision shall not limit the rights
of Directors of the Corporation for indemnification or other assistance from the
Corporation in accordance with applicable law. This provision shall not restrict or
otherwise diminish the provisions of Colorado Revised Statutes, Section 13-21-115.7
(concerning no liability of directors except for wanton and willful acts or omissions),
any amendment or successor provision to such Section, or any other law limiting or
eliminating liabilities. Any repeal or modification of the foregoing provisions of this
Article by the Members of the Corporation or any repeal or modification of the
provision of the Colorado Nonprofit Corporation Act which permits the elimination of
liability of directors by this Article shall not affect adversely any elimination of
liability, right or protection of a Director of the Corporation with respect to any breach,
act, omission, or transaction of such Director occurring prior to the time of such repeal
or modification.
ARTICLE XIV
AMENDMENT OF ARTICLES; CONFLICTS
1. These Articles of Incorporation may be amended from time to time in the
manner set forth in the Colorado Nonprofit Corporation Act, provided always that such
amendments are consistent with the terms and provisions of the Declaration.
2. In the event of a conflict between the terms and provisions of these
Articles and the terms and provisions of the Declaration, the terms and provisions of the
Declaration shall govern and control.
3. In the event of a conflict between the terms and provisions of these
Articles and the terms and provisions of the Bylaws adopted by the Board of Directors,
the terms and provisions of these Articles shall govern and control.
-6-
ARTICLE XV
INCORPORATOR
The name and address of the incorporator is Mark E. Hamilton, Holland & Hart
LLP, 600 E. Main Street, Suite 104, Aspen, Colorado 81611.
ARTICLE XVI
The name and address of the individual who causes this document to be delivered
for filing, and to whom the Secretary of State may deliver notice if filing of this
document is refused, is Mark E. Hamilton, 600 E. Main Street, Suite 104, Aspen,
Colorado 81611.
4977150_2.DOC
-7-
DEDICATION AND EASEMENT GRANTS
FOR
PRIVATE ROADS AND EASEMENTS
EXHIBIT
H
(JOHN NIESLANIK RANCH RURAL LAND DEVELOPMENT EXEMPTION)
THIS DEDICATION AND EASEMENT GRANTS FOR PRIVATE ROADS
AND EASEMENTS (the "Dedication") is made this day of December, 2010, by
NIESLANIK INVESTMENTS, LLC and by CECELIA L. NIESLANIK BYPASS
TRUST (collectively "Grantor"), to the JOHN NIESLANIK RANCH RURAL LAND
DEVELOPMENT EXEMPTION HOMEOWNERS ASSOCIATION, a Colorado
non-profit corporation ("Grantee").
RECITALS:
A. Grantor owns the real property (the "Grantor Property") described and
shown on the John Nieslanik Ranch Rural Lands Development Exemption Plat, recorded
on December , 2010 under Reception No.
Garfield County, Colorado (the "Exemption Plat").
B. The Exemption Plat and certain development conditions were approved by
Grantee in accordance with Garfield County Board of County Commissioners Resolution
No. 2010-81 recorded October 12, 2010 under Reception No. 792747 (the "Approval
Resolution").
C. Grantor is required to dedicate and convey easement grants for private
access, emergency access, utilities, O.W.S. (septic) for the benefit of Lot 3, and irrigation
ditches to be constructed on, over, across and under portions of the Grantor Property.
NOW, THEREFORE, for and in consideration of ten dollars ($10.00) and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Grantor hereby sells and conveys to Grantee the non-exclusive private
access, emergency access, utility, O.W.S. (septic) for the benefit of Lot 3, and irrigation
ditch easements (collectively, the "Private Easements"), the dimensions of which are
more particularly shown and described on the Exemption Plat. The foregoing dedications
are made by special warranty; that is, Grantor warrants the title to the Private Easements
against all persons claiming under Grantor, but subject to all restriction of record and also
subject to the following provisions and reservations:
a) All Private Easements are surface easements except for the utility
easements, which are underground easements.
b) The access easements shall be for ingress and egress from
adjoining Garfield County public roads to Lots 1 through 6, as described, platted
and shown on the Exemption Plat.
1
c) The O.W.S. (septic) easement shall be for installation, operation,
maintenance and repair of an underground absorption field upon Lot 6 for the
benefit of Lot 3.
d) Grantor reserves the right to use all areas within the surface or
subsurface of any Private Easement so long as such use does not unreasonably
interfere with Grantee's and Grantee's members' use and enjoyment of the
Private Easements. Existing or future underground utilities serving Lots 1
through 6 can and will exist under portions of the Private Easements areas, and
Grantor expressly retains and reserves all right, title and interest in any existing or
future underground utility lines and facilities, as well as the right, power and
authority to convey ownership of such facilities to utility providers, and to grant
non-exclusive easements to utility providers for the installation, maintenance and
replacement of such facilities.
e) Grantor reserves the right to jointly use the 40' Emergency Access
and Utility Easement located on the Remainder Ranch Parcel at any and all times
and Grantee's utilization of the 40' Emergency Access and Utility Easement
across the Remainder Ranch Parcel shall be limited to the exclusive use by public
emergency vehicles and utilities. Grantee shall have no other rights with respect
to utilization of the 40' Emergency Access and Utility Easement across Lot 6 and
Grantee is expressly prohibited from granting licenses, easements, access
privileges or otherwise authorizing any third party to utilize the 40' Emergency
Access and Utility Easement across Lot 6.
IN WITNESS WHEREOF, Grantor has executed this Dedication on the day and
year above first written.
GRANTOR:
NIESLANIK INVESTMENTS, LLC
By:
Manager
STATE OF
COUNTY OF
)
)ss
)
2
The foregoing Dedication was acknowledged before me this day of
December, 2010 by Mark Nieslanik as Manager on behalf of Nieslanik Investments,
LLC.
Witness my hand and official seal.
My commission expires:
Attest:
Notary Public
CECELIA L. NIESLANIK BYPASS TRUST
By:
Manager
STATE OF )
)ss
COUNTY OF )
The foregoing Easement Deed was acknowledged before me this day of December,
2010 by Mark Nieslanik on behalf of Cecelia L. Nieslanik Bypass Trust.
Witness my hand and official seal.
My commission expires:
Notary Public
3
DEDICATION AND EASEMENT GRANTS
FOR
PRIVATE ROADS AND EASEMENTS
(JOHN NIESLANIK RANCH RURAL LAND DEVELOPMENT EXEMPTION)
THIS DEDICATION AND EASEMENT GRANTS FOR PRIVATE ROADS
AND EASEMENTS (the "Dedication") is made this day of December, 2010, by
NIESLANIK INVESTMENTS, LLC and by CECELIA L. NIESLANIK BYPASS
TRUST (collectively "Grantor"), to the JOHN NIESLANIK RANCH RURAL LAND
DEVELOPMENT EXEMPTION HOMEOWNERS ASSOCIATION, a Colorado
non-profit corporation ("Grantee").
RECITALS:
A. Grantor owns the real property (the "Grantor Property") described and
shown on the John Nieslanik Ranch Rural Lands Development Exemption Plat, recorded
on December , 2010 under Reception No.
Garfield County, Colorado (the "Exemption Plat").
B. The Exemption Plat and certain development conditions were approved by
Grantee in accordance with Garfield County Board of County Commissioners Resolution
No. 2010-81 recorded October 12, 2010 under Reception No. 792747 (the "Approval
Resolution").
C. Grantor is required to dedicate and convey easement grants for private
access, emergency access, utilities, O.W.S. (septic) for the benefit of Lot 3, and irrigation
ditches to be constructed on, over, across and under portions of the Grantor Property.
NOW, THEREFORE, for and in consideration of ten dollars ($10.00) and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Grantor hereby sells and conveys to Grantee the non-exclusive private
access, emergency access, utility, O.W.S. (septic) for the benefit of Lot 3, and irrigation
ditch easements (collectively, the "Private Easements"), the dimensions of which are
more particularly shown and described on the Exemption Plat. The foregoing dedications
are made by special warranty; that is, Grantor warrants the title to the Private Easements
against all persons claiming under Grantor, but subject to all restriction of record and also
subject to the following provisions and reservations:
a) All Private Easements are surface easements except for the utility
easements, which are underground easements.
b) The access easements shall be for ingress and egress from
adjoining Garfield County public roads to Lots 1 through 6, as described, platted
and shown on the Exemption Plat.
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c) The O.W.S. (septic) easement shall be for installation, operation,
maintenance and repair of an underground absorption field upon Lot 6 for the
benefit of Lot 3.
d) Grantor reserves the right to use all areas within the surface or
subsurface of any Private Easement so long as such use does not unreasonably
interfere with Grantee's and Grantee's members' use and enjoyment of the
Private Easements. Existing or future underground utilities serving Lots 1
through 6 can and will exist under portions of the Private Easements areas, and
Grantor expressly retains and reserves all right, title and interest in any existing or
future underground utility lines and facilities, as well as the right, power and
authority to convey ownership of such facilities to utility providers, and to grant
non-exclusive easements to utility providers for the installation, maintenance and
replacement of such facilities.
e) Grantor reserves the right to jointly use the 40' Emergency Access
and Utility Easement located on the Remainder Ranch Parcel at any and all times
and Grantee's utilization of the 40' Emergency Access and Utility Easement
across the Remainder Ranch Parcel shall be limited to the exclusive use by public
emergency vehicles and utilities. Grantee shall have no other rights with respect
to utilization of the 40' Emergency Access and Utility Easement across Lot 6 and
Grantee is expressly prohibited from granting licenses, easements, access
privileges or otherwise authorizing any third party to utilize the 40' Emergency
Access and Utility Easement across Lot 6.
IN WITNESS WHEREOF, Grantor has executed this Dedication on the day and
year above first written.
GRANTOR:
NIESLANIK INVESTMENTS, LLC
By:
Manager
STATE OF )
)ss
COUNTY OF )
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The foregoing Dedication was acknowledged before me this day of
December, 2010 by Mark Nieslanik as Manager on behalf of Nieslanik Investments,
LLC.
Witness my hand and official seal.
My commission expires:
Notary Public
Attest:
CECELIA L. NIESLANIK BYPASS TRUST
By:
Manager
STATE OF )
)ss
COUNTY OF )
The foregoing Easement Deed was acknowledged before me this day of December,
2010 by Mark Nieslanik on behalf of Cecelia L. Nieslanik Bypass Trust.
Witness my hand and official seal.
My commission expires:
Notary Public
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