QUARTER CIRCLE H RANCH
A SUBDIVISION IN ORDERVILLE, UTAH
DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS
Revision Dated: March 27, 2006
INDEX
SECTION TITLE PAGE
I. Definitions…………………………………………. 2 II. The Association…………………………………... 5 III. Description of Property………………………….. 11 IV. ` Membership and Voting Rights………………….13 V. Property Rights in Common Areas…………….. 14 VI. Building Restrictions……………………………... 16 VII. Use Restrictions………………………………….. 20 VIII. Design Controls…………………………………... 23 IX. Finances and Operations……………………….. 31 X. General Provisions………………………………. 38
Exhibit “A” Boundary Description for Phase I and Phase II…… 43
Exhibit “B” Expansion Description for Phase III………………….44
Exhibit “C” Rules and Regulations of the Architectural Control Committee…………………………………………… 45
Buyer’s Acknowledgement and Agreement…………………….. 57
QUARTER CIRCLE H RANCH A SUBDIVISION IN ORDERVILLE, UTAH DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
This declaration is made and executed this _______ day of ______________, 2006 by Quarter Circle H Ranch, LLC, and the Declarant (hereinafter referred to as “Declarant” or “Developer”.
RECITALS
WHEREAS, the undersigned Developer owns that real property located in the Town of Orderville, Kane County, State of Utah, identified as QUARTER CIRCLE H RANCH HOMESITES, such property being more particularly described in Exhibit “A” hereto, which Exhibit is, by reference, incorporated herein as if set forth in full. That real property (together with such other properties as may be properly annexed thereto in conformance with the requirements set forth in this Declaration) is hereinafter referred to as the “Property”.
WHEREAS, the Undersigned Developer owns other real property located in the vicinity of the Property and the other real properties, together with the Property (and together with certain other properties as may revert to Developer and/or the other Owners thereof as provided in this Declaration), are later described herein and are collectively referred to as the “Project”.
WHEREAS, the Project is an area of natural beauty containing distinctive features of the Utah landscape, and the Developer desires to create on the Property a natural log and timber home residential community in a manner, which, to the extent practicable, is compatible with the ecology of the land and which, enhances its value to its Owners. This project shall be developed with certain Common areas for the benefit of the Development and the Owners of the Lots therein.
WHEREAS, the Project, if developed as currently planned, shall contain single-family residential dwelling units. Currently planned recreational facilities in the Project consist of unspecified Hiking Trails. Notwithstanding anything in this Declaration, Developer does not have and will not have any express or implied obligation to develop any portion of the Project, and Developer has not made, and hereby does not make any express or implied warranties, representations, assurances or promises that it will develop or require the development of all or any portion of the Project or that any such development will conform to present plans, but any development that does take place will be in accordance with plans approved by the Town of Orderville.
WHEREAS, the Developer deems it desirable, for the efficient preservation of the values and amenities of the Property, to create an entity which possesses the power to maintain and administer the Common areas, to collect and disburse the assessments and charges hereinafter provided for, and otherwise to administer and enforce the provisions of this Declaration. For such purpose Developer, in conjunction with recordation of this Declaration, is facilitating and assisting in the formation of the Quarter Circle H Ranch Homeowners Association, a Utah non profit corporation (hereinafter referred to as the “Association”).
WHEREAS, the Developer shall cause such property to be conveyed subject to certain protective covenants, conditions and restrictions as hereinafter set forth.
NOW, THEREFORE, the Developer hereby declares that all of the Property (and any additions thereto as hereafter provided) shall be held, sold and conveyed subject to the following covenants, conditions and restrictions, all of which are for the purpose of enhancing and protecting the value, desirability and attractiveness of the Property, and for maintenance of the Common areas. Those covenants, conditions and restrictions shall run with the Property and shall be binding on all parties having or acquiring any right, title or interest in the Property and shall inure to the benefit of each such party.
SECTION I. DEFINITIONS
When used in this Declaration (including in that portion hereof under “Recitals”) the following terms shall have the meaning indicated.
1. Articles and By-Laws shall mean and refer to the Articles of Incorporation and the By-Laws of the Association.
2. Association shall mean and refer to the Quarter Circle H Ranch Homeowners Association, a Utah non profit Corporation, and its successors and assigns.
3. The Board shall mean and refer to the Board of Directors of the Quarter Circle H Ranch Homeowners Association.
4. Common Areas shall mean and refer to that portion of the property which is not included within the Lots, including all roads, improvements, and hiking trails, other than utility lines now or hereafter constructed or located thereon.
5. Declarant and Developer (these terms hereinafter may be used interchangeably) shall mean and refer to Quarter Circle H Ranch, LLC, a Nevada limited liability company, its successors in any merger, consolidation or liquidation and (to the extent, but only to the extent provided in any written assignment of rights by Declarant and assumption of obligations by the assignee) its assigns, or with any successor or assign to whom all or substantially all of its interest in the development of the Property is conveyed.
6. Declaration shall mean and refer to this instrument as the same may hereafter be modified, amended, supplemented, or expanded in accordance with the provisions hereof (and in particular in accordance with the provisions in Section X, Article 8 of this Declaration.) concerning amendments or supplements to this Declaration which are to occur in conjunction with the expansion of the Development.
7. Development shall mean and refer to the Quarter Circle H Ranch Homesites created by this Declaration, as it exists at any given time.
8. Director shall mean a member of the Board of Directors.
9. Founders Lots shall mean and pertain to the first 20 lots Reserved and subsequently purchased with full settlement of the contract and conveyance of title on any said lots in the Quarter Circle H Ranch subdivision.
10. Guest (of an Owner or Resident) shall mean any employee, tenant, guest (whether or not for hire) or invitee of such Owner or Resident, including any transient guest.
11. Insurer or Guarantor shall mean a private or governmental mortgage insurer or guarantor, which has insured or guaranteed a First Mortgage.
12. Landscape Plan shall mean the overall landscape plan for the property as a natural landscape project and as promulgated by the Developer and further detailed and administered by the Architectural Control Committee.
13. Living Unit shall mean and refer to a structure, which is designed and intended for use and occupancy as a single-family residence, together with all improvements located on the Lot concerned, which are used in conjunction with such residence.
14. Lot shall mean and refer to any of the separately numbered and individually described plots of land shown as Phase I and Phase II of the Plats. Upon recordation of Supplementary Declaration(s), as provided for in Section X, Article 8 of this Declaration, Lot shall include the separately numbered and individually described plots of land shown in the additional Phases of the Plat.
15. Member shall mean and refer to every person who holds membership in the Association.
16. Mortgagee shall mean any person named as a first mortgagee or beneficiary under or holder of a first deed of trust.
17. Officer shall mean an officer of the Association.
18. Owner shall mean and refer to a trust, entity, or person(s) who is the Owner of record (in the office of the County Recorder of Kane County, Utah) of a fee or an undivided fee interest in a Lot. Notwithstanding any applicable theory relating to a mortgage, deed of trust, or like instrument, the term Owner shall not mean or include a Mortgagee or a beneficiary or trustee under a deed of trust unless and until such party has acquired title pursuant to foreclosure or any arrangement or proceeding in lieu thereof.
19. Phase III Land shall mean and refer to that portion of the Plat designated as “Boundary Description - Phase III” and also set forth in Exhibit “B” attached hereto and made a part hereof, which sets forth the property upon which Developer may expand the project in one or more phases.
20. Plat shall mean and refer to the Phase I or Phase II portions of the plat of the Quarter Circle H Ranch Homesites consisting of 2 pages, executed and acknowledged by Developer, prepared and certified by Brian Zitting, a registered Utah Land Surveyor, and recorded in the office of the County Recorder of Kane County, Utah, concurrently herewith, also as the same may hereafter be modified, amended, supplemented or expanded in accordance with the provisions in Section X, Article 8 of this Declaration, concerning amendments or supplements to this Declaration which are to occur in conjunction with the expansion of the Development as herein provided.
21. Primary Designee shall mean an individual person designated by Owner, when the Owner(s) consist of Multiple Persons, a Trust, or an Entity. The Primary Designee shall have all voting privileges as the designated person for the Owner.
22. Project shall mean that area of real property which is covered by the Phase I and Phase II Plats, descriptions of which are stated in Exhibit “A” of this Declaration and such portions of land which may be annexed to the Development as provided for in Section X, Article 8 of this Declaration.
23. Property shall mean and refer to all of the real property, which is covered by the Phase I and Phase II Plats, descriptions of which are stated in Exhibit “A” of this Declaration.
24. Resident shall mean any person who physically resides in a Unit, so long as said person is so residing.
25. Supplementary Declaration shall mean and refer to any supplementary declaration of covenants, conditions, and restrictions, or similar instrument, which extends the provisions of this Declaration to all or any portion of lands as provided for in Section X, Article 8 of this Declaration and may contain such complementary or amended provisions for such additional land as are herein required by the Declaration.
26. Tenant shall mean any person or persons who occupy, inhabit, or use an Owners Living Unit on a temporary or permanent basis. Whether such person or persons pay rent or lease payments to the Owner is in-material in determining whether such person or persons constitute a Tenant status in the Homeowners Association.
27. Unit Estate shall mean all of the components of ownership held by an Owner of a Living Unit or Lot, including any fee title interest, any undivided interest in Common area, any right to use Common area and any easement rights.
28. Yard Area shall mean and refer to the landscaped area adjacent to a Homeowner’s Living Unit as governed by the “Rules and Regulations of the Architectural Control Committee (Exhibit “C”)”.
SECTION II. THE ASSOCIATION
1. General Purposes and Powers: The Quarter Circle H Ranch Homeowners Association has been or will be incorporated as the Association to which reference is made in this Declaration. Upon dissolution of the Association, the Assets of the Association shall be disposed of as set forth in the Association’s Articles of Incorporation or By-Laws.
2. Membership: Each Owner, by virtue of being an Owner and only so long as a trust, entity, or person(s) is an Owner, shall be a Member of the Association. The Association incorporators and Declarant (Developer) shall also be Members of the Association.
3. Board of Directors: The affairs of the Association shall be managed by and (unless otherwise expressly provided herein or in the Articles of Incorporation or By-laws of the Association) undertaken through actions of the Board, which may by resolution delegate any portion of its authority permitted by law to an Architectural Control Committee. The number and qualifications of Directors and their terms of office shall be as provided in the Articles of Incorporation and By-laws of the Association.
4. Articles and By-laws: The purpose and powers of the Association and rights and obligations of Owners as Members of the Association set forth in this Declaration may and shall be amplified by provisions of the Articles of Incorporation and By-laws of the Association, including any reasonable provisions with respect to corporate matters. However, in the event that any such provision may be at any time inconsistent with any provision of this Declaration, the provision of this Declaration shall govern.
5. Annual Meeting: An annual meeting will be held at which meeting the budget will be presented for approval and Association Board Members will be elected. Such budget approval and election of Board Members shall be by a majority of votes cast in person or by proxy at the annual meeting. All Owners will be given thirty (30) days written notice of such annual meeting. The Members present in person or by proxy at such annual meeting shall constitute a quorum. Those members present or represented by proxy can continue to do business as a quorum until adjournment.
6. Notification of Transfer: Each Owner shall within ten (10) days of any sale, transfer or conveyance of a fee interest in the Owner’s Unit Estate, notify the Association of such sale, transfer or conveyance. The Association shall assess a $100 fee to the successor Owner to change the Homeowner Association records reflecting the new Owner of the Unit Estate. Such fee may be increased from time to time by the Board of Directors, as necessary, to reflect increased cost of administration.
7. Maintenance, Repair and Replacement Obligations and Rights: Declarant, on behalf of itself and all future Owners, hereby covenants and agrees, and all Owners, by accepting title to Unit Estates or any interests therein, whether or not it shall be expressed in any deed or other instrument conveying title, shall be deemed to covenant to keep Common area, Entry areas, other Landscape areas and Project amenities in good, neat, clean, healthy, attractive and (when applicable) operating condition and to replace Project amenities when necessary, appropriate or advisable, all at their collective cost and expense, by having the Association so repair, maintain, replace and (when applicable) operate the same in conformance (when applicable) with the Landscape Plan.
Should any Lot Owner fail to timely complete development of a private landscape area as required by any applicable Lot Declaration, and should such Lot Owner either (i) fail to commence said development or (ii) diligently pursue completion of said development within thirty (30) days following written demand therefore from the Board conforming with the requirements set forth in the last paragraph of this Article, the Board shall have the option (but not the obligation), upon the affirmative vote of at least two-thirds (2/3) of the Directors, of having the Association develop or complete development of the private landscape area as contemplated in the Lot Declaration at the cost and expense of the Lot Owner.
Should any Lot Owner fail to keep and maintain any Lot wall, lighting system, landscaping, landscape irrigation system or other improvement which is located in any private landscape area in a good, neat, clean, healthy, attractive and (when applicable) operating condition, in conformance with the Landscape Plan and the plans, specifications and materials approved by the Board pursuant to this Declaration, and in conformance with the Lot Owner’s obligations under any applicable Lot Declaration, and should such failure continue for a period of ten (10) days following written demand from the Board conforming with the requirements set forth in the last paragraph of this Article and demanding that such failure be cured within said 10 days, the Board shall have the option (but not the obligation), upon the affirmative vote of at least two-thirds (2/3) of the Directors, of having the Association repair, maintain and replace the same at the cost and expense of the Lot Owner.
Should any Lot Owner fail to supply such water and electric power as may be required to automatically irrigate landscaping located or to be located within, and operate lighting systems located or to be located within any private landscape area in conformance with its obligations under any applicable Lot Declaration, and should such failure continue for a period of 10 days following written demand from the Board conforming with the requirements set forth in the last paragraph of this Article and demanding that such failure be cured within said 10 days, the Board shall have the option (but not the obligation), upon the affirmative vote of at least two-thirds (2/3) of the Directors, of having the Association install, construct, place and use conduit lines, wires, transformers, water lines, lighting systems, irrigation systems, meters and other facilities and appurtenances in the private landscape area at the cost and expense of the Lot Owner in order to provide water and electric power to said private landscape area and to thereafter supply such water and electric power at the cost and expense of the Lot Owner as may be required to automatically irrigate such landscaping and operate such lighting systems.
Any written demand provided for in this Section shall be given in the manner set forth in this Declaration; shall specifically make reference to the Section of the applicable Lot Declaration requiring the demanded performance; and shall state that failure to timely perform within the applicable cure period (which shall also be specifically noted) shall result in the Association being empowered to cure such failure at the cost and expense of the Lot Owner.
8. Labor and Services: The Board, on behalf of the Association, may obtain and pay for the services of an person or entity to manage Association affairs, or any part thereof, to the extent the Board deems advisable, as well as the services of such other personnel and entities, including independent contractors, as the Board shall determine to be necessary or desirable for the proper performance by the Association of its obligations and functions, whether such personnel are employed directly by the Association or by an independent contractor. Any professional management contract entered into while Class B voting rights are in effect shall be terminable by the Association without cause and without penalty on sixty (60) days’ notice at any time after the termination of Class B voting rights. The Association shall have no authority to enter into a professional management contract, which is inconsistent with the foregoing sentence, and Declarant covenants not to directly or indirectly bind the Association to a contract inconsistent therewith.
9. Association Functions: The Association may undertake or contract for any lawful activity, function or service for the benefit of the Owners. In addition to the Assessments described herein, all costs and expenses of activities, functions or services undertaken by the Association for the benefit of fewer than all of the Owners (including but which do not benefit every Unit Estate) may, at the discretion of the Board, be added to the Assessments assessed to the Owners benefited thereby and their respective Unit Estates and shall be enforceable and collectible as Assessments in accordance with the provisions of this document. The Association shall obtain from applicable governmental authorities any permits and licenses necessary or appropriate to carry out its functions hereunder. The activities, functions or services undertaken or contracted for by the Association may, but need not necessarily include, without limiting the foregoing, the providing of legal and accounting services necessary or desirable in connection with the operation of the Association or the enforcement of this Declaration; the providing of electric and water service to the Common area, Entry areas and other Landscape areas; and the enforcement of all rights granted to the Association in any lease, easement or other instrument, including this Declaration and any Lot Declaration.
The Board shall have the right to adopt, promulgate, impose, amend and revise reasonable Association rules and restrictions for the use of Common area and Project amenities. Such rules and restrictions may, but need not necessarily include the imposition of reasonable conditions for the use of Common area and Project amenities and reasonable time restrictions for the use thereof.
10. Enforcement of Restrictions and Obligations: The Association, at the discretion of, and by action of the Board, shall have the right to enforce the obligations of any Owner or Resident under this Declaration or any provision of the Association’s Articles of Incorporation or By-laws by assessing a reasonable fine against such Owner or Resident, suspending the right of such Owner to vote on matters which are the subject of this Declaration at Association meetings, in the case of, but only in the case of an Owner’s failure to pay assessments or to abide by Association rules and restrictions for the use of Common area and Project amenities by suspending the rights of the Owner or Resident (and any Guest of such Owner or Resident) to use any Common area or Project amenity; provided, however, that such voting and/or use suspension may not be imposed for a period longer than thirty (30) days per violation; but further provided that if any such violation continues for a period of ten (10) days after notice of such violation has been given to such Owner or Resident, such continuing violation shall be deemed to be a new violation and shall be subject to the imposition of new penalties.
If any such fine imposed on an Owner or Resident by the Association is not paid by said Owner or Resident within thirty (30) days after written notice of the imposition of such fine, then the amount of such fine shall be added to the amount of the Assessments charged to the Unit Estate of said Owner or Resident and shall be enforceable and collectible as an Assessment in accordance with the provisions of Section IX of this Declaration.
No penalty may be imposed under this Section until the Owner or Resident cited for such violation has been afforded the right to be heard in person, by submission of a written statement, or through a representative at a meeting of the Board. Should the Board believe grounds may exist for any such penalty or suspension, the Board shall give the Owner or Resident believed to be in violation at least fifteen (15) days prior written notice of the intended penalty or suspension and the reasons therefore of such intended penalty or suspension. The Owner or Resident shall be given an opportunity to be heard before the Board either orally or in writing, no fewer than five (5) days before the effective dates of the penalty or suspension. No suspension of the use of any Common area or Project amenity shall affect the rights of any Owner or Resident to access the Owner’s or Resident’s Lot.
The Association, Declarant and any Owner may also take judicial action against any Owner or Resident to enforce or enjoin compliance with this Declaration, to enjoin non-compliance with this Declaration or to obtain damages for non-compliance, all to the extent permitted at law or in equity. Should any Resident violate any provision of this Declaration, such violation shall also be considered and treated as a violation by the Owner of the Unit in which the Resident resides. Likewise, should any Guest of any Owner or Resident violate any provision of this Declaration, such violation shall also be considered and treated as a violation of the Owner or Resident (as well as the Owner of the Lot in which the Resident resides).
11. Right of Entry: Subject to the provisions of the Association, its employees, agents, and contractors shall have the right, after hand delivering written notice to any Resident thereon not less than twenty-four (24) hours in advance, or after mailing notice not less than seventy-two (72) hours in advance, to enter upon any Lot for the purpose of enforcing any provision of this Declaration and/or performing any work which the Association is obligated, permitted or authorized to perform pursuant to the terms of this Declaration; provided, however, that no such notice need be given for entry upon a Lot to perform any of the functions which the Association is obligated to perform pursuant to the provisions of Section II, Article 7. In addition, the Association, its employees and contractors shall have such rights of entry upon Lots as may be granted, given and permitted under any Lot Declaration of record with respect to said Lot, upon such notice and for such purposes as may be set forth in Section II, Article 7 and in the applicable Lot Declaration.
12. Implied Rights: The Association, by action of the Board, shall have and may exercise any right or privilege given to it expressly by this Declaration, or any Lot Declaration, or reasonably to be implied from the provisions of this Declaration or any Lot Declaration, or given or implied by law, or which may be necessary or desirable to fulfill its duties, obligations, rights or privileges.
13. Limitation on Rights: The Association shall not take any of the following actions except with the prior affirmative votes equal to at least FIFTY-ONE PER CENT (51%) of the total voting power of the Members of the Association:
(a) Entering into a contract with a third person wherein the third person will furnish goods or services for the Association for a term longer than one year, except (i) a contract with a public utility company if the rates charged for the materials or services are regulated by the Utah Public Service Commission or any successor regulating agency (provided, however, that the term of the contract shall not exceed the shortest term for which the supplier will contract at the regulated rate), (ii) contracts for casualty and/or liability insurance policies which do not exceed three (3) years duration.
(b) Paying compensation to Directors or Officers for services performed in the conduct of the Association’s business; provided, however, that the Board may cause a Director or Officer to be reimbursed for expenses incurred in carrying on the business of the Association.
14. Rights within Areas: The Board shall have the right to grant permits and licenses as respects Association easements in private Landscape areas and Entry areas for purposes relating to the performance of Association obligations and permitted actions set forth in Section II, Article 7 and for purposes benefiting the Property. In addition, the Board shall have the right to grant permits, licenses and easements in Common area for utilities, roads and other purposes benefiting the Property and/or the Owners and for driveways, sidewalks and walkways for the benefit of Lots adjoining Common area. In addition, the Board shall have the right to dedicate, convey or otherwise transfer fee title to all or portions of the Common area to any public agency, authority or utility so long as the instrument of dedication, conveyance or transfer is approved by affirmative vote of fifty-one percent (51%) of all votes, which Members present in person or represented by proxy are entitled to cast at a meeting duly called for the purpose; provided, however, that an instrument of dedication, conveyance or transfer given in lieu of threatened condemnation may be executed by Officers duly authorized by the Board.
15. Right to Encumber Common Area: The Association shall have the right, subject to such procedures and restrictions as may be set forth in its Articles of Incorporation and By-Laws, to borrow money for the purpose of improving Common area and repairing, replacing and supplementing any Project amenities. Further the Association shall have the right to secure the repayment of any such borrowed money by encumbering the Common area, any Project amenities located thereon and/or any personal property owned by the Association so long as, but only so long as such encumbrance has been approved by Owners casting affirmative votes equal to at least fifty-one Percent (51%) of the voting power of each class of voting rights then in existence.
16. Right to Restrict Access: The Board shall have the right to restrict access to and use of Common area and any Project amenities or personal property located thereon for purposes of performing any obligation or authorized act of the Association set forth in this Declaration or for purposes of exercising any right of the Association set forth in this Declaration. Any such restrictions shall be reasonable in scope and duration. No such restrictions shall restrict the rights of an Owner or Resident to ingress to and egress from their Lot.
SECTION III. DESCRIPTION OF PROPERTY
The property which is initially associated with the Development and which is and shall be held, transferred, sold, conveyed and occupied subject to the provisions of this Declaration consists of the real property situated in Kane County, State of Utah, and more particularly described in Exhibit “A” attached hereto and incorporated herein by this reference. That portion of the legal description of Exhibit “A”, which is labeled “less and excepting”, or as also may be designated on the Plat as “Not Part of Plat” is property retained by Developer and not subject to the terms of this Declaration. With respect to this excluded property, and the property outside of the Subdivision which is accessed by Cottonwood Lane, Sunflower Drive, Cedar Drive, Scrub Oak Drive, Sugar Knoll Drive, Coal Hollow Circle, Vermillion Drive, Red Cave Circle, Cove View Circle, or White Cliffs Drive, as set forth on the Phase I and Phase II plats, Developer reserves full rights of ingress and egress for itself, its successors or assigns, or for the benefit of any permitted user of this excluded property. Developer further reserves the right to use any and all utilities, without further charge from the Owners Association. The Developer together with all easements, rights-of-way, and other appurtenances and rights incident to, appurtenant to, or accompanying the above-described parcels of real property.
ALL OF THE FOREGOING IS SUBJECT TO: all liens for current and future taxes, assessments, and charges imposed or levied by governmental or quasi-governmental authorities; all Patent reservations and exclusions; any mineral reservations of record and rights incident thereto; all instruments of record which affect the above-described land or any portion thereof, including without limitation, any mortgage or deed of trust; all visible easements and rights-of-way; all easements and rights-of-way of record; any easements, rights-of-way, encroachments, or discrepancies otherwise existing; an easement for each and every pipe, line, cable, wire, utility line, or similar facility which traverses or partially occupies the above-described land at such time as construction of all Project improvements is complete; and all easements necessary for ingress to, egress from, maintenance of, and replacement of all such pipes, line, cables, wires, utility lines, or similar facilities.
FURTHER RESESERVING UNTO DEVELOPER, however, such easements and rights of ingress and egress over, across, through, and under the above-described land and any improvements now or hereafter constructed thereon as may be reasonably necessary for Developer or for any assignee or successor of Developer (in a manner which is reasonable and not inconsistent with the provisions of this Declaration):
i) To construct and complete the improvements as Developer deems to be appropriate, and to do all things reasonably necessary or proper in connection therewith;
ii) To construct and complete on the Phase III Land or any portion thereof such improvements as Developer or said assignee or successor shall determine to build in its sole discretion;
iii) To improve portions of the Property with such other or additional improvements, facilities, or landscaping designed for the use and enjoyment of all the Owners or Developer or as such assignee or successor may reasonably determine to be appropriate.
If, pursuant to the foregoing further reservations, the above-described land or any improvement thereon is traversed or partially occupied by a permanent improvement or utility line, a perpetual easement for such improvement or utility line shall exist. With exception of such perpetual easements, the reservations hereby effected shall, unless sooner terminated in accordance with their terms, expire ten (10) years after the date on which this Declaration is filed for record in the Office of the County Recorder of Kane County, Utah.
SECTION IV. MEMBERSHIP AND VOTING RIGHTS
1. Membership: Every Owner shall be a Member of the Association. Membership in the association shall be mandatory, shall be appurtenant to the Lot in which the Owner has the necessary interest, and shall not be separated from the Lot to which it appertains.
2. Multiple Ownership Interests: In the event there is more than one Owner of a particular Lot or the Owner of a Lot is a Trust or an Entity, the vote relating to such Lot shall be exercised by the Primary Designee. A vote cast at any Association meeting by the Primary Designee, whether in person or by proxy, shall be conclusively presumed to be the vote attributable to the Lot concerned.
3. Voting Rights: The Association shall have the following described two classes of voting membership:
Class A: Class A Members shall be all the Owners other than the Developer. Class A Members shall be entitled to one vote for each Lot in which the interest required for membership in the Association is held. In no event, however, shall more than one Class A vote exist with respect to any Lot.
Class B: The Class B Member shall be the Developer. The Class B Member shall be entitled to three (3) votes for each Lot in which it holds the interest required for membership in the Association. The Class B membership shall automatically cease and be converted to Class A membership on the first to occur of the following events:
i) When the total number of votes held by all Class A members equals the total number of votes held by the Class B members.
ii) The expiration of ten (10) years after the first Lot is conveyed.
4. Suspension of Voting Rights: Voting rights of Members relative to matters which are the subject of this Declaration shall be subject to suspension for any period during which an assessment on such Member’s Lot remains unpaid and for a period not exceeding ninety (90) days for any infraction by such Member of the provisions of this Declaration or of any rule or regulation promulgated by the Association.
SECTION V. PROPERTY RIGHTS IN COMMON AREAS
1. Property Ownership: The property is divided into two classifications of ownership:
A. Private: The Lot areas as defined on the subdivision plat.
B. Common: All lands as shown on Exhibit “A” that is attached hereto or any lands attributed or designated as Exhibit “B” for future development, less and excepting the numbered Lots and as shown on the subdivision plat. These lands are owned jointly by the Homeowners Association and are dedicated as Common space for the enjoyment of all Owners and, as such, shall be maintained as natural landscape or roadways as contemplated herein. The Common areas are not subject to partition on petition of any Owner, but are owned by the Association. The Developer shall deed the Common areas to the Quarter Circle H Ranch Homeowners Association.
An easement is hereby granted to the Town of Orderville, Utah and any other governmental entity or quasi government body having jurisdiction of the property to access and to have the right of ingress and egress over and across open spaces and Common areas within the property for purposes of providing police, fire protection, ambulance and other similar services.
Easements for installation and maintenance of utilities and drainage facilities are reserved as shown on the recorded plat. Structures of any type are prohibited within these easements. Plants or other materials may be placed or permitted to remain within such easements which will not damage utilities, or which will not change the direction of flow of drainage channels in the easements, or which will not obstruct or retard the flow of water through drainage channels in the easements. The Owner of the Lot except for those improvements for which a public authority, utility, or the Association is responsible shall maintain the easement area of each Lot and all improvements in it continuously.
Easements for walking/hiking trails are reserved as shown on the recorded plat. Structures of any type are prohibited within these easements. Plants or other materials may not be placed or permitted to remain within such easements, whereby such plants or other materials would restrict or obstruct the normal use of such designated walking/hiking trails. The Association shall be responsible to maintain the easement area for all walking/hiking trails.
A driveway from a Lot or Lots (in the case of a common driveway between the Lots of two Lot Owners) that connects with a Common street is for the exclusive use of the Owner(s) of the Lot(s) and is not considered a Common roadway of the Subdivision.
Common roadways within the subdivision are private and not public but may, at a future date, be dedicated by the Association to an appropriate public entity, provided all liability for maintenance of the same is accepted by such entity.
2. Easement of Enjoyment: Each Member shall have a right and easement of use and enjoyment including, but not limited to, the right of ingress and egress to and from his Lot, and in and to the Common areas. Such right and easement shall be appurtenant to and shall pass with title to each Lot and in no event shall be separated therefrom. Any Member may grant the use and enjoyment described herein to any tenant, lessee, or contract purchaser who resides on such Member’s Lot.
3. Forms For Conveyance: Any deed, lease, mortgage, deed of trust, or other instrument conveying or encumbering title to a Lot shall describe the interest or estate involved substantially as follows:
“All of Lot _______ of Quarter Circle H Homesites, Phase I, (or Phase II as the case may be), according to the official plat thereof, subject to the Declaration of Conditions, Covenants, and Restrictions, as amended, (CC & R’s), easements, rights of way, and like, all of which shall be on file in the office of the Kane County Recorder.”
All provisions of this Declaration shall be binding upon and shall inure to the benefit of any party who acquires any interest in a Lot, whether or not the description employed in any such instrument is in the above-specified form
4. Transfer of Title: Developer agrees that it shall convey to the Association title to all Common areas of the Development, and Developer further agrees that it will discharge all liens and encumbrances on said Common areas on or before the sale and closing of the last Lot in the Development.
5. Limitation on Easement: A Member’s right and easement of use and enjoyment concerning the Common areas shall be subject to the following:
(a) The right of the Association to suspend a Member’s right to the use of any amenities included in the Common areas for any period during which an assessment on such Member’s Lot remains unpaid and for a period not exceeding ninety (90) days for any infraction by such Member of the provisions of this Declaration or of any rule or regulation promulgated by the Association;
(b) The right of the Association to impose reasonable limitations on the number of guests per Member who at any given time are permitted to use the Common areas;
(c) The right of the Town of Orderville, the County of Kane, the State of Utah and any other governmental or quasi-governmental body having jurisdiction over the property to access and rights of ingress and egress over and across any street, parking area, walkway, or open spaces contained within the Property for purposes of providing police and fire protection and providing any other governmental or municipal service; and
(d) The right of the Association to dedicate or transfer all or any part of the Common areas to any public agency or authority for such purposes and subject to such conditions as may be agreed to by the Association. Any such dedication or transfer must, however, be assented to by fifty-one percent (51%) of the vote of each class of membership which Members present in person or by proxy are entitled to cast at a meeting duly called for the purpose. Written or printed notice setting forth the purpose of the meeting and the action proposed shall be sent to all Members at least ten (10) days but not more than thirty (30) days prior to the meeting date.
6. Encroachments: If any portion of a Living Unit or improvement constructed by Developer, or if any portion of a Living Unit reconstructed so as to substantially duplicate the Living Unit originally constructed by Developer, encroaches upon the Common areas or other Lots, as a result of the construction, reconstruction, repair, shifting, settlement or movement of any portion of the development, a valid easement for the encroachment and for the maintenance of the same shall exist so long as the encroachment exists.
7. Damage to Common Areas: To avoid damage to underground utilities, Owner must have consent of the Architectural Control Committee and local utility companies before digging or driving rods or stakes into the ground in Common areas. Owner shall bear the cost of repairs to any underground utilities damaged by Owner or any representative or agent of the Owner.
SECTION VI. BUILDING AND CONSTRUCTION RESTRICTIONS
1. Building Restriction: All Buildings shall be basically constructed from natural wood log or wood timber and rock material (or simulated rock material), which has been approved by the Architectural Control Committee. No property shall be used except for residential purposes. No building shall be erected, altered, placed or permitted to remain on any property other than one detached single-family dwelling not to exceed the height indicated on the subdivision plat pertaining thereto, and one additional building (“accessory building”) which may be used as a shop, garage, guest house or additional storage area. The accessory building shall not exceed 1500 square feet in accumulative outside square foot measurement of all floors (commonly referred to as the “square footage” of a structure), exclusive of porches, patios, and decks. The foundation of the accessory building shall begin within 30 feet of the foundation of the main dwelling structure of that particular Lot with the exception of Lots 54 and 71 which shall allow for the accessory building to be a greater distance from the main dwelling structure. The placement of any such accessory building on Lots 54 and 71 shall require prior approval by the ACC. Every dwelling shall have as a minimum a fully enclosed two-car garage, which if detached from the home shall constitute the accessory building.
2. Fireplace and Chimneys: All fireplace and chimneys shall be installed in accordance with the manufacturer’s specifications. Natural rock or cultured stone shall be used for the exterior construction of chimneys and fireplaces. Open fireplaces should be equipped with spark screens and all chimneys must be equipped with approved spark arrestors.
3. Ground Disturbance: The residence must be located within the Owner’s Lot as described on the subdivision plat. The Owner, for landscaping purposes, may use the area within the Owner’s Lot extending from the foundation of the Owner’s home for up to 20 feet in each direction (except on oversize Lots which allow up to 30 feet in each direction). Yard walls may also be placed in that area. In no event may the landscape extend beyond the Lot dimensions. Indigenous foliage may be planted on any part or portion of the Owners Lot. All utility lines from the street to the home shall be underground and located within the driveway right-of-way. Other than the foregoing and construction of a driveway, no disturbance of natural landscape or vegetation shall be permitted.
4. Temporary Structures: No structure of a temporary character, trailer, mobile home, recreation vehicle, camper, tent, shack, garage, barn or other outbuilding shall be used on any Lot at any time as a residence either temporarily or permanently.
5. Signs: No attached or detached signs or displays identifying an Owner or a parcel shall be permitted unless the design and color has been submitted to and approved by the Architectural Control Committee in writing so as to assume a dignified and basically uniform appearance of all signs permitted within the development. No additional signage of any kind will be permitted, except signs required by legal proceedings and temporary constructions signs by each builder as specified in the construction guidelines, and direction signs provided by Developer.
6. Driveways and Parking: All driveways, walkways, parking areas and other areas of similar nature shall be of such materials and in such colors as are approved by the Architectural Control Committee. They must be built in accordance with the approved plans and specification and completed within 90 days of completion of buildings or improvements erected upon the subject Lot.
All residences shall have a single hard surfaced driveway not exceeding sixteen (16) feet in width and not less than 12 feet in width, connecting the garage and parking to the street and allowing safe ingress and egress. Driveways shall be designed and installed so as to minimize the scarring of the terrain and removal of trees, vegetation, boulders and other natural beauty.
Guest parking space for at least two vehicles shall be included in the design of the driveway and the constructed environment, and such guest parking shall be designed to minimize the visual impact on other parcels or the roadways.
No parking shall be allowed on the subdivision streets (Common areas) shown on the Plat, except for special events as may be approved, in writing, by the Board of Directors.
Special Requirements and Restrictions on specific Lots: Shared driveways are required for the following adjoining lot pairs 13/14, 15/16, 17/18, and 19/20. Each shared driveway shall be constructed as close to the shared lot line as will allow a maximum grade of 15% and each shared driveway shall extend back from the Access street at least 100 feet. Each of the owners of a shared driveway shall bear 50% of the cost of the construction of the driveway. The specific design of said driveway shall be submitted to the Architectural Control Committee for approval prior to any tree removal or construction of said driveway. All such shared driveways shall remain as private driveways jointly owned by the respective adjoining lot owners.
7. Solar Collectors: No Solar Collector System or Solar Collector device shall be erected, constructed, placed or permitted to remain on the exterior of any Living Units or structures on the Lots in said Development, unless shielded from the view of others and approved by the Architectural Control Committee. The Architectural Control Committee shall approve all Solar Collectors, within the Development, as to location and aesthetics.
8. Propane Fuel Tanks (Storage): All Propane Fuel Storage Tanks or Propane Fuel Storage Devices shall be placed and buried underground on the Homeowner’s Lot with all appurtenances to such storage tank or storage device shielded from view of others and approved by the Architectural Control Committee. The Architectural Control Committee shall approve all Propane Fuel Storage Tanks or Propane Fuel Storage Devices within the Development, as to location and aesthetics.
9. Natural Gas: Should Natural Gas become available as a public utility for the Subdivision, and the Homeowners Association adopts the natural gas public utility service as the mode of gas service for the Homeowners Association, then all Homeowners shall be required to pay their proportionate share of the Homeowners Association’s expense of providing appropriate natural gas utility lines for the Development.
10. Time Limit On Commencement of Construction: Construction of the Residence on the Lot shall commence not later than sixty (60) months after the initial conveyance of title from the Developer to Lot Owner, except for Founders Lots. This period of sixty (60) months shall be binding upon subsequent purchasers of any Lot, and shall run from the initial conveyance of the lot from the Developer and shall not be extended without the written consent of the Developer or its designee. If construction is not commenced within sixty (60) months after the initial conveyance of title from the Developer, then Developer shall have the right, at its option, to repurchase the Lot from the Lot Owner for the original price Lot Owner paid to Developer, less twenty (20) percent of the total original purchase price paid by the original Owner. Developer may exercise this option at any time after the expiration of sixty (60) months from the date of the initial conveyance of title from the Developer, so long as construction has not been commenced.
Special Provision for Founders Lots: Founders Lots shall be exempt from the “Time Limit on Commencement of Construction”, as provided above in Article 9, and shall have an indefinite time period in which to begin construction of the residence on such Founders Lot.
11. Developers First Right of Refusal: Developer shall have the first right of refusal to purchase any Lot if the Lot Owner desires to sell such Lot within the thirty-six (36) months following the initial conveyance from Developer. During this period, Lot Owner shall give Developer immediate written notice of any accepted offer to purchase the Lot, and Developer shall have thirty (30) days after the date of the Notice to exercise its first right of refusal hereunder, by tendering its offer of purchase to Lot Owner, on substantially the same terms and conditions of the prior accepted offer. If Developer does not exercise this first right of refusal to purchase within the thirty (30) day period, this right shall terminate and Lot Owner may proceed to sell the Lot pursuant to the prior accepted offer. All options and first rights of refusal hereunder shall terminate upon completion of construction of the Residence on the Lot. The Developer may elect to waive it’s First Right of Refusal upon notification of the Lot Owner’s intent to Sell said Lot. Such waiver must be in written form and delivered by the Developer to the Lot Owner in order for it to be a valid waiver of said First Right of Refusal.
12. Developers Right to Restrict Access to Property: Developer shall have the right and authority to restrict access or completely refuse access to the entire Quarter Circle H Ranch subdivision for any vendor, builder, contractor, or sub-contractor and such right to restrict shall also include the right to restrict or refuse any products or services which may be manufactured or provided by any such vendor, builder, contractor, or sub-contactor. All such rights of restriction or refusal shall terminate upon the Homeowners acquiring voting control of the Homeowners Association.
SECTION VII. USE RESTRICTIONS
1. Care and Maintenance of Lot: The Owner of each Lot shall keep the same free from rubbish, litter and noxious weeds. All structures, landscaping and improvements shall be maintained in good condition and repair at all times. In order to mitigate fire hazards the Owner of each Lot shall keep natural vegetation or other landscape vegetation such as brush, leaves, needles, pine cones, and tree branches adequately maintained and cleaned away from the Living Unit.
2. Nuisances: No noxious or offensive activity shall be carried out on any Lot nor shall anything be done thereon which may be or may become an annoyance or nuisance to the neighborhood. No Lot shall be used for any illegal purposes.
3. Livestock, Poultry, and Pets: No animals, livestock or poultry of any kind shall be raised, bred or kept on any Lot, except that dogs, cats or other household pets, not more than two in number, may be kept provided that they are not kept, bred or maintained for any commercial purpose and are restricted to the Owner’s premises or on a leash under the handler’s control. Pets shall not be kept if they create noise which, in the opinion of the Architectural Control Committee, constitutes a nuisance. No pets of any vicious nature shall be allowed within Quarter Circle H Ranch subdivision. The Board shall have full authority to determine whether a dog or other pet is vicious in nature.
4. Wildlife: Wildlife species are encouraged to range throughout Quarter Circle H Ranch subdivision. No one shall use traps, poisons, or other methods of killing the natural inhabitants. The natural inhabitants shall not be harassed, injured or molested in any way. No recreational feeding of big game animals or other native wildlife shall be permitted, with exception of birds and squirrels.
5. Garbage and Refuse Disposal: No Lot shall be used or maintained as a dumping or holding ground for rubbish. Trash, garbage or other waste shall not be kept except in sanitary containers. The Developer shall specifically designate any area, which is to be allocated as garbage or refuse disposal area and any such area shall be in an appropriate location and away from any Lot Estate. Clotheslines, refuse containers, woodpiles, storage areas, machinery and equipment shall be prohibited upon any Lot unless obscured from view of adjoining Lots or maintained in the patio areas or in the Living Unit. No unsightly materials or other objects are to be stored on any Lot in view of the general public or neighboring Lot owners.
6. Storage of Materials: During construction and for a period of 60 days after completion, a Lot may be used for the storage of materials used in the construction of the building or improvement. The total storage period, including pre-construction period, construction period, and post construction period shall not exceed 365 days unless specifically approved by the Architectural Control Committee.
7. Vehicles: Motor vehicles which are inoperable or currently without proper licensing, shall not be permitted to accumulate upon any Lot, street, driveway, walkway, or road area adjacent thereto. No automobile, recreation or commercial vehicle, other motorized vehicle, or any portion thereof, shall be dismantled, rebuilt, serviced, repaired or repainted on or in front of any Lot unless performed within a completely enclosed garage or other structure located on the Lot which screens the sight and sound of such activity from the public streets and neighboring Lots. No commercial vehicles shall be parked or stored on any Lot overnight or on a continual basis. The designation as a commercial vehicle shall be further defined by the rules and regulations of the Board of Directors. The Board of Directors shall have the authority to grant temporary parking of such a designated commercial vehicle on a Lot under special circumstances and as determined by the Architectural Control Committee. The foregoing restriction shall not be deemed to prevent temporary parking of commercial vehicles being used by repair or construction firms for the current repair or construction of facilities or buildings of a Homeowner, but such temporary parking shall be limited to the normal amount of time required to complete such repair or construction.
8. Recreational Vehicles: Without prior written consent of the Board, no boats, trailers, buses, motor homes, campers, recreational vehicles, van, trailer, or other such vehicles, shall be parked or stored upon any Common area, street, private drive, or Lot, except within an enclosed garage on the Owners Lot. The foregoing restriction shall not be deemed to prevent temporary parking for loading and unloading of such vehicles, but such temporary parking shall not exceed a 24-hour period of time and not more than one 24-hour time period shall be permitted in any three contiguous calendar days. All motorized vehicles shall be properly licensed to be used on any Common access streets.
9. Commercial Activities Prohibited: Lots shall not be used for, or in connection with, the conduct of any trade, business, professional or commercial activity of any kind, except home occupations as may be permitted by Orderville Town ordinances and approved by the Quarter Circle H Ranch Homeowners Association Board of Directors, excepting the Lots, residence, and all buildings pertaining to and owned by the Developer, may be used for the commercial purposes of marketing, sales, and entertainment in the selling of Lots and home structures for Phases I, II, and III. Further, at the option of the Quarter Circle H Ranch, LLC, the lot, residence, and all buildings pertaining to and owned by the Quarter Circle H Ranch, LLC, The Vern Ratzlaff Family Trust, or The Quarter Circle H Ranch Real Estate Trust, (such property hereafter may be referred to as the “Ratzlaff Home”) may be converted into a commercial Bed and Breakfast operation and shall be excluded from all commercial restrictions pertaining to this Article 9. Any such operation shall meet all applicable Town of Orderville and Kane County ordinances pertaining to such commercial Bed and Breakfast facility.
10. Motorized Vehicles and Recreation Vehicles: All snowmobiles, motorcycles, trail bikes, three-wheel powered devices, automobiles, and two or four-wheel drive recreational type vehicles are to be operated only on established and designated trails, streets, driveways, and parking areas and are specifically prohibited from all other portions of the Property. Such said vehicles may be used on said streets, driveways, and parking areas only for ingress and egress purposes. Such said vehicles shall not be used for recreational purposes anywhere within the Project, except as permitted by Rule of the Association.
11. Burning: No Lot Owner or Lot Owner’s guest, tenant, vendor or contractor shall burn any material, in the open or in a burn barrel within the subdivision. This restriction does not include the use of barbecue grills or a contained wood fire pit for usual and customary food cooking on a Homeowner’s Lot.
12. Mining and Drilling: Except as provided below, no portion of the Property shall be used for the purpose of mining, quarrying, drilling, boring, or exploring for or removing oil, gas, or other hydrocarbons, minerals of any kind, rocks, stones, sand gravel, aggregate, or earth; provided, however, that at any and all times, Declarant may excavate and remove caliches, earth, gravel, sand and other materials from any location within the property for purposes of landscaping and construction of a Living Unit or for the appropriate development of the project. Declarant, however, shall not have the right to excavate or remove any material on any lot that has been placed under Contract or sold unless written permission has been provided to Declarant. No water well shall be drilled on a Homeowners Lot.
13. Tenants: The Homeowners Association requires investor/Owners and their property management companies to register all tenants. There shall be a $25 registration fee payable by the investor/Owner to the Homeowners Association to register such tenant. Any Owner who fails to properly register their Tenant shall be subject to a $50 fine by the Homeowners Association and such fine shall be in addition to the registration fee. The Board of Directors may increase any such fees and fines that apply to tenant registration, as may be appropriate from time to time for administration purposes and the association’s costs for such services. No Owner shall permit unruly tenants to reside on any lot. “Unruly tenants” shall be defined to include those who do not abide by these conditions and Deed Restrictions, and/or the Association Rules, who are disruptive and/or noisy, and/or who intentionally or recklessly cause damage to the property. Owners shall ensure that their tenants are made aware of and agree to comply with the terms of these conditions and Deed Restrictions and the Association Rules. The Board shall have full power and authority to determine conduct is in violation of this Covenant.
The Board will have the right to require Owners to evict unruly tenants, and/or take other appropriate legal action to ensure their compliance with these Deed Restrictions and the rules of the Association. If an Owner does not take, or commence to take, such action within fifteen (15) days from receipt of written notification from the Board, the Board will have the power to levy a “Limited Assessment” to be assessed on date of the first written notice against the Owner, not to exceed $100.00 per day for each noncompliance, and commence to take appropriate legal action. Any such unpaid assessment will constitute a lien against the Owner’s lot, as provided for herein. Proceeds from the assessment will be applied to the Association treasury and be used as determined appropriate by the Association’s Board of Directors.
The Board shall have full power and authority to determine whether a violation of this Declaration has occurred. The Board shall have the discretion, to exercise this authority. The Board shall make such determination only after prior notice to the person or persons alleged to be in violation, and a time table to make correction of violation, which notice shall be given in accordance with the rules of the Association. Review or appeal may be requested by submitting a letter of request for appeal to the President of Association. The Association must reply to the request for appeal in writing within sixty (60) days. Such response may grant the requested appeal, deny the appeal, or approve a compromise
SECTION VIII. DESIGN CONTROLS
1. Architectural Control Committee: All improvements on a parcel, whether a building, patio, spa, deck, landscape or hardscape, must be approved by the Architectural Control Committee (hereafter may be referred to as the “Committee” and may be abbreviated as “ACC”).
(a.) Appointment of Initial Architectural Control Committee and Elected Architectural Control Committee: The Developer shall appoint the initial Architectural Control Committee, consisting of three persons and the ACC need not be composed of subdivision Owners. The Developer, or a representative designated by the Developer, shall be one of the three members of the Architectural Control Committee until the Developer shall relinquish this power in writing. Developer shall have the right to appoint and remove all members of the Committee during such time as Developer has voting control as designated in Section IV, Article 3 of this Document. Members of the Committee may be removed at any time, without cause. When the Developer ceases to have this power, it shall give written notice of this event to each property Owner and thereafter the property Owners of the Quarter Circle H Ranch Homesites, all within 60 calendar days, shall select new members of the ACC by one vote for each Lot. The initial three ACC members shall be elected for terms as follows: The ACC member receiving the largest number of votes shall be elected for a term of three years, the ACC member receiving the second largest number of votes shall be elected for a term of two years, the ACC member receiving the least number of votes shall be elected for a term of one year and, thereafter, on an annual basis, one ACC member shall be elected each year for a term of three years. If such an Architectural Control Committee is not elected the Board shall perform the duties required of the ACC. The number of ACC members may be increased, as needed, for the governance and activities of the ACC and such increase in ACC members shall be designated and approved by the Board.
(b.) Rules of the Architectural Control Committee: No member of the Committee shall receive any compensation or make any charge for services rendered. The ACC shall adopt reasonable rules and regulations for the conduct of its proceedings and to carry out its duties and may fix the time and place for its regular meetings and such extraordinary meetings as may be necessary, and shall keep written minutes of its meetings, which shall be open for inspection upon request. The ACC shall, by majority vote, elect one of its members as chairman and one of its members as secretary and the duties of each will be such as usually appertain to such offices. The ACC shall meet on a regular basis as determined by the Committee. The ACC shall have power, by majority vote, to promulgate rules and regulations to guide it in its activities. The initial rules and regulations, subject to amendment by the ACC, are attached as Exhibit “C”. By majority vote of the ACC or by vote of a majority of the property Owners, by one vote for each Lot, any rule or regulation of the ACC may be amended, adopted or repealed.
(c.) Submitting Items for Approval: Three (3) complete sets of building plans and specifications shall be filed with the ACC, together with a site or plot plan showing grading, landscaping and all lighting, indicating the exact part of the building site which the improvements will cover, with such a fee as the ACC may determine from time to time, and an application and such supporting material, such as samples of building materials, as the ACC deems necessary. No work shall commence unless and until the ACC shall endorse on all sets of such plans its written approval that such plans are in compliance with the covenants herein set forth and with the standards herein or hereafter established by said Committee pursuant hereto. The second set of such plans shall be provided to the Town of Orderville and the third set shall be filed as a permanent record with the ACC. Any plans and specifications submitted to the ACC shall be approved or disapproved by it in writing within thirty (30) days after submission. In the event the ACC fails to take any action within such period it shall be deemed to have approved the material submitted.
(d.) Log or Timber Home Community Design: Construction of any structure or improvement shall be of a natural “Log or Timber” home design and of new materials, and all such materials shall be approved by the ACC. Exterior colors and materials for improvements must be approved by the ACC and as set forth on the Quarter Circle H Ranch Homeowners Association Color Palette.
(e.) Owner/Contractor liable for Violations: The Lot Owner and/or their contractor(s) shall be jointly and severally liable for required changes to floor plans, colors, materials, etc., by reason of violations of these covenants, or the rules, regulations or design standards of the ACC.
(f.) Architectural Control Committee shall not be Liable: The ACC shall not be held liable for damages by reason of any action, inaction, approval, or disapproval by the Committee. Any errors or omissions in the design of any building, other improvement or landscaping and any violation of any governmental ordinance are the sole responsibility of the Owner and the Owner’s designer, architect, or contractor. The ACC’s review of plans shall in no way be concerned with structural or mechanical integrity or soundness.
(g.) Approval or Disapproval does not Constitute a Waiver: The approval of the Architectural Control Committee of any plans and specifications for any work done or proposed shall not constitute a waiver of any right of the ACC to disapprove any similar plans and specifications subsequently submitted.
(h.) Variances: The Architectural Control Committee may grant variances from compliance with any of the covenants, conditions, restrictions or provisions of this Declaration with respect to any improvements constructed or to be constructed on a Lot when (1) the specific Section of this Declaration with respect to which the variance is to be granted provides that the ACC may modify the restrictions imposed under the subject Section of this Declaration, approve or otherwise consent to variance or waiver of the provision of the subject Section of this Declaration, or consent to an improvement, use or activity which does not conform with, or conflicts with, the restrictions imposed under the subject Section of this Declaration, (2) the specific section or provision of this Declaration provides for an exception from its requirements or restrictions when the prior approval or consent of the ACC is given or obtained, or (3) in the opinion of the Committee, such variance will not be materially adverse to the overall quality of the Property or to the overall value of other improvements in the Subdivision, or is justified due to unusual or aesthetic considerations, topographic considerations or similar circumstances; provided, however, that the ACC shall not permit or grant any such variance which would in any way violate or cause the Lot(s) or the Owner(s) to fail to comply with any Governmental requirement. Such variances must be evidenced in writing and must be signed by at least a majority of the members of the Committee. In the event a requested variance requires any license, permit, consent, or approval of a Governmental Authority or other evidence of compliance with a Governmental requirement, the ACC may grant the variance subject to and conditional upon the Owner requesting such variance, obtaining such required license, permit, consent, or approval of the Governmental Authority or providing evidence of compliance with any such Governmental requirement. If a variance is granted, no violation of the covenants, conditions, or restrictions contained in the Declaration shall be deemed to have occurred with respect to the matter for which the variance was granted. The granting of a variance, in accordance with the provisions of this Section VIII, 1. (h.) shall not operate to waive any of the covenants, conditions, restrictions, or provisions of this Declaration for any purpose except for the particular purpose(s) of the subject variance and only as to the Lot or Lots with respect to which the subject variance was granted.
(i.) Developer Covenant: Developer hereby covenants in favor of each Owner that all Living Units erected by it, or caused to be erected by it, and all improvements of the Common areas accomplished by it shall be architecturally compatible with respect to one another.
(j.) Condemnation: If at any time or times the Common area or any part thereof shall be taken or condemned by any authority having the power of eminent domain, negotiations, settlements, or agreements. All compensation and damages shall be payable to the Association and shall be used promptly by the Association to the extent necessary for restoring or replacing any improvements on the remainder of the Common area. Upon completion of such work and payment in full therefore, any proceeds of condemnation then or thereafter in the hands of the Association shall reasonably determine; provided, however, that in the event of taking in which any Lot(s) or portion(s) thereof is eliminated, the Association shall disburse the portion of the proceeds of the condemnation award allocable to the interest of the Owner(s) of such Lot(s) or portion(s) thereof to such Owner(s) and any first Mortgagee(s) of such Lot(s), as their interests shall appear, after deducting the proportionate share of said Lot in the cost of debris removal.
(k.) Approval as required by Governmental Entity: No Living Unit, accessory building, addition to a Living Unit, or other structure of building shall be constructed or maintained, and no grading or removal of natural vegetation or change in natural or approved drainage patterns or installation of fencing or landscaping elements shall occur on a Lot until any required permit or required approval therefore is obtained from the appropriate governmental entity. The granting of a permit or approval by any governmental entity with respect to any matter shall not bind or otherwise affect the power of the ACC to refuse to approve any such matter.
(l.) Fines: The Architectural Control Committee may levy a fine or penalty not to exceed $1,000 against any Owner, contractor and/or responsible party who fails to refrain from violation of these covenants or a rule, regulation or standard of the ACC, after three (3) days written notice, and opportunity for a hearing. An additional fine may be levied for each day of a continuing violation. All attorneys’ fees and costs incurred in any such action, and all expenses incurred and any fines levied, shall constitute a lien on such Lot Owner’s Lot, and shall also be a personal obligation of said Lot Owner, enforceable at law, until such payment therefore is made.
2. Landscaping: Quarter Circle H Ranch is a natural landscape community. A natural landscape is a landscape concept that emphasizes water conservation and low water demand plant materials. A variety of plants, trees, and shrubs are indigenous to this climate and blend with the natural landscape. Such plants, trees, and shrubs have desirable drought tolerant characteristics, foliage, and seasonal flowering. Once established the plant material can survive with little or no water. The ACC shall establish guidelines for landscape plan approval. The ACC shall have discretion to allow variance from the landscape guidelines. Landscaping shall be maintained at a reasonable standard compatible with other homes in the subdivision. The removal of boulders, trees and other vegetation shall be minimized. Only live plants shall be used for landscaping and in no case shall federally recognized invasive species be allowed. No desert landscaping, colored rock, soil aid, bark or gravel will be permitted in place of natural vegetation and soils except within the 20 foot or 30 foot perimeter yard area of the Living Unit as designated in Exhibit C of this document.
3. Yard Walls and Fences: Yard walls to contain the landscape must be built of compatible material to the home and be no higher than four (4) feet in height. All yard walls shall be of wood, stone or other approved masonry materials. No metal or wire fencing will be permitted except for temporary use to protect newly planted or immature trees and shrubs from wildlife. No Lot fences will be allowed unless installed by the Developer or approved by the ACC.
4. Sight Distance at Intersections: No fence, wall, or hedge, which obstructs sight lines at elevations between 2 and 6 feet above the roadways shall be placed or permitted to remain on any corner Lot within the triangular area formed by the street or road property lines and a line connecting them at points 30 feet from the intersection of the street or road property lines extended.
5. Slope and Drainage Control: No structure, excavation, planting or other material shall be placed or permitted to remain or other activities undertaken which may damage or interfere with established slope ratios, create erosion or sliding problems, or which may change the direction of flow of drainage channels. The slope control areas of each Lot and all improvements in them shall be maintained continuously by the Owner of the Lot, except for those improvements for which a public authority or utility company is responsible.
6. Soils Test: The Architectural Control Committee may require that the Lot Owner obtain a soils test and recommendation on foundation from a Utah registered engineer prior to construction and such soils test and recommendation shall be submitted to the ACC for approval. Furthermore, the ACC may condition final approval following the recommendations set forth in the soils report.
7. Site Work: No excessive excavation or fill will be permitted. Where soil is exposed it shall be re-contoured as needed and appropriately landscaped. All exposed openings shall be backfilled and the skirt ground shall be graded and the site appropriately landscaped. No wholesale removal of vegetation will be allowed; rather the selective removal necessary for construction will be permitted. Every effort must be taken to avoid disturbing the earth or trees. Specific rock outcrops and trees, which may not be disturbed, will be identified on the plat. Owners are encouraged to work existing rocks and trees into the design on the constructed environment. Site grading and drainage must occur with minimum disruption, without altering natural drainage patterns and without causing conditions that could lead to unnecessary soil erosion.
Cut slopes required for any driveway may not be left as exposed earth unless approved as such by the ACC. Any required retaining walls must be constructed or surfaced with stone/rock and such construction and materials for such retaining walls shall require prior approval by the ACC.
8. Antennas: Antennas for radio, television, or device for the reception or transmission of radio, microwaves or other similar signals are restricted to the attic or interior of the residence unless otherwise authorized by the ACC. Satellite dish antennas shall be allowed provided they are located in such areas as may be designated by the ACC. In no event shall satellite dish antennas be visibly obtrusive to neighboring property or exceed 24 inches in diameter or width.
9. Light: In order to protect the night sky, light used to illuminate garages, patios, parking areas or for any other purposes, shall be so arranged as to reflect light away from adjacent residences and away from the vision of passing motorists and the residents in the valley below the subdivision. Low-level outdoor illumination may be used for particular landscape features (trees, rock formations, etc.) All light sources must be shaded and no exposed bulbs or high intensity lighting shall be permitted. All exterior illumination shall require prior approval of the ACC.
10. Awnings: The awning design, material and color must be harmonious with existing architecture and all awnings require prior approval of the ACC.
11. Window Tinting: Window Tinting does not require the approval of the ACC if the color is light or medium smoke gray. All other colors must be approved by the ACC. Mirror or reflective finishes are prohibited unless approved by the ACC.
12. External Equipment: All electrical service equipment and sub-panels and all mechanical equipment, including but not limited to, air conditioning, and solar panels, shall be painted to match the surrounding wall color, or painted and screened to blend with the surrounding natural terrain. Roof mounted equipment and vents shall be painted to match the roof or adjacent wall color or screened or integrated into the design of the structure with appropriate materials such as stone/rock.
13. Water Pressure Valve: Each Homeowner shall install a water pressure reduction valve between the main water supply source and their Living Unit when the Subdivision Engineering requirements dictate such valve to be necessary to reduce excess water pressure from the main water supply source.
14. Swimming Pools: No swimming pools, either above ground or below ground shall be permitted on any Lot in the Quarter Circle H Ranch Homesites.
15. Spas: Spas must be designed as a visual extension of the residence through the use of walls or yards and shall be integrated into the design of the structure with appropriate materials such as wood, stone or rock. Spas must be constructed according to applicable governmental regulations. Any such Spa or Spa structure must be pre-approved by the ACC.
16. Patios, Patio Covers and Gazebos: Any Patio, Patio Cover or Gazebo must correspond to the homeowners design structure and be similar in architectural style, material, workmanship, size and appearance. Any such Patio, Patio Cover or Gazebo structure must be pre-approved by the ACC.
17. Playground Equipment: Commercially constructed swing sets and jungle gyms which may be installed in the rear or side yard, are not to be higher than 10 feet and should be adequately screened from the street view. No such playground equipment shall be installed on the view-side of a Lot, which has been designated as a View Lot by the Developer.
18. Other Types of Play or Sport Equipment: Play equipment not defined in Article 16 above, including but not limited to large swing sets, gymnastic and climbing apparatus structures and playhouses need prior approval of the ACC. The ACC shall also require an Impacted Neighbor Statement for Play or Sport Equipment.
19. Basketball Backboards: The ACC must approve the installation of sport equipment or related cement areas. Such areas are discouraged and, if approved, the Lot Owner must provide a landscape to screen equipment from view and provide barrier to prevent the ball from encroaching on a neighbor’s property and the ACC will also require an Impacted Neighbor Statement. Portable Basketball Backboards will not be permitted on Common area streets or on the Owner’s private drive or in the vicinity of the entrance to the Common area street from the Owner’s private drive.
20. Security Bars: Security bars on doors and windows will not be permitted on any home in the Quarter Circle H Ranch Homesites.
21. Re-subdivision of Lots: No Lot in this subdivision shall be divided, subdivided, partitioned, parceled or broken up into smaller Lots or units.
22. Damages: Any damage inflicted on existing natural vegetation, or improvements such as ditches, drives or streets, by the Owner and/or their agents or contractor must be repaired within 90 days after such damage is discovered. The expense of such repair shall be the joint and several obligation of the person causing such damage, the contractor and/or the Owner.
SECTION IX. FINANCES AND OPERATIONS
1. Creation of Lien and Personal Obligation of Assessment: The Developer and each subsequent Owner of any Lot by acceptance of a deed or conveyance therefore, whether or not it shall be so expressed in any such deed or other conveyance, covenants and agrees to pay to the Quarter Circle H Ranch Home Owners Association (hereinafter “Association”), assessments, fines or charges and interest, costs of collection and a reasonable attorney’s fee, as hereinafter provided. All such amounts shall be, constitute, and remain: (a) a charge and continuing lien upon the Lot with respect to which such assessment is made; and (b) the personal obligation of the person who is the Owner of such Lot at the time the assessment falls due and successors-in-title who took title when assessments were delinquent.
2. Purpose of Assessments: Assessments levied by the Association shall be used for the improvement, maintenance, repair and preservation of the Common property. The Common property consists of portions outside of Lots, easements for roadways, shoulders and drainage and slope maintenance, and the entry to the property. The assessments must provide for but are not limited to: the payment of taxes on Association property and insurance maintained by the Association; the payment of the cost of repairing, replacing and maintaining the Common area; the payment of management and administrative expenses of the Association; insurance deductible amounts; the establishment of a reserve account for repair, maintenance and replacement of the Common areas which must be replaced on a periodic basis; the cost of snow removal from Common entry and access roads; general signage for the Property; legal fees and costs; technical and accounting fees and costs; enforcement costs; compliance costs; taxes, assessments, and impact fees by government entities; assessments made but not discharged or extinguished; and other amounts required that the Board shall determine to be necessary to meet the primary purposes of the Association.
The Association agrees to maintain the Common area roads, including the shoulder and slope areas within the property and make all repairs including but not limited to repairs, resurfacing, striping and seal coat on the paved or unpaved portions of the road, including shoulders and drainage areas. The cost of such maintenance shall be a common expense of the Association.
The Association shall not have the right to assess for improvements to the Common areas for recreational amenities.
3. Maximum Annual Assessment: Until January 1 following recording of these Covenants, the maximum annual assessment shall be Nine Hundred Dollars ($900.00) per Lot. This amount shall be the basis of calculation for future maximum annual assessments.
(a.) From and after the date referred to above the maximum annual assessment may be increased each year by five percent (5%) above the maximum assessment for the previous year, without a vote of the membership.
(b.) The Association may change the basis and maximum of the assessments fixed by this Section prospectively for any annual period provided that any such change, except as above in (a), shall have the assent of fifty-one percent (51%) of all votes, which Members present in person or represented by proxy are entitled to cast at a meeting duly called for the purpose.
4. Special Assessments for Capital Improvements: In addition to the annual assessments authorized above, the Association may levy in any assessment year a special assessment, applicable to that year only. Special assessments may only be levied to defray in whole or in part, the cost of any construction, reconstruction, repair or replacement of the landscape easement areas and the Common entry and access roads; PROVIDED THAT any such special assessment must be assented to by fifty-one percent (51%) of all votes, which Members present in person or represented by proxy are entitled to cast at a meeting duly called for the purpose, AND PROVIDED FURTHER, that such capital improvements may not be subject to payment through or by Special Assessments or by Regular Assessments during the development period. Written notice setting forth the purpose of the meeting shall be sent to all Members at least ten (10) days but not more than thirty (30) days prior to the meeting date.
5. Uniform Rate of Assessment: Assessments must be fixed at a uniform rate for all Lots, excepting those Lot Owners whose Lots are served by a “Gated” Common Roadway, then such Lot Owners shall be responsible for additional assessments solely for the maintenance and repair of such gate which has been installed for said “Gated” Common Roadway; provided, however, that assessments shall not accrue against the Developer or Lots owned by the Developer.
6. Date of Commencement of Annual Assessments (Due Dates): The assessment provided for herein shall commence to accrue on the first day of the month following conveyance to a purchaser. The first assessment shall be adjusted according to the number of months remaining in the calendar year. In the absence of a determination by the Developer as to the amount of said assessment, the assessment shall be an amount equal to 90% of the maximum assessment provided above.
At least thirty (30) days prior to the commencement of each new assessment period, the Board shall send or cause to be sent a written notice of the annual assessment to each Owner subject thereto. This notice shall not be a pre-requisite to validity of the assessment. The assessment due dates shall be established by the Board.
The Board shall prepare a roster of the properties and the assessments applicable thereto at the same time that it shall fix the amount of the assessment which roster shall be kept by the Treasurer of the Association, who shall record payments of assessments and shall allow inspection of the roster by any member at reasonable times.
The Association shall, upon demand, and for a reasonable charge, furnish a written certification signed by an officer of the Association, setting forth whether the assessment on a specified Lot has been paid. Such certification, when properly issued shall be conclusive evidence of the payment of any assessment or fractional part thereof, which has therein shown to be paid.
7. Effect of Non-Payment of Assessment: The amount of any Assessment, charge, fine, penalty or other amount payable by any Owner or with respect to such Owner’s Unit Estate shall become due and payable as specified by the Board and, if not specified, thirty (30) days after any notice of the amount due shall have been given by the Board to such Owner. Unless paid within thirty (30) days of the due date, any such amount shall bear interest at a rate specified by the Board but in no event greater than the maximum amount permitted by law from its original due date until date of payment. Regular and Supplemental Assessments shall be paid and collected an a monthly, quarterly, semi-annual or annual basis, as the Board may, from time to time, elect, and shall initially be paid and collected in advance.
Remedies of the Association: Any assessment or installment thereof not paid within thirty (30) days after the due date therefore shall be delinquent and shall bear interest from the due date at the rate of twelve percent (12%) per annum (or such lesser rate as the Board shall set by resolution) until paid. In addition, a late fee of $20.00 for each delinquent installment shall be imposed. |
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