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HomeMy WebLinkAbout1.0 ApplicationJOHN A. THULSON EDWARD MULHALL, JR. SCOTT BALCOMB LAWRENCE R. GREEN TIMOTHY A. THULSON LORI J. M. SATTERFIELD EDWARD B. OLSLEWSIU DAVID SANDOVAL ❑ENOY M. HEISEL CHRISTOPHER L. COYLE JEFFERSON J. CHENEY BALC©MB & GREEN, P.C.F =I�' � 5 1999 Ei 7 TQRNEYS AT LAW (FORMERLY DELANEY S, BALCOMB, P.C.) P. 0. DR w, ER 790 818 COLORADO AVENUE GLENWODD SPRINGS, COLORADO 81602 VIA HAND DELIVERY TO: Telephone: 97 0945.6546 Facsimile; 970.945.9769 November l5, 1999 Mark Bean, Director Garfield County Building and Planning Department 109 8th Street, Suite 303 Glenwood Springs, CO 81601 Dear Mark: OF COUNSEL: KENNETH BALCOMB Re: Coryell Ranch PUD; Final Plat Submittal for Coryell Ranch Suhdivision and Midland Point Subdivision On behalf of Coryell Ranch Company, LLC, and in accordance with Section 5:00 of the Garfield County Subdivision Regulations we are enclosing herewith three copies of all ofthe following materials as the Final Plat submittal for Coryell Ranch Subdivision and Midland Point Subdivision: 1. Final Plat, consisting of five sheets, for Coryell Ranch. 2. Final Plat, consisting of 5 sheets, for Midland Point. 3. Engineering Plans and Specifications, consisting of 57 sheets, for all subdivision improvements in both Coryell Ranch and Midland Point. 4. Draft Subdivision Improvements Agreement, with attached Exhibits, including engineering cost estimate of subdivision improvements, which addresses the cost of improvements, payment of fees, etc. for both Coryell Ranch and Midland Point. 5. Limited appraisal report for the Coryell Ranch PUD. This document is submitted in accordance with current provisions of Section 9:81 ofthe Garfield County Subdivision Regulations which require a determination of the unimproved market value of the subject land in order to calculate the cash payment in lieu of dedication of land to the RE -1 School District. As you will see, we have calculated the amount of the cash in lieu payment in accordance with the formula contained in Section 9:81 of the Subdivision Regulation in paragraph 10 of the draft Subdivision Improvements Agreement. BALCOMB & GREEN, P.C. ATTORNEYS A'1' LAW Mark Bean. Director November 15, 1999 Page 2 6. Certificate of Taxes Due from the Garfield County Treasurer's office confirming that all real property taxes for the Coryell Ranch PUD have been paid in full. 7. Declaration of Covenants, Conditions and. Restrictions for Coryell Ranch. 8. Declaration of Covenants, Conditions and Restrictions for Midland Point. 9. As required by Condition No. 18 ofthe Preliminary Plan approval (Resolution No. 99- 101), a copy of the draft Conservation Easement by which the owner may convey a conservation easement to the Roaring Fork Conservancy on the Midland Point Open Space adjacent to the Crystal River. 10. Copy of a current Commitment For title insurance indicating that Coryell Ranch Company, LLC is the owner of the subject property. 11. Our check in the amount of$400.00 which is the application fee for Coryell Ranch and Midland Point Subdivisions. We believe the enclosed material constitutes a complete Final Plat submittal for both Coryell Ranch and Midland Point Subdivisions and that your review of the materia! will demonstrate that the Final Plats for both Subdivisions are in conformity with all conditions ofthe PUD approval, the Preliminary Plan approval, and the Garfield County Subdivision Regulations. We understand the very busy workload now facing your office, but we are nevertheless hopeful that the Board of County Commissioners will be able to consider this Final Plat submittal within thirty days of the date hereof as provided in Section 5:12 of the Garfield County Subdivision Regulations. We are at your service to answer any questions you may have about the enclosed material or in any other way assist you in your review of these Final Plats. Very truly yours, BALCOMB & GREEN, P.C. LRG/bc Encls. xc: Ian Hause (wfout encls.) Donald L. Parris (wlout encls.) DECLARATION OF MASTER DEED RESTRICTION AND AGREEMENT CONCERNING THE SALE, OCCUPANCY AND RESALE PROPERTY DESCRIBED AS LOT A-1, LOT A-2, LOT A-3, AND LOT A-4 MIDLAND POINT SUBDIVISION, GARFIELD COUNTY, COLORADO THIS DECLARATION OF MASTER DEED RESTRICTION AND AGREEMENT CONCERNING THE SALE, OCCUPANCY AND RESALE OF PROPERTY described as Lot A -I, Lot A-2. Lot A-3, and Lot A-4 Midland Point Subdivision, Garfield County, Colorado ("Agreement") is made and entered into this day of January, 2000, by Coryell Ranch Co., LLC, a Colorado limited liability company (the "Declarant"), for the benefit of the parties and enforceable by the Garfield County Housing Authority ("GCHA"), a duly constituted housing authority established pursuant to Colorado law. RECITALS AND DEFINITIONS WHEREAS, Declarant is the owner of and is in the process of developing and platting a residential community known as Midland Point, Garfield County, Colorado; and WHEREAS, Declarant desires to set aside four (4) Lots within Midland Point, for the purpose of providing affordable housing for residents of Garfield County, Colorado (the "County"), which Lots are identified as Lot A-1. Lot A-2, Lot A-3. and Lot A-4 and which are more particularly described on Exhibit "A" attached hereto and incorporated herein by this reference. For purposes of this Agreement, such real property and all dwellings, appurtenances, improvements and fixtures associated therewith shall hereinafter be collectively referred to as the "Property"; and WHEREAS, it is recognized and agreed that Lots A-1, A-2, and A-3 of the Property have been approved by Garfield County for the construction of a two-family dwelling and that upon completion of construction of a two-family dwelling thereon each of said Lots may be re -subdivided along the common party wall into two (2) townhome lots in accordance with applicable Garfield County regulations; and WHEREAS, the Declarant has or will enter into one or more business relationships with a general contractor experienced in the construction of residential dwelling units for the purpose of constructing seven (7) residential housing units upon the lots comprising the Property, including the aforesaid two-family lots, which lots, as the same now exist, or as the said two-family lots may be re -subdivided, together with all improvements thereon and appurtenances thereto, shall hereinafter be referred to as "Units"; and WHEREAS, after completion of construction, each Unit, together with the completed homes and other improvements thereon and appurtenances thereto, shall be conveyed to `'Qualified Buyers" as that term is defined in this Agreement; and - I- WHEREAS. the term 'Qualified Buyers", as used herein, are natural persons meeting the income, residency and all other qualifications contained in Section 4.07.11, et. sec . of the Garfield County Zoning Resolution and in the Garfield County Affordable Housing Guidelines of 1999 (collectively, the Affordable Housing Regulations"), as adopted and in effect at the time of the closing of the sale of the Unit to Qualified Buyers, who must represent and agree pursuant to this Agreement to occupy the Unit as their sole place of residence, not engage in any business activity within the Unit other than that permitted in that zone district or by applicable ordinance, and not sell or otherwise transfer the Unit for use in a trade or business; and WHEREAS. the term "Owner", as used herein shall mean the person(s) who acquire an ownership interest in a Unit in compliance with the terms and provisions ofthis Agreement, it being understood that such person(s) shall be deemed an "Owner" hereunder only during the period of his, her or their ownership interest in the Unit and shall be obligated hereunder for the full and complete performance and observance of all covenants. conditions and restrictions contained herein during such period. It is expressly understood that the term '`Owner" as used in this Agreement does not include the Declarant. NOW, THEREFORE. for value received, the receipt and sufficiency of which is hereby acknowledged. Declarant hereby declares, covenants, and agrees as follows: SECTION 1 DECLARATION 1.1 For the purposes set forth herein. Declarant, for itself and its successors and assigns. hereby declares that the Property. and each Unit within the Property, shall be owned. held, transferred, conveyed. sold, leased. rented, hypothecated, encumbered, used, occupied. improved, altered and enjoyed subject to the covenants, conditions. restrictions, privileges. rights and other provisions herein set forth, for the duration hereof, and all of which shall run with the land and be binding upon all Owners. occupants and other persons having or acquiring any right, title or interest in or to the Property or any Unit thereof, and their respective heirs, personal representatives, successors and assigns and shall be binding upon and inure to the benefit of the County and GCHA, and their respective successors and assigns. All persons who purchase Units shall be Qualified Buyers, as such term is defined in this Declaration. 1.2 Declarant hereby restricts the acquisition or transfer of the Units to Qualified Buyers, as that term is defined in this Agreement, who fall within the qualifications and income range established and adopted by the GCHA or the County from time to time in its Affordable Housing Regulations. In addition, Declarant agrees that this Agreement shall constitute a resale agreement setting forth the maximum resale price for which the Units may be sold ("Maximum Resale Price"), the amount of appreciation. and the terms and provisions controlling the resale of the Units. Declarant restricts the Property and Units against use and occupancy inconsistent with the terms of this Agreement. 1.3 By the acceptance of any deed conveying any Unit subject hereto, the grantee of such deed shall accept all of the terms, conditions, limitations, restrictions and uses contained in this Agreement. In addition, prior to the delivery of a deed conveying any Unit to a grantee, such grantee shall execute a Memorandum of Acceptance evidencing grantee's acknowledgment and agreement to the terms, conditions, limitations, restrictions, and uses contained in this Agreement. 1.4 Notwithstanding any provision of this Agreement to the contrary, it is expressly agreed and acknowledged that the terms, conditions, and restriction of this Agreement with respect to the use and occupancy of the Property or any Unit thereof shall not apply to Declarant during its ownership thereof prior to the initial transfer of any Unit to a Qualified Buyer as provided herein; provided. however, the Declarant shall make no transfer of any Unit except to a Qualified Buyer as defined in this Agreement. 1.5 Notwithstanding any provision ofthis Agreement to the contrary, in order to facilitate provision of affordable housing in Garfield County, it is expressly agreed and acknowledged that the GCHA, or the County as an agent of the GCHA, may acquire and transfer the Unit(s) to Qualified Buyer(s) as that term is defined herein or rent the Unit(s) to qualified tenants who meet the income. occupancy and all other qualifications established by the GCHA or the County in its Affordable Housing Regulations until a sale to a Qualified Buyer is effected. SECTION 2 USE AND OCCUPANCY OF PROPERTY 2.1 Except as otherwise provided herein, the use and occupancy of any Unit shall henceforth be limited exclusively to housing for natural persons who meet the definition of Qualified Buyer(s) and their families. 2.2 An Owner, in connection with the purchase of a Unit. must: (a) occupy the Unit within this Property as his or her sole place of residence during the time that such Unit is owned; (b) not engage in any business activity on or in such Unit, other than as permitted in that zone district or by applicable ordinance; (c) sell. convey, or otherwise transfer such Unit only in accordance with this Agreement and the Affordable Housing Regulations. 2.3 It shall be a breach of this Agreement for an Owner who defaults in payments or other obligations due or to be performed under a promissory note secured by a first lien deed of trust or mortgage encumbering a Unit to fail to notify the GCHA, in writing, of any notification received from a lender, or its assigns. of past due payments or default in payment or other obligations due or to be performed under a promissory note secured by a first lien deed of trust or mortgage, as described herein, within five (5) calendar days of Owner's notification from lender, or its assigns. of said default or past due payments. 2.4 Upon receipt of notice as provided in subsection 2.3, GCHA shall have the right, in it's sole discretion, and with the agreement of the Owner, to cure the default or any portion thereof. In such event, the Owner shall be personally liable to GCHA for past due payments made by the -3- GCHA together with interest thereon at the rate specified in the existing promissory note(s) secured by the first lien deed of trust or mortgage. and all actual expenses of the GCHA incurred in curing the default. The Owner shall be required by GCHA to execute a promissory note secured by a deed of trust encumbering the Unit in favor of the GCHA for the amounts expended by the GCHA as specified herein, including future advances made for such purposes. The Owner may cure the default and satisfy its obligation to the GCHA under this subsection at any time prior to execution of a contract for sale, upon such reasonable terms as specified by the GCHA and, if applicable, any such satisfaction shall comply with Fannie Mae's community seconds program requirements. Otherwise, an Owner's indebtedness to the GCHA shall be satisfied from the Owner's proceeds at closing. SECTION 3 SALE OF UNIT: MAXIMUM RESALE PRICE 3.1 In the event that an Owner desires to sell his Unit the Owner shall consult with GCHA, or its agent, to review the requirements of this Agreement, including the method for determining the Maximum Resale Price. Following approval of the Maximum Resale Price by GCHA, the Owner may list or advertise such unit for sale with a licensed Colorado real estate broker of Owner's choice, for a sales price not exceeding the Maximum Resale Price. If Fannie Mae or similar financing (as solely determined by GCHA) is used, there may be a fee charged by GCHA based on the amount financed. The amount of such fee is to be paid by the borrower and shall be set forth in the current Affordable Housing Regulations and will be distributed to the GCHA Mortgage Fund Account. 3.2 In no event shall a Unit be sold for an amount in excess of the Maximum Resale Price as determined in accordance with this paragraph. The Maximum Resale Price shall equal the purchase price for the Unit paid by the Owner selling the Unit plus the cost of Permitted Capital Improvements as defined on Exhibit B attached hereto and incorporated herein by this reference divided by the Consumer Price Index, All Items, Denver/Boulder, Urban Wage Earners and Clerical Workers (Revised). published by the U.S. Department of Labor, Bureau of Labor Statistics ("Consumer Price Index") published at the time of Owner's purchase as stated on the settlement sheet, multiplied by the Consumer Price Index current at the date of intent to sell. In no event shall the multiplier be less than one (1). For the purposes of this subsection, "date of intent to sell" shall be the date of execution of a listing contract, or ifa listing contract is not used, the date shall be the date when the Unit is first offered for sale. In no event shall the Maximum Resale Price be less than the Owner's purchase price, plus Permitted Capital Improvements, plus an increase of three percent (3%) of such price per year from the date of purchase to the date of Owner's notice of intent to sell. NOTHING HEREIN SHALL BE CONSTRUED TO CONSTITUTE A REPRESENTATION OR GUARANTEE BY THE DECLARANT, GCHA OR GARFIELD COUNTY THAT UPON RESALE THE OWNER SHALL OBTAIN THE MAXIMUM RESALE PRICE. -4- 3.3 In order to qualify as Permitted Capital Improvements, the Owner must furnish to the GCHA the following information with respect to the improvements which the Owner seeks to include in the calculation of Maximum Resale Price: a Original or duplicate receipts to verify the actual costs expended by the Owner for the Permitted Capital Improvements; and b Owner's affidavit verifying that the receipts tendered are valid and correct; c True and correct copies of any building permit or certificate of occupancy required to be issued by the County with respect to the Permitted Capital Improvements. 3.4 For the purpose of determining the Maximum Resale Price in accordance with this Section, the Owner may also add to the amounts specified in subsections 3.2, the cost of any permanent improvements constructed or installed as a result of any requirement imposed by any governmental agency, provided that written certification is provided to the GCHA of both the applicable requirement and the information required by subsection 3.3. 3.5 In calculating the costs under subsection 3.2 and 3.3 only the Owner's actual out-of- pocket costs and expenses shall be eligible for inclusion. Such amount shall not include an amount attributable to Owner's "sweat equity" or to any appreciation in the value of the improvements. 3.6 An Owner shall not permit any prospective buyer to assurne any or all of the Owner's customary closing costs nor accept any other consideration which would cause an increase in the purchase price above the bid price so as to induce the Owner to sell to such prospective buyer. 3.7 Prior to Owner entering into a sales contract for the sale of his Unit to a prospective buyer. such potential buyer shall be qualified by GCHA pursuant to the requirements of the Affordable Housing Regulations then in effect. Documented proof of qualification shall be provided by the potential buyer, as requested by GCHA, prior to purchase. An Owner shall neither enter into a sales contract for the sale of his Unit with any person other than a Qualified Buyer nor any contract which provides for a sales price greater than the Maximum Resale Price established in accordance with this Section. The Owner may reject any and all offers; provided, however, offers in excess of the Maximum Resale Price shall be rejected. 3.8 In the event that title to a Unit vests in individuals or entities who are not Qualified Buyers as that term is defined herein, (hereinafter referred to as "Non -Qualified Transferee(s)"), and such individuals are not approved as Qualified Buyers within thirty (30) days after obtaining title to the Unit, in the manner described in this Section, the Unit shall immediately be listed for sale or advertised for sale by the Non -Qualified Transferee(s) in the same manner as provided for Owners in subsection 3.1 above; provided such action does not otherwise conflict with applicable law. The highest bid by a Qualified Buyer. for not less than ninety-five percent (95%) of the Maximum Resale Price or the appraised market value, whichever is less, which satisfies all obligations under any -5- existing first lien deed of trust or mortgage, shall be accepted. If all such bids are below the lesser of ninety-five percent (95%) of the Maximum. Resale Price or the appraised market value. the Unit shall continue to be listed for sale or advertised for sale by the Non -Qualified Transferee(s) until a bid in accordance with this subsection is made, which bid must be accepted. The cost of any appraisal shall be paid by the Non -Qualified Transferee(s). In the event the Non -Qualified Transferee(s) elect to sell the Unit without the assistance of a real estate broker or agent, such Non - Qualified Transferee(s) shall advertise the subject Unit for sale in a manner approved by GCHA and shall use due diligence and make all reasonable efforts to accomplish the sale of the Unit. In the event GCHA finds and determines that such Non -Qualified Transferee(s) have failed to exercise such due diligence, GCHA may require the Non -Qualified Transferee(s) to execute a standard listing contract on forms approved by the Colorado Real Estate Commission, or its successor, with a licensed real estate broker or agent. a Non -Qualified Transferee(s) shall join in any sale, conveyance or transfer of the Unit to Qualified Buyer(s) and shall execute any and all documents necessary to effect such conveyance. b Non -Qualified Transferee(s) shall not: (1) occupy the Unit: (2) rent all or any part of the Unit. except in strict compliance with Section 5 hereof; (3) engage in any other business activity on or in the Unit; (4) sell, convey or otherwise transfer the Unit except in accordance with this Agreement and the Affordable Housing Regulations; or (5) sell or otherwise transfer the Unit for use in a trade or business. c Where the provisions of this subsection 3.8 apply, the GCHA may require the Non -Qualified Transferee(s) to rent the Unit in the same manner as provided for Owners in Section 5. below. d Until sale to a Qualified Buyer is effected, Non -Qualified Transferee(s) shall comply with all obligations of Owners set forth in this Agreement. 4.1 Owner. SECTION 4 OWNER RESIDENCY REQUIRED Each Unit shall be utilized only as the sole and exclusive place of residence of an 4.2 In the event an Owner ceases to utilize a Unit as his sole and exclusive place of residence, the Unit shall be offered for sale pursuant to the provisions of subsection 3.8 of this Agreement. The Owner shall be deemed to have ceased utilizing the Unit as his sole and exclusive place of residence by becoming a resident elsewhere or by residing on the Unit for fewer than nine (9) months per calendar year without the express written approval of the GCHA. Where the provisions of this subsection 4.2 apply, the GCHA may require the Owner to rent the Unit in accordance with the provisions of Section 5, below. -6- 4.3 If an Owner of a Unit must leave Garfield County for a limited period of time, and desires to rent the Unit during such absence, a leave ofabsence may be granted by the GCHA for up to one (1) year upon clear and convincing evidence demonstrating a bona fide reason for leaving and a commitment to return to Garfield County. A letter must be sent to the GCHA at least thirty (30) days prior to leaving, requesting permission to rent the Unit during the leave ofabsence. Notice of such intent, and the ability to comment, shall be provided to any applicable homeowners' association at the time of request to the GCHA. The leave of absence shall be for one (1) year and may, at the discretion of the GCHA be extended for an additional one (1) year; but in no event shall the leave exceed two (2) years. The Unit may be rented during the one (1) or two (2) year period in accordance with Section 5, below. 4.4 If at any time the Owner of a Unit also owns any interest alone or in conjunction with others in any developed residential property or dwelling unit(s), Owner agrees to immediately list or advertise said other property or unit(s) for sale and to sell Owner's interest in such property at a sales price comparable to like units or properties in the area in which the property or unit(s) are located. In the event said other property or unit has not been sold by Owner within one hundred twenty (120) days of its listing or advertisement for sale, then Owner hereby agrees to immediately offer the Unit subject to this Agreement for sale pursuant to the provisions of subsection 3.8 of this Agreement. It is understood and agreed between the parties hereto that, in the case of an Owner whose business is the construction and sale of residential properties or the purchase and resale of such properties, the properties which constitute inventory in such an Owner's business shall not constitute "other developed residential property" or "dwelling unit(s)" as those terms are used in this subsection 4.4. SECTION 5 RENTAL OF UNIT 5.1 An Owner may not, except with prior written approval of the GCHA, and subject to GCHA's conditions of approval, rent the Unit. Prior to occupancy, any tenant must be approved by the GCHA in accordance with the income, occupancy and all other qualifications established by the GCHA in the Affordable Housing Regulations. The GCHA shall not approve any rental if such rental is being made by Owner to utilize the Unit as an income producing asset, except as provided below, and shall not approve a lease with a rental term in excess of twelve (12) months. A signed copy of the lease must be provided to the GCHA prior to occupancy by any tenant. The rental amount under any such lease approved by the GCHA, shall be '`Owner's cost". "Owner's cost" as used herein, includes the monthly expenses for the cost of principal and interest payments, taxes, property insurance, homeowner's assessments, utilities remaining in Owner's name, plus an additional twenty dollars ($20) per month and a reasonable (refundable) security deposit. The requirements of this subsection shall not preclude the Owner from sharing occupancy of a Unit with non -owners on a rental basis provided Owner continues to meet the obligations contained in this Agreement. including Section 4. 5.2 NOTHING HEREIN SHALL BE CONSTRUED TO REQUIRE THE GCHA TO PROTECT OR INDEMNIFY THE OWNER AGAINST ANY LOSSES ATTRIBUTABLE TO THE -7- RENTAL. INCLUDING (NOT BY WAY OF LIMITATION) NON-PAYMENT OF RENT OR DAMAGE TO THE PREMISES; NOR TO REQUIRE THE GCHA TO OBTAIN A QUALIFIED TENANT FOR THE OWNER IN THE EVENT THAT NONE IS FOUND BY THE OWNER. SECTION 6 BREACH OF AGREEMENT; OPPORTUNITY TO CURE 6.1 In the event that GCHA has reasonable cause to believe the Owner is violating the provisions of this Agreement, the GCHA, by its authorized representative, may inspect a Unit between the hours of 8:00 a.m. and 5:00 p.m.. Monday through Friday, after providing the Owner with no less than 24 hours written notice. 6.2 The GCHA, in the event a violation of this Agreement is discovered, may send a notice of violation to the Owner detailing the nature of the violation and allowing the Owner fifteen (15) days to cure. Said notice shall state that the Owner may request a hearing before GCHA within fifteen (15) days to determine the merits of the allegations. If no hearing is requested and the violation is not cured within the fifteen (15) day period, the Owner shall be considered in violation of this Agreement. If a hearing is held before the GCHA it shall be conducted in accordance with the hearing procedures set out in Section 7, below, and the decision of the GCHA based on the record of such hearing shall be final for the purpose of determining ifa violation has occurred. 6.3 The failure of the GCHA to insist upon the strict and prompt performance of any of the terms, conditions and restrictions of this Agreement shall not constitute or be construed as a waiver or relinquishment of the GCHA 's right or rights thereafter to enforce any term, condition or restriction and the same shall continue in full force and effect. SECTION 7 GRIEVANCE PROCEDURES 7.1 A grievance is any dispute that a tenant or Owner may have with the GCHA with respect to action or failure to act in accordance with the individual tenant's or Owner's rights, duties, welfare, or status. A grievance may be presented to the GCHA Board of Directors (hereinafter referred to as Board under the following procedures). 7.2 Filing a Grievance. a Any grievance must be presented in writing to the GCHA. It may be simply stated, but shall specify the particular ground(s) upon which it is based; the action requested; and the name, address, and telephone number of the complainant, and similar information about his/her representative. if any. b Upon presentation of a written grievance. a hearing before the GCHA Board of Directors shall be scheduled for the next scheduled Board meeting. The matter may be continued at the discretion of the Board. The complainant shall be afforded a fair hearing -8- providing the basic safeguard of due process, including notice and an opportunity to be heard in a timely, reasonable manner. c The complainant and the GCHA shall have the opportunity before the hearing, and at the expense of the complainant, to examine and to copy all documents. records. and regulations of the GCHA that are relevant to the hearing. Any document not made available after written request may not be relied upon at the hearing. d The complainant may be represented by counsel at their own expense. 7.3 Conduct of the Hearing. a If the complainant fails to appear at the scheduled hearing, the Board may make a determination to postpone the hearing or make a determination based upon the written documentation and the evidence submitted. b The hearing shall be conducted by the Board as follows: oral or documentary evidence may be received without strict compliance with the rules of evidence applicable to judicial proceedings. c The right to cross-examine shall be at the discretion of the Board and may be regulated by the Board as it deems necessary for a fair hearing. d Based on the records of proceedings. the Board will provide a written decision and include therein the reasons for its determination. The decision of the Board shall be binding on the GCHA which shall take all actions necessary to carry out the decision. SECTION 8 REMEDIES 8.1 This Agreement shall constitute covenants running with the real property, described in Exhibit "A", as a burden thereon. for the benefit of and shall be specifically enforceable by the GCHA. Garfield County, and their respective successors and assigns, as applicable, by any appropriate legal action including but not limited to specific performance, injunction. reversion, or eviction of non -complying Owners and/or occupants. 8.2 In the event the parties resort to litigation with respect to any or all provisions of this Agreement, the prevailing party shall be entitled to recover damages and costs, including reasonable attorney's fees. 8.3 In the event of any sale, transfer or conveyance of the Property or any Unit thereof in violation of this Agreement, such sale, transfer or conveyance shall be wholly null and void and shall confer no title whatsoever upon the purported transferee(s). Each and every conveyance of the -9- Property or Unit, for all purposes, shall be deemed to include and incorporate by this reference the covenants. conditions, limitations, and restrictions herein contained. even without reference therein to this Agreement. 8.4 In the event that the Owner or occupant fails to cure any breach, the GCHA may resort to any and all available legal action, including, but not limited to, specific performance of this Agreement or a mandatory injunction requiring sale of the Unit by Owner as specified in subsection 3.8. The costs of such sale shall be taxed against the proceeds of the sale with the balance being paid to the Owner. 8.5 In the event of a breach of any of the terms or conditions contained herein by the Owner. his heirs, successors or assigns, the Owner's purchase price of the Unit as referred to in Section 3 of this Agreement shall, upon the date of such breach as determined by GCHA, automatically cease to increase as set out in Section 3 ofthis Agreement. and shall remain fixed until the date of cure of said breach. SECTION 9 FORECLOSURE 9.1 Except as may otherwise be specifically provided in a written. recorded Option to Purchase between a lender, GCHA and a borrower. the form of which is attached hereto and incorporated herein by this reference as Exhibit "C", any purchaser acquiring any rights in the Property or a Unit by virtue of foreclosure of a lien shall be deemed to be a Non -Qualified Transferee subject to the provisions of Section 3.8 of this Agreement. In the event of a foreclosure, nothing herein shall be construed to create a release or waiver of the covenants, conditions, limitations and restrictions contained in this Agreement except upon the terms and conditions specified in that certain Option to Purchase. as referenced above. The Declarant expressly consents and agrees to the terms of that certain Option to Purchase; including, without limitation, the release provisions of paragraph d. The covenants. conditions, (imitations and restrictions contained in this Agreement shall otherwise survive any foreclosure proceeding. 9.2 In the event that GCHA or any agent of GCHA, exercises the option pursuant to the terms of that certain Option to Purchase, as referenced above, the GCHA and/or its agent, may sell the Unit (s) to Qualified Buyers as that term is defined herein, or rent the Unit(s) to qualified tenants who meet the income, occupancy and all other qualifications established by the GCHA in its Affordable Housing Regulations until sale to a Qualified Buyer is effected. -10- SECTION 10 GENERAL PROVISIONS 10.1 Notices. Any notice, consent or approval which is required to be given hereunder shall be given by mailing the same, certified mail, return receipt requested, properly addressed and with postage fully prepaid, to any address provided herein or to any subsequent mailing address of the party as long as prior written notice of the change of address has been given to the other parties to this Agreement. Said notices, consents and approvals shall be sent to the parties hereto at the following addresses unless otherwise notified in writing: To Declarant: To GCHA: Coryell Ranch Co., LLC 9929 State Highway 82 Carbondale, CO 81623 Garfield County Housing Authority Attn: Garfield County Affordable Housing Corporation 109 8' Street, Suite Glenwood Springs, CO 81602 To Owner: (To be set forth in a subsequent recorded Memorandum of Acceptance for each individual Unit] 10.2 Severability. Whenever possible, each provision of this Agreement and any other related document shall be interpreted in such a manner as to be valid under applicable law, but if any provisions of any of the foregoing shall be invalid or prohibited under said applicable law, such provisions shall be ineffective to the extent of such invalidity or prohibition without invalidating the remaining provisions of this Agreement or other related document. 10.3 Choice of Law. This Agreement and each and every related document is to be governed and construed in accordance with the laws of the State of Colorado. 10.4 Successors. Except as otherwise provided herein, the provisions and covenants contained herein shall inure to and be binding upon the heirs, successors and assigns of the parties. 10.5 Section Headings. Paragraph or section headings within this Agreement are inserted solely for convenience of reference, and are not intended to, and shall not govern, limit or aid in the construction of any terms or provisions contained herein. 10.6 Waiver. No claim of waiver, consent or acquiescence with respect to any provision of this Agreement shall be valid against any party hereto except on the basis of a written instrument executed by the parties to this Agreement. However, the party for whose benefit a condition is inserted herein shall have the unilateral right to waive such condition. -11- 10.7 Gender and Number. Whenever the context so requires herein, the neuter gender shall include any or all genders and vice versa and the use of the singular shall include the plural and vice versa. 10.8 Personal Liability. Owner agrees that he or she shall be personally liable for any of the transactions contemplated herein. 10.9 Further Action. The parties to this Agreement. including any Owner, agree to execute such further documents and take such further actions as may be reasonably required to carry out the provisions and intent of this Agreement or any agreement or document relating hereto or entered into in connection herewith. 10.10 Modifications. The parties to this Agreement agree that any modifications of this Agreement shall be effective only when made by writings signed by the parties. approved by the County. and recorded with the Clerk and. Recorder of Garfield County, Colorado. Notwithstanding the foregoing, the GCHA reserves the right to amend this Agreement unilaterally when deemed necessary to effectuate the purpose and intent of this Agreement, when such unilateral action does not materially impair an Owner or lender's rights under this Agreement, and when such amendment has been approved by the County. IN WITNESS WHEREOF, the parties hereto have executed this instrument on the day and year first above written. DECLARANT: CORYELL RANCH COMPANY, LLC, a Colorado limited liability company By: Coryell Ranch Management Company. Inc., a South Carolina corporation, its Manager By: Its: -12- STATE OF COLORADO ) ss COUNTY OF GARFIELD The above and foregoing document was acknowledged before me this day of January, 2000. by as for Coryell Ranch Management Company, Inc., a South Carolina corporation, Manager of Coryell Ranch Company, LLC, a Colorado limited liability company. Witness my hand and official seal. Notary Public My commission expires: My address is: e.1wp-doe411.G.AG'CoryeINDocumen[s% 362.94 ACCEPTANCE BY THE GARFIELD COUNTY HOUSING AUTHORITY The foregoing Declaration of Master Deed Restriction and Agreement Concerning the Sale, Occupancy and Resale of Property described as Lot A-1, Lot A-2, Lot A-3. and Lot A-4 Midland Point Subdivision. Garfield County, Colorado and its terms are hereby adopted and declared by the Garfield County Housing Authority. STATE OF COLORADO ) COUNTY OF GARFIELD ) GARFIELD COUNTY HOUSING AUTHORITY By: Title: S5 The above and foregoing document was acknowledged before me this 2000, by day of as Witness my hand and official seal. My commission expires: My address is: Notary Public -14- EXHIBIT "A" Legal Description LOT A-1, LOT A-2. LOT A-3, AND LOT A-4, ACCORDING TO THE FINAL PLAT OF MIDLAND POINT RECORDED IN THE OFFICE OF THE CLERK AND RECORDER OF GARFIELD COUNTY, COLORADO, ON , 2000, AS RECEPTION NO. EXHIBIT "B" Permitted Capital Improvements 1. The term "Permitted Capital Improvements" as used in the Agreement shall only include the following a. Improvements or fixtures erected, installed or attached as permanent, functional, non -decorative improvements to real property, excluding repair, replacements and/or maintenance improvements: following: b. Improvements for energy and water conservation; c. Improvements for the benefit of seniors and/or handicapped persons; d. Improvements for health and safety protection devices; e. Improvements to add and/or finish permanent/fixed storage space; f. Improvements to finish unfinished space; g. Garages; h. The cost of adding decks and any extension thereto. Permitted Capital Improvements as used in this Agreement shall NOT include the a. Landscaping; b. Upgrades/replacements of appliances, plumbing and mechanical fixtures. carpets and other similar items included as part of the original construction of the unit; c. Jacuzzis, spas, saunas. steam showers and other similar items; d. Improvements required to repair, replace and maintain existing fixtures, appliances, plumbing and mechanical fixtures, painting, carpeting and other similar items; e. Upgrades or addition of decorative items, including lights. window coverings, floor coverings and other similar items. 3. All Permitted Capital Improvement items and costs shall be approved by the GCHA prior to being added to the Maximum Resale Price as defined herein. -16- EXHIBIT "C" OPTION TO PURCHASE In the event of a foreclosure by the holder (including here and hereinafter assigns of the holder) of the promissory note secured by a first lien deed of trust or mortgage on the property described as * , also known as * (hereinafter the "Property"), and subject to the issuance ofa public trustee's, sheriffs, or other foreclosure deed to the holder following the expiration of all statutory redemption rights. the Garfield County Housing Authority (the "GCHA"), and Garfield County, Colorado (the -County"), as the agent of the GCHA, shall have the option to purchase the Property which shall be exercised in the following manner: a. Notice. The holder shall give such notice to the GCHA and the County as is required under Colorado law in the foreclosure proceeding. Said notice shall be sent by certified mail, return receipt requested. and addressed, as set forth below, or to such other address as may be directed in writing by GCHA or the County: Garfield County Housing Authority 109 8`' Street, Suite Glenwood Springs, CO 81601 Garfield County. ATTN: County Manager 109 8th Street. Suite Glenwood Springs. CO 81601 b. Option to Purchase. The GCHA and the County. as the agent of the GCHA, shall have 30 days after issuance of the public trustee's, sheriffs or other foreclosure deed in which to exercise this option to purchase by tendering to the holder, in cash or certified funds. an amount equal to the redemption price which would have been required of the borrower or any person who might be liable upon a deficiency on the last day of the statutory redemption period(s) and any additional reasonable costs incurred by the holder during the option period which are directly related to the foreclosure; provided, that exercise of the option by one optionee shall terminate the right of the other to exercise the option. c. Title. Upon receipt of the option price, the holder shall deliver to either the GCHA or the County, as designated by the GCHA, a special warranty deed, conveying the Property to either the GCHA, or the County, as designated. The holder shall convey only such title as it received through the public trustee's, sheriffs or other foreclosure deed and will not create or participate in the creation of any additional liens or encumbrances against the Property following issuance ofthe public trustee's, sheriffs or other foreclosure deed to the holder. The holder shall not be liable for any ofthe costs of conveyance to the GCHA or its agent. -17- d. Release. In the event that the holder is issued a public trustee's, sheriffs or other foreclosure deed and neither the GCHA or the County exercise the option to purchase. as provided herein. the GCHA shall cause to be recorded in the records of the Clerk and Recorder of Garfield County a full and complete release of the Property from the Declaration of Master Deed Restriction and Agreement affecting the Property which appear in said records in Book at Page . Such release shall be placed of record within 14 days after expiration of the option and a certified copy of the release shall be mailed to the holder upon its recordation. e. Perpetuities Savings CIause. If any of the terms, covenants, conditions, restrictions, uses. limitations, obligations or options created by this option to purchase shall be unlawful or void for violation of: (a) the rule against perpetuities or some analogous statutory provision. (b) the rule restricting restraints on alienation, or (c) any other statutory or common law rules imposing like or similar time limits, then such provision shall continue only for the period of the lives of the current duly elected and seated Board of County Commissioners for Garfield County, Colorado. their now living descendants, if any, and the survivor of them. plus twenty-one (21) years. f. Successors and Assigns. Except as otherwise provided herein, the provisions and covenants contained herein shall inure to and be binding upon the heirs. successors and assigns of the parties hereto. g. Modifications. The parties hereto agree that any modification to this option to purchase shall be effective only when made by a writing signed by the parties and recorded with the Clerk and Recorder of Garfield County, Colorado; provided. however, no modification affecting the rights of the County shall be effective without the prior written consent of the County, -18- IN WITNESS WHEREOF. the parties hereto have executed this instrument on the day and year written below. HOLDER OF FIRST DEED OF TRUST/MORTGAGE: BY: TITLE: (Authorized Officer) (Date) MAILING ADDRESS: STATE OF COLORADO ) ) ss COUNTY OF GARFIELD ) The above and foregoing document was acknowledged before me this day of 2000, by Witness my hand and official My commission expires: My address is: Notary Public THE GARFIELD COUNTY HOUSING AUTHORITY: BY: TITLE: (Authorized Officer) (Date) -19- STATE OF COLORADO ) ) COUNTY OF GARFIELD ) ss The above and foregoing document was acknowledged before me this , 2000, by Witness my hand and official My commission expires: My address is: BORROWER: day of Notary Public (Date) STATE OF COLORADO ) ss COUNTY OF GARFIELD (Date) The above and foregoing document was acknowledged before me this day of 2000. by Witness my hand and official My commission expires: My address is: Notary Public -20- J©Kµ P Tr�+U�Os+ S OOH t -Ossa E. R Osseo. o J. NI. SA-rresvieLo �flwAs° � bovA Qp,450 SA Dewy( crOvroIA.E. JEVfE�;SpN _ 5_Jc NV'T 01'04AS U � P°O°�XvQP'`.zt o1�4 t3t0 SOR° 05, CO1 Ow- ����Wdd t��1 �QrS �� hare. 97 0.9g5 9769 Re\eP ile, 970. F ecs�rrti December 79, 1.9 99 9 Of COLVASet, KeTM'x014 $A�Gasne 1 U 1)0-`INS14,)/ gyp. Dan De got d, Esq'Nttoley uutY reld Couite 3 Glenwood8l 1 G �h Street, S CO b[J 8Springs, p U'��'�V�� I4 V`p' VVVIL dee • 'Esq° g l Blake M n s co'' pklfardab1e ausl estrictin Glenwaad �' Ca,�,�el1R�'ch of aster seed � A-1 ;I} e Lot pL� of �}eclatatl0 ems`! Described t eel Res ° Don an Cal`�in: o you. form Res`'le a County, Colorado r e a DOS ee for each ancy an Gaileld ed an, Corner enclasing the Sale, U Subdivision Subdivision, `N° a olor do (" elc plo t 1 tnentl ancection . di d i d e DeedR ictionritY, inserting 0.7 l l et° e Ag o*TIL of r at da nos modeled an the 1e ousing meat by Section �' lines Lot -3, tld Car}�an d that lnstru ulatiy in ging s ,Culde ulatik ��'This Deed Regtr� dale, and the cls. l �adl'�te ,pausing Reg Affordable � Mase Reg s conn max► CauntY aunty eg a d spirit of i o%Nt ay in Riper alll re G le1d Gafield C the leer ild ice a pausing ed ill d the meets triose ul concepts contained Qlutaar�, esu ctiau n' aft e deed R� e ousirtgteg ,� Z I. c l es sed Deed R �uingp a radphs unty 1Dee ch County e eucla ar € e hallo Gatr�lel Ca believe that nth t yo to atter'txa l call to ' unaddressed In the carr t'ha,���elie'je axe JOHN A. TII ULSON EDWARD MULHALL, JR. SCOTT ,BALCOMB LAWRENCE R. GREEN TIMOTHY A. THULSON LORI J. M. SATTERFIELD EDWARD B. OLSZ'EWSKI DAVID SANDOVAL DENDY M. HEISEL CHRISTOPHER L. COYLE JEFFERSON J. CHENEY BLCoMB & GREEN, P.C. ATTORNEYS AT LAW P. O. DRAWER 790 81.8 COLORADO AVENUE GLENWOOD SPRINGS, COLORADO 81602 VIA HAND DELIVERY TO: Don Deford, Esq. Garfield County Attorney 109 8th Street, Suite 301 Glenwood Springs, CO 81601 VIA HAND DELIVERY TO: Calvin Lee. Esq. 811 Blake Avenue Glenwood Springs. CO 81602 Telephone: 970.945.6546 Facsi m iie: 970.945.9769 December 29, 1999 Re: Corvell Ranch Aftordabie Housing Dear Don and Calvin: QF COUNSEL: KENNETH BALCOMB I am enclosing for each of you a form of Declaration of Master Deed Restriction and Agreement Concerning the Sale, Occupancy and Resale of Property Described as Lot A-1, Lot A-2, Lot A-3, and Lot A-4, Midland Point Subdivision, Garfield County, Colorado ("Deed Restriction"). This Deed Restriction is modeled on the Deed Restriction I worked on, which was accepted by the Town of Carbondale, and the Carbondale Housing Authority, for the Thompson Corner affordable housing in River Valley Ranch. 1 modified that instrument by inserting specific provisions and concepts contained in the Garfield County Housing Regulations, Section 4.07,11 et.sem. of the County Zoning Resolution, and the Garfield County Affordable Housing Guidelines of 1999. I believe that the enclosed Deed Restriction meets the tetter and spirit of those Regulations. I call to your attention the following paragraphs of the Deed Restriction which address issues that I believe are unaddressed in the current Garfield County Affordable Housing regulatory scheme: I3ALCOMB & GREEN, P.C. ATTORNEYS AT LAW Don Deford, Esq. Calvin Lee, Esq. December 29, 1999 Page 2 Paragraph 2.4 gives the Garfield County Housing Authority the ability. not the obligation, to cure an owner's default in an underlying deed of trust or mortgage on an affordable housing unit. Paragraph 3.2 addresses the concept of and defines the maximum resale price, the price for which an owner can resale his unit. This language is consistent with the Garfield County Regulation, except for the concept of permitted capital improvements. Under the Garfield County Regulation, permitted capital improvements are approved by the Housing Authority as tirne goes on. Under the enclosed Deed Restriction, permitted capital improvements are enumerated on Exhibit B to the Deed Restriction, thus providing an owner advance knowledge of improvements that he can make to his unit and recapture the cost upon resale. Paragraph 3.8 addresses the concept of non-qualified transferees. which 1 don't believe is addressed in the Garfield County regulatory scheme. Under this paragraph, if a non-qualified transferee comes into title of an affordable unit. for example, by testamentary devise or through foreclosure of a lien, the non-qualified transferee is obligated to sell the unit upon the terms and conditions set forth in paragraph 3.8. Paragraph 4.4 is an additional asset limitation on a qualified buyer, prohibiting a qualified buyer from owning an interest in any additional residential dwelling unit other than the subject affordable housing unit. Section 5 addresses allowed rental of an owner occupied affordable housing unit. I believe this is consistent with the Garfield County regulatory scheme, but would ask that you look at it carefully. Sections 6 and 8 of the Deed Restriction are. I believe. consistent with similar provisions of the Garfield County regulatory scheme, but are more detailed than that scheme. You will also note that I added the Grievance Procedures found in the Garfield County Housing Guidelines as Section 7 to the Deed Restriction. Section 9 of the Deed Restriction addresses the subject of foreclosure of a deed of trust on an affordable housing unit, which, to my knowledge, is unaddressed by the present Garfield County regulatory scheme. Although I was not primarily involved in this aspect of the River Valley Ranch Deed Restriction, it is my understanding that the provisions of Section 9, together with the Option Agreement which is attached as Exhibit C to the Deed Restriction, are necessary to enable a deed restricted affordable housing unit to qualify for FANNIE MAE backed mortgage loans. Apparently FANNIE MAE regulations require that a foreclosing lending institution have the ability to extinguish the deed restriction. If this were done. the result would obviously be the removal of the subject unit from the affordable housing pool. In order to avoid this result, FANNIE MAE regulations allow the lending institution to grant to the Local Housing Authority an option to purchase the property upon foreclosure as set out in Exhibit C. The local Housing Authority thus maintains the ability to BALCOMB & GREEN, P.C. ATTORNEYS AT LAW Don Deford, Esq. Calvin Lee. Esq. December 29, 1999 Page 3 preserve the unit within the affordable housing pool by exercising the option, evert if there is a foreclosure. The specific language of this Option Agreement has been approved by FANNIE MAE. I look forward to hearing your comments on the enclosed Deed Restriction. Very truly yours. BALCOMB & GREEN, P.C. LRG/bc Enols. xc: Donald L. Parris (w/enols.) Jack Best (w/enols.) • 1! �Ii Ik1++11[111111 1. ..I k111,11..11. Lt1 bl '10 c: 'I J Ph+a.2-5_211 FAX: 0111.242.4H211 Mesa National Banks IRREVOCABLE STANDBY LETTER OF CREDIT Letter of Credit No. 25 Date: January 18, 2000 Board of County Commissioners of Garfield County, Colorado 109 8i1' St., Suite 300 Glenwood Springs, CO 81601 Dear Board of Commissioners: We hereby open in your favor, at the request and for the account of Curyell Ranch Company, LLC, our Irrevocable Standby Letter of Credit in an amount not to exceed Four Million Five Hundred Eleven Thousand Two Hundred and No/100 United States Dollars (US $4,511,200.00) available by your draft drawn at sight on us and accompanied by: An original, signed written statement stating as follows: "The amount of this draft represents an amount now due and owing to the Board of Commissioners of Garfield County, Colorado (the "Board") pursuant to the Subdivision Improvements Agreement between the Board and Coryell Ranch Company, LLC, dated January 10, 2000 (the "Subdivision Improvements Agreement").The funds obtained by this drawing will be used only for payment for labor to be performed on, or materials supplied and to be incorporated into, public improvements to be constructed pursuant to the Subdivision Improvements Agreement. The person who has signed this statement is duly authorized by the Board to do so." 2. This original Letter of Credit. Drafts may be presented from tirne to time prior to the date of expiration of this Letter of Credit, but we shall not be obligated to honor any draft which (i) does not conform with the requirements of this Letter of Credit, or (ii) is for an amount greater than the amount which remains available to be drawn under this Letter of Credit. The aggregate amount available to be drawn under this Letter of Credit (initially $4,511.200.00 as stated above) shall be reduced from time to time as portions of the public improvements which are the subject of the Subdivision Improvements Agreement are accepted by the Board. The amount of each such reduction shall be the amount stated in a Release of Security, duly executed by a member of the Board. We may endorse such reductions on our copy of this Letter of Credit from time to time, and absent manifest error, our records shall be conclusive as to the amount which remains available to be drawn. Each Draft must bear on its face the notation "Draw under Irrevocable Standby Letter of Credit No. 25." This letter of credit shall expire on December 10, 2001. MNB Puller, oIJ 1179 I' Ii.,rx.11 hoar li.;aW Julleuull, C013151/1 Mole: 97U-241.2011 FAX: 970-343-4475 MNB Illurlg:rge MNB Orchard Mesa 1199 ,µ11a.+[[11 Head li.alvd 1L10,1.1,,•11,114 012111 PI k0I 970-241-1011 FAX. •070.245,0140 31,11 I I.1 1 1. g u w .,> 511 liicnJ Juu.•ilwl. CG 1115111 ,hoer,: 970,241 40-10 FAX: 7111 241 07511 MNB [:Yiftuu P.INIJ Rine 51.411 12 Heal Ute114/ 1u11C.a•LLL CO .h17,1.11 I'I1 lie: 970 •11-1.044.16 1AX 070 434-1417 129 ku.l.ual A.c4111: 1111,1o, C0101451.1. I'I,w,e 00 025 2095 FAR- 0,41111425 !ti91 MNB Glenwood Springy l0I U Gaul.] Mow,: 11.1,1144,4444/1 *Nap. 11) 01401 Firm:. 970.4)45 6511 FAX 0704W5 5512 MNB '1'nlluride 109 W t'uluraJu Avenue 14:114.444L11:. CO 01475 PY1ww: 9711.720 8000 FAX- 0711-7215-1Y44 ivic a National bank Ja'cvucable Standby LLttcr ul'Credit Nu. 25 Board of County CulillniSSlunvr$ of Garfield County, Cututadu, t3eneficLary Cutyell Ranch Company, LLC, Applicant Page 2 We hereby agree to honor Drafts drawn under and in compliance with the terms of this Letter of Credit if duly presented at our offices at 1810 Grand Avenue, Glenwood Springs, Colorado on or before 5:00 o'clock P.M. local time on the expiration date. This Letter of Credit sets forth in full the terms of our undertaking, and such undertaking shall not in any way be modified, amended, amplified or limited by any document, instrument or agreement referred to herein or in which this Letter of credit is referred to, or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any such documents, instrument or agreement. This Letter of Credit shall be governed by and construed in accordance with the laws of the State of Colorado. Respectfully elzri ti: e Assistant Vice President Mesa National Bank O HARTERT & WILSON 210 TENTH STREET GLENWOOD SPRINGS, COLORADO 81601 TELEPHONE (970) 928-9665 FACSIMILE (970) 926.9680 Donald K. DeFord, Esq. Garfield County Attorney 109 Eighth Street, Suite 300 Glenwood Springs, CO 81601 Lawrence R. Green, Esq. Balcomb & Green, P.C. P.O. Drawer 790 Glenwood Springs, CO 81602 ATTORNEYS AT LAW November 18, 1999 RE: Coryell Ranch, LLC - Letter of Credit Dear Don and Larry. GERALD D. HARTERT RONALD M. WILSON In anticipation of going forward with the Coryell Ranch project and the need for security for the public improvements to be constructed pursuant to a subdivision improvements agreement, Mesa National Bank has asked me to prepare and send to you for review a proposed form of letter of credit. A draft is enclosed. Please call me with questions or comments. Very truly yours, IALOiCe t&IL(r, Ronald M. Wilson RMW/pc Enclosure xc: John Stelzreide [Bank Letterhead] IRREVOCABLE STANDBY LETTER OF CREDIT Letter of Credit No. Date: Board of County Commissioners of Garfield County, Colorado 109 8th Street, Suite Glenwood Springs, Colorado 81601 Dear Board of Commissioners: We hereby open in your favor, at the request and for the account of Coryell Ranch, LLC, our irrevocable standby letter of credit in an amount not to exceed United States Dollars (US$x,xxx,000.00) available by your draft drawn at sight on us and accompanied by: 1. An original, signed written statement stating as follows: "The amount of this draft represents an amount now due and owing to the Board of Commissioners of Garfield County, Colorado (the "Board") pursuant to the Subdivision Improvements Agreement between the Board and CoryelI Ranch, LLC, dated (the "Subdivision Improvements Agreement"). The funds obtained by this drawing will be used only for payment for labor to be performed on, or materials supplied and to be incorporated into, public improvements to be constructed pursuant to the Subdivision Improvements Agreement. The person who has signed this statement is duly authorized by the Board to do so." This original Letter of Credit. Drafts may be presented from time to time prior to the date of expiration ofthis Letter of Credit, but we shall not be obligated to honor any draft which (i) does not conform with the requirements ofthis Letter of Credit, or (ii) is for an amount greater than the amount which remains available.to be drawn under this Letter of Credit. The aggregate amount available to be drawn under this Letter of Credit (initially $ as stated above) shall be reduced by the amount of each and every advance made by us for the purpose of funding payment for costs of constructing the public improvements which are the subject of the Subdivision Improvements Agreement. We may endorse such reductions on our copy of this Letter of Credit from time to time, and absent manifest error, our records shall be conclusive as to the amount which remains available to be drawn. Each Draft must bear on its face the notation "Drawn under Irrevocable Standby Letter Of Credit No. Mesa National Bank Irrevocable Standby Letter of Credit No. Board of County Commissioners of Garfield County, Colorado, Beneficiary Coryell Ranch, LLC, Applicant Page 2 This Letter of Credit shall expire on , 2000. We hereby agree to honor Drafts drawn under and in compliance with the terms of this Letter of Credit if duly presented at our offices at 1810 Grand Avenue, Glenwood Springs, Colorado on or before 5:00 o'clock P.M. local time on the expiration date. This Letter of Credit sets forth in full the terms of our undertaking, and such undertaking shall not in any way be modified, amended, amplified or limited by any document, instrument or agreement referred to herein or in which this Letter of Credit is referred to, or to which this letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any such document, instrument or agreement. This Letter of Credit shall be governed by and construed in accordance with the laws of the State of Colorado. Very truly yours, Mesa National Bank By: Title: Date: 11-11-1999 Property Address: Buyer/Borrower: TBD Land Title Guarantee Company YOUR CONTACTS Our Order Number: GW231128-3 Seller/Owner: CORYELL RANCH COMPANY, LIMITED LIABILITY COMPANY, A COLORADO LIMITED LIABILITY COMPANY ****************************************************************** Note: Once an original commitment has been issued, any subsequent modifications will be emphasized by underlining or comments. If you have any inquiries or require further assistance, please contact one of the numbers below: For Closing Assistance: For Title Assistance: Glenwood Springs "GW" Unit Cindy Cochran 817 COLORADO AVE. #102 GLENWOOD SPRINGS, CO 81601 Phone: 970-945-2610 Fax: 970-945-4784 ESTIMATE OF TITLE FEES TBD Commitment $165.00 TOTAL $165. OG THANK YOU FOR YOUR ORDER! Old Republic National Title Insurance Company ALTA COMMITMENT Our Order No. GW231128-3 Schedule A Cust. Ref.: Property Address: 1. Effective Date: October 21, 1999 at 5:00 P.M. 2. Policy to be Issued, and. Proposed Insured: "TBD" Commitment Proposed Insured: TBD 3. The estate or interest in the land described or referred to in this Commitment and covered herein is: A Fee Simple 4. Title to the estate or interest covered herein is at the effective date hereof vested in: CORYELL RANCH COMPANY, LIMITED LIABILITY COMPANY, A COLORADO LIMITED LIABILITY COMPANY 5. The land referred to in this Commitment is described as follows: SEE ATTACHED PAGE(S) FOR LEGAL DESCRIPTION Our Order No. GW231128-3 LEGAL DESCRIPTION A PARCEL OF LAND SITUATE IN LOTS 12 AND 13, SECTION 28 AND IN LOTS 1,2,8,9,10,11,12,13 AND 19, SECTION 29, ALL IN TOWNSHIP 7 SOUTH, RANGE 88 WEST OF THE SIXTH PRINCIPAL MERIDIAN, COUNTY OF GARFIELD, STATE OF COLORADO, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT A FOUND B.L.M. ALUMINUM CAP IN PLACE FOR THE EAST 1/4 CORNER FOR SECTION 29, WHENCE A FOUND BRASS CAP L.S. 7734 IN PLACE FOR THE NORTHEAST CORNER FOR SAID SECTION 29 BEARS N 00 DEGREES 27' 51" E A DISTANCE OF 2677.86 FEET, WITH ALL BEARINGS CONTAINED HEREIN BEING RELATIVE THERETO; THENCE N 00 DEGREES 27' 51" E ALONG THE EAST LINE OF SAID SECTION 29 A DISTANCE OF 154.77 FEET TO THE TRUE POINT OF BEGINNING FOR THE PARCEL DESCRIBED HEREIN; THENCE ALONG THE NORTH, EAST AND SOUTHERLY BOUNDARY OF A PARCEL OF LAND DESCRIBED AS IN BOOK 918 AT PAGE 366 TO 367 OF THE RECORDS OF THE GARFIELD COUNTY CLERK AND RECORDER THE FOLLOWING 8 COURSES: 1) N 88 DEGREES 47° 11' FEET; 2) 5 03 DEGREES 08' 57" FEET; 3) N 76 DEGREES 59' 21' ' W ALONG AN EXISTING FENCE LINE A DISTANCE OF 343.54 E ALONG AN EXISTING FENCE LINE A DISTANCE OF 287.71 ' E ALONG AN EXISTING FENCE LINE A DISTANCE OF 9.75 FEET; 4) S 03 DEGREES 51' 05" W ALONG AN EXISTING FENCE LINE A DISTANCE OF 130,73 FEET; 5) S 30 DEGREES 25' 57" E ALONG AN EXISTING FENCE LINE A DISTANCE OF 75.33 FEET; 6) S 39 DEGREES 41' 10" E ALONG AN EXISTING FENCE LINE A DISTANCE OF 193.84 FEET; 7) S 31 DEGREES 14' 48" E ALONG AN EXISTING FENCE LINE A DISTANCE OF 71.04 FEET; 8) 5 23 DEGREES 21' 25" E ALONG AN EXISTING FENCE LINE A DISTANCE OF 73.27 FEET; THENCE S 79 DEGREES 33' 53" E ALONG AN EXISTING FENCE LINE AND SOUTHERLY BOUNDARY OF A PARCEL OF LAND DESCRIBED AS PARCEL A IN BOOK 929 AT PAGE 158 TO 159 OF THE RECORDS OF SAID GARFIELD COUNTY CLERK AND RECORDER A DISTANCE OF 257.61 FEET TO THE END OF SAID FENCE LINE; THENCE CONTINUING ALONG SAID SOUTHERLY BOUNDARY 5 79 DEGREES 33' 53" E A DISTANCE OF 71.00 FEET TO THE CENTERLINE OF THE CRYSTAL RIVER; THENCE ALONG THE CENTERLINE OF SAID CRYSTAL RIVER THE FOLLOWING 4 COURSES: 1) 5 10 DEGREES 45' 00" E A DISTANCE OF 262.02 FEET; 2) 5 12 DEGREES 30' 00" E A DISTANCE OF 168.00 FEET; 3) S 26 DEGREES 00' 00" E A DISTANCE OF 219.00 FEET; 4) 5 41 DEGREES 35' 02" E A DISTANCE OF 206.26 FEET TO A POINT ON THE EAST LINE OF LOT 13 OF SECTION 28; THENCE S 01 DEGREES 00' 52" W ALONG THE EAST LINE OF SAID LOT 13 (SAID EAST LINE ALSO BEING THE COMMON BOUNDARY LINE AS AGREED UPON BY UNION OIL COMPANY OF CALIFORNIA AND JOHN K & BARBARA M. SNOBBLE, SAID AGREEMENT BEING RECORDED IN BOOK 933 AT PAGE 836 TO 838 OF THE RECORDS OF SAID GARFIELD COUNTY CLERK AND RECORDER) A DISTANCE OF 909.31 FEET TO THE SOUTHEAST CORNER OF SAID LOT 13; THENCE ALONG A COMMON BOUNDARY LINE AGREED UPON BY UNION OIL COMPANY OF CALIFORNIA AND THE CRYSTAL RIVER RANCH (SAID AGREEMENT BEING RECORDED IN BOOK 912 AT PAGE 785 TO 789 OF THE RECORDS OF SAID GARFIELD COUNTY CLERK AND RECORDER) THE FOLLOWING 20 COURSES: Our Order No. GW231128-3 LEGAL DESCRIPTION 1) N 89 DEGREES 04' 09" W ALONG THE SOUTH LINE OF SAID LOT 13 A DISTANCE OF 563.29 FEET TO THE SOUTHWEST CORNER OF SAID LOT 13; 2) S 89 DEGREES 58' 42" W ALONG THE SOUTH LINE OF LOT 19, SECTION 29 A DISTANCE OF 159.34 FEET TO A POINT ON AN EXISTING FENCE LINE; 3) N 70 DEGREES 04' 19" W ALONG AN EXISTING FENCE LINE A DISTANCE OF 409.84 FEET; 4) N 70 DEGREES 07' 10" W ALONG AN EXISTING FENCE LINE A DISTANCE OF 354.35 FEET; 5) N 69 DEGREES 32' 49" W ALONG AN EXISTING FENCE LINE A DISTANCE OF 188.80 FEET; 6) S 28 DEGREES 47' 45" W ALONG AN EXISTING FENCE LINE A DISTANCE OF 306.75 FEET; 7) S 29 DEGREES 02' 13" W ALONG AN EXISTING FENCE LINE A DISTANCE OF 66.15 FEET TO A POINT ON THE SOUTH LINE OF SAID LOT 19; 8) S 89 DEGREES 58' 42" W ALONG THE SOUTH LINE OF SAID LOT 19 A DISTANCE OF 295.33 FEET TO A POINT ON AN EXISTING FENCE LINE; 9) N 11 DEGREES 04' 00" E ALONG AN EXISTING FENCE LINE A DISTANCE OF 309.81 FEET; 10) N 13 DEGREES 46' 33" W ALONG AN EXISTING FENCE LINE A DISTANCE OF 305.85 FEET; 11) N 54 DEGREES 09' 32" W ALONG AN EXISTING FENCE LINE A DISTANCE OF 258.77 FEET; 12) N 66 DEGREES 16' 50" W ALONG AN EXISTING FENCE LINE A DISTANCE OF 398.62 FEET; 13) N 45 DEGREES 17' 45" W ALONG AN EXISTING FENCE LINE A DISTANCE OF 213.59 FEET; 14) N 45 DEGREES 20' 59" W A DISTANCE OF 217.78 FEET TO A POINT ON AN EXISTING FENCE LINE; 15) N 45 DEGREES 04' 44" W ALONG AN EXISTING FENCE LINE A DISTANCE OF 451.97 FEET; 16) N 71 DEGREES 47' 15" W ALONG AN EXISTING FENCE LINE A DISTANCE OF 278.62 FEET; 17) N 44 DEGREES 16' 50" W ALONG AN EXISTING FENCE LINE A DISTANCE OF 273.66 FEET; 18) N 39 DEGREES 08' 00" W ALONG AN EXISTING FENCE LINE A DISTANCE OF 326.72 FEET TO A POINT ON THE WEST LINE OF LOT 13 OF SAID SECTION 29; 19) N 00 DEGREES 31' 38" E ALONG THE WEST LINE OF SAID LOT 13 A DISTANCE OF 310.11 FEET TO THE SOUTHWEST CORNER OF LOT 8 OF SAID SECTION 29; 20) N 02 DEGREES 03' 17" E ALONG THE WEST LINE OF SAID LOT 8 A DISTANCE OF 1167.25 FEET TO THE SOUTHWEST CORNER OF A PARCEL OF LAND AS DESCRIBED IN BOOK 449 AT PAGE 571 OF THE RECORDS OF SAID GARFIELD COUNTY CLERK AND RECORDER; THENCE N 89 DEGREES 30' 03" E ALONG THE SOUTH BOUNDARY LINE OF SAID PARCEL OF LAND A DISTANCE OF 151.19 FEET TO THE SOUTHEAST CORNER OF SAID PARCEL OF LAND; THENCE N 30 DEGREES 20' 00" E ALONG THE EASTERLY BOUNDARY LINE OF SAID PARCEL OF LAND A DISTANCE OF 367.79 FEET TO THE CENTERLINE OF THE ROARING FORK RIVER; THENCE ALONG THE CENTERLINE OF SAID ROARING FORK RIVER THE FOLLOWING 15 COURSES: 1) 5 22 DEGREES 57' 15" E A DISTANCE OF 214.22 FEET; 2) S 48 DEGREES 00' 46" E A DISTANCE OF 403.61 FEET; Our Order Na. GW231128-3 LEGAL DESCRIPTION 3) N 70 DEGREES 01' 01" E A DISTANCE OF 292.62 FEET; 4) N 43 DEGREES 09' 09" E A DISTANCE OF 219.32 FEET; 5) N 30 DEGREES 15' 23" E A DISTANCE OF 347.31 FEET; 6) N 39 DEGREES 33' 35" E A DISTANCE OF 298.33 FEET; 7} N 55 DEGREES 14' 39" E A DISTANCE OF 298.20 FEET; 8) N 73 DEGREES 08' 07" E A DISTANCE OF 265.41 FEET; 9) S 84 DEGREES 57' 03" E A DISTANCE OF 249.97 FEET; 10) S 57 DEGREES 59' 41" E A DISTANCE OF 235.85 FEET; 11) S 47 DEGREES 45' 29" E A DISTANCE OF 256.33 FEET; 12) S 39 DEGREES 49' 03" E A DISTANCE OF 418.28 FEET; 13) S 29 DEGREES 05' 00" E A DISTANCE OF 293.00 FEET; 14) S 36 DEGREES 34' 00" E A DISTANCE OF 330.00 FEET; 15) S 41 DEGREES 30' 00" E A DISTANCE OF 225.00 FEET TO A POINT ON THE EAST LINE OF SECTION 29; THENCE S 00 DEGREES 27' 51" W ALONG THE EAST LINE OF SAID SECTION 29 A DISTANCE OF 623.64 FEET TO THE POINT OF BEGINNING. COUNTY OF GARFIELD STATE OF COLORADO ALTA COMMITMENT (Requirements) Our Order No. GW231 128-3 The following are the requirements to be complied with: Payment to or for the account of the grantors or mortgagors of the full consideration for the estate or interest to be insured. Proper instrument(s) creating the estate or interest to be insured must be executed and duly filed for record, to -wit: THIS COMMITMENT IS FOR INFORMATION ONLY, AND NO POLICY WILL BE ISSUED PURSUANT HERETO. ALTA COMMITMENT (Exceptions) Our Order No. GW 231128-3 The policy or policies to be issued will contain exceptions to the following unless the same are disposed of to the satisfaction of the Company: 1. Rights of claims of parties in possession not shown by the public records. 2. Easements, or claims of easements, not shown by the public records. 3. Discrepancies, conflicts in boundary lines, shortage in area, encroachments, and any facts which a correct survey and inspection of the premises would disclose and which are not shown by the public records. 4. Any lien, or right to a lien, for services, labor or material theretofore or hereafter furnished, imposed by law and not shown by the public records. 5. Defects, liens encumbrances, adverse claims or other matters, if any, created, first appearing in the public records or attaching subsequent to the effective date hereof but prior to the date the proposed insured acquires of record for value the estate or interest or mortgage thereon covered by this Commitment. 6. Taxes and assessments not yet due or payable and special assessments not yet certified to the Treasurer's office. 7. Any unpaid taxes or assessments against said land. 8. Liens for unpaid water and sewer charges, if any. 9. THE EFFECT OF INCLUSIONS IN ANY GENERAL OR SPECIFIC WATER CONSERVANCY, FIRE PROTECTION, SOIL CONSERVATION OR OTHER DISTRICT OR INCLUSION IN ANY WATER SERVICE OR STREET IMPROVEMENT AREA. 10. WATER RIGHTS OR CLAIMS TO WATER RIGHTS. 11. RIGHT OF PROPRIETOR OF A VEIN OR LODE TO EXTRACT AND REMOVE HIS ORE THEREFROM SHOULD THE SAME BE FOUND TO PENETRATE OR INTERSECT THE PREMISES AS RESERVED IN UNITED STATES PATENT RECORDED MARCH 11, 1892, IN BOOK 12 AT PAGE 116; APRIL 27, 1892 IN BOOK 12 AT PAGE 140; AND APRIL 11, 1892 IN BOOK 12 AT PAGE 132 12. RIGHT OF WAY FOR DITCHES OR CANALS CONSTRUCTED BY THE AUTHORITY OF THE UNITED STATES AS RESERVED IN UNITED STATES PATENT RECORDED MARCH 11, 1892, IN BOOK 12 AT PAGE 116; APRIL 27, 1892 IN BOOK 12 AT PAGE 140; AND APRIL 11, 1892 IN BOOK 12 AT PAGE 132 13. EASEMENT AND RIGHT OF WAY FOR THE SOUTHARD AND CAVANAUGH DITCH AS SET FORTH IN STATEMENT AND MAP RECORDED DECEMBER 2, 1890 AS RECEPTION NO. 11062. ALTA COMMITMENT (Exceptions) Our Order No. GW231128-3 The policy or policies to be issued will contain exceptions to the following unless the same are disposed of to the satisfaction of the Company: 14. EASEMENT AND RIGHT OF WAY FOR THE KAISER AND SIEVERS DITCH AND ANY AND ALL ENLARGEMENTS OR EXTENSIONS THEREOF AS EVIDENCED BY STATEMENTS RECORDED DECEMBER 2, 1885 IN BOOK 9 AT PAGE 109 AND RECORDED DECEMBER 9, 1886 IN BOOK 9 AT PAGE 387, AGREEMENT RECORDED AUGUST 25, 1896 IN BOOK 39 AT PAGE 268, AND PLAT RECORDED DECEMBER 2, 1885 IN BOOK 9 AT PAGE 110. 15. EASEMENT AND RIGHT OF WAY FOR THE CAVNAUGH-SOUTHARD DITCH AS SET FORTH IN STATEMENT RECORDED MARCH 23, 1885 IN BOOK 10 AT PAGE 15. 16. EASEMENT AND RIGHT OF WAY FOR THE CAVNAUGH DITCH AS SET FORTH IN STATEMENT AND MAP RECORDED MARCH 21, 1887 IN BOOK 9 AT PAGE 453. 17. EASEMENT AND RIGHT OF WAY AS GRANTED TO THE MOUNTAIN STATES TELEPHONE AND TELEGRAPH COMPANY IN INSTRUMENT RECORDED FEBRUARY 8, 1936 IN BOOK 183 AT PAGE 254. 18. EASEMENT AND RIGHT OF WAY FOR INGRESS AND EGRESS PURPOSES AS GRANTED TO MITCHELL DYER AND LUCILE DYER IN DEED RECORDED JUNE 20, 1949 IN BOOK 243 AT PAGE 391. 19. EASEMENTS AND RIGHTS OF WAY FOR NATURAL GAS TRANSMISSION LINES OF ROCKY MOUNTAIN NATURAL GAS COMPANY, INC., AS EVIDENCED BY MAP RECORDED MAY 4, 1962 IN ROAD BOOK 3 AT PAGE 126 AS RECEPTION NO. 217444. 20. SEVEN PERCENT ROYALTY FROM AND OUT OF ALL OF THE OIL, GAS AND OTHER MINERAL PRODUCED AND SAVED FROM SAID LANDS AS RESERVED BY LILLIAN I. CORYELL, PERRY C. CORYELL AND PERRY L. CORYELL IN DEED RECORDED JANUARY 5, 1965 IN BOOK 363 AT PAGE 33. 21. RIGHT OF WAY EASEMENT AS GRANTED TO THE MOUNTAIN STATES TELEPHONE AND TELEGRAPH COMPANY IN INSTRUMENT RECORDED MAY 8, 1972 IN BOOK 430 AT PAGE 322. 22. RIGHT OF WAY EASEMENT AS GRANTED TO GEORGE H. REDDING, JR. AND MARGARET W. REDDING IN INSTRUMENT RECORDED SEPTEMBER 20, 1973 IN BOOK 449 AT PAGE 574. ALTA COMMITMENT (Exceptions) Our Order No. GW231128-3 The policy or policies to be issued will contain exceptions to the following unless the same are disposed of to the satisfaction of the Company: 23. EASEMENT AND RIGHT OF WAY AS GRANTED TO THE BOARD OF COUNTY COMMISSIONERS OF GARFIELD COUNTY, COLORADO AS SET FORTH IN INSTRUMENT RECORDED OCTOBER 21, 1983 IN BOOK 637 AT PAGE 678. 24. EASEMENT AS GRANTED TO PERRY L. CORYELL AND LILLIAN I. CORYELL IN INSTRUMENT RECORDED NOVEMBER 1, 1983 IN BOOK 638 AT PAGE 226. 25. RIGHT OF WAY EASEMENT AS GRANTED TO THE MOUNTAIN STATES TELEPHONE AND TELEGRAPH COMPANY IN INSTRUMENT RECORDED SEPTEMBER 10, 1990 IN BOOK 788 AT PAGE 626. 26. ANY QUESTION, DISPUTE OR ADVERSE CLAIMS AS TO ANY LOSS OR GAIN OF LAND AS A RESULT OF ANY CHANGE IN THE RIVER BED LOCATION BY NATURAL OR OTHER THAN NATURAL CAUSES, OR ALTERATION THROUGH ANY CAUSE, NATURAL OR UNNATURAL, OF THE CENTER THREAD, BANK, CHANNEL OR FLOW OF WATERS IN THE CRYSTAL AND ROARING FORK RIVERS LYING WITHIN SUBJECT LAND; AND ANY QUESTION AS TO THE LOCATION OF SUCH CENTER THREAD, BED, BANK OR CHANNEL AS A LEGAL DESCRIPTION MONUMENT OR MARKER FOR PURPOSES OF DESCRIBING OR LOCATING SUBJECT LANDS. 27. EASEMENTS AND RIGHTS OF WAY FOR THE CONTINUED UNINTERRUPED FLOW OF WATER IN THE ROARING FORK AND CRYSTAL RIVERS. 28. TERMS, CONDITIONS AND PROVISIONS OF AGREEMENT RECORDED AUGUST 19, 1994 IN BOOK 912 AT PAGE 973. 29. EASEMENTS, RIGHTS OF WAY AND OTHER MATTERS AS SHOWN ON THE CORYELL RANCH BOUNDARY SURVEY PREPARED BY CONSTRUCTION SURVEYS, INC., DATED MAY 21, 1996. 30. EASEMENTS, RIGHTS OF WAY AND OTHER MATTERS AS SET FORTH ON THE SURVEY OF SUBJECT PROPERTY DATED OCTOBER 1998 PREPARED BY SCHMUESER, GORDON, MEI ER AS JOB NO. 98081. 31. EXISTING LEASES AND TENANCIES, IF ANY. ALTA COMMITMENT (Exceptions) Our Order No. GW231128-3 The policy or policies to be issued will contain exceptions to the following unless the same are disposed of to the satisfaction of the Company: 32. TERMS, CONDITIONS AND PROVISIONS OF RESOLUTION NO. 99-101 RECORDED OCTOBER 06, 1999 IN BOOK 1154 AT PAGE 52. 33. TERMS, CONDITIONS AND PROVISIONS OF RESOLUTION NO. 99-100 RECORDED OCTOBER 06. 1999 IN BOOK 1154 AT PAGE 97. 34. EASEMENTS AND RIGHTS OF WAY AS GRANTED TO PUBLIC SERVICE COMPANY IN INSTRUMENT RECORDED OCTOBER 7, 1999 IN BOOK 1154 AT PAGE 551. r LAND TITLE GUARANTEE COMPANY DISCLOSURE STATEMENT Required by C.R.S. 10-11-122 A) The subject real property may be located in a special taxing district. B) A Certificate of Taxes Due listing each taxing jurisdiction may be obtained from the County Treasurer's authorized agent. C) The information regarding special districts and the boundaries of such districts may be obtained from the Board of County Comrnissioners, the County Clerk and Recorder, or the County Assessor. Effective September 1, 1997, CRS 30-10-406 requires that all documents received for recording or filing in the clerk and recorder's office shall contain a top margin of at least one inch and a left, right and bottom margin of at lease one half of an inch. The clerk and recorder may refuse to record or file any document that does not conform, except that, the requirement for the top margin shall not apply to documents using forms on which space is provided for recording or fling information at the top margin of the document. Note: Colorado Division of Insurance Regulations 3-5-1, Paragraph C of Article VII requires that "Every title entity shall be responsible for all matters which appear of record prior to the time of recording whenever the title entity conducts the closing and is responsible for recording or tiling of legal documents resulting from the transaction which was closed". Provided that Land Title Guarantee Company conducts the closing of the insured transaction and is responsible for recording the legal documents from the transaction, exception number 5 will not appear on the Owner's Title Policy and the Lenders Policy when issued. Note: Affirmative mechanic's lien protection for the Owner may be available(typically by deletion of Exception no. 4 of Schedule B, Section 2 of the Commitment from the Owner's Policy to be issued) upon compliance with the following conditions: A. The land described in Schedule A of this commitment must be a single family residence which includes a condominium or townhouse unit. B. No labor or materials have been furnished by mechanics or material -men for purposes of construction on the land described in Schedule A of this Commitment within the past 6 months. C. The Company must receive an appropriate affidavit indemnifying the Company against un -filed mechanic's and material -men's liens. D. The Company must receive payment of the appropriate premium. E. If there has been construction, improvements or major repairs undertaken on the property to be purchased within six months prior to the Date of the Commitment, the requirements to obtain coverage for unrecorded liens will include: disclosure of certain construction information; financial information as to the seller, the builder and or the contractor; payment of the appropriate premium fully executed Indemnity Agreements satisfactory to the company, and, any additional requirements as may be necessary after an examination of the aforesaid information by the Company. No coverage will be given under any circumstances for labor or material for which the insured has contracted for or agreed to pay. Nothing herein contained will be deemed to obligate the company to provide any of the coverages referred to herein unless the above conditions are fully satisfied. Land Title Guarantee Company Date: 11-11-1999 RE: GW231128-3 To: BALCOMB & GREEN Attn: LARRY GREEN 818 COLORADO AVE. GLENWOOD SPRINGS, CO 81601 GRANT OF CONSERVATION EASEMENT THIS GRANT OF CONSERVATION EASEMENT for a perpetual conservation easement in gross is made this day of , 1999, by having an address at , its successors and assigns ("Grantor"), in favor of the ROARING FORK CONSERVANCY, a Colorado non-profit corporation qualified to do business in Colorado, having an address at P.O. Box 323, Basalt, Colorado 81621 ("Grantee"). WITNESSETH: WHEREAS, Grantor is the sole owner in fee simple of certain real property located on the Roaring Fork River in , which property is more particularly described on Exhibit A attached hereto and incorporated by this reference (the "Property"); and WHEREAS, the Property possesses natural, ecological, riparian, wetlands habitat, wildlife habitat, scenic and other open space values, as defined in C.R.S. § 38-30.5-101 et seq., of great importance to Grantor, the people of , and the people of the State of Colorado (collectively hereinafter referred to as "Conservation Values"); WHEREAS, the Roaring Fork River is an important part of the local ecosystem and as such provides important habitat for a wide variety of birds, fish, and both marine and terrestrial mammals and plants located on the Property, the preservation and protection of which is considered a prime Conservation Value by the parties; and WHEREAS, there is a reasonable possibility that Grantee may acquire other valuable property rights in other nearby properties to expand the Conservation Values preserved by this Conservation Easement; and WHEREAS, the biological integrity of the Property and other land in the vicinity has been modified by intense urbanization in the area, and the trend is expected to continue; and WHEREAS, Grantor and Grantee desire to preserve and conserve the Conservation Values of the Property for the public benefit; and WHEREAS, the specific Conservation Values of the Property are documented in an inventory of relevant features of the Property, dated , on file at the offices of Grantor and Grantee (hereinafter "Baseline Documentation"), which Baseline Documentation consists of reports, maps, photographs, and other documentation that the parties have mutually agreed provide, collectively, an accurate representation of the Property at the time of this grant and which is intended to serve as an objective information baseline for monitoring subsequent compliance with the terms of this grant; and WHEREAS, accordingly, Grantor desires to convey to Grantee the right to preserve and protect the Property and the Conservation Values associated thereto in perpetuity, and to bind itself, as well as any and all future successors or assigns of Grantor, by the obligations set forth herein; and WHEREAS, Grantee is a publicly supported, tax-exempt non-profit organization, qualified under Section 501(c)(3) and 170(h) of the Internal Revenue Code, whose primary purpose is the preservation, protection, or enhancement of land in its natural, scenic, historical, agricultural, forested, and/or open space condition; and WHEREAS, Grantee agrees by accepting this grant to honor the intentions of Grantor stated herein and to preserve and protect in perpetuity the conservation values of the Property for the benefit of this generation and the generations to come; and WHEREAS, the State of Colorado has recognized the importance of private efforts to preserve natural ecosystems of the State by enactment of C.R.S. § 38-30.5-10I, et seq. NOW, THEREFORE, in consideration of the above and the mutual covenants, terms, conditions, and restrictions contained herein. and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Grant of Easement. Pursuant to the laws of Colorado and in particular, C.R.S. § 38- 30.5-101, et seq. , Grantor hereby voluntarily grants, assigns, sells and conveys to the Grantee and its successors and assigns in perpetuity a conservation easement in gross, of the nature and to the extent hereinafter set forth, on, over, across and in respect to the Property (hereinafter "Easement"), which Easement is more specifically described and illustrated on Exhibit B, attached hereto and incorporated herein by reference. Z. Purpose. The purpose of this grant is to assure that the Conservation Values of the Property, subject to the existing uses of the Property described herein, are retained forever and to prevent any use of the Property that will significantly impair or interfere with such Conservation Values. Grantor intends that the Easement will confine the use of the Property to activities that are consistent with the purposes set forth herein, and pursuant to the terms of C.R.S. § 38-30.5-101, et seq., the Property preserved hereby as natural land may not be converted or directed to any uses other than those provided herein. 3. Rights of Grantee. To accomplish the purposes set forth herein for the Easement, the following rights are hereby conveyed to Grantee by Grantor: (a) To identify, preserve and protect in perpetuity the Conservation Values of the Property, and in the event of their degradation or destruction, to restore the significant ecological features and values of the Property; (b) To enter upon the Property at reasonable times in order to monitor Grantor's and the public's compliance with this Easement and otherwise enforce the terms of this grant of Easement; (c) To enhance the Conservation Values along the Roaring Fork River by conducting grading, planting, irrigation, and other activities as may be necessary to restore and enhance the edge of the river and the surrounding habitat located on the Property; however, nothing herein shall be deemed to convey to Grantee any rights in and to the other properties owned by Grantor situate and lying outside of the Property; -2- (d) To enter the Property for educational and scientific purposes, and for any other purpose deemed necessary by the Grantee; (e) To encourage the public's enjoyment of the Conservation Values associated with the Property, yet limit the public's access to the Property to those designated trails and structures as set forth herein and to enforce against public use which violates the terms and conditions of this Agreement ; (f) To enforce against and prevent any activity on or use of the Property that is inconsistent with the purpose of this grant of Easement, including use of the Property by the public which is not specifically allowed or recognized herein, and to require the restoration of such areas or features ofthe Property that may be damaged by any inconsistent activity or use, pursuant to Paragraph 6, below; and (g) To place signs or other informational postings on the Property which identify the land as being protected by the conservation easement granted herein; (h) To require restoration ofthe areas or features ofthe Property which are damaged by activity inconsistent with this Conservation Easement; (g) To immediately enter upon the Property without notice if such entry is necessary to prevent damage to or the destruction or degradation of the Conservation Values identified in this Easement; and. (h) To perform such activities on the Property as the Grantee deems reasonably necessary in order to carry out any and all rights granted by this Easement. 4. Prohibited Uses. Any activity on or use ofthe Property inconsistent with the purpose of this grant of Easement is prohibited. Without limiting the generality of the foregoing, the following activities and uses are expressly prohibited, unless specifically allowed elsewhere in this Agreement; (a) Subdivision of any nature; (b) Any residential, commercial or industrial development or use; (c) Any recreational activities incompatible with the purpose of the Easement, at the discretion of Grantee; (d) Any vehicular (car, truck, motorcycle, snowmobile, etc.) use, except as may be necessary to preserve, enhance or protect the Easement, or as otherwise specifically authorized herein; (e) Parking, storage, or dumping of any kind; (f) Coverage of land by asphalt, concrete, or other material that does not constitute a natural cover for the land, except in connection with those trails and buildings specifically allowed hereunder; (g) Location of any buildings, structures, roads, trails or other improvements, except as otherwise specifically allowed hereunder and at the discretion of Grantee; (h) Alteration ofthe land surface through grading, soil dumping or trenching, except as may be necessary for activities related to the purpose of this grant of Easement such as irrigation improvements, utility repair subject to remediation, habitat restoration/preservation, approved trail and structure construction, etc_; (j) Exploration or mining for any mineral, coal or other hydrocarbons, or other materials or substances, or excavation or quarrying for gravel, soil, rock, sand or similar materials; (k) Placement of any advertising signs or billboards; (1) Cutting or removal of trees, shrubs, or other vegetation, except as necessary for fire protection, elimination of diseased growth, and similar protective measures related to habitat preservation/enhancement at the discretion of Grantee; (m) Introduction of nonnative plants and animal species within riparian area that may compete with and result in the decline or elimination of natural species. Any new plantings shall be confined to native plants characteristic of the riparian region; (n) No livestock shall be brought upon the Property, and the parties shall cooperate to remove any livestock which enters onto the Easement; (o) Any use that would cause, increase or substantially add to the risk of soil erosion; (p) Use of any chemical agents such as weed control agents or other herbicides or pesticides not first approved of by Grantee; (q) Except as authorized in Section 5 hereof, public use of and access upon the Property; and (r) Dumping or other disposal of toxic and/or hazardous materials or of other forms of refuse or trash. 5. Reserved Rights. Grantor reserves unto itself, and to its personal representatives, heirs, successors, and assigns, all rights accruing from their ownership of the Property, including the right to engage in or permit or invite others to engage in all uses of the Property that are not expressly prohibited herein and are not inconsistent with the purpose of this grant of Easement. Without limiting the generality of the foregoing, the following rights are expressly reserved: (a) The right to restore damage to the Property or Easement that may be caused by fire, flood, storm, earth movements, or acts beyond the Grantor's control; (b) The right to maintain, or direct or allow applicable governmental entities to maintain, all existing public trails and structures, if any, lawfully erected and maintained upon the Property as set forth herein; (c) All water rights within the Easement. Water rights reserved include but are not limited to riparian, groundwater, and appropriated water rights; (d) The right to mutually, with Grantee, enforce against and prevent any prohibited action set forth herein on the Property by any entity and to erect appropriate signage and fencing indicating the presence of the Easement and the boundaries thereof; and (e) Rights of access on, over and upon the Property in a manner consistent with the maintenance and preservation of the Easement and the Conservation Values set forth therein. 5.1 Carvell Ranch Subdivision Documents. The parties hereby acknowledge that Grantor shall comply with and conform to, and may act pursuant to, those specific subdivision approvals associated with the Subdivision (hereinafter "Subdivision Approval Documents"). Therefore, should any terms and provisions contained herein conflict with any terms and provisions contained within the Subdivision Approval Documents, the terms and provisions of the Subdivision Approval Documents shall control and govern and no activities allowed pursuant to the Subdivision Approval Documents shall be deemed activities in violation of or -4- inconsistent with this Easement; provided, however, that Grantor agrees to incorporate within Subdivision homeowner rules and regulations, through covenants or otherwise, provisions which inform the Subdivision property owners of the Easement and the related permitted and prohibited uses thereof. For example, such covenants andlor other homeowner rules related to the Subdivision shall restrict all Subdivision property owners' access to and upon the Property to designated trails and easements. Furthermore, Grantor's homeowner rules and regulations shall establish a mechanism by which the Homeowner's Association may lien any homeowner for violating the terms of the Easement. 5.2 Fisherman's Easements. Grantee acknowledges that the Easement shall be subject to certain fisherman's easements located upon the Property, which easements are described and illustrated in more detail on Exhibit B attached hereto. Grantee acknowledges the public's right to utilize these easement through and across the Property but does not waive any right of enforcement against any member of the public utilizing said easements who enters or exits upon the Property from such easements without utilizing designated trail accesses on the Property or otherwise interferes with or impinges upon any Conservation Value set forth herein. Grantor shall be responsible for posting said easements with signage informing the public of the existence of the Easement and that access to and from the Property is limited to marked trails only. 5.3 Existing Equestrian Trail. Grantee acknowledges that the Easement shall be subject to an existing equestrian trail easement located on the Property, which trail is illustrated and labeled on that map attached hereto as Exhibit B. Grantee acknowledges 's right to utilize this easement through and across the Property but does not waive any right of enforcement against should they enter or exit upon the Property from such easement without utilizing designated trail accesses on the Property or otherwise interfere with or impinge upon any Conservation Value set forth herein. Grantor shall be responsible for posting this trail with signage informing the public of its private nature and that no trespassing thereon is allowed. 6. Notice of intent to Undertake Certain Permitted Actions. Grantor, its successors and assigns, shall provide reasonable notice to Grantee prior to undertaking any substantial permitted activities within the Easement in order to give Grantee an opportunity to ensure that the activities in question are designed and carried out in a manner consistent with the purpose of this Easement. The notice shall describe the nature, scope, design, location, timetable, and any other material aspect of the proposed activity in sufficient detail to permit Grantee to make an informed judgment as to its consistence with the purpose of this Easement. This notice provision shall not apply in cases of emergency. 7. Grantee's Approval. Where notice is provided to Grantee by Grantor or other third party as required in Section 6 above or otherwise pursuant to this Easement, Grantee sh.. ; brant, deny, or withhold its approval subject to objections andlor conditions, which approval, denial or -5- conditional approval shall not be unreasonably withheld and based on consistency with the purpose of this Easement. 8. Arbitration. If a dispute arises between the parties concerning the consistency of any proposed use or activity with the purpose of this Easement, and Grantor agrees not to proceed with the use or activity pending resolution of the dispute, either party may refer the dispute to arbitration by request made in writing upon the other. Within thirty (30) days of the receipt of such a request, the parties shall select a single arbitrator to hear the matter. If the parties are unable to agree on the selection of a single arbitrator, then each party shall name one arbitrator and the two arbitrators thus selected shall select a third arbitrator; provided, however, if either party fails to select an arbitrator, or if the two arbitrators selected by the parties fail to select the third arbitrator within fourteen (14) days after the appointment of the second arbitrator, then in each such instance a proper court, on petition of a party, shall appoint the second or third arbitrator or both, as the case may be. A judgment on the arbitration award may be entered in any court having jurisdiction thereof. The prevailing party shall be entitled, in addition to such other relief as may be granted, to a reasonable sum as and for all its costs and expenses related to such arbitration, including, without limitation, the fees and expenses of the arbitrator(s) and attorneys' fees, which shall be determined by the arbitrator(s) and any court of competent jurisdiction that may be called upon to enforce or review the award. 9. Grantee's Remedies. If Grantee determines that Grantor or any other party is in violation of the terms of this Easement or that a violation is threatened, Grantee shall give written notice to Grantor or such other party of such violation and demand corrective action sufficient to cure the violation and, where the violation involves injury to the Property resulting from any use or activity inconsistent with the purpose of this Easement, to restore the portion of the Property so injured. If Grantor or other party fails to cure the violation within thirty (30) days after receipt of notice thereof from Grantee, or under circumstances where the violation cannot reasonably be cured within a thirty (30) -day period, fails to begin curing such violation within the thirty (30) -day period, or fails to continue diligently to cure such violation until finally cured, Grantee may bring an action at law or in equity in a court of competent jurisdiction to enforce the terms of this Easement, to enjoin the violation, ex parte as necessary, by temporary or permanent injunction, to recover any damages to which it may be entitled for violation of the terms of this Easement or injury to any Conservation Values protected by this Easement, including damages for the loss of ecological, riparian, wildlife or environmental values, and to require the restoration of the Property to the condition that existed prior to any such injury. Without limiting Grantors' or any other parties' liability therefor, Grantee, in its sole discretion, may apply any damages recovered to the cost of undertaking any corrective action on the Property. If Grantee, in its sole discretion, determines that circumstances require immediate action to prevent or mitigate significant damage to the Conservation Values of the Property, Grantee may pursue its remedies under this paragraph without prior notice to Grantor or other party or without waiting for the period provided for cure to expire. Grantee's rights under this paragraph apply equally in the event of either actual or threatened violations of the terms of this Easement, and Grantor agrees that Grantee's remedies at law for any violation of the terms of this Easement are inadequate and that Grantee shall be entitled to the injunctive relief described in this paragraph, both -6- prohibitive and mandatory, in addition to such other relief to which Grantee may be entitled, including specific performance of the terms of this Easement, without the necessity of proving either actual damages or the inadequacy of otherwise available legal remedies. Grantee's remedies described in this paragraph shall be cumulative and shall be in addition to all remedies now or hereafter existing at law or in equity. 9.1 Costs of Enforcement. Any costs incurred by Grantee in enforcing the terms of this Easement against Grantor or any other party, including without limitation costs of suit and attorneys' fees, and any costs of restoration necessitated by Grantor's or other third party's violation of the terms of this Easement, shall be borne by Grantor. If Grantor prevails in any action to enforce the terms of this Easement, Grantor's costs of suit, including without limitation attorneys' fees, shall be borne by Grantee. 9.2 Grantee's Discretion. Enforcement of the terms of this Easement shall be at the discretion ofGrantee, and any forbearance by Grantee to exercise its rights under this Easement in the event of any breach of any term of this Easement by Grantor or other party shall not be deemed or construed to be a waiver by Grantee of such term or of any of Grantee's rights under this Easement. No delay or omission by Grantee in the exercise of any right or remedy upon any breach by Grantor or other party shall impair such right or remedy or be construed as a waiver. 9.3 Waiver of Certain Defenses. Grantor hereby waives any defense of laches, estoppel, or prescription. 9.4 Acts Beyond Grantor's Control. Nothing contained in this Easement shall be construed to entitle Grantee to bring any action against Grantor for any injury to or change in the Property resulting from causes beyond Grantor's control, including without limitation acts of third parties not agents or representatives of Grantor, fire, flood, storm, and earth movement, or from any prudent action taken by Grantor under emergency conditions to prevent, abate, or mitigate significant injury to the Property resulting from such causes. 9.5 Grantor's Absence. If Grantee determines that this Conservation Easement is, or is expected to be, violated, Grantee will make good -faith efforts to notify the Grantor. If, through reasonable efforts, Grantor cannot be notified, and if Grantee determines that circumstances justify prompt action to mitigate or prevent impairment ofthe Conservation Values, then Grantee may pursue its lawful remedies without prior notice to and without awaiting Grantor's opportunity to cure. Grantor agrees to reimburse all costs associated such actions. 9.6 Actual or Threatened Non -Compliance. Grantor acknowledges that actual or threatened events of non-compliance under this Conservation Easement constitute immediate and irreparable harm and that Grantee is entitled to invoke the equitable jurisdiction of the court to enforce this Conservation Easement in such cases. -7 10. Access. The public shall only be allowed access to, from and through the Property upon those specific easements and trails described more fully herein in Section 5 above, which easements and trails shall be granted on the Subdivision Final Plat and clearly delineated by Grantor in the Subdivision covenants or other controlling homeowner documents. No right of access by the general public onto the Property is conveyed by this Easement. Grantor, its successors and assigns, at. Grantee's discretion, shall be responsible for erecting fences or other barriers on that portion of the Property not subject to trail and related easement use to discourage any form of trespass upon the Property in order to preserve its valuable Conservation Values. 11. Costs and Liabilities. Grantor shall retain all responsibility and shall bear all costs and liabilities of any kind related to the ownership, operation, upkeep, and maintenance of the Property, including the maintenance of adequate comprehensive general Liability insurance coverage and the control of noxious weeds thereon. Grantee shall be named as an additional insured on any liability insurance policy purchased by Grantor in connection with the Property. Grantor shall keep the Property free and clear of any liens arising out of any work performed, materials furnished, or obligations incurred by said parties which would adversely affect or preclude Grantee's ability to perform its obligations related to the Property or adversely affect or endanger the Conservation Values set forth herein. 11.1 Taxes. Grantor, its successors and assigns, shall pay all taxes, assessments, fees, and charges of whatever description levied on or assessed against the Property by competent authority (collectively "Taxes"), including any Taxes imposed upon, or incurred as a result of, this Easement, and shall furnish Grantee with satisfactory evidence of payment upon request. 11.2 Stewardship Fee. Grantor, its successors and assigns, shall pay to Grantee a quarterly fee (hereinafter "Stewardship Fee") for those duties and obligations of Grantee related to undertaking and overseeing those Conservation Values set forth herein, which duties and obligations shall consist of the following components: Monitoring Tasks. Monitoring of the Property shall be conducted by Grantee at an hourly rate of S35.00 per hour. Grantee shall perform monitoring tasks related to the Easement approximately times per month for the term of the Easement at hours per monitoring visit. Unless otherwise authorized by Grantor, its successors or assigns, Grantee shall not expend more than hours per calendar year on such monitoring tasks. - Educational Programs: Educational programs shall be conducted by Grantee upon the Property in connection with the Easement at an hourly rate of $35.00 per hour. Grantee shall conduct such educational programs on the Property approximately times per year, with two staffmember days expended for each program day. Unless otherwise authorized by Grantor, its successors or assigns, Grantee shall not expend more than hours per calendar year on such educational programs. Maintenance Reserve: A Maintenance Reserve shall be collected by Grantee in an annual amount of . The Maintenance Reserve constitutes that portion of the Stewardship Fee reserved and maintained within the Stewardship Fee account for the purpose of funding hard costs related to the Property including, but not limited to, the following: replacement of vegetation in the event of flooding, addition of beneficial vegetation, repair of vandalized property, and other foreseeable or unforeseeable contingencies or events related to the Property. In the event the amount maintained in the Stewardship Fee account for Maintenance Reserve, plus applicable interest, meets or exceeds the total of three (3) yearly Maintenance Reserve payments ("3 Year Total"), the charges assessed by Grantee for Maintenance Reserve may be reduced or delayed at Grantee's discretion until such time as funds are drawn below the 3 Year Total. In addition to payment of the Maintenance Reserve fee, Grantor, its successors and assigns, shall coordinate and participate with Grantee in an annual neighborhood cleanup andlor restoration activity related to the Property andlor Easement. a. Billing. Grantee shall provide Grantor, its successors and assigns, with quarterly Stewardship Fee invoices specifically itemizing the Monitoring Tasks performed andlor Educational Programs completed during the previous three (3) month time period and the hours expended by Grantee under each said category. Any and all costs set forth in the Stewardship Fee invoices submitted to Grantor shall be related to or for the benefit of the Property andlor the Conservation Values set forth in this Easement. Each quarterly invoice shall also include the pro rata amount charged for Maintenance Reserve costs incurred for the time period. Grantor shall pay Grantee all charges set forth within the invoice within thirty (30) days of Grantor's receipt of the same. In the event Grantor, its successors and assigns, fails to pay to Grantee any payments contemplated herein within the time period set forth, default interest shall begin to accrue against Grantor and in favor of Grantee at the rate of three percent (3%) per month. b. Stewardship Fee Account. Upon receipt of the quarterly Stewardship Fee payment, Grantee shall immediately deposit the same into a separate, interest-bearing account established solely for the maintenance of such stewardship funds. c. Stewardship Fee Adjustment. In the sole discretion of Grantee, the charges assessed by Grantee for Monitoring Tasks, Educational -9- Programs and Maintenance Reserve may be adjusted annually pursuant to annual Consumer Price Index increases based upon the most recent Denver/Boulder All Items Index, published by the U.S. Department of Labor, Bureau of Labor Statistics. Furthermore, upon mutual agreement of the parties, their successors and assigns, such charges may be otherwise increased to comport with historical costs incurred, costs expected to be incurred, or actual costs incurred by Grantee in fulfillment of its duties hereunder. 11.3 Hold Harmless. Grantor, its successors and assigns, shall hold harmless, indemnify, and defend Grantee and its members, directors, officers, employees, agents, invitees and contractors and the heirs, personal representatives, successors, and assigns of each ofthem (collectively "Indemnified Parties") from and against all liabilities, penalties, costs, losses. damages, expenses, causes of action, claims, demands, or judgments, including, without limitation, reasonable attorneys' fees, arising from or in any way connected with: (1) injury to or the death of any person, or physical damage to any property, resulting from any act, omission, condition, or other matter related to or occurring on or about. the Property, regardless of cause, unless due solely to the gross negligence of any of the Indemnified Parties; (2) the obligations specified in paragraphs 11, 11.1, and 11.2; and (3) the existence or administration of this Easement. 12. Extinguishment. If changed circumstances arise in the future such as render the purpose of this Easement impossible to accomplish, this Easement can only be terminated or extinguished, whether in whole or in part, by judicial proceedings in a court of competent jurisdiction, and the amount of the proceeds to which Grantee shall be entitled, after the satisfaction of prior claims, from any sale, exchange, or involuntary conversion of all or any portion of the Property subsequent to such termination or extinguishment, shall be detennined, unless otherwise provided by Colorado law at the time, in accordance with paragraph 12.1. Grantee shall use all such proceeds in a manner consistent with the conservation purposes of this grant. 12.1 Subsesuent Sale Exchanize or Involunta Conversion. This Easement constitutes a real property interest immediately vested in Grantee, which, for the purposes ofparagraph 12, the parties stipulate to have a fair market value determined by multiplying the fair market value of the Property unencumbered by the Easement (minus any increase in value after the date of this grant attributable to improvements) by the ratio of the value of the Easement at the time of this grant to the value of the Property, without deduction for the value of the Easement, at the time of this grant. The values at the time of this grant shall be those values used to calculate the deduction for federal income tax purposes allowable by reason of this grant, pursuant to Section 170(h) of the Internal Revenue Code of 1954, as amended. For the purposes of this paragraph, the ratio of the value of the Easement to the value of the Property unencumbered by the Easement shall remain constant. - 10- 12.2 Condemnation. If the Easement is taken, in whole or in part, by exercise of the power of eminent domain, Grantee shall be entitled to compensation in accordance with applicable law. 13. Change of Conditions. The fact that any use of the Property that is expressly prohibited by this Easement, or any other use determined to be inconsistent with the purpose of this Easement, may become more economically valuable than permitted uses, or that neighboring properties may in the future be put entirely or partly to uses that are not permitted hereunder, has been considered by Grantor in granting this Easement. It is Grantor's belief that any such changes will increase the benefit to the public of the continuation of this Easement, and it is the intent of both Grantor and Grantee that any such changes should not be deemed to be circumstances justifying the termination or extinguishment of this Easement pursuant to Paragraph 12, above. In addition, the unprofitability to Grantor of allowing Grantee to carry on the permitted uses identified herein shall not impair the invalidity of this Easement or be considered grounds for its extinguishment pursuant to Paragraph 12, above. 14. Assignment by Grantee. This Easement is transferable by Grantee upon not less than forty-five (45) days prior written notice to Grantor; provided, however, Grantee may only assign its rights and obligations under this Easement: (1) to an organization that is a qualified organization at the time of transfer under Section 170(h) of the Internal Revenue Code of 1954, as amended (or any successor provision then applicable), and the applicable regulations promulgated thereunder, and authorized to acquire and hold conservation easements under Colorado law and; (2) upon written consent of Grantor as to the assignee. As a condition of such transfer, Grantee shall require that the conservation purposes and Conservation Values of this grant continue to exist and be carried out. Such assignment shall be authorized and approved by Grantor, its successors, or assigns. 15. Assi gnment or Subsequent Transfer by Grantor. It is contemplated by the parties that Grantor shall subsequently assigns its rights and obligations as developer of the Subdivision, including its rights and obligations hereunder, to a Subdivision homeowners association. In the event Grantor by any deed, assignment or other legal instrument divests itself of or conveys any interest in all or a portion of the Property, including, without limitation, a leasehold interest, to a homeowners association or any other party, Grantor agrees to incorporate the terms of this Easement within such conveyance document and bind any assignee by the terms and conditions of this Easement. Grantor further agrees to give written notice to Grantee ofthe transfer of any of Grantor's interest in the Property at least twenty (20) days prior to the date of such transfer. The failure of Grantor to perform any act required by this paragraph shall not impair the validity of this Easement or limit its enforceability in any way. Subsequent successors or assigns of Grantor, including but not limited to a homeowner's association, shall be required to provide written acknowledgment to Grantee of its intent to be bound and abide by all terms and provisions of this Easement and perform all duties and obligations of Grantor as identified herein. 16. Amendment. If circumstances arise under which an amendment to or modification of this Easement would be appropriate, the parties may jointly amend the Easement in writing pursuant to C.R.S. §38-30.5-107; provided, however, that no amendment shall be alio•.~ L.: ,:':at affects the qualification of the Easement under the IRS Code or C.R.S. § 38-30.5-101 et seq., any - 11 - such amendment shall be consistent with the purposes of the Easement, shall not affect its perpetual duration, shall not permit additional development or improvements to be undertaken on the Property other than development or improvement permitted or contemplated under the Easement, and shall not impair any of the Conservation Values of the Easement. Any such amendment shall be recorded in the official records of Garfield County, Colorado. 17. Interpretation. The provisions of this Easement shall be liberally construed to effectuate their purpose of preserving and protecting the Property's wildlife habitat, unique native animals, and related riparian community. No remedy or election given by any provision herein shall be deemed exclusive unless so indicated, but it shall, wherever possible, be cumulative with all other remedies at law or in equity. The parties acknowledge that each party and its counsel have reviewed and revised this Easement and that no rule of construction that ambiguities are to be resolved against the drafting party shall be employed in the interpretation of this Easement. If any provision in this instrument is found to be ambiguous, an interpretation consistent with the purpose of this Easement that would render the provision valid shall be favored over any interpretation that would render it invalid. In the event of any conflict between the provisions of this Easement and the provisions of any use and zoning restrictions or directives of the State of Colorado, Garfield County, or any other governmental entity with jurisdiction, the more restrictive provisions shall apply. 18. Estoppel Certificates. Upon request by Grantor, Grantee shall within twenty (20)days execute and deliver to Grantor any document, including an estoppel certificate, which certifies Grantor's compliance with any obligation contained within this Easement and otherwise evidences the status of this Easement as may be requested by Grantor. 19. Notice of Agreement. Grantor shall inform and provide notice to all prospective lessees, purchasers and lenders of the Property of the terms and provisions of this Agreement, including requesting subordination by any and all lenders in that form attached hereto as Exhibit C and incorporated herein by reference or similar subordination form. 20. Notices. Any notice, demand, request, consent, approval, or communication that either party desires or is required to give to the other shall be in writing and either served personally or sent by first class mail, postage prepaid, addressed as follows: To Grantor: To Grantee: Roaring Fork Conservancy P.G. Box 323 Basalt, Colorado 81621 Phone: (970) 927-1290 21. Recordation. Grantee shall record this instrument in timely fashion in the official records of Garfield County, Colorado, and may re-record it at any time as may be required to preserve its rights in this Easement. - 12 - 22. General Provisions. (a) Controlling Law. The interpretation and performance ofthis Easement shall be governed by the laws of the State of Colorado. (b) Severability. if any provision of this Easement, or the application thereof to any person or circumstance, is found to be invalid, the remainder of the provisions of this Easement, or the application of such provision to persons or circumstances other than those as to which it is found to be invalid, as the case may be, shall not be affected thereby. (c) Entire Agreement. This instrument sets forth the entire agreement of the parties with respect to the Easement and supersedes all prior discussions, negotiations, understandings, or agreements relating to the Easement, all of which are merged herein. (d) No Forfeiture. Nothing contained herein will result in a forfeiture or reversion of Grantor's title in any respect. (e) Successors. The covenants, terms, conditions, and restrictions ofthis Easement shall be binding upon, and inure to the benefit of, the parties hereto and their respective personal representatives, heirs, successors, and assigns and shall continue as a servitude running perpetually with the Property. (0 Termination of Rights and Obligations. A party's rights and obligations under this Easement terminate upon transfer of the party's interest in the Easement or Property, except that liability for acts or omissions occurring prior to transfer shall survive transfer. (g) Authority; Title. Each person executing this Agreement represents and warrants that he or she has been duly authorized by one of the parties to execute this Agreement and has authority to bind said party to the terms and conditions hereof. Grantor further acknowledges that it holds good title to the Property free and clear and has the authority to grant the Easement herein described, which Easement shall be conveyed only subject to existing encumbrances either referenced herein or of public record. (h) Captions. The captions in this instrument have been inserted solely for convenience of reference and are not a part ofthis instrument and shall have no effect upon construction or interpretation. (i) Counterparts. The parties may execute this instrument in two or more counterparts, which shall, in the aggregate, be signed by both parties; each counterpart shall be deemed an original instrument as against any party who has - 13 - signed it. In the event of any disparity between the counterparts produced, the recorded counterpart shall be controlling. IN WITNESS WHEREOF Grantor and Grantee have executed this grant of Easement on the day and year first written above. GRANTOR: By: GRANTEE: ROARING FORK CONSERVANCY, a Colorado non-profit corporation By: Jeanne Beaudry, Executive Director - 14- EXHIBIT C CONSENT AND SUBORDINATION OF DEED OF TRUST BENEFICIARY BANK, AS BENEFICIARY PURSUANT TO THAT DEED OF TRUST RECORDED AS RECEPTION NO. , IN THE RECORDS OF THE CLERK AND RECORDER OF PITKIN COUNTY, COLORADO (HEREINAFTER THE "DEED OF TRUST") HEREBY SUBORDINATES ITS LIEN OF THE DEED OF TRUST TO THAT GRANT OF CONSERVATION EASEMENT ENTERED INTO BY AND BETWEEN AND ROARING FORK CONSERVANCY DATED , AND AGREES THAT ANY FORECLOSURE OF THE DEED OF TRUST SHALL NOT ADVERSELY AFFECT THE EXISTENCE OR CONTINUED VALIDITY OF SAID GRANT OF CONSERVATION EASEMENT WHICH SHALL RUN WITH THE LAND DESCRIBED IN EXHIBIT "A" HERETO AND REMAIN IN FULL FORCE AND EFFECT AS IF SAID GRANT OF CONSERVATION EASEMENT HAD BEEN DELIVERED AND RECORDED PRIOR TO THE DELIVERY AND RECORDING OF THE DEED OF TRUST. NOTWITHSTANDING SUCH CONSENT AND SUBORDINATION, THE PROPERTY DESCRIBED IN THE DEED OF TRUST SHALL CONTINUE TO BE ENCUMBERED THEREBY UNLESS RELEASED IN ACCORDANCE WITH APPLICABLE LAW. BANK By: Dated: Title: - 15 - Report Date: 11112/99 08:26AM GARFIELD COUNTY TREASURER CERTIFICATE OF TAXES DUE Page: 1 CERT #: 993985 SCHEDULE NO: R010118 ASSESSED TO: CORYELL RANCH COMPANY, LLC CIO MELROSE ASSET MANAGEMENT COMPANY,INC PO BOX 21307 HILTON HEAD ISLAND, SC 29925 ORDER NO: VENDOR NO: LARRY GREEN BALCOMB & GREEN 818 COLORADO AVENUE GLENWOOD SPRINGS, CO 81601 LEGAL DESCRIPTION: SECT,TWN,RNG:29-7-88 DESC: A PCL IN LOTS 12 & 13, SEC. 28 LOTS 1,2,8-13, 19 DESC: SEC. 29. BK:0390 PG:0200 BK:0384 PG:0358 BK:0637 PG:0676 BK:0637 PG:0680 BK:0952 PG:0230 BK:0991 PG:0318 BK:0991 PG:0327 BK:0991 PG:0346 BK:1097 PG:0387 BK:1097 PG:0396 PARCEL: 239329100024 SITUS ADD: CARBONDALE TAX YEAR CHARGE TOTAL TAXES TAX YEAR ASSESSMENT TOTAL ASMT TAX YEAR TAX LIEN SALE TOTAL STATEMENT TAX AMOUNT ASMT AMOUNT TLS AMOUNT GRAND TOTAL DUE AS OF 11/12/1999 INT AMOUNT INT AMOUNT INT AMOUNT ADV,PEN,MISC ADV,PEN,MISC REDEMPT FEE TOTAL DUE 0.00 TOTAL DUE 0.00 TOTAL DUE 0.00 0.00 ORIGINAL TAX BILLING FOR 1998 Authority GARFIELD COUNTY GARFIELD COUNTY - SOCIAL GARFIELD COUNTY - CAPITAL GARFIELD COUNTY - RETIRE CARBONDALE & RURAL FIRE COLORADO RIVER WATER CO WEST DIVIDE WATER CONSER RE -1 GENERAL RE -1 BOND COLORADO MOUNTAIN COLL CARBONDALE & RURAL FIRE GARFIELD COUNTY - OIL & GA TAX DISTRICT 010 - 1R -DF Mill Levy Amount 9.719 189.05 1.228 23.88 1.957 38.06 0.438 8.52 3.723 72.41 0.309 6.01 0.270 5.25 33.391 649.46 10.231 198.99 3.539 68.83 1.272 24.74 0.313 6.09 Values Land Exempt Improve Total 66.390 1,291.29 - TAXES FOR 1998 FEE FOR THIS CERTIFICATE 10.00 Actual Assessed 38520 11170 Q 0 82730 8280 121250 19450 ALL TAX LIEN SALE AMOUNTS ARE SUBJECT TO CHANGE DUE TO ENDORSEMENT OF CURRENT TAXES BY THE LIENHOLDER OR TO ADVERTISING AND DISTRAINT WARRANT FEES. CHANGES MAY OCCUR AND THE TREASURERS OFFICE WILL NEED TO BE CONTACTED PRIOR TO REMITTANCE AFTER THE FOLLOWING DATES: PERSONAL PROPERTY AND MOBILE HOMES - 01 -JAN -97, REAL PROPERTY - SEPTEMBER 1, TAX LIEN SALE REDEMPTION AMOUNTS MUST BE PAID BY CASH OR CASHIERS CHECK. SPECIAL TAXING DISTRICTS AND THE BOUNDARIES OF SUCH DISTRICTS MAY BE ON FILE WITH THE BOARD OF COUNTY COMMISSIONERS, THE COUNTY CLERK, OR THE COUNTY ASSESSOR. This certificate does not include land or improvements assessed under a separate schedule number, personal property taxes, transfer tax or misc. tax collected on behalf of other entities, special or local improvement district assessments or mobile homes, unless specifically mentioned. I, the undersigned,.do hereby certify that the entire amount of taxes due upon the above described parcels of real property and all outstanding sales for unpaid. taxes as shown by the records in my office from which the same may still be redeemed with the amount required for redemption are as noted herein. In witness whereof, I have hereunto set my hand and seal this 11/12/99. TREASURER, ,GARFIELD COUNTY, GEORGIA CHAMBERLAIN, BY P. O. Box 1069 Glenwood Springs, CO 81602 (970) 945-6382 SUBDIVISION IMPROVEMENTS AGREEMENT CORYELL RANCH AND MIDLAND POINT THIS AGREEMENT is made and entered into this day of 1999, by and between the CORYELL RANCH COMPANY, LLC, a Colorado limited partnership (hereinafter "Owner") and the BOARD OF COUNTY COMMISSIONERS OF GARFIELD COUNTY, STATE OF COLORADO, (hereinafter "County"). WITNESSETH: WHEREAS, Owner is the owner and developer of certain real property located within Garfield County, Colorado, known as the Coryell Ranch P.U.D., as approved and more particularly described in County Resolution No. 99-100; and WHEREAS, approval for the preliminary plan for the Coryell Ranch P.U.D. was obtained under the terms and conditions set forth in County Resolution No. 99-101; and WHEREAS, both the P.U.D. approval and the Preliminary Plan approval contemplated development of the Coryell Ranch P.U.D. in a single phase, but in two (2) distinct subdivisions, one to be known as Coryell Ranch and the other to be known as Midland Point; and WHEREAS, Owner has submitted to the County for its approval the Final Plat for Coryell Ranch and the Final Plat for Midland Point, (hereinafter "Final Plats") for all of the property lying within Coryell Ranch P.U.D. The property within Coryell Ranch is described upon the Final Plat for Coryell Ranch and on the attached Exhibit A and the property within Midland Point is described upon the Final Plat for Midland Point and on the attached Exhibit B; and WHEREAS, as a condition of approval of the Final Plats and as required by the laws of the State of Colorado, the Owner wishes to enter into this Subdivision Improvements Agreement with the County; and WHEREAS, Owner has completed or has agreed to complete certain subdivision improvements as set forth herein, has agreed to execute and deliver a letter of credit or other security to the County to secure and guarantee the completion of the subdivision improvements and its performance of this Agreement, and has agreed to certain restrictions and conditions regarding the issuance of building permits, certificates of occupancy and sale of properties, all as more fully set forth hereinafter. NOW, THEREFORE, for and in consideration of the premises and the following mutual covenants and agreements, the parties hereby agree as follows: 1. FINAL PLAT APPROVAL. The County hereby accepts and approves the Final Plat of Coryell Ranch and the Final Plat of Midland Point, subject to the terms and conditions of this Agreement, as well as the terms and conditions of the P.U.D. approval, the Prelirninaiy Plan approval, and the requirements of the Garfield County Zoning and Subdivision Regulations. 2. OWNER'S 'PERF'ORMANCE. Owner has constructed and installed or shall cause to be constructed and installed, at its own expense, those improvements related to Coryell Ranch and Midland Point, which are required to be constructed by Resolution Nos. 99-100 and 99-101, this Agreement, the Final Plats, and all Garfield County Zoning and Subdivision Regulations. The estimated cost of completion of the subdivision improvements related to both Coryell Ranch and Midland Point is set forth and certified by a licensed engineer on Exhibit C attached hereto. Such improvements shall be completed on or before November 30, 2000. Additionally, the Owner shall comply with the following: a. all plat documents submitted prior to or at the time ofthe Final Plat approval, which are incorporated herein by reference, and made a part of this agreement; b. all requirements of Resolution Nos. 99-100 and 99-101, including all requirements of the Garfield County Zoning Code and Garfield County Subdivision Regulations, as they relate to Coryell Ranch and Midland Point. c. all laws, regulations, orders and resolutions of the County of Garfield, State of Colorado, and affected special districts; and d. all designs, maps, specifications. sketches, and other materials submitted to and approved by any of the above -stated governmental entities. e. the improvements to be constructed by the Owner shall include, but are not limited to the following: (1) sewer collection lines, mains and interceptors for Coryell Ranch and Midland Point, and connection of said facilities to the Roaring Fork Water & Sanitation District's Regional Wastewater Treatment Facility. (2) water supply and distribution system, including water storage tank, for Coryell Ranch and Midland Point, and a water line under the Roaring Fork River to enable connection of said facilities to the Roaring Fork Water & Sanitation District Water Distribution System. (3) internal roads, pedestrian ways, bike path, drainage features, utility structures, and irrigation lines in accordance with the plans and specifications therefor contained in the Final Plats. The County agrees that if all improvements are installed in accordance with this Agreement, the Final Plat documents, the as -built drawings to be submitted upon completion of the Subdivision Improvements Agreement Page 2 improvements, the requirements of the Garfield County Zoning Code, all other requirements of this Agreement, and the requirements of Resolution Nos. 99-100 and 99-101, then the Owner shall be deemed to have satisfied all terms and conditions of the Zoning and Subdivision Regulations of Garfield County. Colorado with respect to Coryell Ranch and Midland Point. 3. SECURITY FOR IMPROVEMENTS. a. Cash or Letter of Credit. On or before the date of the recording of the Final Plat of Coryell Ranch or the Final Plat of Midland Point with the Garfield County Clerk and Recorder, the Owner shall deliver cash or a Letter of Credit in a form acceptable to the County in the amount of $4,511,200.00 which is the estimated cost of completing the remaining subdivision improvements related to Coryell Ranch and Midland Point as set forth and certified by a licensed engineer on Exhibit C attached hereto. The Letter of Credit required by this Agreement shall be issued by a state or national banking institution acceptable to the County. if the institution issuing the Letter of Credit is not licensed in the State of Colorado and transacting business in the State of Colorado, the Letter of Credit shall be "confirmed"' within the meaning of C.R.S. 4-5-106(2) by a bank that is licensed to do business in the State of Colorado, doing business in the State of Colorado, and acceptable to the County. The Letter of Credit must be valid for a minimum of six (6) months beyond the completion date for the improvements set forth herein. If the time for completion of improvements is extended by a written agreement to this Agreement, the time period for the validity of the Letter of Credit shall be similarly extended. Additionally, should the Letter of Credit become void or unenforceable for any reason. including the bankruptcy of the Owner or the financial institution issuing or confirming the Letter of Credit, prior to acceptance of the improvements, this Agreement shall become void and of no force and effect, and the Final Plats shall be vacated pursuant to the terms of this Agreement. b. Partial Releases of Security. The County shall release portions of the Security as portions of the subdivision improvements are completed to the satisfaction of the County. Certification of completion of improvements adequate to authorize release of security must be submitted by a licensed or registered engineer. Such certification authorizing release of security shall certify that the improvements have been constructed in accordance with the requirements of this Agreement, including all Final Plat plans, and shall be stamped upon as -built drawings by said professional engineer where applicable. Owner may also request release for a portion of the security upon proof (i) that Owner has a valid contract with a public utility company regulated by the Colorado PUC that obligates such utility company to install certain utility lines and (ii) that. Owner has paid to such utility company the cost of installation of such utilities required to be paid by Owner under such contract. Upon submission of a certification of completion of improvements by the Owner, the County may inspect and review the improvements certified as complete, to determine whether or not said improvements have been constructed in compliance with the relevant specifications. If the County determines that all or a portion of the improvements certified as complete are not in compliance with the relevant specifications, the County shall furnish a letter of potential deficiencies to the Owner Subdivision Improvements Agreement Page 3 within fifteen (15) days specifying which improvements are potentially deficient. If no letter of potential deficiency is furnished within said fifteen (15) day period, all improvements certified as complete shall be deemed accepted and the County shall release the appropriate amount of security as it relates to the improvements which were certified as complete. If a letter of potential deficiencies is issued which identifies a portion of the certified improvements as potentially deficient, then all improvements not so identified in the letter of potential deficiencies shall be deemed accepted and the County shall release the appropriate amount of security as such relates to the certified improvements that are not identified as potentially deficient in the letter. With respect to any improvements certified as complete by the Owner that are identified as potentially deficient in a letter of potential deficiencies as provided in this paragraph, the County shall have thirty (30) days from the date of the letter of potential deficiencies to complete its investigation and provide written confirmation of the deficiency to the Owner, If upon further investigation the County finds that the improvements are acceptable, then appropriate security shall be released to the Owner within ten (10) days after completion of such investigation. In the event the improvements are not accepted by the County, the Board of Commissioners shall snake a written finding prior to requesting payment from the Letter of Credit. Additionally, the County shall provide the Owner a reasonable period of time to cure any deficiency prior to requesting payment from the Letter of Credit. c. Substitution of Letter of Credit. The County may, at its sole option, permit the Owner to substitute collateral other than a Letter of Credit acceptable to the County for the purpose of securing the completion of the improvements as hereinabove provided. d. Recording of Final Plat. Neither the Final Plat for Coryell Ranch nor the Final Plat for Midland Point shall be recorded pursuant to this Agreement until the Letter of Credit described in this Agreement has been received and approved by the County. 4. WASTE WATER SYSTEM. All easements and facilities sites necessary for the wastewater collection system within Coryell Ranch and Midland Point shall be dedicated to the Roaring Fork Water & Sanitation District on the appropriate Final Plat. No later than November 30, 2000, Owner shall complete construction of all wastewater collection system facilities for Coryell Ranch and Midland Point, and upon completion of such construction, all of such facilities and easements shall be conveyed by easement deed or bill of sale, as applicable, to the Roaring Fork Water & Sanitation District. The dedication and conveyance of the easements and facilities for the Wastewater Collection System shall occur pursuant to the terms and conditions of the approved Service Plan for the Roaring Fork Water & Sanitation District, the P.U.D. approval and the Preliminary Plan approval, and any construction cost recovery agreement approved by the Roaring Fork Water & Sanitation District. 5. WATER SYSTEM. All easements and facilities sites necessary for the water delivery system within Coryell Ranch and Midland Point shall be dedicated upon the appropriate Final Plat to the Roaring Fork Water & Sanitation District, or, as applicable, to The Homeowners Subdivision Improvements Agreement Page 4 Association of the Coryell Ranch and The Homeowners Association of Midland Point. No later than November 30, 2000, the Owner shall complete construction of and transfer to the said District, or to the said Associations, by appropriate instrument of conveyance, all improvements to the water system within Coryell Ranch and Midland Point, together with all water rights, water allotment contracts, well permits, and other water rights necessary to provide domestic water service to Coryell Ranch and Midland Point. It is the intention of the Owner and this Agreement that at such time, if ever, as the Service Plan of the Roaring Fork Water & Sanitation District is amended to authorize said District to provide domestic water service to Coryell Ranch and Midland Point., that the District will be the owner and operator of all facilities and water rights necessary to provide such service and that the conveyance to the District of all such facilities and water rights will be made as provided in such Amended Service Plan, the P.U.D. approval, the Preliminary Plan approval and any construction cost recovery agreement approved by the District. 6. ROADS. All roads within the Final Plat for Coryell Ranch shall be dedicated to The Homeowners Association of The Coryell Ranch as private rights-of-way. All roads within the Final Plat of Midland Point shall be dedicated to The Homeowners Association of Midland Point as private rights-of-way. The respective Homeowners Associations shall be solely responsible for the maintenance, repair and upkeep of those roads. The County shall not be obligated to maintain any roads within the subdivision. 7. SECONDARY IRRIGATION SYSTEM. No later than November 30, 2000, the Owner shall construct and convey to The Homeowners Association of the Coryell Ranch or The Homeowners Association of Midland Point, as applicable, by appropriate instrument of conveyance, all appurtenant improvements to the secondary irrigation system designed to provide untreated irrigation water to Coryell Ranch and Midland Point, including all water lines, pumps, diversion and storage facilities and applicable water rights, together with all easements and rights-of-way necessary to properly operate and maintain the irrigation improvements as they shall be located and in place. 8. AFFORDABLE DWELLING UNITS. Under the terms of the Coryell Ranch P.U.D., Owner is required to provide seven (7) owner -occupied affordable dwelling units. In accordance with such requirement, the Owner shall construct the affordable dwelling units and thereafter convey the Lots improved with affordable dwelling units as follows: a. The affordable dwelling unit shall be constructed on Lots A-1, A-2, A-3, and A-4, Midland Point. Lots A-1, A-2. and A-3 shall be duplex Lots, and Owner shall construct a duplex structure on each of said Lots. Said Lots may be resubdivided along the common party wall of the duplex structure upon completion of construction. b. Construction of four (4) of such affordable housing dwelling units shall be completed and such completed dwelling units shall be made available for sale no later than years from the date hereof under applicable guidelines approved by the Garfield County Housing Authority. Construction of the remaining three (3) of such affordable housing dwelling units shall be completed and such units made available for sale under Subdivision Improvements Agreement Page 5 applicable guidelines approved by the Garfield County Housing Authority no later than years from the date hereof. c. Prior to the initial conveyance of Lots A-1, A-2, A-3, or A-4, Owner shall execute and record a master deed restriction concerning the sale, occupancy and resale of said Lots and improvements, in a form approved and executed by the Garfield County Housing Authority, or such other management entity as may be designated by the Board of County Commissioners of Garfield County. 9. ROAD IMPACT FEES. In accordance with Section 4:94 of the Garfield County Subdivision Regulations, as amended Resolution No. 97-111 ofthe Garfield County Commissioners, and the worksheet calculated in accordance therewith which is attached hereto as Exhibit 0, the offsite road impact fee (the "Road Impact Fee") applicable to Coryell Ranch and Midland Point is [approximately $1,171.20] per dwelling unit. Approval of the within Final Plats constitutes approval of total of 72 dwelling units, thus the total Road Impact Fee for Coryell Ranch and Midland Point is [approximately $84,326.40 (72 x per unit fee)]. As required by Section 4:94, the Owner shall pay to the County the sum of [approximately $42,163.20], which is fifty percent (50%) of the total Road Impact Fee for Coryell Ranch and Midland Point, at or prior to the recording of the Final Plat for either of such Subdivisions. Thereafter, at the time of issuance of the initial building permit for any lot within either Coryell Ranch or Midland Point, the applicant therefor shall pay to the County the sum of [approximately $585.60], which is fifty percent (50%) ofthe per dwelling unit Road Impact Fee for Coryell Ranch and Midland Point; provided, however, that the amount of the Road Impact Fee to be collected upon the issuance of a building permit for any duplex structure shall be [approximately $1,171.20 (one-half of the per dwelling unit fee x two dwelling units per duplex structure)]. All Road Impact Fees collected by Garfield County from Coryell Ranch or Midland Point shall be administered as provided in Section 4:94 of the Garfield County Subdivision Regulations. 10. FEES IN LIEU OF DEDICATION OF LAND TO SCHOOL DISTRICT. The Owner shall make a cash payment in lieu of dedicating land to the Roaring School District, RE -1, calculated in accordance with the provisions of Resolution No. , now codified as Sections 9:80 and 9:81 of the Garfield County Subdivision Regulations, which states that the cash in lieu payment is equal to the unimproved per acre market value of the land multiplied by the land dedication standard multiplied by the number of units in the subdivision. The parties acknowledge and agree that for Coryell Ranch and Midland Point the above formula shall be completed, and the total amount of the cash payment in lieu of dedication of land, calculated as follows: a. Unimproved per acre market value of land, based upon an appraisal submitted by Owner = $23,166.02; b. Land dedication standard (from Resolution No. Subdivision Improvements Agreement Page 6 66 single family DU's x .020 acres = 1.32 acres 6 multi -family DU's x .015 acres = .09 acres total = 1.41 acres; and c. Total amount of cash in lieu payment: $23,166.02 x 1.41 = $32,664.09. The Owner shall therefore pay to the Garfield County Treasurer at or prior to the time of recording the Final Plat for either Coryell Ranch or Midland Point, the sum of $32,664.09 as a payment in lieu of dedication of land to RE -1 School District, which shall be utilized in accordance with the provisions of C.R.S. 30-28-133. as amended. The Owner specifically agrees that it is obligated to pay the above and foregoing fee, accepts such obligation, and waives any claim that it is not so obligated or required to pay such fee. The Owner agrees that subsequent to recording ofthe Final Plats. Owner will not claim, nor is the Owner entitled to claim, a reimbursement of the fee in lieu of land dedication to RE -1 School District which is paid in accordance with the provisions of this Agreement. 11. FIRE DISTRICT FEES. The parties recognize and agree that the approval of the Final Plats constitutes approval of seventy-two (72) dwelling units. The parties agree that the Impact Fees for the Carbondale & Rural Fire Protection District shall be $339.00 per dwelling unit, or a total of $24,408.00 for Coryell Ranch and Midland Point. Owner shall pay to the Carbondale & Rural Fire Protection District a total fee in the amount of $24,408.00 for Coryell Ranch and Midland Point at or prior to the time of the recording of the Final Plat for either Coryell Ranch or Midland Point. Owner specifically agrees that it is obligated to pay the above and foregoing fee to the Carbondale & Rural Fire Protection District, accepts such obligation, and waives any claim that it is not so obligated or required to pay the Fire District Fees. Owner agrees that subsequent to recording of the Final Plat the Owner will not claim, nor is the Owner entitled to, a reimbursement of the Fire District Fees to be paid in connection with this Agreement. 12. CONSULTING ENGINEERING. Owner shall reimburse the County for all professional fees and costs incurred by the County for retention of an independent geotechnical engineer to review and monitor alk debris flow mitigation measure installations and all improvements affecting County Road 109 as identified in the CTL Thompson letter dated March 3, 1995 and as identified on the Master Drainage Plan. 13. INDEMNITY. To the extent allowed by law, the Owner agrees to indemnify and hold the County harmless and defend the County from all claims which may arise as a result of the Owner's installation ofthe improvements required pursuant to this Agreement. However, the Owner does not indemnify the County for claims made asserting that the standards imposed by the County are improper or the cause of the injury asserted. Subdivision Improvements Agreement Page 7 The County shall be required to notify the Owner of receipt ofa notice of claim, or a notice of intent to sue and shall afford the Owner the option of defending any such claim or action. Failure to notify and provide such written option to the Owner shall extinguish the County's rights under this paragraph. Nothing herein stated shall be interpreted to require the Owner to indemnify the County from claims which may arise from the negligent acts or omissions of the County or its employees. 14. SALE OF LOTS. No lots within either Coryell Ranch or Midland Point shall be conveyed prior to recording of the applicable Final Plat. 15. ISSUANCE OF BUILDING PERMITS. As one remedy for breach of this Agreement, the County may withhold issuance of building permits for any structure within Coryell Ranch and Midland Point. The parties agree that no building permit shall be issued until the Owner demonstrates to the satisfaction of the Fire District that adequate water is available for the Fire District's purposes at the site of construction. Further, the parties agree that no certificate of occupancy shall be issued for any building or structure within the Final Plat until all subdivision improvements, have been completed and are operational, as required by this Agreement. 16. ENFORCEMENT. In addition to any rights which may be provided by Colorado statute, it is mutually agreed that the County or any purchaser ofa lot within either Subdivision shall have the authority to bring an action in the District Court of Garfield County, Colorado, to compel enforcement of this Agreement. 17. CONSENT TO VACATE PLAT. In the event the Owner fails to comply with the terms of this Agreement, including the terms of the Preliminary Pian, or the P.U.D. approval, the County shall have the ability to vacate either of the Final Plats as they pertain to lots for which no building permits have been issued. Any existing lots for which building permits have been issued, shall not be vacated and the plat as to those lots shall remain valid. The Owner shall provide a survey and complete legal description with a map showing the location ofa portion of the plat so vacated. 18. BINDING EFFECT. This agreement shall be a covenant running with the title to each lot within the Final Plats, and the rights and obligations as contained herein shall be binding upon and inure to the benefit of the Owner, its successors and assigns. 19. RECORDING. Upon execution and authorization by the County, the Owner shall record this agreement with the Office of the Clerk & Recorder for Garfield County, Colorado. 20. VENUE AND JURISDICTION. Venue and jurisdiction for any cause arising out of or related to this agreement shall lie in the District Court for Garfield County, Colorado, and be construed pursuant to the laws of the State of Colorado. 21. AMENDMENT. The parties hereto mutually agree that this Agreement may be amended from time to time, provided such amendment is in writing and signed by the parties hereto. Subdivision Improvements Az -cement Page 8 22. NOTICE. All notices required herein shall be tendered by personal service or certified mail upon the following individuals or agents of the parties to this agreement: Board of County Commissioners of Garfield County c/o Mark Bean, Planning Director 109 8th Street, Suite 303 Glenwood. Springs, Co 81601 Coryell Ranch Company, LLC 9929 Highway 82 Carbondale, CO 81623 with copy to: Lawrence R. Green Balcomb & Green, F.C. P.O. Drawer 790 Glenwood Springs, CO 81602 ENTERED INTO the clay and year first above written. ATTEST: Clerk to the Board c:Vwp•dacs'L.G'AG\CaryelllDocumcrosl alb 99 CORYELL RANCI-1 COMPANY, LLC, a Colorado limited liability company By: Coryell Ranch Management Company, Inc., a South Carolina corporation, its Manager By: Its: BOARD OF COUNTY COMMISSIONERS OF GARFIELD COUNTY, COLORADO By Chairman Subdivision Improvements Agreement Page 9 EXHIBIT A A parcel of land situate in Lots 12 and 13. Section 28 and in Lots 7,2,89 70, 11, 12, 73 and 19, Section 29, all in Township 7 South, Range 88 West of the 6th Principal Meridian, County of Garfield, State of Colorado, being more particularly descnbed as follows- Commencing at a found B.L.M. aluminum cap in place to the East 1/4 Comer for Section 29, whence a found brass cap LS 7734 in place for the northeast comer for said Section 29 bears N0024 20 "E a distance of 2677.86 feet with all bearings contained herein relative thereto; thence NCO-24120T along the east line of said Section 29 a distance of 582.10 feet to the TRUE POINT OF BEGINNING for the parcel described herein; thence N89'35 40'W 150.00 feet; thence 50074'20 425.37 feet; thence N8850'4271, 193.52 feet; thence 588.30'591$ 25.01 feet; thence 503-12'28Z 36863 feet; thence 51434271Y 4290 feet; thence 530.2928'E 5752 feet: thence S0.3'4774"W 318.13 feet: thence P185'30'11 252.95 feet; thence 5793724E 157.71 feet; thence 502'09'35-E 102.44 feet; thence N79'J7. 4 "W 766.90 feet' thence 585'30'11-W 498.02 feet,. thence 580'50'041Y 221.14 feet: thence 54723.24V 84103 feet; thence S19'4959-4' 411.87 feet: thence along a common boundary agreed upon by Union Oil Company of California and the Crystal River Ranch (said agreement being recorded in Book 912 at page 785 to 789 of the records of said Garfield County Clerk and Recorder) the following 10 courses: 1) 1,154•1.3.033." along an existing fence line a distance of 258.77 feet; 2) N66-20'211V along an existing fence line a distance of 398.62 feet; 3) N4521 '16'30' along an existing fence line a distance of 21.3.59 feet; 4) N45:247014" along an existing fence line a distance of 217.78 feet; 5) N45-08'15'3 ' along an existing fence line a distance of 451.97 feet; 6) N71:50'461+1 along an existing fence line a distance of 278.62 feet; 7) N442021 along an existing fence line a distance of 271.66 feet; 8) N39`11".31 1#' along an existing fence line a distance of 326.72 feet to a point on the west line of Lot 13 of said Section 29; 9) N002807'E along the west line of said Lot 13 a distance of 310.11 feet to the southwest comer of Lot 8 of said Section 29; 10) N01'59'467' along the west line of said Lot 8 a distance of 116725 feet to the southwest comer of a parcel of land described in Book 449 at Page 577 of the records of said Garfield County Clerk and Recorder, thence N8926'321- along the south boundary line of said parcel of land a distance of 151.19 feet to the southeast comer of said parcel of land; thence N,30' 1629 "E along the easterly boundary line of said parcel of land a distance of 36529 feet to the south boundary of Aspen Glen, Filing No. 1, County of Garfield, State of Colorado also being the centerline of the Roaring Fork River; thence along the south boundary of Aspen Glen, filing No.1 the following 11 courses: 1) 524'00'00-E a distance of 206:36 feet; 2) 546-001701" a distance of 375.00 feet; 3) N70"00 00 E a distance of 297.00 feet; 4) N50'00'00 E o distance of 220.00 feet; 5) 14/31"00"001- a distance of 352.00 feet; 6) N39.00 001' a distance of 300.00 feet; 7) N56"00 00 E a distance of 2903 00 feet; 8) N72'00'00-E a distance of 27700 feet; 9) S54'00001- a distance of 240.00 feet; 10)557-0000'E a distance of 238.00 feet; 17)S44•00001- a distance of 272.02 feet; thence leaving the south boundary of Aspen Glen, filing No. 1 and continuing along the centerline of the Roaring Fork River the following 4 courses; 1) 541 `42 43 t a distance of 404.35 feet; 2) 52.9.081.311- a distance of 293.00 feet; 3) .513.6-37711- a distance of 330.00 feet; 4) 541"331.31-E a distance of 225.00 feet to a point on the east line of Section 29; thence SOO"24 20 i4' along the east line of said Section 29 a distance of 196.31 feet to the 1-RUE POINT OF BEGINNING containing 1933'72 acres more or less. EXHIBIT B A parcel of land situate in Lots 12 and 13, Section 28 and in Lots 1,2,8,9,10 11,12,1. and 19, Section 29, all in Township 7 South, Range 88 West of the 6th Principal Meridian, County of Garfield, State of Colorado, being more particularly described as follows: Commencing at a found B.L.M. aluminum cap in place to the East 1/4 Corner for Section 29, whence a found brass cap LS 7734 in place for the northeast comer for said Section 29 bears A100 -24'20-E a distance of 2677.86 feet, with all bearings contained herein relative thereto; thence N05'17"59"W 626.78 feet to the TRUE POINT OF BEGINNING for the parcel described herein: thence 579"37'24 "E along an existing fence line and southerly boundary of a parcel of land described as parcel A in Book 929 at Page 158 to 159 of the records of said Garfield County Clerk and Recorder a distance of 99.90 feet to the end of said fence line; thence continuing along said southerly boundary 579'37241- a distance of 71.00 feet to the centerline of the Crystal River, thence along the centerline of the Crystal River the following 4 courses: 1) 510'48'311- 262.02 feet; S12 :13 ;31 'E 168.00 feet; 3) S26'03'317- 219.00 feet; 4) 541 ;38'33"E 206.26 feet to a point on the east line of Lot 73 of Section 28, thence 500'57'21'W along the east line of said Lot 13 (said east line also being the common boundary line as agreed upon by Union Oil Company of California and John K. and Barbara M. Snobb/e, said agreement being recorded in Book 933 at Page 836 to 838 of the records of said Garfield County Clerk and Recorder) a distance of 909.31 feet to the southeast comer of said Lot 13; thence along a common boundary agreed upon by Union Oil Company of California and the Crystal River Ranch ('said agreement being recorded in Book 912 at page 785 to 789 of the records of said Garfield County Clerk and Recorder) the following 10 courses_ 1) N89'07 40 iW along the south line of said Lot 13 a distance of 563.29 feet to the southwest corner of said Lot 13; 2) 589'55'11W along the south line of Lot 19, Section 29 a distance of 159.34 feet to a point on an existing fence line; 3) N70'07'50'W along an existing fence line a distance of 409.84 feet; 4) N70'1(14114' along an existing fence line a distance of 354.35 feet; 5) N69'.36'20 -W along an existing fence line a distance of 188.80 feet; 6) 528'44'14'W along an existing fence line a distance of 306.75 feet; 7) 525'58 42'Is' along an existing fence line a distance of 66.15 feet to a point on the south line of said Lot 19; 8) 589'55'11'W along the south line of said Lot 19 a distance of 295.33 feet to a point on an existing fence line; 9) N11'00'29at along an existing fence line a distance of 309.81 feet; 10) N1-3-50'04 ' along an existing fence line a distance of 305.85 feet; thence N 19'49 59'E 411.87 feet; thence N47'23'241- 843.03 feet; thence N80'50'401- 221.14 feet; thence N85'30'117 498.02 feet; thence S79'37'24' 16690 feet; thence NO2-09'3614/ 102.44 feet to the point of beginning, said parcel contains 63.232 acres more or less. Water No. Item/Description EXHIBIT C Coryell Ranch & Midland Point Subdivision Improvement Agreement November 12, 1999 Opinion of Probable Cost Qty. Unit Price/Unit Total Price 1 6" DIP 8" DIP 3 10" DIP 4 6" Gate Valve 5 8" Gate Valve 6 10" Gate Valve 7 8"-6" Reducer 8 10"-8" Reducer 9 8"-6" Tee 10 10"-8" Tee 11 10°-6" Tee 12 8" Tee 13 10" Tee 14 ]0"Cap 15 6" 11,25° Bend 16 6" 22,5° Bend 17 6" 45° Bend 18 6" 90° Bend 19 8" 11.25' Bend 20 8" 22.50 Bend 21 8"45°Bend 22 8" 90° Bend 23 10" 11.25° Bend 24 10" 22.5° Bend 25 10" 45" Bend 26 10" 90° Bend 27 6" PVC (Irrigation) 28 4" PVC (Irrigation) 29 6" Cross (Irrigation) 30 6"-4" Reducer (Irrigation) 31 4" Gate Valve (Irrigation) 32 6" 11.25° Bend (irrigation) 33 6" 22.5° Bend (Irrigation) 34 6" 45° Bend (Irrigation) 35 6" 90° Bend (Irrigation) 36 Irrigation Pump Station 37 Chlorination Station 38 200,000 Gal. Water Storage Tank 39 Water Service 40 Fire Hydrant 41 Wells 845 LF 525.00 $21,125.00 11.005 LF 530.00 5330,164.40 4,819 LF 535.00 5168,648.90 10 Ea. 5500.00 55,000.00 24 Ea. 5750.00 518,000.00 I3 Ea. 51,000,00 513,000.00 4 Ea. 5200.00 $800.00 3 Ea. $250.00 5750.00 9 Ea. 5200.00 51,800.00 2 Ea. 5300.00 5600.00 5 Ea. 5300.00 51,500.00 4 Ea. 5250,00 51,000.00 3 Ea. $300.00 5900.00 I Ea. $150.00 $150.00 0 Ea. 5200.00 50.00 1 Ea. 5200.00 5200.00 3 Ea. 5200.00 $600.00 0 Ea. 5200.00 50.00 17 Ea. 5300.00 55,100.00 17 Ea. 5300.00 58,100.00 16 Ea. 5300.00 54,800.00 6 Ea. 5300.00 51,800.00 8 Ea. 5400.00 53,200.00 15 Ea. 5400.00 56,000.00 11 Ea. 5400.00 54,400.00 1 Ea. 5400.00 $400.00 162 LF 512.00 51,944.00 3,424 LF 510.00 534,240.90 I Ea. 5100.00 5100.00 3 Ea. $50.00 5150.00 5 Ea. 5150.00 5750.00 7 Ea. 550.00 5350.00 1 Ea. 550.00 550.00 2 Ea. 550.00 5100.00 3 Ea. 550.00 5150.00 1 LS 535,000.00 535,000.00 1 LS $150,000.00 5150,000.00 1 LS 5200,000.00 5200,000.00 70 Ea. 51,000.00 570,000.00 19 Ea. 52,500.00 547,500.00 1 Ea, 515,000.00 515,000.00 I1/12199 1033 AM cor-sia.xls Water - Total 51,153,373.20 Prepared by Greg Schroeder, PE Page 1 oro Revised by David M. Kotz, PE Corycll Ranch & Midland Point Subdivision Improvement Agreement November 12. 1999 Opinion of Probable Cost Drainage No. Item/Description I 12" CMP 15" CMP 3 18" CMP 4 24" CMP 5 30" CMP 6 36" CMP 7 42" CMP 8 36" UF 9 15" End Section 10 18" End Section 11 24" End Section I2 30" End Section 13 36" End Section 14 42" End Section 15 Curb Inlet 16 Type I3 Inlet 17 36" Access Drainage Manhole 18 42"x18" Tee 19 42"x15" Tee 20 Ditch 21 Riprap 22 Conc. Headwall (Double 36") 23 5' Dia. Drainage Manhole 24 Diversion Structure 25 Pond (NWSE 6104.5) 26 Pond (NWSE 6101) 27 Pond (NWSE 6088) 28 Pond (NWSE 6064) 29 Pond (NWSE 6052) Qty. Unit Price/Unit Total Price 87 LF 525.00 52,184.50 266 LF 527.00 57,178.76 676 LF 530.00 520274.30 182 LF 535.00 $6.370.00 110 LF 540.00 54,400.00 267 LF 545.00 512.024.00 120 LF 550.00 $6,000.00 1,872 LF 550.00 593,600.00 1 Ea. 5150.00 5150.00 1 1 Ea. 5175.00 51,925.00 6 Ea. 5200.00 51,200.00 1 Ea. 5250.00 5250.00 2 Ea. 5300.00 5600.00 4 Ea. 5400.00 51.600.00 1.4 Ea. 53,000.00 542,000.00 1 Ea. 51,500.00 51,500.00 7 Ea. 5750.00 55,250.00 1 Ea. 5400.00 5400.00 1 Ea. 5400.00 5400.00 16,028 LF 55.00 580.137.70 38.0 CY 550.00 51,900.00 2 Ea. 52,000.00 54,000.00 Ea. 51,500.00 53,000.00 8 Ea. 51,500.00 512,000.00 1.350 CY 53.00 54,050.00 39,505 CY 53.00 5118,515.00 49,363 CY 53.00 5148.089.00 41,870 CY 53.00 5125.610.00 1,132 CY 53.00 53,396.00 11/12/99 10:33 AM cor-sia.xls Drainage - Total 5708,004.26 Prepared by Greg Schroeder, PE Page 2 of 4 Revised by David M. Kotz. PE Roads No. Item/Description 1 Excavation Topsoil Removal (8"-l0") 3 Base Course 4 Asphalt 5 Mountable Curb & Gutter 6 Water Tank Access Road 7 Valley Pans / Flarwork Coryell Ranch & Midland Point Subdivision Improvement Agreement November 12. 1999 Opinion of Probable Cost Qty. Unit Price/Unit Total Price 8,061 CY 33.00 524,183.00 6.608 CY 55.00 533,040.28 7,731 Tons 315.00 5115,971.38 4.460 Tons 542.00 3187,338.38 7,562 LF 515,00 5113.430.00 850 LF 340.00 534,000.00 30 SY 540.00 51.200,00 Sewer No. ItemlDescription 1 8" PVC (0'-10') ' 8" PVC (10'-15') 3 8" PVC (>15') 4 Manhole (0'-10') 5 Manhole (10'-15') 6 Manhole (>15') 7 4" Force Main 8 River Crossing 9 Lift Station 10 Sewer Service Roads - Total 3509,163.03 Qty. Unit PricefUnit Total Price 3365 LF S30.00 5100,950.00 5391 LF 535.00 3188.685.00 1972 LF 540.00 578.880.00 14 Ea. 51,500.00 321,000.00 24 Ea. 32.000.00 548,000.00 12 Ea. 52,500.00 530,000.00 1,485 LF $30.00 344,550.00 1 LS 5100,000.00 3100,000.00 1 LS 550,000.00 550.000,00 70 Ea. 31,000.00 370,000.00 Miscellaneous/Utilities No. Item/Description 1 Berms 2 Electric 3 Gas 4 Telephone 5 Cable 6 10" DIP Water Connectivity to Aspen Glen 7 10' Bike Path Sewer - Total 5732,065.00 Qty. Unit Price/Unit Total Price 14,776 CY 35.00 573.880,00 11,144 LF 515.00 5167,160.00 11,170 LF S35.00 5390,950.00 11,144 LF 310.00 3111.440.00 11,144 LF 512.00 3133,728.00 2,000 LF 338.00 576,000.00 4,532 LF 310.00 545,320.00 11/12/99 10:33 AM cor-sia.xls Miscellaneous/Utilities - Total 5998.478.00 Prepared by Greg Schroeder, PE Page 3 of 4 Revised by David M. Katz, PE Cornell Ranch & Nlid and Point Subdivision Improvement Agreement November 12. 1999 Opinion of Probable Cost Cost Summary Water - Total Drainage - Total Roads - Total Sewer - Total Miscellaneous/Utilities = Total 51,153,373.20 5708,004.26 5509,163.03 5732,065.00 5998,478.00 Totals 54,101,083.49 Contingency (for Mobilization, Overhead, General Conditions. Administration, etc.) 10% 5410,108.35 Total Cost 54,511,191.84 Note: The estimates contained herein are the opinion of this engineer and are based upon historical information adjusted for unique conditions of this project. As with any cost estimate actual costs may vary due to market conditions. 11/12/99 10:33 AM cor-sia.xls Page 4 of4 Prepared by Greg Schroeder, PE Revised by David M. Kotz, PE GARFIELD COUNTY HOUSING AUTHORITY 2128 Railroad Avenue Rifle, CO 81650 Phone (970) 625-3589 or (970) 945-0779 Fax (970) 625-0859 June 15, 2001 Garfield County Commissioners: The Garfield County Housing Authority Board of Commissioners have reviewed the information and prices supplied by Coryell Ranch for the affordable housing units at Midland Point. We deem them to be in compliance with our interpretation of the Garfield County Affordable Housing Guidelines. Sincerely, Tom Beard Vice Chairman, Garfield County Housing Authority 06/11/01 20:16 FAA 970 625 0658 taarrxela (AY HA Jun 07 01 10:32e Alpine Sank Mortgage S70 -3e4-3265 Mortgage Division June 5, 2001 Garfield County Housing Aumarty 2128 Railroad Avenue Rifle, co 89650 To Whom it May Concern: Alpine Bank Mortgage Division has reviewed the Midland Point Affordable Housing Units qualifying evaluation. Our review included the area median income. standard quertfing rains under the Fannie Mae/Freddie Mac secondary market underwriting standards and loan to value calculations_ In addition, our review selected several mortgage loan programs for First Time Hurnebuyers and A1Fbrdable Housing Mortgage loans. Our calculation used a higher rate Man is available in today's market to anticipate a rising interest rate scenario. We based our analysis on the maximum allowable )louse price of $129.167 for 4.person and 3151,147 for a 5 -person W arrive at conforrning underwriting standards._ It is our opinicw the applicants applying to Alpine Bank Mortgage Division to purchase Midland Point Affordable 'rousing units, under normal circumstances, would receive loan approval. We would be pleased to provide any additional infforrnatk- and are always available to answer any questions or cidriCerna sincerely, Michele Dressel President Alpine Bank Mortgage Cc Donald Parris PliPer www.etlpinebank_com . alpine 0aipinebank_corn LJ U p.2 JUN -16-2001 14:56 FROM: TO:1 970 285 7890 P.002/002 PUBLIC NOTICE Coryell Ranch Company LLC and the Garfield County Housing Authority are presenting seven new affordable housing units located near Carbondale in the Midland Point neighborhood_ Midland Point is located near the intersection of County Road 109 and County Road 108. There are six duplex units, each consisting of two bedrooms and two bathrooms, and one single-family home consisting of three bedrooms and two bathrooms. The six duplex units will be sold for $129,170 each and the single-family home will be sold for $151,150. To qualify, an applicant .must make a combined family income of $39,700 or less. All Midland Point affordable housing units will be sold through a lottery administered by the Garfield County Housing Authority. Alpine Bank has provided construction financing to Coryell Ranch Company LLC. Permanent financing for the affordable housing units will be available to qualified applicants through Alpine Bank Mortgage Division in the Glenwood Springs Branch. The Garfield County Housing Authority will be accepting applications for the Midland Point Affordable Housing Units starting June 21 through July 6. Applications may be picked up from the Planning and Zoning Office, 109 8th Street (County Courthouse) Suite 303, Glenwood Springs, CO, office hours are M -F 8:3Qam-5 O0pm or from the Garfield County Housing Authority 2128 Railroad Ave, Rifle, CO, office hours are M -F 7:00am-5pm. The housing Authority will also be open Saturday, June 30 from 10arn to 2pm. Deadline for returning an application is 5:00pm Friday, June 6. Completed applications and documentation must be returned to the Housing Authority either in person or by mail. Mailed applications must be postmarked July 6. The Housing Authority will qualify applicats based on criteria set in the Garfield County Affordable Housing guidelines. To qualify and be eligible to purchase an affordable housing unit a person must: 1. work or reside in Garfield County 2. occupy the unity as a primary residence upon purchase 3. have a current household net worth, minus qualified retirement assets, not in excess of $1.00,000 4. have an annual income of $39,700 or less Eligibility for affordable housing will be made without regard to race, color, creed, religion, sex, handicap, disability, national origin, familial status, or marital status. All completed applications will be assigned by the Housing Authority to one of two Priority Categories 1. Priority category one: a prospective owner is an employee of a Garfield County based employer 2. Priority category two: a prospective owner is a resident of Garfield County All completed and verified applications shall be placed in the July 20 Lottery for Affordable Housing. if your name is chosen in the lottery, you will have 3 business days from the date of the lottery to sign a formal contract and deposit the $500 initial required ernest money. After the 3 day deadline the application may be revoked and the Housing Authority will proceed to the next household. Please contact the Garfield County Housing Authority at 970-945-0779 or 970-625-3589 with any questions. erProroltr•I un/to/u1 ua.lo rn.a aru oto UBaa barriela LEY tnA IJoz Coryell Ranch Affordable Housing Units now available Corye11 Ranch Company LLC and the Garfield County Housing Authority are presenting seven new affordable housing units located near Carbondale in the Midland Point neighborhood.. Midland Point is located near theintersection, of County Road -1Q9 and County Road 108 There are six duplex units, each consisting of two bedrooms and two bathrooms, and one single family homeconsistingcfthree bedroom and two bathrooms. The six duplex units will be sold for $129,170 each and to qualify an applicant must be a family of four or less and makea combined family income of $39.700 or less The single-family home will be sold for S151.150 and to qualify the applicant must be a family of five or six.and make a combined family income of $46,050 or less. Nrhdlan¢ Point affordable housing units will be sold through a lottery administered by the Garfield County Housing<Authority. Alpine Flank has ded. const cation finaecing.to. Coryell Ranch Company .LC. Permanent financing for the affordable housing units will be available to qualified applicants through Alpine -Rank Mortgage Division in the Glenwood SpringsBranch_ However, all applicants are free to use a lender of their choice_ TheGarfield County Housing Authority will be acceptingapplication for the Mi4land Point Affordable Housing Units starting June 21 through July 6. Applications may be picked up from the Planning and Zoning Office 109 8 Strom (County Courthouse) Suite 303, Glenwood Springs, CO, office hours are M — F 8:30am —5:00 pm or from -the, Garfield County Housing Authority 2128 Railroad Ave, Rifle, CO office hours are M F 7:00 am.— 5:00.pm. The Housing Authority will also be open. Saturday. June 30 from 10am to 2pm_ Deadline for returning an application is 5:OOprn Friday, July 6_ Completed applications and documentation must be returned to the Housing. Authority either in person or by mail_ Mailed applications must be postmarked July 6. The Housing Authority will goal i fy. applicants based on. criteria. set in the Garfield County. Affordable Housing guidelines. To qualify and be eligible to purchase an affordable housing unit a person must 1. work or reside in Garfield_County 2. occupy the unit as a primary residence upon purchase 3. have a current household net worth, minus qualified retirement assets, not in excess of $100,000. 4. have an annual income of $39,700 or less for the two bedroom units -and an annual income of $46,050 for the three bedroom unit 08/15/01 03:16 FAX 970 625 0859 Garfield Cty HA 1003 Eligibility for affordable housing will be mace with - ist regard to race, color, creed, religion., sex, handicap, rlirAbility, national origin., familial ffls or marital staips. All completed applications will be assigned by the 1 °using Authority to one oftwo Priority Categories 1 Priority category one: a prospective owner is an employee. of a Garfield County based employes 2 Priority category two: a prospective overs owrr is a. resident of Garfield Cly Ali completed and verified applications shall be placed in the July 27 Lottery for Affordable Housing_ If your name is. chosen. in the. lotttsy you will have 5 hitiainecs days from the date of selection to sign a formal contract rid deposit the $500 initial required earnest money. After the 5 business days deadline the application may be revoked and the Housing Authority will proceed to the next houNbold. Please contact the Garfield_ County Housing Author: y at 970-945-0779 or 970-625,1589 with any questions GARFIELD COUNTY HOUSING AUTHORITY 2128 Railroad Avenue, Rifle, Colorado 81650 ph: 970-945-0779 AFFORDABLE HOUSING APPLICATION PACKET All information is completely confidential. If there is a lottery, and your name is chosen to purchase a unit, you will have 3 business days from the date of the lottery to sign a formal contract and deposit the required earnest money. After the 3 -business -day deadline, this application may be revoked and the Housing Authority may proceed to the next household. The Housing Authority will endeavor to meet this time frame. Each individual applying (excluding dependents) must submit COMPLETE information. Please fill out the attached forms honestly and thoroughly according to the following instructions and return the completed packet to the Housing Authority Office. The Housing Authority Office shall reject any incomplete application packets. Checklist: ❑ APPLICATION FORM(S) — An application form must be completed for each unit -type on which an application has been placed. ❑ EMPLOYMENT/ INCOME FORM(S) - signed by you and your employer(s) ❑ APPLICATION FEE - An application fee must be attached to each application. A complete packet is required once a year at the cost of $25. ❑ WORK HISTORY ❑ RESIDENTIAL HISTORY ❑ ASSET/LIABILITY INFORMATION SHEET - Fill out the dollar amounts to the best of your knowledge. Each individual applying for a unit MUST fill out this form completely. ❑ DISCLOSURE OF PROPERTY OWNERSHIP ❑ AUTHORIZATION TO OBTAIN COPY OF LOAN APPLICATION ❑ VERIFICATION OF ACCURATE AND TRUE INFORMATION - Sign and complete this form verifying the information you are supplying to the Housing Authority is complete and accurate. ❑ DOCUMENTATION TO BE TURNED IN ALONG WITH APPLICATION PACKET a Complete copies of the last two (2) years' income tax returns (1999 and 2000) and W -2's pertaining to these income tax returns (if you do not have your income tax returns, contact the IRS at 1-800-829-1040). If you do not have your W -2s, you can verify your employment through the Social Security Office, 2425 Grand Avenue, Glenwood Springs, 945-8609. © Self employed individuals will need to provide profit and loss statements, Colorado income tax returns for the past year, and any other additional documentation proving that the employment is in the Roaring Fork Valley. Additional documentation could include a business license, client references, etc. © Copies of two of your most recent pay stubs. ❑ Letter from a lender indicating you have the ability to obtain a mortgage loan for the unit(s) you wish to purchase. APPLICATION FORM If applying by yourself, only fill out column "A". If two adults are applying, fill out both columns individually- If you have questions, please call 945-0779. PROPERTY AND UNIT TYPE SALES PRICE NAME(s) MAILING ADDRESS STREET ADDRESS COLUMN "A" COLUMN "B" [) Own [ ] Rent Years [ ] Own [ ] Rent Years HOME and WORK PHONE F -I- W- H- W- E -MAIL ADDRESS SOCIAL SECURITY NO. COLO. DRIVER'S LICENSE # BIRTHDATE (Mo./Day/Yr.) ACTUAL START DATE OF CONSECUTIVE EMPLOYMENT IN GARFIELD COUNTY (Month, Day, Year) BY SIGNING BELOW, I GIVE PERMISSION FOR THE HOUSING AUTHORITY TO ACCESS A CREDIT REPORT THROUGH EQUIFAX, 215 PITKIN AVENUE, GRAND JUNCTION, COLORADO 81502. SIGNATURE(s) DATE SIGNED LIST NAMES OF OTHER OCCUPANTS AND RELATIONSHIP. For units with priority to households with children, the child or children must be living with you at least half the year. We will require documentation in joint custody situations. 1. 2. 3. NAME 2 RELATIONSHIP AGE EMPLOYMENT HISTORY: List the name of business, address, phone number, contact person & actual dates of employment, beginning with the most recent employment, for the past year. If you have worked for Garfield County in the past, please include that information. EMPLOYEER NAME Address Phone Number Contact Person Actual Dates of Employment EMPLOYEER NAME Address Phone Number Contact Person Actual Dates of Employment EMPLOYEER NAME Address Phone Number Contact Person Actual Dates of Employment EMPLOYEER NAME Address Phone Number Contact Person. Actual Dates of Employment EMPLOYEER NAME Address Phone Number Contact Person Actual Dates of Employment EMPLOYEER NAME Address Phone Number Contact Person Actual Dates of Employment EMPLOYEER NAME Address Phone Number Contact Person Actual Dates of Employment COLUMN "A" COLUMN "B°' VERIFICATION OF TRUE AND ACCURATE INFORMATION Ilwe hereby verify that all information provided is accurate and true. It is understood that I/we will be disqualified from the application and approval process by the Garfield County Housing Authority if it is determined that any or all information is inaccurate or non -verifiable. I/we shall be notified by the Garfield County Housing Authority as to my/our subsequent disqualification and the reasons thereof. Signature Date Signature Date Signature Date 4 EMPLOYMENT INCOME INFORMATION give permission to the Garfield County Housing Authority to obtain income and employment information required for this application. Your signature Date List all current employers and income (You may need more than one form) Name of Employer Monthly Income Name of Employer Monthly Income Other Monthly Income* Commissions, Dividends, Interest, Net Rental Income, Other TOTAL INCOME COLUMN "A° COLUMN "B" *Other Monthly Income includes any alimony, maintenance payments or child support payments that you receive. Name of Employer signature and title date 5 EMPLOYMENT INCOME INFORMATION I give permission to the Garfield County Housing Authority to obtain income and employment information required for this application. Your signature date List all current employers and income (You may need more than one form) Name of Employer Monthly Income Name of Employer Monthly Income Other Monthly Income" Commissions, Dividends, Interest, Net Rental Income, Other TOTAL INCOME COLUMN "A" COLUMN "B" "Other Monthly income includes any alimony, maintenance payments or child support payments that you receive. Name of Employer signature and title date 6 ASSET/LIABILITY INFORMATION SHEET FINANCIAL STATEMENT If Joint Information, only List Once List name and approximate amount in account COLUMN "A" COLUMN "B" ASSETS: Name of Bank, S&L, or Credit Union & amount in account. Address $ Stocks & Bonds $ $ (company name & $ - - - $ description) $ $ Real Estate owned (market value) $ $ Vested interest in a retirement fund Net worth of business(es) owned $ $ (attach financial statement) Automobiles owned (make and year) TOTAL ASSETS LIAB ILITI ES: Name of Company & Unpaid Balance $ Name of Company & Unpaid Balance $ Name of Company & Unpaid Balance - $ Alimony/Child Support/ Separate Maintenance Payments, etc. TOTAL LIABILITIES TOTAL NET ASSETS (assets Tess liabilities) If yes: Address Type of Property Value Amount Owed Rental Income DO YOU OWN ANY PROPERTY? COLUMN "A" COLUMN "B° [ ] Yes [ ] No Other partners in the property Ownership? If yes, how many others? 8 [ ] Yes [ ] No AUTHORIZATION TO OBTAIN COPY OF LOAN APPLICATION This document authorizes the Garfield County Housing Authority the approval to obtain your actual loan document from your lender. You do not need to fill out the lender at this time. Your authorization only is needed. Upon signing of the contract and finding a lender, you must provide Garfield County Housing Authority with the name of your lender. At that time, this document would give your approval to the Garfield County Housing Authority to request a copy of your original loan document. My (Our) signature(s) below hereby authorize(s) my (our) lender to furnish a copy of my (our) completed loan application to the Garfield County Housing Authority. Please print name Please print name Signature Signature Date: Date: 9 06/13/01 08:44 V970 943 9769 LARRY GREEN JUN.12.2001 1:33PM RSPEN GLEN GOLF CO 9829 Highway 82 Carbondale, GC 84823 Telephone (970) 963.4536 Facsimile (970) 963-4537 Fax To. Michelle [Pressel, Alpine Bank Sean McKenna, Alpine Bank Larry Green, Balcomb & Green Geneva Powell, Garfield County From: Jennifer Guccini Fax NO. 905 ij002 P.1-2 The Aspen Glen Golf Company Pages: 2 Rhone: Data; 6/12/2001 945-2296 945-2296 945-4769 6254859 1 1 Re: MI land Point Affordable Housing CC: Q Urgent X For Review X Please Comment i7 Please Reply 0 Pleaae Recycle, • Comments: Please review the attached draft of the public notice regarding the Midland Point Affordable Housing units. 06/13/01 08:45 ^970 945 9769 LARRY GREEN JUN,12.2001 1:33PN ASPEN GLEN GOLF" CO Midland Point Affordable Housing NO.905 100.3 P.2/2 Coryell Ranch Company LLC and the Garfield County Housing Authority are presenting seven new affordable housing units located near Carbondale in the Midland Point neighborhood. Midland Point is located near the intersection of County Road 109 and County Road 108. There are six duplex units, each consisting of two bedrooms and two bathrooms, and one single family home consisting of three bedrooms and two bathrooms. The six duplex units will be sold for $129,170 each and the single-family home will be sold for $151,150. To qualify, an applicant must matte a combined family income of 1 $49,600 or less. All Midland Point affordable housing units will be sold through a lottery administered by the Garfield County Housing Authority, Midland Point affordable housing applications will be available beginning June 15, 2001 at the Garfield County Building and Planning Department (109 8t' Street, Glenwood Springs) and the Grdrfteld County Housing Authority office (2128 Railroad Avenue, Rifle). Completed applications must be returned to the Garfield County Housing Authority office on or before June 29, 2001. The affordable housing lottery is scheduled for July 20, 2001, After the lottery, the chosen applicants will have three business days from the date of the lottery to sign a formal contract and deposit the $500 initial required' earnest money. Alpine Bank has provided construction financing to Coryell Ranch Company LLC, Permanent financing for the affordable housing units will be available to qualified applicants through Alpine Bank Mortgage Division in the Glenwood Springs branch. Please contact the Garfield County Housing Authority at (970) 945-0779 with any questions. 06/12/01 13:11 V970 945 9769 LARRY GREEN JOUN. 7.2041161p:26AC1 P wg GLEN u n+s CrortvEage CO .., ir; ;_' Mortgage Division r f�} lk l' 71r r 41? ups.' ' June 5. 2001 fid : - Garfield County Housing Authority ti1 � 2128 Railroad Avenue „.. • Rifle, CO 81850 Bank • To Whom It May Concern; - • • .9 • :z 4.;1-; .1, • 47.1 R •J ti +Lr* 1• Sincerely, •, ;•r . NO.Oo5 970-384-3265 x002 P.2/2 Alpine Bank Mortgage Division has reviewed the Midland Point Affordable Hogsint Units qualifying evaluation. Our review included the area median inoorne, standard qualifying ratios under the Fannie Mae/Freddie Mac secondary market underwriting standards and loan to value calculations. In addition, our review selected several mortgage loan programs for First Time Homebuyers and Affordable Housing Mortgage Loans. Our calculation used a higher rate than is available in today's market to anticipate a rising interest rata scenario. We based our analysis on the maximum allowable house price of $129,167 for 4 -person and 8151,147 far a 6 -person to arrive at confirming underwriting standards. It Is our opinion the applicants applying to Alpine Bank Mortgage Division to purchase Midland Point Affordable Housing units, under normal circumstances, would mcelve loan approval. We would be pleased to provide any additional Information and are always available to answer any questions or concerns. Michele Dressei President Alpine Bank Mortgage Cc7 Donald Parris P . 2 DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR CORYELL RANCH September 14, 1999 • TABLE OF CONTENTS Page ARTICLE 1 GENERAL 1 1.1 Community Area 1 1.2 Purposes of Declaration 1 1.3 Declaration 1 1.4 Roaring Fork River 2 ARTICLE 2 DEFINITIONS 2 2.1 Act 2 2.2 Administrative Functions 2 2.3 Annexable Property 2 2.4 Aspen Glen P.U.D. 2 2.5 Articles of Incorporation 2 2.6 Assessment 3 2.7 Association 3 2.8 Association Functions 3 2.9 Association Properties 3 2.10 Board of Directors ....................... 3 2.11 Budget 3 2.12 Binding Envelope 3 2.13 Bylaws 4 2.14 Common Area 4 2.15 Common Assessment 4 2.16 Community Area 4 2.17 County 4 2.18 Declaration 4 2.19 Declarant 4 2.20 Deed of Trust 4 2.21 Design Review Committee 5 2,22 Fishing Areas 5 2.23 Improvement 5 2.24 Improvement to Property 5 2.25 Kennedy Easement 5 2.26 Lease 5 2.27 Lot 5 2.28 Maintenance Funds 5 2.29 Member 5 2.30 Mortgage 5 2.31 Mortgagee 6 2.32 Mortgagor 6 J P\DOCICOR. COv13.30.99 2.33 Notice and Hearing 6 2.34 Notice of Completion 6 2.35 Owner 6 2.36 Permitted Exceptions 6 2.37 Person 6 2.38 Planned Community 6 2.39 Plat 6 2.40 Record or Recorded 6 2.41 Recreational Easement 4 ...... 4..14..,.. ...... . 7 2.42 Reimbursement Assessment 7 2.43 River 7 2.44 Rules and Regulations 7 2.45 Special Assessment 7 2.46 Supplemental Declaration 7 2.47 Supplemental Plat 7 2.48 Tomcat Easement 7 ARTICLE 3 GENERAL RESTRICTIONS APPLIABLE TO COMMUNITY AREA 7 3.1 Maintenance of Community Area 8 3.2 Property Uses 8 3.3 Construction Type 8 3.4 Building Envelopes 8 3.5 No Noxious or Offensive Activity 8 3.6 Annoying Sounds or Odors 8 3.7 No Hazardous Activities 9 3.8 No Unsightliness 9 3.9 Yards 9 3.10 Restrictions on Garbage and Trash 9 3.11 Animals 9 3.12 No Temporary Structures 9 3.13 Restriction on Pipes and Utility 9 3.14 Restrictions on Signs and Advertising 10 3.15 Restrictions on Mining or Drilling 10 3.16 Wells 10 3.17 Maintenance of Drainage 10 3.18 Compliance with Insurance Requirements 10 3.19 Compliance with Laws 11 3.20 Further Subdivision of Lots 11 3.21 Consolidation of Lots 11 3.22 Restrictions on Sewage Disposal Systems 11 3.23 Restrictions on Water Systems ..... 11 3.24 Restoration in the Event of Damage or Destruction 11 3.25 Storage 11 3.26 Vehicle Repairs 11 JP\DOC\COR.CO V13.30.99 1I • • • • • 3.27 Storage of Gasoline and Explosives, Etc. 11 3.28 Trailers, Campers, Recreational and Junk Vehicles 12 3.29 Fences 12 3.30 Air Conditioning and Heating Equipment/Solar Collecting Devices 12 3.31 Leases 12 3.32 Lakes 13 3.33 Easements; Utilities 13 3.34 Landscaping 13 3.35 Swimming Pools and Pool Equipment 14 3.36 Outside Lighting 14 3.37 Prohibition on Use of Pesticides .,,.. 14 3.38 Fire Protection Systems 14 3.39 Engineering and Soils Reports 14 3.40 Irrigation Systems and Ditch Laterals 14 3,41 Antenna and Satellite Dishes 15 ARTICLE 4 ARCHITECTURAL APPROVAL 16 4.1 Approval of Improvements Required 16 4.2 Improvement to Property Defined 16 4.3 Membership of Committee 16 4.4 Establishment of Subcommittees 17 4.5 Address of Design Review Committee 17 4.6 Submission of Plans 17 4.7 Criteria for Approval 17 4.8 Design Guidelines 18 4.9 Design Review Fee 18 4.10 Decision of Committee 18 4.11 Failure of Committee to Act on Plans 18 4.12 Completion of Work After Approval 18 4.13 Notice of Completion ..., 19 4.14 Inspection of Work 19 4.15 Notice of Satisfactory Completion of Improvement to Property 19 4.16 Notice of Noncompliance 19 4.17 Performance Guaranty for Noncompliance or Incompletion 20 4.18 Failure of Committee to Act After Completion 21 4.19 Appeal to Board of Directors of Finding of Noncompliance 21 4.20 Correction of Noncompliance 21 4.21 No Implied Waiver or Estoppel 21 4.22 Committee Power to Grant Variances 21 4.23 Meetings of Committee 22 4.24 Records of Actions 22 4.25 Estoppel Certificates 22 4.26 Nonliability of Committee Action 22 1 P\DOC\CO R. Cov13.30, 99 111 4.27 Constniction Period Exception 23 ARTICLE 5 ASSOCIATION PROPERTIES 23 5.1 Member's Rights of Use and Enjoyment Generally 23 5.2 Right of Association to Regulate Use 23 5.3 No Partition of Association Properties 23 5.4 Liability of Owners for Damage 23 5.5 Association Duties if Damage, Destruction, or Required Improvements 24 5.6 Association Powers in the Event of Condemnation 24 5.7 Title to Association Properties on Dissolution of Association 24 ARTICLE 6 DECLARANT'S RIGHTS AND RESERVATIONS 25 6.1 Period of Declarant's Rights and Reservations 25 6.2 Right to Construct Additional Improvements on Association Properties 25 6.3 Declarant's Rights to Use Association Properties in Promotion and Marketing of Community Area 25 6.4 Declarant's Rights to Complete Development of Community Area 26 6.5 Declarant's Approval of Conveyances or Changes in Use of Association Properties 26 6.6 Declarant's Rights to Grant and Create Easements 26 6.7 Declarant's Rights to Convey Additional Property to Association 27 6.8 Annexation of Additional Properties 27 6.9 Annexation of Additional Unspecified Real Estate 28 6.10 Withdrawal of Annexed Property 28 6.11 Expansion or contraction of Annexable Property 29 6.12 Creation of Drainage Easements 29 6.13 Conversion of Common Areas to Lots 29 6.14 Subdivision of Lots 29 6.15 Expansion of Permitted Property Uses 29 ARTICLE 7 ASSOCIATION OPERATION 30 7.1 Association 30 7.2 Association Board of Directors 30 7.3 Membership in Association 30 7.4 Voting Rights of Members 30 7.5 Declarant Control 30 7.6 Determination of Member Voting Privileges 31 7.7 Registration of Owners 31 JP\DOCCOR.COV13.30.99 iv • • • ARTICLE 8 DUTIES AND POWERS OF ASSOCIATION 31 8.1 General Duties and Powers of Association 31 8.2 Duty to Accept Property and Facilities Transferred by Declarant 31 8.3 Landscaping Easement 32 8.4 Duty to Manage and Care for Association Properties 32 8.5 Duty to Pay Taxes 32 8.6 Duty to Maintain Casualty Insurance 32 8.7 Duty to Maintain Liability Insurance 33 8.8 General Provisions Respecting Insurance 33 8.9 Maintenance of Fidelity Insurance 34 8.10 Other Insurance and Bonds 34 8.11 Duty to Prepare Budgets 34 8.12 Duty to Levy and Collect Assessments 34 8.13 Duty to Keep Association Records 34 8.14 Duties with Respect to Design Review Committee Approvals 34 8.15 Power to Acquire Property and Construct Improvements 35 8.16 Power to Adopt Rules and Regulations 35 8.17 Power to Enforce Declaration and Rules and Regulations 35 8.18 Power to Grant Easements 36 8.19 Power to Convey and Dedicate Property to Governmental Agencies 36 8.20 Power to Borrow Money and Mortgage Property 36 8.21 Power to Engage Employees, Agents, and Consultants 36 8.22 General Corporate Powers 37 8.23 Power to Provide Association Functions 37 8.24 Power to Provide Special Services to Members 37 8.25 Power to Charge for Association Properties, Facilities and Services 37 8.26 Power to Employ Managers 37 8.27 Powers Provided by Law 38 ARTICLE 9 ASSESSMENTS, BUDGETS AND FUNDS 38 9.1 Maintenance Funds to be Established 38 9.2 Establishment of Other Funds 38 9.3 Deposit of Common Assessments to Maintenance Funds 38 9.4 Other Deposits to Maintenance Funds 38 9.5 Disbursements from Maintenance Funds 39 9.6 Authority for Disbursements 39 9.7 Common Assessments .. . 39 9.8 Apportionment of Common Assessments 39 9.9 Funding of Reserve Funds 39 9.10 Supplemental Common Assessments 39 9.11 Annual Budgets 40 JP\DOCCOR.COV13.30.99 9.12 Commencement of Common Assessments/Community Areas 40 9.13 Payment of Assessment 40 9.14 Failure to Fix Assessment 40 9.15 Special Assessments for Capital Expenditures 41 9.16 Reimbursement Assessments 41 9.17 Late Charges and Interest 41 9.18 Attribution of Payments 41 9.19 Notice of Default .. 42 9.20 Remedies to Enforce Assessments 42 9.21 Lawsuit to Enforce Assessments 42 9.22 Lien to Enforce Assessments 42 9.23 Estoppel Certificates 43 9.24 No Offsets 43 ARTICLE 10 SPECIAL PR©VISIONS 43 10.1 Air Quality Restrictions 43 10.2 Duration and Enforceability 43 ARTICLE 11 MISCELLANEOUS 44 11.1 Tenn of Declaration 44 11.2 Amendment of Declaration by Declarant 44 11.3 Amendment of Declaration by Members 44 11.4 Amendment of Articles and Bylaws 45 11.5 Alternative Dispute Resolution 45 11.6 Special Rights of First Mortgagees 45 11.7 Priority of First Mortgage Over Assessments .. 46 11.8 First Mortgage Right to Pay Taxes and Insurance Premiums 11.9 Association Right to Mortgage Information 46 11.10 Notices 46 11.11 Persons Entitled to Enforce Declaration 46 11.12 Violations Constitute a Nuisance 46 11.13 Enforcement of Self -Help 47 11.14 Violations of Law 47 11.15 Remedies Cumulative 47 11.16 Costs and Attorneys' Fees 47 11.17 Limitation on Liability 47 11.18 No Representations or Warranties . 47 11.19 Liberal Interpretation 47 11.20 Governing Law 47 11.21 Colorado Common Interest Ownership Act 47 11.22 Severability 47 11.23 Number and Gender 48 11.24 Captions for Convenience 48 11.25 Mergers or Consolidations 48 J P\DOCICOR. Cov13.3 ©.99 vi 11.26 Disclaimer Regarding Safety 48 JPIDOCCOR.COV\3.30.99 VI' DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR CORYELL RANCH THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR CORYELL RANCH ("Declaration") is made as of this day of , 1999. by Coryell Ranch Company, L.L.C., a Colorado limited liability company ("Declarant"). ARTICLE 1 GENERAL 1.1 Community Area. Declarant is the owner of that certain parcel of land located in the County of Garfield, Colorado, more particularly described on Exhibit "A", attached hereto and incorporated herein by reference (the "Community Area"). Declarant intends to develop the Community Area and the Annexable Property as a high quality planned community of single family residential structures. It is the current intention of the Declarant that the number of Lots to be located within the Community Area shall be thirty (30). However, the total number of Lots within the Community Area shall never exceed eighty-six (86) and never exceed fifty (50) within the Annexable Property. 1.2 Purposes of Declaration. This Declaration is executed (a) in furtherance of a common and general plan for the Community Area and the Annexable Property; subject in all events to the limitations set forth in Section 2.2 below; (b) to protect and enhance the quality, value, desirability and attractiveness of the Community Area; (c) to provide for an Association as a vehicle to hold, maintain, care for and manage Association Properties. including internal landscaped areas which will benefit all Owners of Lots; (d) to define the duties, powers and rights of the Association; (e) to define certain duties, powers and rights of Owners of Lots within the Community Area; and (f) to comply with and effectuate the terms and provisions of the Act. 1.3 Declaration. Declarant, for itself, its successors and assigns, hereby declares that the Community Area and all property which becomes subject to this Declaration in the manner hereinafter provided, and each part thereof shall from the date the same becomes subject to this Declaration, be owned, held, transferred, conveyed sold, leased, rented, hypothecated, encumbered, used, occupied, maintained, altered and improved subject to the covenants, conditions, restrictions, limitations, reservations, exceptions, equitable servitudes and other provisions set forth in this Declaration, for the duration hereof, all of which are declared to be part of, pursuant to, and in furtherance of a common and general plan of development. improvement, enhancement and protection of the Community Area. Notwithstanding the foregoing, in no event shall the Annexable Property, or any portion thereof, be deemed to be burdened by, or subject to, the terms of this Declaration until such property has been annexed to the Community Area, at Declarant's sole option, as more particularly provided herein. The provisions of this Declaration are intended to and shall run with the land, and until their expiration in accordance with the terms hereof, shall bind, be a charge upon and inure to the JP\DOCICOR.COVV3.30.99 1 mutual benefit of (a) the Community Area and all property which becomes part of the Community Area, and each part or parcel thereof, (b) Declarant and its successors and assigns, (c) the Association and its successors and assigns, and (d) all Persons having or acquiring any right, title or interest in any property which is or becomes part of the Community Area, or any part or parcel thereof, or any Improvement thereon, and their heirs, personal representatives, successors and assigns. This Declaration shall be Recorded in the county and shall be indexed in the grantee's index in the name of the Declarant and the Association and in the Grantor's Index in the name of each person or entity executing this Declaration. 1.4 Roaring Fork River. To the extent the Community Area shall abut the River, the terms and provisions of this Declaration shall be subject to the rights of the general public to use the River for passage through the Community Area. ARTICLE 2 DEFINITIONS Unless otherwise expressly provided herein. the following words and phrases when used in this Declaration shall have the meanings hereinafter specified. 2.1 Act. "Act" shall mean the Colorado Common Interest Ownership Act as provided in C.R.S. 38-33.3-101, et. seq., as the same may be amended from time to time. 2.2 Administrative Functions. "Administrative Functions" shall mean all functions as are necessary and proper under this Declaration and shall include, without limitation, providing management and administration of the Association; providing architectural review services under Article 4 hereof; incurring reasonable attorneys' fees and accountants' fees; obtaining errors and omissions insurance for officers, directors and agents of the Association; obtaining fidelity bonds for any Person handling funds of the Association; paying taxes levied against the Association Properties; incurring filing fees, recording costs, and bookkeeping fees; obtaining and maintaining offices and office furniture and equipment; and performing other such reasonable and ordinary administration tasks associated with operating the Association as determined by the Board of Directors from time to time. 2.3 Annexable Property. "Annexable Property" shall mean that real property which is not initially made subject to the terms and provisions of this Declaration. The real property which comprises the Annexable property is more particularly described on Exhibit "B", attached hereto and incorporated herein by reference, and may include such other property which may be annexed to and made a part of the Community Area, as more particularly provided herein. 2.4 Aspen Glen P.U.D. "Aspen Glen P.U.D." shall mean that certain planned unit development as approved by the Board of County Commissioners of Garfield County, Colorado. 2.5 Articles of Incorporation. "Articles of Incorporation" shall mean the Articles of Incorporation of The Homeowners Association of The Coryell Ranch, which have been filed JPIDOCICOR.COV0.30.99 2 • with the office of the Secretary of State in the State of Colorado, as the same may be amended from time to time. 2.6 Assessment. "Assessment"' shall mean a Common Assessment, Special Assessment or Reimbursement Assessment. 2.7 Association. "Association" shall mean The Homeowners Association of The Coryell Ranch, a Colorado nonprofit corporation, its successors and assigns. 2.8 Association Functions. "Association Functions" shall mean and include, but not be limited to, the act of providing, installing, operating, administering, managing, and overseeing public services and functions for the benefit of Owners, including repairs, replacements and maintenance obligations commonly associated with municipal or other local governmental or quasi -governmental organizations, including, without limitation, repair and maintenance of streets, sidewalks, bicycle and pedestrian paths and walkways, animal control, vegetation control, insect and pest control, television service, parking facilities, public transportation facilities, including paths and trails, street cleaning, snow removal. signage, including entry monuments, lighting, including seasonal lighting, project and perimeter fencing, landscape walls, landscaping services and facilities, drainage facilities, including retention and detention ponds. trash and solid waste disposal services, including recycling programs, utility services, and such other services, function and activities, as are deemed appropriate by the Board of Directors. The foregoing list shall not be deemed to be a representation by Declarant of services of facilities which will be available for use of the Owners. 2.9 Association Properties. "Association Properties" shall mean: (a) all real and personal property, including Improvements now or hereafter owned by the Association; (b) all Common Areas, now or hereafter owned by the Association; or (c) all real or personal property with respect to which the Association holds an easement or license for the use, care, or maintenance thereof, or for which the Association has a right or duty to maintain, and which property is held for the common use and enjoyment of the Members pursuant to the terms and provisions of this Declaration. As of the date of this Declaration, the Association Properties are subject to the Permitted Exceptions. 2.10 Board of Directors. "Board of Directors" or "Board" shall mean the Board of Directors of the Association. 2.11 Budget. "Budget"' shall mean a written itemized estimate of the expenses to be incurred by the Association in performing its functions under this Declaration and prepared pursuant to Section 9.11 of this Declaration. 2.12 Building Envelope. "Building Envelope' shall mean that portion of each Lot which is designated on the Plat as suitable for construction of habitable living space thereon. As more fully provided herein, all Improvements to be constructed on a Lot, with the exception of Improvements which are necessary to facilitate ingress to and egress from a Lot or Improvements JP\DOCICOR.COV13.30.99 3 which are otherwise expressly authorized by the Design Review Committee, shall be located within the Building Envelope designated for such Lot. 2.13 Bylaws. "Bylaws" shall mean the Bylaws of the Association which have been or will be adopted by the Board of Directors of the Association, as the same may be amended from time to time. 2.14 Common Area. "Common Area" shall mean any portions of the Community Area designated on the Plat as Common Area or Open Space and which is owned or maintained by the Association for the common use and enjoyment of the Owners, including, but not limited to, ali streets, lanes, alleys, rights-of-way, roads, entry ways, fishing ponds, entry features, sidewalks, pathways, trails, gardens or other open space, and such other easements for the use and benefit of the Owners as may be provided in this Declaration. Such Common Area may be owned: (a) by the Association; (b) in undivided interests by certain Owners; or (c) separately by individual Owners over which the Association may have an easement for maintenance purposes. 2.15 Common Assessment. "Common Assessment" shall mean the assessments made for the purpose of covering the portion of the annual costs of operating the Association, including, but not limited to, expenses incurred in connection with any authorized function of the Association, which are to be paid by each Owner to the Association for the purposes provided herein and charged to such Owner and to the Lot of such Owner. 2.16 Community Area. "Community Area" shall mean the real property described in Exhibit "A" attached hereto, subject to the Permitted Exceptions, and such other real property which may be made subject to this Declaration, from time to time, together with all rights and subject to all obligations, of the Association granted in and to any property pursuant to the Recreational Easement. 2.17 County. "County" shall mean Garfield County, Colorado. 2.18 Declaration. "Declaration" shall mean this instrument as it may be amended from time to time. 2.19 Declarant. "Declarant" shall mean Coryell Ranch Company, L.L.C., a Colorado limited liability company, its successors, assigns and affiliates. A Person shall be deemed to be a "successor and assign" of Coryell Ranch Company, L.L.C., as Declarant only, if specifically designated in a duly Recorded instrument as a successor or assign of Declarant under this Declaration and shall be deemed a successor and assign of Declarant only as to the particular rights or interests of Declarant under this Declaration which are specifically designated in the written instrument. However, a successor to Coryell Ranch Company, L.L.C. by consolidation or merger shall automatically be deemed a successor or assign of Coryell Ranch Company, L.L.C., as Declarant under this Declaration. 2.20 Deed of Trust. "Deed of Trust" shall have the same meaning as a Mortgage. JP \ DOCCOR.COVa3 0.99 4 • 2.21 Design Review Committee. "Design Review Committee" shall mean the Committee provided for in Article 4 of this Declaration. • • 2.22 Fishing Areas. "Fishing Areas" shall mean those areas set forth on Exhibit "C" and which shall be for the benefit of the Owners and which shall be subject to the Recreational Easement. 2.23 Improvement. "Improvement" shall mean all structures and any appurtenances thereto of every type or kind, including, but not limited to, dwelling units, buildings, outbuildings, swimming pools, patio covers, awnings, painting of any exterior surfaces of any visible structure, additions, walkways, outdoor sculptures or artwork, sprinkler pipes, garages, carports, roads, driveways, parking areas, fences, screening walls, retaining walls, stairs, decks, fixtures, landscaping, hedges, windbreaks, plantings, planted trees and shrubs, poles, signs, exterior tanks, solar equipment, exterior air conditioning and water softener fixtures. 2.24 Improvement to Property. "Improvement to Property" shall mean any Improvement, change, alteration or addition to any property within the Community Area. "Improvement to Property" shall include, but not be limited to those improvements more particularly described in Section 4.2 of this Declaration. 2.25 Kennedy Easement. "Kennedy Easement" shall mean that certain easement to be granted by Declarant for the benefit of the owner of certain real property on Exhibit "D" and which shall be substantially in the same form as Exhibit "E" attached hereto. 2.26 Lease. "Lease" shall mean and refer to any agreement for the leasing or rental of a dwelling unit located on a Lot, and shall specifically include, without limitation, a month-to- month rental. 2.27 Lot. "Lot" shall mean any lot within the Community Area which is shown upon any Recorded Plat, Supplemental Plat, or any other parcel of land which may be sold or conveyed without violation of the provisions of Colorado law pertaining to the subdivision of land. For purposes of conforming the terms and provisions of this Declaration to the terms and conditions of the Act, the term "Lot" shall be analogous to the term "Unit," as that term is defined in the Act. 2.28 Maintenance Funds. "Maintenance Funds" shall mean the accounts into which the Board shall deposit monies paid to the Association and from which disbursements shall be made in the performance of the functions of the Association pursuant to Article 8 hereof. 2.29 Member. "Member" shall refer to the members of the Homeowners Association of The Coryell Ranch and shall mean the Person or, if more than one, all Persons collectively who constitute the Owner of a Lot. 2.30 Mortgage. "Mortgage" shall mean any mortgage or deed of trust or other such instrument, given by the Owner of a Lot, encumbering the Lot to secure the performance of an obligation or the payment of a debt and which is required to be released upon performance of the JP\DOC\COR.COV\3.30.99 5 obligation or payment of the debt. The term "'Deed of Trust" when used herein shall be synonymous with the term "Mortgage". 2.31 Mortgagee. "Mortgagee" shall mean a mortgagee under a Mortgage or a beneficiary under a Deed of Trust, as the case may be, and the assignees of such mortgagee. 2.32 Mortgagor. "Mortgagor" shall mean the Person who mortgages his or its property to another (i.e., the maker or grantor of a Mortgage). The terra "Mortgagor" shall include a trustor or grantor under a Deed of Trust. 2.33 Notice and Hearing. "Notice and Hearing" shall mean a written notice and public hearing before the Board of Directors or a Tribunal, as defined in the Bylaws, appointed by the Board, in the manner provided in the Bylaws. 2.34 Notice of Completion. "Notice of Completion" shall mean written notice to the Design Review Committee of the completion of any Improvement to Property pursuant to Article 4 of this Declaration. 2.35 Owner. "Owner" shall mean the Person, including Declarant, or, if more than one, all Persons collectively, who hold fee simple title of Record to a Lot, including sellers under executory contracts of sale and excluding buyers thereunder. 2.36 Permitted Exceptions. "Permitted Exceptions" shall mean all encumbrances, liens, restrictions, easements and other items of record which encumber the Community Area as of the date this Declaration is recorded. 2.37 Person. "Person" shall mean a natural person, a corporation, a limited liability company, a partnership, or any other entity capable of holding title to real property pursuant to the laws of the State of Colorado. 2.38 Planned Community. "Planned Community" shall have the same meaning as set forth in the Act. 2.39 Plat. "Plat" shall mean and include the land survey plat (and any amendments thereto) which depicts all or a portion of the Community Area and which further depicts and locates thereon the location of Lots, Building Envelopes, Common Areas, and such other items as may be required by the Act. The Plat, and any amendments or supplements thereto, are hereby incorporated herein and made a part hereof by reference. For the purposes of this Declaration, the term "Plat" shall also mean and include such Supplemental Plat Recorded by Declarant for the purposes of annexing all or a portion of the Annexable Property to the Community Area. 2.40 Record or Recorded. "Record" or "Recorded" shall mean the filing for record of any document in the office of the Clerk and Recorder of the County. JP1DOC\COR.COVf3.30.99 6 • • 2.41 Recreational Easement. "Recreational Easement" shall mean that certain easement to be granted by the Declarant for the benefit of owners of property within the Aspen Glen P.U.D. which shall be substantially in the same form as Exhibit "F" attached hereto. 2.42 Reimbursement Assessment. "Reimbursement Assessment" shall mean a charge against a particular Owner and his Lot for the purpose of reimbursing the Association for expenditures and other costs of the Association in curing any violation, directly attributable to the Owner, of the Declaration or the Rules and Regulations, pursuant to Section 9.16 hereof, together with late charges and interest as provided for herein. 2.43 River. "River" shall mean the Roaring Fork River. 2.44 Rules and Regulations. "Rules and Regulations" shall mean rules and regulations adopted by the Board of Directors, as provided in Section 8.16 of this Declaration. 2.45 Special Assessment. "Special Assessment" shall mean a charge against each Owner and his Lot representing a portion of the costs of the Association for the purpose of funding capital repairs, maintenance, replacements, and Improvements, or for any other purpose authorized by the Board of Directors as provided herein. 2.46 Supplemental Declaration. "Supplemental Declaration" shall mean a written instrument containing covenants, conditions, restrictions, reservations, easements, or equitable servitudes, or any combination thereof, which may be Recorded on any portion of the Annexable Property in accordance with Section 6.8 of this Declaration. 2.47 Supplemental Plat. "Supplemental Plat" shall mean and include any land survey plat which is Recorded by Declarant for the purpose of annexing the property described therein to the Community Area. 2.48 Tomcat Easement. "Tomcat Easement" shall mean that certain easement to be granted by the Declarant for the benefit of the owner of real property described on Exhibit "G" attached hereto and which shall be substantially in the same form as Exhibit "H" attached hereto. ARTICLE 3 GENERAL RESTRICTIONS APPLICABLE TO COMMUNITY AREA All real property within the Community Area shall be held, used, and enjoyed subject to the following limitations and restrictions, and subject to exemptions of Declarant set forth in this Declaration. The strict application of the following limitations and restrictions in any specific case may be modified or waived in whole or in part by the Design Review Committee if such strict application would be unreasonably or unduly harsh under the circumstances. Any such modification or waiver must be in writing or be contained in written guidelines or rules promulgated by the Design Review Committee. Violation of this Article by an Owner shall permit the Association, after Notice and Hearing, to enter on the Lot of the Owner and cure the violation or cause compliance with this provision and to levy and collect a Reimbursement JP\DOCICOR.COV13.30.99 7 Assessment for the costs and expenses of the Association in so doing; provided, however, that there shall be no entry into the interior of an Improvement intended for hurnan occupancy without the consent of the Owner thereof unless a clear emergency exists. 3.1 Maintenance of Community Area. No property within the Community Area shall be permitted to fall into disrepair, and all property within the Community Area, including any Improvements and landscaping thereon, shall be kept and maintained in a clean, attractive, and sightly condition and in good repair. Maintenance, repair, and upkeep of each Lot shall be the responsibility of the Owner of the Lot. Maintenance, repair and upkeep of Association Properties shall be the responsibility of the Association. 3.2 Property Uses. Except as otherwise provided in Article 6 hereof, all Lots shall be used for private residential purposes and no dwelling unit erected or maintained within the Community Area shall be used or occupied for any purpose other than for single-family dwellings. Notwithstanding the foregoing, business activities associated with the sale of Lots or residences constructed thereon shall be allowed. In addition, in-home businesses or occupations not involving the servicing of customers or employees, other than the Owners, shall be allowed, provided such activities are conducted solely within the residence and do not create or result in any nuisance or any unreasonable, unwarranted, or unlawful use or interference with public or private rights, including, but not limited to, unreasonable or unwarranted use or interference with streets, excessive traffic or parking requirements, rights-of-way, or sidewalks, or in any other offensive or noxious activities. 3.3 Construction Type. All construction shall be new. No building previously used at another location nor any building or structure originally constructed as a mobile dwelling or structure may be moved onto a Lot, except as expressly hereinafter provided for temporary buildings. In addition to the foregoing, an engineered foundation shall be required for all residential dwelling units constructed within the Community Area. 3.4 Building Envelopes. All improvements to be constructed on a Lot, with the exception of Improvements which are necessary to facilitate ingress to and egress from a Lot or Improvements which are otherwise expressly authorized by the Design Review Committee, shall be located within the Building Envelope designated for such Lot. 3.5 No Noxious or Offensive Activity. No noxious or offensive activity shall be carried on upon any property within the Community Area, nor shall anything be done or placed thereon which is or may become a nuisance or cause an unreasonable embarrassment, disturbance, or annoyance to others. 3.6 Annoying Sounds or Odors. No sound or odor shall be emitted from any property within the Community Area which is noxious or unreasonably offensive to others. Without limiting the generality of the foregoing, no exterior speakers, horns, whistles, bells, or other sound devices, other than security devices used exclusively for security purposes, shall be located or used on any property except with the prior written approval of the Design Review Committee. JPIDCICCOR.Cov13.30.99 8 3.7 No Hazardous Activities. No activity shall be conducted on, and no Improvement shall be constructed on, any property within the Community Area which is or might be unsafe or hazardous to any Person or property. Without limiting the generality of the foregoing, no firearms shall be discharged upon any property within the Community Area. 3.8 No Unsightliness. All unsightly structures, facilities, equipment, objects, and conditions shall be enclosed within a structure, including snow removal equipment and garden or maintenance equipment except when in actual use. No laundry or wash shall be dried or hung outside any dwelling unit. 3.9 Yards. All yards and open spaces and the entire area of every Lot on which no building has been constructed shall be maintained in accordance with standards to be established by the Design Review Committee. In addition, each Lot shall be kept free from brush or other growth or trash which, in the reasonable opinion of the Design Review Committee, is unsightly or causes undue danger of fire. Notwithstanding the foregoing, the Design Review Committee shall be authorized to permit landscaping on a Lot in accordance with a landscaping plan approved by the Design Review Committee in accordance with the provisions hereof. 3.10 Restrictions on Garbage and Trash. No refuse, garbage, trash, lumber, grass, shrub or tree clippings, plant waste, compost, metal, bulk materials, scrap, refuse, or debris of any kind shall be kept, stored, or allowed to accumulate on any Lot except within an enclosed structure or appropriately screened from view, except that any container containing such materials may be placed outside at such times as may be necessary to permit garbage or trash pickup. 3.11 Animals. No animals, livestock or poultry of any kind shall be raised, bred or kept on any Lot, except that domesticated birds or fish and other small domestic animals permanently confined indoors will be allowed. No other animals, except an aggregate of not more than two (2) domesticated animals (e.g., one (1) cat and one (1) dog) per Lot, will be permitted within the Community Area; provided that (a) such animals are not kept, bred, or maintained for any commercial purpose; (b) such animals must be fenced or restrained at all times within a Lot; and (c) only one (1) dog will be allowed for each residential dwelling unit. located within the Community Area. No animal of any kind shall be permitted which in the opinion of the Design Review Committee makes an unreasonable amount of noise or odor or is a nuisance. All household pets shall be controlled by their Owner and shall not be allowed off the Owner's Lot except when properly leashed and accompanied by the pet Owner or his representative. Each Owner of a household pet shall be financially responsible and liable for any damage or destruction caused by said household pet and shall be personally and financially responsible for any clean-up related to such pet. 3.12 No Temporary Structures. No tent, shack, temporary structure, or temporary building shall be placed upon any property within the Community Area except with the prior written consent of the Design Review Committee obtained in each instance. JP'DOC\COR.COV13.30.99 9 3.13 Restriction on Pipes and Utility Lines. Pipes for water, gas, sewer, drainage, or other purposes, and utility meters or other utility facilities shall be kept and maintained, to the extent reasonably possible, underground or within an enclosed structure. Solar power units meeting all governmental guidelines for residential purposes may be utilized if such unit is approved in advance by the Design Review Committee. 3.14 Restrictions on Signs and Advertising. No sign, poster, billboard, advertising device, or display of any kind shall be erected or maintained anywhere within the Community Area so as to be evident to public view. Provided, however, development related signs owned or erected by Declarant and house numbering signs approved by the Design Review Committee shall be permitted. "For Sale" or "For Rent" signs shall not be permitted. 3.15 Restrictions on Mining or Drilling. No property within the Community Area shall be used for the purpose of mining, quarrying, drilling, boring, or exploring for or removing underground water, oil, gas, or other hydrocarbons, minerals, rocks, stones, gravel, or earth, except as deemed necessary by Declarant or any Person designated by Declarant for the development of the Community Area as contemplated herein. Additionally, Declarant, for itself and its successors and assigns, excepts and reserves, and shall retain the right to develop and remove, any such oil, gas, hydrocarbons or minerals by slant drilling or other suitable means of subterranean entry; provided, however, that any such method of slant drilling or other means of subterranean entry may only be employed without impairing structures, Improvements or appurtenances, or the use thereof, located or to be located on any Lot. 3.16 Wells. No well from which water is produced shall be dug, nor shall storage tanks or reservoirs be made or operated anywhere in the Community Area; provided, however, the Association shall have such right, but not the obligation, in connection with its performance of Association Functions to drill wells, provided further that nothing herein shall prevent the drilling or, the installation of wells, or the construction and maintenance of water storage tanks by Declarant or any special district in which the Community Area is located, for purposes of providing water to the Community Area and adjacent areas. 3.17 Maintenance of Drainage. There shall be no interference with the established drainage pattern over any property within the Community Area, except as approved in writing by the Design Review Committee. Approval shall not be granted unless provision is made for adequate alternate drainage. The "established drainage pattern" shall mean the drainage pattern which exists at the time the overall grading of any property is completed and shall include any established drainage pattern shown on any plans approved by the Design Review Committee. The established drainage pattern may include the drainage pattern: (a) from Association Properties over any Lot; (b) from any Lot over the Association Properties; (c) from any property owned by the County or other Persons over any Lot; (d) from any Lot over property owned by the County or other Persons; or (e) from any Lot over another Lot. 3.18 Compliance with Insurance Requirements. Except as may be approved in writing by the Board of Directors, nothing shall be done or kept on property within the Community Area which may result in a material increase in the rates of insurance or would result in the J PIDOC\COR. CO VL3.3 0.99 10 • • cancellation of any insurance maintained by the Association or any other Owner within the Community Area. 3.19 Compliance with Laws. Nothing shall be done or kept on any property within the Community Area in violation of any law, ordinance, rule, or regulation of any governmental authority having jurisdiction. 3.20 Further Subdivision of Lots. The Owner of a Lot shall not subdivide a Lot. 3.21 Consolidation of Lots. The Owner of more than one contiguous Lot, may request the Design Review Committee for permission to apply to the appropriate officials of Garfield County, Colorado, to consolidate such Lots into one Lot. Such request must be submitted with a plat showing the new proposed Building Envelope and a Phase I Geologic Investigation by a professional geologist relative to the Lots being so combined. Should the Design Review Committee and the appropriate Garfield County, Colorado office approve such combination, the Owner shall remain responsible for paying assessments for each Lot as if such combination had not occurred and shall also be entitled to one (1) vote for each Lot as if such Lots had not been combined. 3.22 Restrictions on Sewage Disposal Systems. Except as deemed necessary by Declarant in the development of the Community Area contemplated herein, no cesspool, septic tank, or other individual sewage disposal system shall be installed within the Community Area. 3.23 Restrictions on Water Systems. Except as deemed necessary by Declarant in the development of the Community Area contemplated herein and except as provided in Section 3.40 hereof, no individual water supply system shall be installed or maintained for any property within the Community Area. 3.24 Restoration in the Event of Damage or Destruction. In the event of damage or destruction of any Improvement on any Lot, the Owner thereof shall cause the damaged or destroyed Improvement to be restored or replaced to its original condition or such other condition as may be approved in writing by the Design Review Committee, or the Owner shall cause the damaged or destroyed Improvement to be demolished and the Lot to be suitably landscaped. subject to the approval of the Design Review Committee, so as to present a pleasing and attractive appearance. Such Improvements shall be repaired, restored, or otherwise demolished and suitably landscaped within an established time frame set forth in design review guidelines promulgated by the Design Review Committee. 3.25 Storage. No building materials shall be stored on any Lot except temporarily during continuous construction of an Improvement. 3.26 Vehicle Repairs. No maintenance, servicing, repair, dismantling, or repainting of any type of vehicle, boat, machine, or device may be carried on, except within a completely enclosed structure which screens the sight and sound of the activity from the street and from other Lots. JP\DOCICOR.CO V13.30.99 11 3.27 Storage of Gasoline and Explosives, Etc. No Lot shall be used for the storage of explosives, gasoline, or other volatile and/or incendiary materials or devices or any materials deemed hazardous substances under applicable environmental laws, rules, or regulations. Gasoline or fuel for Owner's lawn mower, snowblower, and the like may be maintained on an incidental basis on the Lot in an amount not to exceed ten (10) gallons. 3.28 Trailers, Campers, Recreational and Junk Vehicles. No boat, camper (on or off supporting vehicles), trailer, tractor, truck, industrial or commercial vehicle (both cabs or trailers), towed trailer unit, motorcycle, disabled, junk, or abandoned vehicles, motor home, mobile home, recreational vehicle, or any other vehicle, the primary purpose of which is recreational, sporting, or commercial use, shall be parked or stored in, on, or about any Lot or street within the Community Area, except within the attached garage or unless such vehicles are concealed from view and the screening of such vehicles has been approved by the Design Review Committee. For the purposes of this covenant, any 3/4 -ton or smaller vehicle, commonly known as a pickup truck, shall not be deemed a commercial vehicle or truck. The Association shall have the right to enter on Owner's Lot to remove and store, at Owner's expense, vehicles in violation of this Section. Any such Owner shall be entitled to five (5) days' written notice prior to such action by the Association. No snowmobile or recreational vehicle powered by an internal combustion engine may be operated within the Community Area except for purposes of ingress and egress and only across designated streets and rights-of-way. 3.29 Fences. Fences along or adjacent to the boundary or lot line may be constructed, but only pursuant to criteria established by the Design Review Committee. On any Lots where fences are permitted, the fence may only be constructed upon the prior written approval of the Design. Review Committee and in conformance with standard design specifications previously approved by the Design Review Committee. 3.30 Air Conditioning and Heating Equipment/Solar Collecting Devices. No heating, air conditioning, air movement, solar collection (e.g., swamp coolers) or refrigeration equipment shall be placed, allowed, or maintained anywhere other than on the ground; provided. however, that solar units meeting all governmental guidelines for residential uses may be located on the roof if (a) such solar unit is built into and made an integral part of the roof flashing or the structure of any house constructed on such Lot, and (b) such solar unit is specifically approved by the Design Review Committee in accordance with Article 4 below. The type, size, location and necessary screening for any proposed solar collection device shall be submitted to the Design Review Committee in accordance with its established procedures and the Design Review Committee shall have the authority to approve, conditionally approve, or disapprove the proposed collection device in accordance with the terms and provisions hereof. Notwithstanding the foregoing, in no event will the terms and provisions of this Declaration be deemed to prohibit the use of solar collection devices within the Community Area and in no event shall the Design Review Committee unreasonably restrict the right to use solar collection devices by any Owner of a Lot within the Community Area. JP DOC\COR.COV13.30.99 12 3.31 Leases. Any Owner shall have the right to Lease his Lot under the following conditions: 3.31.1 All Leases shall be in writing; 3.31.2 All Leases shall be for a Lot with a completed residence thereon; 3.31.3 All Leases shall provide that the terms of the Lease and lessee's occupancy of the Lot shall be subject in all respects to the provisions of this Declaration, and the Articles of Incorporation, the Bylaws, and the Rules and Regulations of the Association, and that any failure by the lessee to comply with any of the aforesaid documents, in any respect, shall be a default under the Lease; and 3.31.4 Each Owner shall notify the Association immediately upon the leasing of his Lot, and register with the Association both the name(s) of the tenant(s) and new mailing information for notices to be sent from the Association directly to such Owner. 3.32 Lakes. No swimming or boating activities shall be conducted on any lakes or ponds located within the Community Area. Fishing will be allowed in accordance with the provisions of the Rules and Regulations. 3.33 Easements; Utilities. All streets, pedestrian ways and easements shown on the Recorded Plat for any portion of the Community Area have been reserved for the purposes indicated on such Plat. No Owner may erect any structure of any type whatsoever in such easement areas, nor may an Owner use the surface of such easement areas for any private use, other than landscaping which will not interfere with the use of said easement by the entities for whose benefit it has been reserved. With respect to such easement areas, as well as any other easement areas described on a Plat or within recorded easement documents, any and all bona fide public utility service companies, including, but not limited to, Roaring Fork Water and Sanitation District, Public Service Company of Colorado, Holy Cross Electric Association, Inc., Rocky Mountain Natural Gas and U.S. West Communications, shall have the right of access, ingress. egress, and use of such easement areas for the installation and maintenance of utility facilities. Except as to special street lighting or other aerial utility facilities which may be required by the County or may be required by the franchisee of any utility company, no aerial facilities of any type (except meters, risers, service pedestals and other surface installations necessary to maintain or operate appropriate underground facilities) shall be erected or installed within the Community Area, whether upon Lots, easements, streets, or rights-of-way of any type, either by a utility company or any other person or entity, (including but not limited to any person owning or acquiring any part of the Community Area) and all utility service facilities (including but not limited to water, sewer, gas, electricity and telephone) shall be buried underground, under recreational easements, Common Areas, streets, or other utility easement areas for the purpose of serving any structure located on any part of the Community Area. 334 Landscaping. Each Lot shall be fully landscaped within thirty (30) days of the date on which a certificate of occupancy is obtained for the residence, subject to excusable delays J PIDOC\COR.COV13.30.99 13 as determined by the Design Review Committee due to weather. The landscaping of each Lot shall be primarily indigenous plant life from an established plant list as established by the Design Review Committee. Home lawns shall be of an identical or very similar insect resistant blend of rough grasses naturally occurring in the area and such grasses shall be subject to guidelines promulgated by the Design Review Committee. No landscaping plan shall be implemented until approval of the Design Review Committee has been obtained. Each Owner shall maintain the landscaping upon such Owner's Lot in good condition. Horne lawns and Common Areas shall be irrigated with surface waters wherever practical. Each Owner shall diligently maintain, cultivate, husband, protect and preserve the shrubs and trees upon his Lot, including, without limitation, the removal of dead branches, dead brush and performance of other tasks calculated to remove or eliminate material which constitutes or creates a fire hazard. Each Owner shall cooperate with the Association in its brush clearing and fire protection husbandry program for reduction of fire hazard on Common Areas. 3.35 Swimming Pools and Pool Equipment. No pool may be erected, constructed or installed without the prior written consent of the Design Review Committee. Above -ground pools are expressly prohibited. All pool service equipment shall be fenced and shall not be visible from any residential street within the Community Area. 3.36 Outside Lighting. All exterior lighting installed or maintained on any dwelling unit located on a Lot shall be placed so that the light source is not visible from the dwelling on any neighboring Lot or any Common Area. The Design Review Committee may establish various standards for exterior lighting including, without limitation, standards for hue and intensity. 3.37 Prohibition on Use of Pesticides. Use of Pesticides, herbicides, fertilizers and fungicides shall be prohibited on that portion of any Lot located within twenty (20') feet of the River. The purpose of limiting or prohibiting use of pesticides, herbicides, fertilizers, or fungicides on such portion of the Lots abutting the River shall be to minimize the possible contamination from runoff of such chemicals into the River. Except as provided above, the use of pesticides approved by the Design Review Committee shall be allowed three (3) times annually for the control of weeds. In addition to the foregoing, only natural organic based fertilizers shall be used on home lawns and gardens. A maximum of three (3) applications shall be allowed annually. 3.38 Fire Protection Systems. In the event that a dwelling unit or other Improvement constructed upon a Lot is four thousand eight hundred (4800) square feet or larger, the Owner of such Lot shall be required to install a fire protection sprinkler system within such dwelling unit or Improvement. Such fire protection sprinkler system shall be designed in accordance with all applicable fire codes. 3.39 Engineering and Soils Reports. Certain Lots may be subject to geologic and hydraulic hazards. All Improvements shall require the submittal of an engineering report addressing soils and geology conditions, foundation design and drainage prepared by a registered JPID CJCICOR. COv13.30.99 14 • • • • professional engineer. All Lot development.. including Improvement construction, shall be conducted in accordance with engineer's stipulations. 3.40 Irrigation. Systems and Ditch Laterals. Declarant hereby discloses that certain irrigation ditch laterals are currently located or may be constructed (a) within easement areas located upon certain Lots; (b) upon Association Properties; or (c) in areas adjacent to certain Lots or Association Properties ("Ditch Laterals"). Declarant further discloses that as of the date of this Declaration and to the best of Declarant's knowledge, the ownership of any and all water rights carried or to be carried in such Ditch Laterals is vested in the Declarant. In accordance with the foregoing, in no event shall the Association or any Owner be entitled to the right of use of the Ditch Laterals, or any water flowing through such Ditch Laterals, except pursuant to a written agreement (license) between the Association and the Declarant. In no event shall any Owner be entitled to install irrigation systems which divert water from the Ditch Laterals or make any modifications to the Ditch Laterals without the prior written approval of the Declarant. In addition, in no event shall any Owner obstruct or impede the flow of water through any Ditch Lateral. Except as otherwise provided herein, no permanent or temporary Improvements (including, without limitation, landscaping and fencing) shall be constructed by an Owner within or upon any Ditch Lateral or drainage or irrigation easement located within, or adjacent to, the Community Area. In the event that an Owner desires to construct any Improvement within or upon any such Ditch Lateral or drainage or irrigation easement, such Owner shall submit the plans for such Improvements to the Design Review Committee in accordance with the terms and provisions of Article 4 hereof and to the Declarant for approval, which approval can be withheld for any reason. In the event the Design Review Committee and the Declarant approve the plans for the proposed Improvements in accordance with the provisions of Article 4 hereof, the Owner of such Lot may construct such Improvements in accordance with the plans approved by the Design Review Committee. IN ACCORDANCE WITH THE FOREGOING, AND NOTWITHSTANDING ANYTHING IN THIS DECLARATION TO THE CONTRARY, IN NO EVENT SHALL THE ASSOCIATION OR THE DECLARANT BE OBLIGATED FOR ANY LOSS, DAMAGE, COST OR EXPENSE INCURRED BY ANY OWNER FOR DAMAGE OR. DESTRUCTION TO ANY IMPROVEMENT LOCATED WITHIN OR UPON ANY DITCH LATERAL OR ANY DRAINAGE OR IRRIGATION EASEMENT AND THE CONSTRUCTION OF ANY IMPROVEMENT WITHIN SUCH AREAS SHALL BE AT THE RISK OF SUCH OWNER. In the event that an Owner desires to construct any Improvement within or upon any Ditch Lateral or any drainage or irrigation easement, Declarant and the Association hereby disclaim any obligation or potential liability regarding the maintenance, operation and repair of the Ditch Laterals. All Owners hereby assume any risk involved with respect to Ditch Laterals and hereby acknowledge that neither the Association nor the Declarant shall have any responsibility or liability of any kind to any Owner who incurs any loss, damage, cost or expense arising from or related to such Ditch Laterals, including, but not limited to, any loss or damage caused by flooding. In accordance with the foregoing, such Owners, on behalf of themselves and their successors and assigns, by acceptance of a deed, acknowledge their assent to the provisions hereof, and hereby release Declarant and the Association, and each of their officers, directors, partners, agents, employees, stockholders and contractors, from and against any and all obligations, claims, demands, liabilities, costs, expenses, attorneys' fees, or causes of .P\DOC\COR.Cov13.30.99 15 action of any kind whatsoever, whether arising prior or subsequent to the date hereof, whether known or unknown, based upon, arising out of, or in any manner related to, the Ditch Laterals. 3.41 Antenna and Satellite Dishes. If an Owner wishes to install an antenna to receive video programming, the Owner shall notify the Design Review Committee in writing of the planned installation and the proposed location thereof at least thirty (30) days prior to the installation. The antenna installation and location shall comply with all fire, electrical and other applicable safety codes, and the installing Owner shall, to the extent feasible, install the antenna in a location that minimizes its visibility from neighboring Lots and Common Areas. The installing Owner shall be obligated to paint the antenna so that it blends into the background against which it is mounted and to plant and maintain such reasonable landscaping as will screen the antenna from neighboring Lots and Common Areas. Provided always, that in the event that in any particular situation any of the foregoing requirements or restrictions cause an unreasonable delay or cost in the installation, maintenance or use of the antenna, or prevent the reception of acceptable quality signals. said requirements or restrictions shall be invalid as they apply to that particular situation. Satellite dishes that exceed one meter in diameter, and MDS antennas that exceed one meter in diameter or diagonal measurement, shall not be allowed within the Community Area. Mast antennas that extend higher than 12 feet above the roof line and antennas that are not used to receive video programming shall only be permitted within the Community Area if they receive the prior written approval of the Design Review Committee as to design, location and screening from neighboring Lots and Common Areas. ARTICLE 4 ARCHITECTURAL APPROVAL 4.1 Approval of Improvements Required. The approval of the Design Review Committee shall be required for any Improvement to Property on any Lot, except (a) for any Improvement to Property made by Declarant; (b) where approval is not reasonably required to carry out the purposes of this Declaration as determined by the Design Review Committee; or (c) where prior approval of Improvements to Property may be waived or certain Improvements to Property may be exempted in writing or under written guidelines or rules promulgated by the Design Review Committee. 4.2 Improvement to Property Defined. "Improvement to Property"' requiring approval of the Design Review Committee shall mean and include, without limitation, any of the following occurring within the Community Area: (a) the construction, installation, erection, or expansion of any building, structure, or other Improvement, including utility facilities and fences; (b) the demolition, destruction or removal, by voluntary action, of any building, structure, tree, vegetation or other Improvement; (c) the grading, excavation, filling, or similar disturbance to the surface of the land including, without limitation, change of grade, change of ground level, change of drainage pattern, or change of stream bed; and (d) any change or alteration of any previously approved Improvement to Property, including any change of exterior appearance, color, or texture occurring. JP\DOC\C0R.CCV13.30.99 16 4.3 Membership of Committee. The Design Review Committee shall consist of three (3) members, all of whom shall be initially appointed by Declarant. Declarant shall have the continuing right to appoint all three (3) members during the Appointment. Period (as hereinafter defined). During the period of development of the Community Area while Declarant has rights to appoint members of the Design Review Committee, Declarant shall give the Association written notice of the appointment or removal of any member of the Design Review Committee. The "Appointment Period" shall mean the period of time commencing as of the date of Recordation of this Declaration and continuing until the earliest to occur of the following events: (a) when all Lots which may be created within the Community Area have been conveyed to Persons other than Declarant and certificates of occupancy have been issued for the residences constructed thereon; or (b) when, in its discretion, Declarant voluntarily relinquishes such right, Members of the Design Review Committee may but shall not necessarily be Members of the Association. After expiration of the Appointment Period, members of the Design Review Committee shall be appointed by the Board of Directors. Members of the Design Review Committee appointed by the Board of Directors may be removed at any time by the Board, and shall serve for such term as may be designated by the Board or until resignation or removal by the Board. After the expiration of the Appointment Period, the Association may at any time and from time to time change the authorized number of members of the Design Review Committee. 4.4 Establishment of Subcommittees. The Design Review Committee shall have the right to establish subcommittees ("Covenant Committees") to review the modifications to Improvements upon Lots after the initial construction thereof has been completed and a certificate of occupancy has been issued thereon, and for enforcement of compliance with this Declaration and any Supplemental Declaration applicable to a Lot. For purposes of this Declaration, all references to the Design Review Committee shall also refer to any Covenant Committee. The procedures for establishment, the rights and duties thereof, and the limitations thereon shall be established and adopted by the Design Review Committee. 4.5 Address of Design Review Committee. The address of the Design Review Committee shall be at the principal office of the Association. 4.6 Submission of Plans. Prior to submission of building plans to the County for a building permit when applicable and prior to commencement of work to accomplish any proposed Improvement to Property, the Person proposing to make such Improvement to Property ("Applicant") shall submit to the Design Review Committee at its offices such descriptions, surveys, plot plans, drainage plans, elevation drawings, construction plans, specifications, and samples of materials and colors as the Design Review Committee shall reasonably request showing the nature, kind, shape, height, width, color, materials, and location of the proposed Improvement to property. The Applicant shall be entitled to receive a receipt for the same from the Design Review Committee or its authorized agent. The Design Review Committee may require submission of additional plans, specifications, or other information prior to approving or disapproving the proposed Improvement to Property. Until receipt by the Design Review Committee of all required materials in connection with the proposed Improvement to Property, the Design Review Committee may postpone review of any materials submitted for approval. JPIDff C\COR.COvl3.30.99 17 4.7 Criteria for Approval. The Design Review Committee shall approve any proposed Improvement to Property only if it deems in its reasonable discretion that the Improvement to Property in the location indicated will not be detrimental to the appearance of the surrounding areas of the Community Area as a whole; that the appearance of the proposed Improvement to Property will be in harmony with the surrounding areas of the Community Area; that the Improvement to Property will not detract from the beauty, wholesomeness, and attractiveness of the Community Area or the enjoyment thereof by Owners; that the upkeep and maintenance of the proposed Improvement to Property will not become a burden on the Association; and that the proposed Improvement to Property does not affect the drainage plan for the Community Area or any portion thereof. The Design Review Committee may condition its approval of any proposed Improvement to Property upon the making of such changes therein as the Design Review Committee may deem appropriate. 4.8 Design Guidelines. The Design Review Committee may issue standards or rules ("Design Guidelines") relating to the procedures, materials to be submitted, fees, and additional factors which will be taken into consideration in connection with the approval of any proposed Improvement to Property. The Design Guidelines may specify circumstances under which the strict application of limitations or restrictions under this Declaration (which are not substantial or material in nature) will be waived or deemed waived in whole or in part because of a change in applicable laws or because strict application of such limitations or restrictions would be unreasonable or unduly harsh under the circumstances. The Design Guidelines may waive the requirement for approval of certain Improvements to Property or exempt certain Improvements to Property from the requirement for approval, if such approval is not reasonably required to carry out the purposes of this Declaration and such Improvements are not substantial in nature. 4.9 Design Review Fee. The Design Review Committee may, in the Design Guidelines, provide for the payment of a fee to accompany each request for approval of any proposed Improvement to Property. The Design Review Committee may provide that the amount of such fee shall be uniform for similar types of any proposed Improvement to Property or that the fee shall be determined in any other reasonable manner, such as based upon the estimated cost of the proposed Improvement to Property. The Design Committee may further provide that the amount of any such design review fee include engineering consultant and other fees reasonably incurred by the Association in reviewing any proposed Improvement to Property. 4.10 Decision of Committee. Any decision of the Design Review Committee shall be made within thirty (30) days after receipt by the Design Review Committee of all materials required by the Design Review Committee, unless such time period is extended by mutual agreement. The decision shall be in writing and if the decision is not to approve a proposed Improvement to Property, the reasons therefor shall be stated. The decision of the Design Review Committee shall be promptly transmitted to the Applicant at the address furnished by the Applicant to the Design Review Committee. 4.11 Failure of Committee to Act on Plans. Any request for approval of a proposed Improvement to Property shall be deemed approved, unless disapproval or a request for additional information or materials is transmitted to the Applicant by the Design Review JP\DOC\COR.COv13.30.99 18 Committee within thirty (30) days after the date of receipt by the Design Review Committee of all required materials. 4.12 Completion of Work After Approval. Following the approval of any proposed Improvement by the Design Review Committee, the proposed Improvement shall be completed by such Owner: (a) as promptly and diligently as possible but in no event in excess of the time periods set forth below; (b) in substantial conformance with all plans and specifications and other materials presented to the Design Review Committee; and (c) in accordance with any and all conditions imposed by the Design Review Committee. In accordance with the foregoing, all Improvements approved by the Design Review Committee shall be completed (a) within eighteen (18) months from the date of approval of such Improvements by the Design Review Committee; provided, however, that any and all landscaping and/or gardening approved by the Design Review Committee which is related to the construction of the initial dwelling unit for a Lot shall be completed within thirty (30) days of the issuance of the certificate of occupancy for such dwelling unit or within such time period as the Design Review Committee may otherwise prescribe. In all cases, the Design Review Committee must issue a "Notice of Satisfactory Completion of Improvement to Property" or as "Conditional Notice of Satisfactory Completion of Improvement to Property" prior to the application for an issuance of a certificate of occupancy from the County. Failure to comply with the terms and conditions of this provision shall constitute noncompliance with the terms and provisions of this Declaration and the Association shall have the right to invoke all rights and remedies provided to the Association hereunder, including but not limited to, the imposition of fines and penalties in accordance with Paragraph 8.17 hereof. 4.13 Notice of Completion. Upon completion of the Improvement to Property, the Applicant shall give written Notice of Completion to the Design Review Committee. Until the date of receipt of such Notice of Completion, the Design Review Committee shall not be deemed to have notice of completion of such Improvement to Property. 4.14 Inspection of Work. The Design Review Committee or its duly authorized representative shall have the right to inspect any Improvement to Property prior to or after completion, provided that the right of inspection shall terminate fourteen (14) days after the Design Review Committee shall have received a Notice of Completion from Applicant. 4.15 Notice of Satisfactory Completion of Improvement to Property. After inspection of the Improvement to Property, the Design Review Committee will issue a Notice of Satisfactory Completion of Improvement to Property if the Improvements were completed in conformity with the plan, description, and materials furnished to and approved by the Design Review Committee, and any conditions imposed by the Design Review Committee. Upon such receipt of Notice of Satisfactory Completion of Improvement to Property, the Applicant may proceed to request a certificate of occupancy from the County. 4.16 Notice of Noncompliance. If, as a result of inspections or otherwise, the Design Review Committee finds that any Improvement to Property has been done without obtaining the approval of the Design Review Committee or was not done in complete conformity with the JP\DOC 1COR.COV\3.3099 19 description and materials furnished to, and any conditions imposed by, the Design Review Committee or was not completed within eighteen (18) months after the date of approval by the Design Review Committee or such shorter period as specified herein or in writing by the Design Review Committee, the Design Review Committee shall notify the Applicant in writing of the noncompliance, which notice shall be given, in any event, within fourteen (14) days after the Design Review Committee receives a Notice of Completion from the Applicant. The notice shall specify the particulars of the noncompliance and shall require the applicant to take such action as may be necessary to remedy the noncompliance. If a Notice of Noncompliance has been issued by the Design Review Committee, the Applicant may post a Performance Guaranty, as hereinafter defined, sufficient to bring the Improvement to Property into compliance with the Design Review Committee; provided however, that the Design Review Committee shall not be required to accept such Performance Guaranty. Such Performance Guaranty must be in an amount sufficient to remedy any noncompliance, as determined by the Design Review Committee in its sole and absolute discretion. After posting such Performance Guaranty with the Association, the Design Review Committee may then issue a Conditional Notice of Satisfactory Completion of Improvement to Property. Such Conditional Notice shall grant authorization for the Applicant to request a certificate of occupancy from the County. 4.17 Performance Guaranty for Noncompliance or Incompletion. If the Applicant wishes to apply for and obtain a certificate of occupancy from the County prior to completion of Landscaping andlor prior to correction of a minor noncompliance, the Applicant may request to post a bond, letter of credit or cash escrow in an amount equal to the estimated cost of completing such work ("Performance Guaranty"); provided however the Design Review Committee shall not be required to accept such Performance Guarantee. The Performance Guaranty shall be used by the Association to ensure completion of such work in accordance with the time periods for completion established hereunder and the plans for such work as approved by the Design Review Committee. The form, content and terms of the Performance Guaranty shall be determined by the Design Review Committee in its sole and absolute discretion. If the Design Review Committee accepts the Performance Guaranty for the completion of landscaping andlor remedy of noncompliance, then the Design Review Committee shall issue a Conditional Notice of Satisfactory Completion to Improvement to Property. Such Conditional Notice shall grant authorization for Applicant to request a certificate of occupancy from the County. All premiums, costs and expenses related thereto shall be the obligation of the Owner. Any surety or financial institution issuing a payment and performance bond or letter of credit hereunder shall be authorized to do business in Colorado and shall be acceptable to the Design Review Committee. If any Owner fails to complete the landscaping work or fails to remedy the noncompliance, in accordance with the provisions of the Declaration, subject to delays beyond the reasonable control of such Owner, the Association is authorized under the provisions of the Declaration to enter upon the Lot of such Owner to complete the landscaping work and or remedy the noncompliance in accordance with the plans therefore, draw upon the Performance guaranty for all costs incurred by the Association relating to the completion of the landscaping work or relating to the remedy of noncompliance and levy a Reimbursement Assessment against such Owner for all costs and expenses incurred by the Association in completing such landscape work or in remedying such noncompliance which are not otherwise covered by the Performance Guaranty, including any costs and expenses of collection and attorney's fees. Upon satisfactory JP\DOC\COR.00V13.30.99 20 • • • • completion of landscaping andlor remedy of noncompliance. the Applicant shall give written Notice of Completion to the Design Review Committee as outlined in Article 4.13 herein. If the Design Review Committee finds the improvements satisfactory, a Notice of Satisfactory Completion of Improvements to Property shall be issued by the Design Review Committee within fourteen (14) days of receipt of Notice of Completion and any funds being held by the Association as a Performance Guarantee shall be released to Applicant within seven (7) days of the issuance of the Notice of Satisfactory Completion of Improvements to Property. 4.18 Failure of Committee to Act After Completion. If, for any reason other than the Applicant's act or neglect, the Design Review Committee fails to notify the Applicant of any noncompliance within fourteen (14) days after receipt by the Design Review Committee of written Notice of Completion from the Applicant, the Improvement to Property shall be deemed in compliance if the Improvement to Property was, in fact, completed as of the date of Notice of Completion and the Applicant may proceed to request a certificate of occupancy from the County. 4.19 Appeal to Board of Directors of Finding of Noncompliance. If the Design Review Committee gives any notice of noncompliance, the Applicant may appeal to the Board of Directors by giving written notice of such appeal to the Board and the Design Review Committee within thirty (30) days after receipt of the notice of noncompliance by the Applicant. If, after a notice of noncompliance, the Applicant fails to commence diligently to remedy such noncompliance, the Design Review Committee shall request a finding of noncompliance by the Board of Directors by giving written notice of such request to the Association and the Applicant within sixty (60) days after delivery to the Applicant of a notice of noncompliance from the Design Review Committee. In either event, the Board of Directors shall hear the matter in accordance with the provisions of the Bylaws for Notice and Hearing, and the Board shall decide whether or not there has been such noncompliance and, if so, the nature thereof and the estimated cost of correcting or removing the same. 4.20 Correction of Noncompliance. If the Board of Directors determines that a noncompliance exists, the Applicant shall remedy or remove the same within a period of not more than forty-five (45) days from the date of receipt by the Applicant of the ruling of the Board of Directors. If the Applicant does not comply with the Board ruling within such period, the Board may, at its option, record a Notice of Noncompliance against the real property on which the noncompliance exists, may enter upon such property and remove the noncomplying Improvement to Property, or may otherwise remedy the noncompliance, and the Applicant shall reimburse the Association, upon demand, for all expenses incurred therewith. If such expenses are not promptly repaid by the Applicant or Owner to the Association, the Board may levy a Reimbursement Assessment against the Owner of the Lot for such costs and expenses. The right of the Association to remedy or remove any noncompliance shall be in addition to all other rights and remedies which the Association may have at law, in equity, or under this Declaration. The Applicant and Owner of the Lot shall have no claim for damages or otherwise on account of the entry upon the Property and removal of the noncomplying Improvement to Property. JP\I30C\COR.COV13.3O 99 21 4.21 No Implied Waiver or Estoppel. No action or failure to act by the Design Review Committee or by the Board of Directors shall constitute a waiver or estoppel with respect to future action by the Design Review Committee or the Board of Directors with respect to any Improvement to Property. Specifically, the approval of the Design Review Committee of any Improvement to Property shall not be deemed a waiver of any right or an estoppel to withhold approval or consent for any similar Improvement to Property or any similar proposals, plans, specifications, or other materials submitted with respect to any other Improvement to Property. 4.22 Committee Power to Grant Variances. The Design Review Committee may authorize variances from compliance with any of the provisions of this Declaration, including restrictions upon height, size, floor area, or placement of structures or similar restrictions, when circumstances such as topography, natural obstructions, hardship, aesthetic or environmental consideration may require. Such variances must be evidenced in writing and shall become effective when signed by a least a majority of the members of the Design Review Committee. If any such variance is granted, no violation of the provisions of this Declaration shall be deemed to have occurred with respect to the matter for which the variance was granted; provided, however, that the granting of a variance shall not operate to waive any of the provisions of this Declaration for any purpose except as to the particular property and particular provision hereof covered by the variance, nor shall the granting of a variance affect in any way the Owner's obligation to comply with all governmental laws and regulations affecting the property concerned, including, but not limited to, zoning ordinances and setback lines or requirements imposed by any governmental authority having jurisdiction. 4.23 Meetings of Committee. The Design Review Committee shall meet from time to time as necessary to perform its duties hereunder. The Design Review Committee may from time to time, by resolution in writing adopted by a majority of the members, designate a representative (the "Committee Representative") (who may but need not be one of its members) to take any action or perform any duties for or on behalf of the Design Review Committee, except the granting of approval to any Improvement to Property and granting of variances. The action of such Committee Representative within the authority of such Committee Representative or the written consent or the vote of a majority of the members of the Design Review Committee shall constitute action of the Design Review Committee. 4.24 Records of Actions. The Design Review Committee shall report in writing to the Board of Directors all final actions of the Design Review Committee, and the Board shall keep a permanent record of such reported action. 4.25 Estoppel Certificates. The Board of Directors shall, upon the reasonable request of any interested Person and after confirming any necessary facts with the Design Review Committee, furnish a certificate with respect to the approval or disapproval of any Improvement to Property or with respect to whether any Improvement to Property was made in compliance herewith. Any Person, without actual notice to the contrary, shall be entitled to rely on said certificate with respect to all matters set forth therein. JP\DOCICOR.Cov13.30,99 22 • • • 4.26 Nonliability of Committee Action. There shall be no liability imposed on the Design Review Committee, any member of the Design Review Committee, any Committee Representative, the Association, any member of the Board of Directors, or Declarant for any loss, damage, or injury arising out of or in any way connected with the performance of the duties of the Design Review Committee unless due to the willful misconduct of the party to be held liable. In reviewing any matter, the Design Review Committee shall not be responsible for reviewing, nor shall its approval of an Improvement to Property be deemed approval of the Improvement to Property from the standpoint of safety, whether structural or otherwise, or conformance with building codes or other governmental laws or regulations. In accordance with the foregoing, any Owner seeking the approval of the Design Review Committee for any matter shall provide the Design Review Committee with a written waiver reaffirming the foregoing and releasing the Design Review Committee, any Member of the Design Review Committee, any Committee Representative, the Association, any member of the Board of Directors and the Declarant from any and all liability arising from or related to the Design Review Committee's approval of such Improvement. 4.27 Construction Period Exception. During the course of actual construction of any permitted structure or Improvement to Property, and provided construction is proceeding with due diligence, the Design Review Committee shall temporarily suspend the provisions contained in this Declaration as to the Property upon which the construction is taking place to the extent necessary to permit such construction, provided that, during the course of any such construction,. nothing is done which will result in a violation of any of the provisions of this Declaration upon completion of construction and nothing is done which will constitute a nuisance or unreasonable interference with the use and enjoyment of other property, The Design Review Committee shall promulgate rules and regulations concerning the use of temporary sanitary facilities and trash dumpsters, type of construction vehicles allowed on and use of the streets, roads, and rights-of- way located within the Community Area and Association Properties, and other activities associated with the construction of Improvements to Property, provided said rules and regulations shall not interfere with the rights existing under the Permitted Exceptions. ARTICLE 5 ASSOCIATION PROPERTIES 5.1 Member's Rights of Use and Enjoyment Generally. Unless otherwise provided in this Declaration, all Members, their immediate family, dependents, and their guests may use the Association Properties, subject to the provisions of the Rules and Regulations. 5.2 Right of Association to Regulate Use. The Association, acting through the Board, shall have the power to regulate use of Association Properties to further enhance the overall rights of use and enjoyment of all Members through the promulgation of the Rules and Regulations. 5.3 No Partition of Association Properties. No Owner shall have the right to partition or seek partition of the Association Properties or any part thereof. 1P\DOC\COR.00v13.30.99 23 5.4 Liability of Owners for Damage. Each Owner shall be liable to the Association for any damage to Association Properties or for any expense or liability incurred by the Association which may be sustained by reason of the negligence or willful misconduct of such Owner or any Person using the Association Properties through such Owner and for any violation by such Owner or any such Person of this Declaration or any Rule and Regulation adopted by the Association. Each Owner shall indemnify and hold the Association harmless from any and all loss, damage, expense, or liability arising from any negligence or willful misconduct of any Owner or Persons using the Association Properties through such Owner. The Association shall have the power, as elsewhere provided in this Declaration, to levy and collect a Reimbursement Assessment against a member, after Notice and Hearing, to cover the costs and expenses incurred by the Association on account of any such damage or any such violation of this Declaration or of such Rules and Regulations or for any increase in insurance premiums directly attributable to any such damage or any such violation. 5.5 Association Duties if Damage, Destruction. or Required Improvements. In the event of damage to Association Properties by fire or other casualty or in the event any governmental authority shall require any repair, reconstruction, or replacement of any Association Properties, the Association shall have the duty to repair, reconstruct, or replace the same, to the extent funds are available to do so. Any insurance proceeds payable by reason of damage or destruction of Association Properties by fire or other casualty shall be paid to the Association and shall be used, to the extent necessary, to pay the costs of repair, reconstruction, or replacement. If funds from insurance proceeds or from reserve for replacement are insufficient to pay all costs of repair, reconstruction, or replacement of improvements damaged or destroyed, or if the Association is required to make repairs, replacements, or improvements by governmental authorities, the Association may, in order to make up any deficiency in the insurance proceeds or to pay for the required repair, replacement, or improvement, levy a Special Assessment in accordance with Section 9.18, or if a Member or group of Members is liable for such damage, levy a Reimbursement Assessment against the Member or group of Members responsible therefor, to provide the additional funds necessary. Repair, reconstruction, or replacement of Association Properties shall be done under such contracting and bidding procedures as the Association shall determine are appropriate. If insurance proceeds available to the Association on account of damage or destruction exceed the cost of repair, reconstruction, and replacement, the Association may use the same for future maintenance, repair, improvement, and operation of other Association Properties or any other use deemed appropriate by the Board. 5.6 Association Powers in the Event of Condemnation. If any Association Properties or interests therein are taken under exercise of the power of eminent domain or by private purchase in lieu thereof, the award in condemnation or the price payable shall be paid to the Association, except to the extent payable to any other Person with an interest in such property, including any Mortgagee of such property. The Association shall have the exclusive right to participate in such condemnation proceedings and to represent the interests of all Owners or other Persons therein. Any award or funds received by the Association shall be held by the Association in the Maintenance Fund as determined by the Board, as a reserve for future maintenance, repair, reconstruction, or replacement of Association Properties or may be used for Improvements or additions to or operation of Association Properties or such other uses deemed JP\DOC\COR.COV13.30.99 24 • • appropriate by the Board. Except as may otherwise be provided by the Act, no Owner shall be entitled to participate as a party or otherwise in any condemnation proceedings nor to receive any proceeds therefrom. 5.7 Title to Association Properties on Dissolution of Association. In the event of dissolution of the Association, the Association Properties shall, to the extent permitted by law and reasonably possible, be conveyed or transferred to an appropriate public. governmental or quasi -governmental agency or organization or to a nonprofit corporation, association, trust, or other organization, to be used, in any such event, for the common benefit of Owners for similar purposes for which the particular Association Property was held by the Association. To the extent the foregoing is not possible, the Association Properties shall be sold or disposed of and the proceeds from the sale or disposition shall be distributed to the Owners. The portion of such proceeds to be allocated to each Lot shall be the product derived by multiplying the total proceeds from such sale or disposition by a fraction, the numerator of which shall be one (1) and the denominator of which shall be the number of Lots located in the Community Area at the time of such sale or distribution, For the purpose of this Section 5.7, should any Lots be combined pursuant to Section 3.21 hereof, each Lot so combined shall be counted separately in apportioning such proceeds. ARTICLE 6 DECLARANTS RIGHTS AND RESERVATIONS 6.1 Period of Declarant's Rights and Reservations. Declarant shall have, retain and reserve certain rights as hereinafter set forth with respect to the Association and the Association Properties from the date hereof, until (a) the time that the last Lot which may be created within the Community Area has been sold and conveyed by Declarant to persons other than Declarant and a certificate of occupancy has been issued for the residence constructed thereon, or (b) the date which is thirty (30) years from Recordation of this Declaration, whichever event occurs first. The rights and reservations hereinafter set forth shall be deemed excepted and reserved in each conveyance of property by Declarant to the Association whether or not specifically stated therein and in each deed or other instrument by which any property within the Community Area is conveyed by Declarant. The rights, reservations, and easements hereinafter set forth shall be prior and superior to any other provisions of this Declaration and may not, without Declarant's prior written consent, be modified, amended, rescinded, or affected by any amendment of this Declaration. Declarant's consent to any one such amendment shall not be construed as consent to any other subsequent amendment. 6.2 Right to Construct Additional Improvements on Association Properties. Declarant shall have and hereby reserves the right, but not be obligated to, construct additional Improvements on Association Properties at any time and from time to time in accordance with this Declaration for the improvement and enhancement thereof and for the benefit of the Association and Owners. Declarant shall convey or transfer such Improvements to the Association and the Association shall be obligated to accept title to, care for, and maintain the same as Association Properties as elsewhere provided in this Declaration. JP\D0C1COR.COV\3.30.99 25 6.3 Declarant's Rights to Use Association Properties in Promotion and Marketing of Community Area. Declarant shall have and hereby reserves the right to reasonable use of the Association Properties and of services offered by the Association in connection with the promotion and marketing of the Community Area. Without limiting the generality of the foregoing, Declarant may (a) erect and maintain on any part of the Association Properties such signs, temporary buildings, and other structures as Declarant may reasonably deem necessary or proper in connection with the promotion, development, and marketing of real property within the Community Area; (b) use vehicles and equipment on Association Properties for promotional purposes; (c) permit prospective purchasers of property within the boundaries of the Community Area who are not Owners or Members of the Association to use Association Properties at reasonable times and in reasonable numbers; (d) refer to the Association Properties and to the Association and services offered by the Association in connection with the development, promotion, and marketing of property within the boundaries of the Community Area; and (e) to maintain sales offices, management offices and models within the Community Area upon Lots owned by Declarant in such sizes and at such locations as determined by Declarant in its sole and absolute discretion. 6.4 Declarant's Rights to Complete Development of Community Area. No provision of this Declaration shall be construed to prevent or limit Declarant's rights to complete development of property within the boundaries of the Community Area; to construct or alter Improvements on any property owned by Declarant within the Community Area, including temporary buildings; to maintain model homes, temporary buildings, construction trailers, or offices for construction or sales purposes, or similar facilities on any property owned by Declarant or owned by the Association within the Community Area; or to post signs incidental to development, construction, promotion, marketing, or sales of property within the boundaries of the Community Area. Nothing contained in this Declaration shall limit the right of Declarant or require Declarant to obtain approvals (a) to excavate, cut, fill or grade any property owned by Declarant or to construct, alter, demolish, or replace any Improvements on any property owned by Declarant; (b) to use any structure on any property owned by Declarant as a construction, model, home or real estate sales office in connection with the sale of any property within the boundaries of the Community Area; or (c) of the Design Review Committee or of the Association for any such activity or Improvement to Property on any property owned by Declarant. 6.5 Declarant's Approval of Conveyances or Changes in Use of Association Properties. Until such time as Declarant has lost the right to appoint members of the Design Review Committee as provided in Section 4.3 hereof, the Association shall not, without first obtaining the prior written consent of Declarant, convey, change, or alter the use of Association Properties, Mortgage the Association Properties, or use Association Properties other than solely for the benefit of Members or as otherwise specifically allowed hereunder. 6.6 Declarant's Rights to Grant and Create Easements. Declarant shall have and hereby reserves the right to grant or create temporary or permanent easements or to relocate existing easements for (a) access to and egress from or through the Community Area; (b) access to and egress from the Fishing Area for the benefit of owners of lots or other real property JP\DOCICOR, CO V 0.30.99 26 • • • • • interests in the Aspen Glen planned unit development; (c) access to and egress from the road right-of-ways within the Community Area as described in the Kennedy Easement and the Tomcat Easement; (d) utilities, including, but not limited to, water, sewer and electrical lines; (e) drainage, including, but not limited to, drainage and ditch lateral easements; (f) access across private roads located within the Community Area to the Annexable Property; and (g) other purposes incident to the development and sale of the Community Area (collectively the "Easements"). Such Easements may be Iocated by Declarant in, on, under, over, and across Lots within the Community Area so long as such easements do not lie within any Building Envelope. Declarant shall further have the right to grant to public or quasi -public entities the right to construct certain storage or other similar facilities on the Common Areas in connection with the provision of utilities or other services to the Community Area. Any such facilities so located, and all distribution lines located in any easements created pursuant to the provisions hereof, or otherwise, shall, in all events belong to the provider of such services. 6.7 Declarant's Rights to Convey Additional Property to Association. Declarant shall have and hereby reserve the right, but not the obligation to, convey additional real property and Improvements thereon to the Association at any time and from time to time in accordance within this Declaration. 6.8 Annexation of Additional Properties. 6.8.1 Right to Annex Additional Property. Declarant shall have and hereby reserves the right, for a period of thirty (30) years from the date of the Recording of this Declaration to annex the Annexable Property to the Community Area. In accordance with the foregoing, each Owner of a Lot hereunder hereby grants to Declarant the right to annex the Annexable Property to the Community Area, as more particularly set forth in this Paragraph 6.8. Notwithstanding the foregoing, Declarant is authorized to convey portions of the Annexable Property as it may acquire, prior to its annexation hereto, to such third party or parties as it may deem appropriate, whether for purposes consistent with the Declaration or otherwise. Declarant makes no assurances that all or any portion of the Annexable Property will be added to this Declaration and Declarant reserves the right to annex all or any portion of the Annexable Property to the Community Area in any order it deems fit in its sole and absolute discretion. Any such annexation shall not make or constitute any amendment or modification to this Declaration except as may otherwise be provided herein. The annexation of additional real property to the Community Area shall be accomplished by the filing for Record by Declarant with the Clerk and Recorder of the County, a Supplemental Declaration containing a legal description of the land area to be added to the Community Area, together with any Supplemental Plats applicable thereto. The Supplemental Declaration shall incorporate the covenants, conditions and restrictions set forth herein and contain such additional covenants, conditions and restrictions as may be applicable to the property annexed thereby, including any special or particular uses thereof. In addition, the Supplemental Declaration shall provide whether or not the lots located in the property annexed thereby (the "Annexed Property") shall be subject to the jurisdiction of a subassociation or shall not be subject to the jurisdiction of a subassociation. The Annexation of the Annexable Property may be accomplished by JP\DOC\COR.COV\3.30.99 27 successive Supplemental Declarations, in no particular or pre -established order, and may provide that the property annexed thereby is to be phased so that it is to be made subject to this Declaration at different times. Any such Supplemental Declaration may impose on the Annexed Property described therein additional covenants, conditions, restrictions, limitations, reservations, exceptions, equitable servitudes, limitations, reservations, exceptions, equitable servitudes, and other provisions than those set forth in this Declaration, taking into account the unique and particular aspects of the proposed development of the Annexed Property covered thereby. Furthermore, the Declarant shall have the right to reserve in such Supplemental Declaration any such development right which is necessary or appropriate to complete the development of the Annexed Property or which is otherwise necessary to meet the unique and particular aspects of the Annexed Property. A Supplemental Declaration may provide for a subassociation of owners within the Annexed Property and for the right of the subassociation to assess such owners. Upon recordation of a Supplemental Declaration, the Annexed Property shall be subject to all of the covenants, conditions, restrictions, limitations, reservations, exceptions, equitable servitudes, and other provisions set forth in this Declaration, except to the extent specifically stated in the Supplemental Declaration, but in no event shall the covenants, conditions and restrictions of such Supplemental Declaration be less stringent than those set forth herein. 6.8.2 Effect of Expansion. In the event any real property is annexed to the Community Area as provided herein, the definitions used in this Declaration shall be automatically expanded to encompass and refer to the Community Area as expanded; e.g. "Community Area" shall mean the real property described herein plus any additional real property annexed thereto; similarly, "Common Area" and "Lots" shall include those areas as described herein as well as those so designated on any Supplemental Declaration or Supplemental Plat relating to any real property which is annexed pursuant to this Paragraph 6.8. References to this Declaration shall mean this Declaration as so supplemented by a Supplemental Declaration. Every Owner of a Lot in the area annexed to the Community Area shall, by virtue of ownership of such Annexed Property and upon recordation of the Supplemental Declaration annexing such property to the Community Area. be a Member of the Association and shall be entitled to the same rights and privileges and subject to the same duties and obligations as any other Association Member. The recording of the Supplemental Declaration with the Clerk and Recorder of the County shall operate automatically to grant, transfer, and convey to all Owners of Lots Iocated within the Community Area, and Owners of Lots within the Annexed Property thereto, their respective, appurtenant, undivided rights, titles, interests, privileges, duties and obligations in and to both the existing Common Area and any additional Common Area added to the existing Common Area by virtue of such annexation. if any. Annual Assessments for Lots within the area annexed to the Community Area shall commence as of the date of the recording of the Supplemental Declaration and shall be prorated as of such date. Upon recording of the Supplemental Declaration and any other Supplemental Plat with the Clerk and Recorder of the County, the additional Lots and Common Area shall be subject to the terms and provisions of this Declaration. JP DOC\COR.COvi3,3Q.99 28 • • • • 6.9 Annexation of Additional Unspecified Real Estate. Declarant hereby reserves the right, for a period of thirty (30) years from the date of the recording of this Declaration, to annex additional, unspecified real estate to the Community Area to the fullest extent permitted by the Act. In the event that Declarant elects to annex such additional property, Declarant shall annex such property to the community in accordance with the provisions of this Declaration entitled "Annexation of Additional Properties". 6.10 Withdrawal of Annexed Property. Annexed Property for which a Supplemental Declaration has been recorded may be withdrawn from the Community Area and from this Declaration by Declarant at any time prior to the time any Lot contained therein has been conveyed to a third party. Such withdrawal may be accomplished by the execution, acknowledgment, and recordation of a notice of withdrawal. The notice of withdrawal (a) shall be executed and acknowledged by the Owner of the Annexed Property; (b) shall, if the Annexed Property is not then owned by Declarant, contain the executed and acknowledged written consent of Declarant for so long as Declarant owns any property in the Community Area and has the power to annex additional property to the Community Area; (c) shall contain an adequate legal description of the Annexed Property; (d) shall contain a reference to the Supplemental Declaration for the Annexed Property which reference shall state the date thereof, the date of recordation thereof, and the book and page of the records in the Office of the Clerk and Recorder of the County where the Supplemental Declaration was Recorded; and (e) shall contain a statement and declaration that the Annexed Property is withdrawn from the Community Area and shall not be thereafter subject to this Declaration or the Supplemental Declaration for the Annexed Property. The withdrawal shall be effective upon recording of the notice of withdrawal and, upon recording of the notice of withdrawal, the Annexed Property described therein shall no longer be part of the Community Area or subject to this Declaration or to the Supplemental Declaration for the Annexed Property. 6.11 Expansion or Contraction of Annexable Property. Subject to any limitations of the Act, the Annexable Property may be expanded or contracted to add or delete real property effective upon the recordation of a written instrument, executed by Declarant, describing such real property and declaring that such real property shall thereafter be added to or deleted from the Annexable Property. 6.12 Creation of Drainage Easements. Notwithstanding anything set forth herein to the contrary, Declarant shall have the right to enter into such easements and rights-of-way which provide for the use of the Association and Owners to certain drainage facilities that may be located outside the Community Area. Such easements may contain the obligation of the Association to bear a proportionate cost of constructing and maintaining any such facilities that are for the benefit of the Association. The existence of such easements shall in no way be construed as creating any rights of Owners to use or gain access to such ponds or lakes. 6.13 Conversion of Common Areas to Lots. Declarant shall have the right to convert any Common Areas specifically identified on the Plat or any Supplemental Plat as convertible properties into Lots owned by Declarant subject to the terms and provisions of any approvals by the County. JP\Do[1COR.COv13.30.99 29 6.14 Subdivision of Lots. Declarant shall have and hereby reserves the right to resubdivide the space within any Lot located within the Community Area to create additional Lots; provided, however, that the maximum number of Lots within the Community Area shall not exceed eighty-six (86) until such time as Declarant has caused the annexation of the Additional Annexable Property, or any portion thereof, to the Community Area; and provided further that such subdivision is completed in compliance with County subdivision requirements. 6.15 Expansion of Permitted Property Uses. Notwithstanding anything to the contrary contained herein, Declarant reserves the right to expand the permitted uses for Lots provided in Section 3.2 hereof provided that such uses are consistent with Declarant's overall development plan for the Community Area and are in accordance with County rules, regulations, requirements and approvals. ARTICLE 7 ASSOCIATION OPERATION 7.1 Association. The Association has been or will be formed as a Colorado nonprofit corporation under the Colorado Nonprofit Corporations Act prior to the date of the conveyance of the first Lot. The Association shall have the duties, powers, and rights set forth in the Act, the Colorado Nonprofit Corporation Act, this Declaration and in its Articles of Incorporation and Bylaws. As more specifically set forth hereinafter, the Association shall have a Board of Directors to manage its affairs. Except as may be provided herein, the Articles of Incorporation or the Bylaws, the Board of Directors shall be elected by Owners acting in their capacity as Members of the Association. 7.2 Association Board of Directors. The affairs of the Association shall be managed by a Board of Directors. The number, term and qualifications of the Board of Directors shall be fixed in the Articles of Incorporation and Bylaws. The Board of Directors may, by resolution, delegate portions of its authority to officers of the Association, but such delegation of authority shall not relieve the Board of Directors of the ultimate responsibility for management of the affairs of the Association. Action by or on behalf of the Association may be taken by the Board of Directors or any duly authorized executive committee, officer, agent, or employee without a vote of Members, except as otherwise specifically provided in this Declaration. 7.3 Membership in Association. Each Owner of a Lot within the Community Area shall be a Member of the Association. There shall be one Membership in the Association for each Lot within the Community Area. The Person or Persons who constitute the Owner of a Lot shall automatically be the holder of the Membership appurtenant to that Lot, and the Membership appurtenant thereto shall automatically pass with fee simple title to the Lot. Declarant shall hold a Membership in the Association for each Lot owned by Declarant. Membership in the Association shall not be assignable separate and apart from fee simple title to a Lot. 7.4 Voting Rights of Members. Each Member shall have the right to cast one vote for each Lot owned by such Member in accordance with the Bylaws, provided in no event shall there JP\DOC\COR.COV13.30.99 30 • • be more than one (1) vote per Lot. If title to a Lot is owned by more than one (1) Person, such persons shall collectively vote their interest as a single vote. 7.5 Declarant Control. Notwithstanding anything contained herein to the contrary, Declarant shall be entitled to select and appoint, in its sole discretion, Directors, in accordance with the Bylaws (the "Declarant's Control Period"), until the expiration of the Declarant's Control Period as defined below. Provided. however, the right of the Declarant to select and appoint Directors shall be subject to the provisions of Section 5.5 of the By -Laws. The Declarant's Control Period shall cease on the happening of any of the following events, whichever occurs earlier: (a) sixty (60) days after conveyance of seventy-five percent (75%) of the total number of Lots that may be created within the Community Area have been conveyed to Persons other than Declarant; (b) two (2) years after the last conveyance of a Lot by Declarant in the ordinary course of business; or (c) when, in its discretion, Declarant so determines. 7.6 Determination of Member Voting Privileges. Notwithstanding anything to the contrary contained herein, only Members whose voting rights are in good standing under the Associations' Bylaws (e.g., voting rights which have not been suspended as provided therein) shall be entitled to vote on Association matters. In accordance therewith, any and all provisions contained herein requiring the approval of a requisite percentage of members of the Association shall be deemed satisfied when the requisite percentage of members entitled to vote has been met. 7.7 Registration of Owners. Each Owner shall register with the Association upon such Owner's acquisition of a Lot within the Community Area. Such registration shall be completed by such owner at the time such Owner closes the purchase of a Lot within the Community Area and shall be delivered to the Association within seven days of the date of such closing. Such registration shall be in a form prescribed by the Association and shall include: (1) a mailing address where notices or demands intended to be served upon such Owner may be mailed by the Association; (2) a designation of a voting representative for such Lot; and (3) an acknowledgment that such Owner has: (a) received a copy of this Declaration and the Bylaws of the Association; (b) that such Owner has read and understands the same; and (c) that such Owner is bound by the terms and provisions of the Declaration and the Bylaws. ARTICLE 8 DUTIES AND POWERS OF ASSOCIATION 8.1 General Duties and Powers of Association. The Association has been or will be formed to further the common interests of the Members. The Association, acting through the Board or Persons to whom the Board has delegated such powers, shall have the duties and powers hereinafter set forth and, in general, the power to do anything that may be necessary or desirable to further the common interests of the Members, to maintain, improve, and enhance the common interests of the Members, to maintain, improve, and enhance Association Properties, and to improve and enhance the attractiveness, aesthetics, and desirability of the Community Area. JP\DOC\COR.COV\3.30.99 31 8.2 Duty to Accept Property and Facilities Transferred by Declarant. The Association shall accept title to any real property, including any Improvements thereon and personal property transferred to the Association by Declarant, and equipment related thereto, together with the responsibility to perform any and all Administrative and Association Functions associated therewith, provided that such property and functions are not inconsistent with, the terms of this Declaration. Property interests transferred to the Association by Declarant may include fee simple title, easements, leasehold interests, and licenses to use. Any property or interest in property transferred to the Association by Declarant shall be within the boundaries of the Community Area; provided, however, that Declarant shall be entitled to transfer and convey the beneficial use of an easement, subject to, any obligations thereunder, located outside of the Community Area but which benefits the Association and the Owners. Any property or interest in property transferred to the Association by Declarant shall, except to the extent otherwise specifically approved by resolution of the Board of Directors, be transferred to the Association free and clear of all monetary obligations, liens and encumbrances (other than the lien of property taxes and assessments not then due and payable), but shall be subject to the terms of this Declaration, and easements, covenants, conditions, restrictions, and equitable servitudes or other encumbrances of record. Except as otherwise specifically approved by resolution of the Board of Directors, no property or interest in property transferred to the Association by Declarant shall impose upon the Association any obligation to make monetary payments to Declarant or any affiliate of Declarant, including, but not limited to, any purchase price, rent, charge, or fee. 8.3 Landscaping Easement. Declarant hereby establishes, grants and otherwise conveys for the benefit of itself and the Association a nonexclusive easement for landscaping maintenance purposes over that portion of the Lots fronting the streets, roads and rights-of-way within the Community Area. In accordance with the foregoing, the Association shall have the right, but not the obligation, to install landscaping and irrigation facilities in areas designated for such purposes on the Plat or any Supplemental Plat annexing property to the Community Area (the "Landscaping Easement"). Declarant and the Association shall have the right, but not the obligation. to plant, maintain, and replace landscaping within any portion of the Landscaping Easement as it determines, for any period that it desires. Further, Declarant or the Association can commence or terminate its landscaping maintenance, for any portion of the Landscaping Easement, as it chooses, and can recommence or cease landscaping maintenance from time to time, in its sole discretion. During any period Declarant or the Association chooses not to maintain the landscaping within all or any portion of the Landscaping Easement. the Owners of Lots for such areas shall have the obligation to maintain the landscaping within the Landscaping Easement, in accordance with the provisions of Section 3.1 of this Declaration. Should any Owner fail to maintain the landscaping within the Landscaping Easement, during a period in which the Association is not maintaining such landscaping, the Association shall have the right to enter onto such Lot Owners property and maintain the landscaping, and charge such Lot Owner with the cost of such maintenance, as provided in Section 3.1. 8.4 Duty to Manaee and Care for Association Properties. The Association shall manage, operate, care for, maintain, and repair all Association Properties and keep the same in an attractive and desirable condition for the use and enjoyment of the Members. IP\DOCICOR.COW .30.99 32 • • • 8.5 Duty to Pay Taxes. The Association shall pay all taxes and assessments levied upon the Association Properties and all taxes and assessments payable by the Association. The Association shall have the right to contest any such taxes or assessments provided that the Association shall contest the same by appropriate legal proceedings which shall have the effect of preventing the collection of the tax or assessment and the sale or foreclosure of any lien for such tax or assessment and provided that the Association shall keep and hold sufficient funds to pay and discharge the taxes and assessments, together with any interest and penalties which may accrue with respect thereto, if the contest of such taxes is unsuccessful. 8.6 Duty to Maintain Casualty Insurance. The Association shall obtain and keep in full force and effect at all times, to the extent reasonably obtainable, property insurance on all insurable Association Properties, including, but not limited to, improvements and personal property owned by the Association or that must be owned by the Association in the future. Such insurance shall be for broad form covered causes of loss, including, casualty, fire, and extended coverage insurance with respect to all insurable Improvements and personal property owned by the Association including, if available at reasonable cost, coverage for vandalism and malicious mischief and, if available and if deemed appropriate, coverage for flood, earthquake, and war risk. Such insurance shall, to the extent reasonably obtainable, be for the full insurable replacement cost of the insured property, less applicable deductibles at the time the insurance is purchased and at each renewal date, exclusive of land, excavation, foundations and other items normally excluded from property policies. 8.7 Duty to Maintain Liability Insurance. The Association shall obtain and keep in full force and effect at all times, to the extent reasonably obtainable, general liability insurance against claims and liabilities arising in connection with the ownership, existence, use, or management of the Association Properties and covering public liability for bodily injury and property damage and, if the Association owns or operates motor vehicles, public liability for bodily injury and property damage arising as a result of the ownership and operation of motor vehicles. Such liability insurance for other than motor vehicle liability shall, to the extent reasonably obtainable, (a) have limits of not less than Five Hundred Thousand Dollars ($500,000) per person and One Million Dollars ($1,000,000) per occurrence; (b) insure the Board, the Association, the Manager, if any, and their respective employees, agents and all Persons acting as agents; (c) include the Declarant as an additional insured in such Declarant's capacity as a Member or Board member; (d) include the Members as an additional insured, but only for claims and liabilities arising in connection with the ownership, existence, use or management of Association Properties; and (e) cover claims of one or more insured parties against other insured properties. 8.8 General Provisions Respecting Insurance. Insurance obtained by the Association may contain such deductible provisions as good business practice may dictate. If the insurance described is not reasonably available, or if any policy of such insurance is canceled or renewed without a replacement policy therefor having been obtained by it, the Association shall promptly cause notice of that fact to be delivered to all Members. The Association may carry any other type of insurance it considers appropriate in amounts it deems appropriate, to insure the interest of the Association. Insurance policies carried pursuant to Sections 8.6 and 8.7 shall provide that JPIDOCICOR.COV13 3Q.99 33 (a) each Member is an insured Person under the policy with respect to liability arising out of such Member's interest in the Association Properties or membership in the Association; (b) the insurer waives its right of subrogation under the policy against the Association, each member, and any Person claiming by, through, or under such Member or any other director, agent, or employee of the foregoing; (c) no act or omission by any Member, unless acting within the scope of such Member's authority on behalf of the Association, will void the policy or be a condition to recovery under the policy; and (d) if at the time of a loss under the policy, there is other insurance in the name of a Member covering the same risk covered by the policy, the Association's policy shall be the primary insurance. The Association may adopt and establish written nondiscriminatory policies and procedures relating to the submittal of claims, responsibility for deductibles, and any other matters of claims adjustment. To the extent the Association settles claims for damages to real property, it shall have the authority to assess negligent Owners causing such loss or benefiting from such repair or restoration for all deductibles paid by the Association. Insurance obtained by the Association shall, to the extent reasonably possible, and provided Declarant reimburses the Association for any additional premium payable on account thereof, name Declarant as an additional insured and shall contain a waiver of rights of subrogation as against Declarant. Insurance policies and insurance coverage shall be reviewed at least annually by the Board of Directors to ascertain whether coverage under the policies is sufficient in light of the current values of the Association Properties and in light of the possible or potential liabilities of the Association. The aforementioned insurance may be provided under blanket policies covering the Association Properties and property of Declarant. 8.9 Maintenance of Fidelity Insurance. In the event the Board of Directors delegates its powers with respect to collection, deposit, transfer, or disbursement of Association funds to other persons or to a managing agent, as authorized by these Bylaws and the Colorado Common Interest Ownership Act, then in connection with such delegation of powers, the Board of Directors shall require: 8.9.1. That the other persons or managing agent maintain fidelity insurance coverage or a bond in an amount not less than Twenty -Five Thousand Dollars ($25,000) or such higher amount as the Board of Directors or Executive Committee may require; 8.9.2. That the other persons or managing agent maintain all funds in accounts of the Association separate from the funds and accounts of other associations managed by the other persons or managing agent and maintain all reserve accounts of each association so managed separate from operational accounts of the Association; and 8.9.3. That an annual accounting for Association funds and a financial statement be prepared and presented to the Association by the managing agent, a public accountant, or a certified public accountant. 8.10 Other Insurance and. Bonds. The Association shall obtain such other insurance as may be required by law, including workmen's compensation insurance, and shall have the power to obtain such other insurance and such fidelity, indemnity, or other bonds as the Association shall deem necessary or desirable. JPICDOCICOR.COv13.3O-99 34 • • 8.11 Duty to Prepare Budgets. The Association shall prepare Budgets for the Association as elsewhere provided in this Declaration. 8.12 Duty to Levy and Collect Assessments. The Association shall levy and collect Assessments as elsewhere provided in this Declaration. 8.13 Duty to Keep Association Records. The Association shall keep financial records sufficiently detailed to enable the Association to comply with the Act, including, but not limited to, financial records sufficiently detailed to provide a statement setting forth the amount of any unpaid Assessments currently levied against an Owner. 8.14 Duties with Respect to Design Review Committee Approvals. The Association shall perform functions to assist the Design Review Committee as elsewhere provided in this Declaration. Additionally, the Association shall have the right to delegate the duties of the Design Review Committee to a similar committee performing similar functions at other planned unit developments within Garfield County, Colorado. 8.15 Power to Acquire Property and Construct Improvements. The Association may acquire property or interests in property for the common benefit of Owners including improvements and personal property. The Association may construct Improvements on property and may demolish existing Improvements. 8.16 Power to Adopt Rules and Regulations. The Association may adopt, amend, repeal, and enforce Rules and Regulations as may be deemed necessary or desirable with respect to the interpretation and implementation of this Declaration, the operation of the Association, the use and enjoyment of Association Properties, and the use of any other property within the Community Area, including Lots. Any such Rules and Regulations shall be effective only upon adoption by resolution of the Board of Directors. Notice of the adoption, amendment, or repeal of any Rule or Regulation shall be given in writing to each Member at the address for notices to Members as elsewhere provided in this Declaration or the Bylaws, and copies of the currently effective Rules and Regulations shall be made available to each Member upon request and payment of the reasonable expense of copying the same. Each Member shall comply with such Rules and Regulations and shall see that Persons claiming through such Member comply with such Rules and Regulations. Such Rules and Regulations shall have the same force and effect as if they were set forth in and were part of this Declaration. In the event of conflict between the Rules and Regulations and the provisions of this Declaration, the provisions of this Declaration shall prevail. 8.17 Power to Enforce Declaration and Rules and Regulations. The Association shall have the power to enforce the provisions of this Declaration and the Rules and Regulations and shall take such action as the Board deems necessary or desirable to cause such compliance by each member and each Person claiming by, through, or under such Member ("Related User"). Without limiting the generality of the foregoing, the Association shall have the power to enforce the provisions of this Declaration and the Rules and Regulations by any one or more of the JPIDOCICOR.COV13.3O.99 35 following means: (a) by entry upon any property within the Community Area after Notice and Hearing (unless a bona fide emergency exists), without liability to the Owner thereof or the Association, for the purpose of enforcement or causing compliance with this Declaration or the Rules and Regulations; (b) by commencing and maintaining actions and suits to restrain and enjoin any breach or threatened breach of the provisions of this Declaration or the Rules and Regulations, by mandatory injunction or otherwise; (c) by commencing and maintaining actions and suits to recover damages for breach of any of the provisions of this Declaration or the Rules and Regulations; (d) by suspension, after Notice and Hearing, of the voting rights of a Member during and for up to ten (10) days following any breach by such Member or a Related User of such Member of this Declaration or the Rules and Regulations, unless the breach is a continuing breach in which case such suspension shall continue for so long as such breach continues; (e) by levying and collecting, after Notice and Hearing, a Reimbursement Assessment against any Member for breach of this Declaration or the Rules and Regulations by such Member or Related User of such Member; and (f) uniformly applied fines and penalties, established in advance in the Rules and Regulations of the Association, from any Member or Related User for breach of this Declaration or the Rules and Regulations by such Member or Related User of such Member. In the event that the Association fails to enforce the provisions of this Declaration as provided for herein, each Member shall, upon thirty (30) days written notice to the Association, have the power (a) to enforce the provisions hereof by commencing and maintaining actions and suits to retrain and enjoin any breach or threatened breach of the provisions of this Declaration, by mandatory injunction or otherwise; or (b) to commence or maintain actions and suits to recover damages for breach of any of the provisions of this Declaration. 8.18 Power to Grant Easements. The Association shall have the power to grant access, utility, drainage, water facility, and such other easements in, on, over, or under Association Properties as it deems necessary or desirable for the benefit of the Community Area, The Association shall have the further power to designate portions of the Association Properties as limited common elements for the benefit of specific Lot owners. 8.19 Power to Convey and Dedicate Property to Governmental Agencies. The Association, with the approval of Members representing at Ieast sixty-seven percent (67%) of the Owners entitled to vote (exclusive of the Declarant), shall have the power to grant, convey, dedicate, or transfer any Association Properties or facilities to any public, governmental or quasi- governmental agency or authority for such purposes and subject to such terms and conditions as the Association shall deem appropriate, subject to the provisions elsewhere contained in this Declaration for approval of the same by Declarant with respect to property transferred to the Association by Declarant. Further, to the extent that any easement or right-of-way is required under or across any Association Properties which would not impair or hinder the use thereof, the Association shall have the right to grant or convey the same without the consent of the Members. 8.20 Power to Borrow Money and Mortgage Property. The Association shall have the power to borrow money and, with the approval of Members representing at least sixty-seven percent (67%) of the Owners entitled to vote (exclusive of the Declarant), to encumber Association Properties as security for such borrowing, subject to provisions elsewhere contained in this Declaration with respect to required approvals and consents to such action. An 3 P1DOC\COR.CO V13.30.99 36 • • • Agreement to convey, or subject the Association Properties to a security interest in accordance with this Section and Section 8.18 above shall be evidenced by the execution of an agreement, or ratification thereof, in the same manner as a deed, by the requisite number of Owners. The agreement shall specify a date after which the agreement will be void unless Recorded before the date and shall be effective upon Recordation. Notwithstanding the foregoing, the Association, to the extent permitted by law, shall have the power to borrow money and to pledge existing and future receivables as security for such borrowing without the approval of the Members. 8.21 Power to Engage Employees, Agents, and Consultants. The Association shall have the power to hire and discharge employees and agents and to retain and pay for management, (e.g., management company), legal and accounting services as may be necessary or desirable in connection with the performance of any duties or the exercise of any powers of the Association under this Declaration. 8.22 General Corporate Powers. The Association shall have all of the ordinary powers and rights of a Colorado corporation formed under the Colorado Nonprofit Corporation Act, including, without limitation, entering into partnership and other agreements, subject only to such limitations upon such powers as may be set forth in this Declaration or in the Articles of Incorporation or Bylaws. The Association shall also have the power to do any and all lawful things which may be authorized, required, or permitted to be done under this Declaration or the Articles of Incorporation or Bylaws and to do and perform any and all acts which may be necessary or desirable for, or incidental to, the exercise of any of the express powers or rights of the Association under this Declaration and the Articles of Incorporation or Bylaws. 8.23 Power to Provide Association Functions. The Association shall have the power to acquire, construct, operate, manage, maintain, repair, and replace public facilities and to provide Association Functions as defined in this Declaration. The Association may enter into such cooperative agreements and arrangements as it may deem necessary and appropriate with any provider of utilities or public services to Owners, including any special municipal or quasi- municipal districts created for the purpose of providing such services. 8.24 Power to Provide Special Services to Members. The Association shall have the power to provide services to a Member or group of Members. Any service or services to a Member or group of Members shall be provided pursuant to an agreement in writing, or through one or more Supplemental Declarations, which shall provide for payment to the Association by such Member or group of Members of the reasonably estimated costs and expenses of the Association of providing such services, including a fair share of the overhead expenses of the Association and shall contain reasonable provisions assuring that the obligation to pay for such services shall be binding upon any heirs, personal representatives, successors and assigns of the Member or group of Members and that the payment for such services shall be secured by a lien on the property of the Member or group of Members. 8.25 Power to Charge for Association Properties, Facilities and Services. The Association shall have the power to establish reasonable and uniformly applied charges for the JP\DOC\COR.COv13.30.99 37 use of Association Properties, facilities and services. The charges may include reasonable admission or other fees for any special or extraordinary use of Association Properties. 8.26 Power to Employ Managers. The Association shall have the power to retain and pay for the services of a manager or Managers, which may be an affiliate of Declarant, to undertake any of the management or Administrative Functions, or Association Functions for which the Association has responsibility under this Declaration to the extent deemed advisable by the Association, and may delegate any of its duties, powers, or functions to any such Manager. Any contract or agreement with any such Manager shall be terminable by the Association for cause on no more than thirty (30) days prior written notice, and shall be terminable by the Association without cause and without payment of a termination fee on no more than ninety (90) days prior written notice. Any such contract or agreement shall be for a term of no more than one (1) year and may be subject to renewal for succeeding terms of no more than one (1) year each. Notwithstanding any delegation to a Manager of any duties, powers, or functions of the Association, the Association and its Board of Directors shall remain ultimately responsible for the performance and exercise of such duties, powers and functions. 8.27 Powers Provided by Law. In addition to the above -referenced powers, the Association shall have full power to take and perform any and all actions which may be Lawfully taken by the Association under the Colorado Nonprofit Corporation Act and the Colorado Common Interest Ownership Act. ARTICLE 9 ASSESSMENTS, BUDGETS AND FUNDS 9.1 Maintenance Funds to be Established. The Association may (but shall not be required to) establish and maintain the following separate Maintenance Funds: (a) an Administrative Functions Operating Fund; and (b) an Administrative Functions Reserve Fund. The Maintenance Funds shall be established as one or more trust savings or trust checking accounts at any financial institution in which deposits are insured by an agency of the federal government. Notwithstanding anything else to the contrary contained herein, in no event shall the Association be required to apply any surplus funds of the Association remaining after payment of or provision for common expenses, or any prepayment of or provision for reserves, against any Members" future Common Assessment or return such surplus funds to the Members. 9.2 Establishment of Other Funds. The Association may establish other funds as and when needed. Nothing herein shall limit, preclude, or impair the authority of the Association to establish other funds for specified purposes authorized by this Declaration. If the Association establishes any additional funds, the Board shall designate an appropriate title for the fund to distinguish it from other funds maintained by the Association. 9.3 Deposit of Common Assessments to Maintenance Funds. If the Association establishes separate Maintenance Funds, monies received by the Association from Common Assessments shall be deposited in the Maintenance Funds in accordance with the following provisions: (a) there shall be deposited to the Administrative Functions Operating Fund that J P\DOC1COR. CO V L3.3 D. 99 38 • • • portion of the Common Assessments which, according to the Association Budget for the year, was budgeted for operating costs and expenses of the Administrative and Association Functions; and (b) there shall be deposited to the Administrative Functions Reserve Fund that portion of the Common Assessments which were budgeted for the Reserve Fund for Administrative and Association Functions. 9.4 Other Deposits to Maintenance Funds. If the Association establishes separate Maintenance Funds, the Association shall deposit monies received by the Association from sources other than Common Assessments in the Maintenance Fund determined by the Board of Directors to be most appropriate. For example, the Reimbursement Assessments shall be deposited to the Maintenance Fund from which the costs and expenses were or will be paid which form the basis for the Reimbursement Assessments; and Special Assessments for capital repairs, maintenance, replacements, and Improvements shall be deposited to the Reserve Fund from which such capital costs have been or will be paid. Interest and late charges received on account of delinquent assessments may be allocated among the Maintenance Funds in the same proportions as the delinquent assessments were allocated or, at the discretion of the Board of Directors, may be allocated to any one or more of the Maintenance Funds or other funds. 9.5 Disbursements from Maintenance Funds. All amounts deposited in the Maintenance Funds shall be used solely for the common benefit of all the Members for purposes authorized by this Declaration. Disbursements from particular Maintenance Funds shall be limited to specified purposes as follows: (a) disbursements from the Administrative Functions Operating Fund may be made for such purposes as are necessary or proper under this Declaration, except those purposes for which disbursements are to be made from other Maintenance Funds; and (b) disbursements from the Administrative Functions Reserve Fund shall be made solely for purposes of funding those administrative Functions which cannot be expected to recur on an annual or more frequent basis. 9.6 Authority for Disbursements. The Board shall have the authority to make or to authorize an agent to make disbursements of any monies in the Maintenance Fund. 9.7 Common Assessments. For each calendar year, the Association may levy Common Assessments against Owners of the Lots. Each Owner shall be obligated to pay the Common Assessments levied against and allocated to such Owner and the Lot of such Owner, as hereinafter provided. 9.8 Apportionment of Common Assessments. For purposes of assessing the Common Assessments, each Lot shall constitute one (1) Unit regardless of the size, value, location, or use of such Lot. The amount of the Common Assessment for any year, payable by the Owner of such Lot, shall be computed by multiplying the total amount to be raised by the Common Assessments for that year, as shown in the Association Budget for that year, by a percentage (rounded to the nearest one-tenth of one percent (0.1%), derived from a fraction, the numerator of which is one (1) and the denominator of which is the total number of Lots in the Community Area as of the first day of that calendar year. If Lots have been combined pursuant to Section 3.21 hereof, each 7P\DOC\COR.Cov13.3O.99 39 Lot so combined shall be counted separately in determining the amount of such Common Assessment and shall be assessed separately. 9.9 Funding of Reserve Funds. The Board, in budgeting and levying assessments, shall endeavor, whenever possible, to fund the Administrative Functions Reserve Fund by regularly scheduled payments, included as part of the Common Assessments, rather than by large Special Assessments. Amounts in the Administrative Functions Reserve Fund may be used in the discretion of the Board of Directors, from time to time, for any purpose for which a Common or Special Assessment may be used. 9.10 Supplemental Common Assessments. Subject to the provision of Section 9.14 hereof, if the estimated sums prove inadequate for any reason, including nonpayment of any Owner's Common Assessment, the Board may, from time to time, levy a Supplemental Common Assessment for any of the Maintenance Funds. Such Supplemental Common Assessment shall be assessed against the Owner of each lot, in the same manner Common Assessments are originally assessed each year by the Board with respect to the particular Maintenance Fund. Written notice of any change in the amount of any annual Common Assessment shall be sent to every Owner subject thereto, not less than thirty (30) days prior to the effective date of such change. 9.11 Annual Budgets. The Board of Directors shall cause to be prepared, at least sixty (60) days prior to the commencement of each calendar year, a Budget for such calendar year, including a reasonable provision for contingencies and deposits into the Administrative Functions and Reserve Funds. The Budget shall show, in reasonable detail, the categories of expenses and the amount of expenses in each Maintenance Fund, and shall reflect any expected income of the Association for the coming calendar year and any expected surplus from the prior year and any existing surplus in any Reserve Fund. The budget may include an amount for contingencies and amounts deemed necessary or desirable for deposits to create, replenish, or add to the proper Reserve Fund for major capital repairs, replacements, and improvements for Association Properties. Within thirty (30) days after the adoption of any Budget; the Board shall cause a copy of the Budget to be distributed to each Member and shall set a date for a meeting of the Owners to consider ratification of the Budget not less than fourteen (14) nor more than sixty (60) days after mailing or other delivery of the summary. Such meeting may be concurrent with the annual meeting of members as provided in the Bylaws. Unless at that meeting, a majority of all Owners vote to reject the Budget, the Budget shall be deemed ratified, whether or not a quorum is present. In the event the budget is rejected, the periodic Budget last ratified by the Owners must be continued until such time as the Owners ratify a subsequent Budget proposed by the Board. At such time as the Association publishes a newsletter for Members, the Budget shall be published in such newsletter. Copies of the Budget shall be made available by the Association to any Members requesting a copy of the same upon payment of the reasonable expense of copying the same. 9.12 Commencement of Common Assessments/Community Areas. Common Assessments shall commence and be due and payable as to each Lot within the Community Area six (6) months following the date of Recordation of the first Deed conveying a Lot within the JPIDOCICOR. COV 13.3 0.99 40 • • Community Area. The initial Common Assessments for the first calendar year that Common Assessments are levied shall be prorated on the basis of the number of days in such calendar year remaining from the date of commencement of such Common Assessments to the end of such calendar year, 9.13 Payment of Assessment. Except for the Initial Assessment, Common Assessments shall be due and payable in advance to the Association by the assessed Member on or before the first day of the second month of each calendar year, or in such other manner and on such other dates as the Board of Directors may designate in its sole and absolute discretion. Notice of the amount of the Common Assessments shall be given to each Member prior to January 1 of each year. 9.14 Failure to Fix Assessment. The failure by the Board of Directors to levy an Assessment for any year shall not be deemed a waiver or modification with respect to any of the provisions of this Declaration or a release of the liability of any Member to pay Assessments, or any installment thereof, for that or any subsequent year. No abatement of the Common Assessment or any other Assessment shall be claimed or allowed for inconvenience or discomfort arising from the making of repairs or Improvements to Association Properties or from any action taken to comply with any law or any determination of the Board of Directors or for any other reason. 9.15 Special Assessments for Capital Expenditures. In addition to Common Assessments, the Board of Directors may, subject to the provisions of this Section, levy Special Assessments for the purpose of raising funds not otherwise proved under the budget from Common Assessments to construct or reconstruct, repair, or replace capital Improvements upon Association Properties, including necessary personal property related thereto; to add to the Association Properties; to provide for necessary facilities and equipment to offer the services authorized in this Declaration; or to repay any loan made to the Association to enable it to perform the duties and functions authorized in this Declaration. The Board of Directors shall not levy Special Assessments without the vote of the Members representing at least a majority of the Owners of Lots subject to the Special Assessment who are entitled to vote. The Association shall notify Members in writing of the amount of any Special Assessment and of the manner in which, and the date on which, any such Special Assessment is payable and the Members shall pay any such Special Assessment in the manner so specified. 9.16 Reimbursement Assessments. The Board of Directors may, subject to the provisions hereof, levy an Assessment against any member if the willful or negligent failure of the Member of a Person claiming through the Member to comply with this Declaration. the Articles of Incorporation, the bylaws, or the rules and Regulations shall have resulted in the expenditure of funds by the Association to cause such compliance including, but not limited to, court costs and attorneys' fees. Such Assessment shall be known as a Reimbursement Assessment and shall be levied only after Notice and Hearing. The amount of the Reimbursement Assessment shall be due and payable to the Association thirty (30) days after notice to the Member of the decision of the Board of Directors that the Reimbursement Assessment is owing. 1 P1DOCICOR.CO V3.30.99 41 9.17 Late Charges and Interest. If any Common Assessment, Special Assessment, or Reimbursement Assessment or any installment thereof is not paid when due, the Member obligated to pay the Assessment may be required to pay a reasonable late charge to be determined by the Board. Any Assessment or installment of an Assessment which is not paid when due shall bear interest from the date said Assessment was due at the highest rate then established by statute in Colorado for interest on damages for personal injury or on judgments in other actions, whichever is higher, but in no event less than eighteen percent (18%) per annum simple interest. 9.18 Attribution of Payments. If any installment of a Common Assessment payment is less than the amount assessed and the payment does not specify the Maintenance Fund or Funds into which it should be deposited, the receipt by the Association from that Owner shall be credited in the following order of priority: (a) to the Administrative Functions Reserve Fund until that portion of the Common Assessment has been satisfied; and (b) to the Administrative Functions Operating Fund. In each of the foregoing cases, receipts shall be credited first to interest, attorneys' fees and other costs of collection, and next to principal reduction, satisfying the oldest obligations first, followed by more current obligations, in accordance with the foregoing order of priority. 9.19 Notice of Default. Except as otherwise provided herein, if any Common Assessment, Special Assessment, or Reimbursement Assessment or any installment thereof is not paid within ten (10) days after its due date, the Board of Directors may, but shall not be obligated to, mail a notice of default ("Notice of Default") to the Owner and to each first Mortgagee of the Lot who has requested a copy of the notice. The notice shall specify (a) the fact that the installment is delinquent (b) the action required to cure the default; (c) a date, not less than thirty (30) days from the date the notice is mailed to the Member, by which such default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in (i) acceleration of the balance of the Assessment or the installments of the Assessment for the then current calendar year, if applicable, and (ii) the filing and foreclosure of the lien for the Assessment against the Lot of the Member. The notice shall further inform the Member of any right to cure the default and of any right to bring a court action to assert the nonexistence of a default or any other defense of the Member. If the delinquent Assessment and any late charges or interest thereon are not paid in full on or before the date specified in the notice, the Board, at its option, may declare all of the unpaid balance of the Assessment to be immediately due and payable without further demand, if applicable, and may enforce the collection of the Assessment and all charges and interest thereon in any manner authorized by law in this Declaration, subject to the protection afforded to Mortgagees under this Declaration. 9.20 Remedies to Enforce Assessments. Each Assessment levied hereunder shall be a separate, distinct, and personal debt and obligation of the Owner or Member against whom the same is assessed. In the event of a default in payment of any Assessment or installment thereof, whether Common, Special, or Reimbursement, the Board may, in addition to any other remedies provided under this Declaration or by law, enforce such obligation on behalf of the Association by suit or by filing and foreclosure of a lien as hereinafter provided. JP\DOCIC©R.CO 3.30.99 42 • • • 9.21 Lawsuit to Enforce Assessments. The Board may bring a suit at law to enforce any Assessment obligation. Any judgment rendered in such action shall include any late charges, interest, and other costs of enforcement, including reasonable attorneys' fees in the amount as the court may adjudge, against the defaulting Owner or Member. 9.22 Lien to Enforce Assessments. Pursuant to and in accordance with the Act, the Association shall have a statutory lien on a Lot for any Assessment levied against that Lot, or fines imposed against its Owner, from the time the Assessment or fme becomes due. All fees, charges, late charges, attorneys' fees, fines and interest outstanding from such Owner shall be included in such lien. The lien created hereby and under the Act shall be prior to any declaration of homestead rights recorded after the time that the Lot becomes a part of the Community Area and shall have the priority attached to such lien under the Act and under Colorado law. The lien shall continue until the amounts secured thereby and all subsequently accruing amounts are fully paid or otherwise satisfied. Unless paid or otherwise satisfied, the lien may be foreclosed in the manner for foreclosure of mortgages in the State of Colorado or in any other manner provided under Colorado law. 9.23 Estoppel Certificates. Upon the written request of any Member and any Person with, or intending to acquire, any right, title, or interest in the Lot of such Member, the Association shall furnish a written statement setting forth the amount of any Assessments or other amounts, if any, due and accrued and then unpaid with respect to a Lot and the Owner thereof, and setting forth the amount of any Assessment levied against such Lot which is not yet due and payable. Such statement shall, with respect to the Person to whom it is issued, be conclusive against the Association and all Persons for all purposes, that no greater or other amounts were then due or accrued and unpaid and that no other Assessments have been levied. The Association shall have the right from time to time to establish a reasonable administrative charge for the issuance of such statements. 9.24 No Offsets. All Assessments shall be payable in the amounts specified in the levy thereof, and no offsets or reduction thereof shall be permitted for any reason including, without limitation, any claim that the Association or the Board of Directors is not properly exercising its duties and powers under this Declaration. ARTICLE 10 SPECIAL PROVISIONS 10.1 Air Quality Restrictions. In order to protect against the degradation which occurs to air quality as a result of the utilization of wood -burning devices, the following restrictions are imposed: 10.1.1 No open hearth solid fuel fireplaces will be allowed anywhere within any new dwelling units located within the Community Area. 10.1.2 All dwelling units within the Community Area will be allowed an unrestricted number of natural gas burning fireplaces or appliances. JP\DOC\COR. CO V\3, 3 0.99 43 10.1.3 All dwelling units within the Cornminity Area will be allowed one (1) new wood -burning stove as defined by C.R.. 25-7-401 et. seq. and all the regulations promulgated thereunder. 10.1.4 The foregoing air quality instructions shall be included as plat notes on all Final Plats of the Property. 10.2 Duration and Enforceability. The restrictions set forth in this Article 10 shall constitute covenants running with the Community Area and shall be binding upon Declarant and the Owners and all other persons and parties claiming through the Declarant or Owners and shall be for the benefit of and limitations upon all future Owners of the Property. Notwithstanding any other provision of this Declaration, all use restrictions set forth in this Article 10 may be set forth in individual deeds to Lots and shall be enforceable in perpetuity and shall not be amended or terminated by action of the Owners or Declarant nor by any provision for termination of this Declaration. The restrictions of these special environmental use restrictions shall be enforceable in any and all manners provided in this Declaration by any Owners, by Declarant, or by any County, State or Federal agency charged with preservation of the affected areas. Any such enforcement action shall entitle the enforcing party to recovery of damages equal to the cost of restoration of the Property, but not less than One Thousand Dollars ($1,000) and such enforcing party shall be entitled to an award of its reasonable attorney fees and costs of enforcement, including but not limited to, court costs, expert witness fees, and cost of depositions and exhibits. ARTICLE 11 MISCELLANEOUS 11.1 Term of Declaration. Unless amended as herein provided, and except for those provisions set forth in Article 10 hereof, each provision contained in this Declaration shall continue and remain in full force and effect until December 31, 2060, and thereafter shall be automatically extended for successive periods of ten (10) years each unless terminated by the affirmative vote, and written ballot, of Members holding at least seventy-five percent (75%) of the membership of the Association. In the event this Declaration is terminated, the termination of this Declaration shall be evidenced by a termination agreement ("'Termination Agreement"), or ratification thereof, executed by the requisite number of Owners. The Termination Agreement shall specify a date after which the Termination Agreement will be void unless Recorded before such date. The Termination Agreement shall be Recorded and the termination of this Declaration shall be effective upon such Recording. 11.2 Amendment of Declaration by Declarant. Until the first Lot subject to this Declaration has been conveyed by Declarant by a Recorded deed, any of the provisions, covenants, conditions, restrictions, and equitable servitudes contained in this Declaration may be amended or terminated by Declarant by the Recordation of a written instrument, executed by Declarant, setting forth such amendment or termination. After the conveyance of the first Lot, the Declarant may not amend the provisions, covenants, conditions, restrictions and equitable JPU]OCICOR.COV13.3099 44 servitudes contained in this Declaration without the consent of the Members as provided in Section 11.3 unless such amendment is made in accordance with the Act. 11.3 Amendment of Declaration by Members. Except as otherwise provided in this Declaration, including Section 6.1, and subject to provisions elsewhere contained in this Declaration requiring the consent of Declarant or others, any provision, covenant, condition, restriction, or equitable servitude contained in this Declaration may be amended or repealed at any time and from time to time upon approval of the amendment or repeal by Members of the Association holding at least fifty-one percent (51%) of the Members. The approval of any such amendment or repeal shall be evidenced by the certification by the Members to the Board of Directors of the Association of the votes of Members. The amendment or repeal shall be effective upon the Recordation of a certificate, executed by the President or a Vice President and the Secretary or an Assistant Secretary of the Association setting forth the amendment or repeal in full and certifying that the amendment or repeal has been approved by the Members. Any Amendment to the Declaration made hereunder shall be effective only when Recorded. All amendments hereto shall be indexed in the grantee's index in the name of Declarant and the Association and in the Grantor's index in the name of each Person executing the amendment. 11.4 Amendment of Articles and Bvlaws. The Articles of Incorporation and Bylaws may be amended in accordance with the provisions set forth in such instruments or, in the absence of such provisions, in accordance with applicable provisions of the Colorado Nonprofit Corporation Act. 11.5 Alternative Dispute Resolution. Except as may otherwise be provided herein and alter exercising all rights and remedies provided hereunder or under the Bylaws, any claim, controversy, or dispute over any Special Assessment or Reimbursement Assessment, or any decision of the Design Review Committee, or any other matters as the Association and the affected party may agree, shall be resolved by binding arbitration in accordance with the Colorado Arbitration Act. The parties to such dispute shall agree upon a single arbitrator who shall be an experienced operator or manager of a Planned Community. In the event the parties are unable to agree upon an arbitrator within sixty (60) days after written notice, the presiding Judge of the District Court of the County shall appoint an arbitrator qualified as set forth herein upon application by a party. Judgment upon the determination of the arbitrator shall be entered by the District Court for the County. Any and all discovery conducted in conjunction with such arbitration shall be in accordance with the limited discovery provisions of the Colorado rules of Civil Procedure. 11,6 Special Rights of First Mortgagees. Any First Mortgagee (meaning a Mortgage with first priority over other Mortgages) of a Mortgage encumbering any Lot in the Community Area, upon filing a written request therefor with the Association, shall be entitled to (a) written notice from the Association of any default by the Mortgagor of such Lot in the performance of the Mortgagor's obligations under this Declaration, the Articles of Incorporation, the bylaws, or the rules and Regulations, which default is not cured within sixty (60) days after the Association learns of such default; (b) examine the books and records of the Association during normal business hours; (c) receive a copy of financial statements of the Association including any annual 11)1DOCICOR.COV13.30.99 45 financial statement within ninety (90) days following the end of any fiscal year of the Association; (d) receive written notice of all meetings of Members; (e) designate a representative to attend any meeting of Members; (f) receive thirty (30) days" written notice prior to the effective date of any proposed material amendment to this Declaration, the Articles of Incorporation, or the Bylaws; and (g) receive immediate written notice as soon as the Association receives notice or otherwise learns of any damage to the Association Properties if the cost of reconstruction exceeds Ten Thousand Dollars ($10,000) and as soon as the Association receives notice or otherwise learns of any condemnation or eminent domain proceedings or other proposed acquisition with respect to any portion of the Association Properties. 11.7 Priority of First Mortgage Over Assessments. Except as may otherwise be provided by the Act, each First Mortgagee of a Mortgage encumbering a Lot who obtains title to such Lot pursuant to the remedies provided in the Mortgage, by judicial foreclosure, or by deed or assignment in lieu of foreclosure shall take title to the Lot free and clear of any claims for unpaid Assessments or charges against such Lot which accrued prior to the time such holder acquires title to such Lot. Nothing herein relieves such First Mortgagee from responsibility for subsequent Assessments or charges against such Lot after such time the holder acquires title to such Lot. 11.8 First Mortgage Right to Pay Taxes and Insurance Premiums. Any such First Mortgagee or any such First Mortgagees, jointly or singly, shall be entitled to pay any taxes or other charges which are in default and which may or have become a charge against any of the Association Properties and may pay any overdue premiums on hazard insurance policies for any Association Properties, and the First Mortgagees making such payments shall be entitled to immediate reimbursement therefor from the Association. 11.9 Association Right to Mortgage Information. Each Owner hereby authorizes any First Mortgagee holding a Mortgage on such Owner's Lot to furnish information to the Association concerning the status of such First Mortgage and the loan which it secures. 11.10 Notices. Any notice permitted or required to be given under this Declaration shall be in writing and may be given either personally or by mail, telephone, or telegraph. If served by mail, each notice shall be sent postage prepaid, addressed to any Person at the address given by such Person to the Association for the purpose of service of such notice, or to the Lot of such Person if no address has been given to the Association and shall be deemed given, if not actually received earlier, at 5:00 p.m. on the second business day after it is deposited in a regular depository of the United States Postal Service. Such address may be changed from time to time by notice in writing to the Association. 11.11 Persons Entitled to Enforce Declaration. The Association, acting by authority of the Board, and any Member of the Association entitled to vote (as more fully provided herein) shall have the right to enforce any or all of the provisions, covenants, conditions, restrictions, and equitable servitudes contained in this Declaration against any property within the Community Area and the Owner thereof. Notwithstanding the foregoing, prior to the enforcement of the terms and provisions of this Declaration by any Member, such Member shall provide the JPID©C\COR.COv13.30.99 46 • • • Association with 30 days prior written notice of such member's intention to do so. Such notice will state such Member's claim for enforcement under the Declaration. In the event the Association fails to initiate action on such Member's claim for enforcement within 30 days of the Association's receipt of such notice, such Member shall be entitled to proceed with the enforcement within 30 days of the Association's receipt of such notice, such Member shall be entitled to proceed with the enforcement of such claim individually. The rights of enforcement provided herein shall include the right to levy fines and/or penalties as the Board may reasonably determine and/or bring an action for damages as well as an action to enjoin any violation of any provision of this Declaration. 11.12 Violations Constitute a Nuisance. Any violation of any provision, covenant, condition, restriction, and equitable servitude contained in this Declaration, whether by act or omission, is hereby declared to be a nuisance and may be enjoined or abated, whether or not the relief sought is for negative or affirmative action, by any Person entitled to enforce the provisions of this Declaration. 11.13 Enforcement of Self -Help. Declarant or the Association, or any authorized agent of either of them, may enforce, by self-help, any of the provisions, covenants, conditions, restrictions and equitable servitudes contained in this Declaration, provided such self-help is preceded by Notice and Hearing as set forth in the Bylaws. 11.14 Violations of Law. Any violation of any federal, state, municipal, or local law, ordinance, rule or regulation, pertaining to the ownership, occupation, or use of any property within the Community Area is hereby declared to be a violation of this Declaration and shall be subject to any and all enforcement procedures set forth in this Declaration. 11.15 Remedies Cumulative. Each remedy provided under this Declaration is cumulative and not exclusive. 11.16 Costs and Attorneys' Fees. In any action or proceeding under this Declaration, the prevailing party shall be entitled to recover its costs and expenses in connection therewith including reasonable attorneys' fees. 11.17 Limitation on Liability. The Association, the Board of Directors, the Design Review Committee, Declarant, and any Member, agent, or employee of any of the same shall not be liable to any Person for any action or for any failure to act if the action or failure to act was in good faith and without malice. 11.18 No Representations or Warranties. No representations or warranties of any kind, express or implied, shall be deemed to have been given or made by Declarant or its agents or employees in connection with any portion of the Community Area, or any Improvement thereon. its or their physical condition, zoning, compliance with applicable laws, fitness for intended use. or in connection with the subdivision, sale, operation, maintenance, cost of maintenance, taxes or regulation thereof, unless and except as shall be specifically set forth in writing herein, in any purchase agreement executed by Declarant, or in any closing document related thereto. JP\DOC\COR.COvi3.3099 47 11.19 Liberal Interpretation. The provisions of this Declaration shall be liberally construed as a whole to effectuate the purpose of this Declaration. 11.20 Governing Law. This Declaration shall be construed and governed under the laws of the State of Colorado. 11.21 Colorado Common Interest Ownership Act. In the event that any of the terms and conditions of this Declaration are in conflict or inconsistent with the terms and conditions of the Colorado Common Interest Ownership Act, the terms and conditions of the Act shall control. All terms and provisions contained herein, to the extent possible, shall be construed in accordance with the terms and provisions of the Act. 11.22 Severability. Each of the provisions of this Declaration shall be deemed independent and severable, and the invalidity or unenforceability or partial validity or partial enforceability of the provisions or portion thereof shall not affect the validity or enforceability of any other provision. 11.23 Number and Gender. Unless the context requires a contrary construction, the singular shall include the plural and the plural the singular, and the masculine, feminine, or neuter genders shall each include the masculine, feminine, and neuter genders. 11.24 Captions for Convenience. The titles, headings, and captions used in this Declaration are intended solely for convenience of reference and shall not be considered in construing any of the provisions of this Declaration. 11.25 Mergers or Consolidations. Upon a merger or consolidation of the Association with another association, its properties, rights, and obligations may, by operation of law, be transferred to another surviving or consolidated association or, alternatively, the properties, rights. and obligations of another association may, by operation of law, be added to the properties, rights and obligations of the Association as a surviving corporation pursuant to a merger. The surviving consolidated association may administer and enforce the covenants, conditions and restrictions established by this Declaration governing the Property, together with the covenants and restrictions established upon any other property, as one plan. 11.26 Disclaimer Regarding Safety. DECLARANT AND THE ASSOCIATION HEREBY DISCLAIM ANY OBLIGATION REGARDING THE SECURITY OF ANY PERSONS OR PROPERTY WITHIN THE COMMUNITY AREA. ANY OWNER OF PROPERTY WITHIN THE COMMUNITY AREA ACKNOWLEDGES THAT DECLARANT AND THE ASSOCIATION ARE ONLY OBLIGATED TO DO THOSE ACTS SPECIFICALLY ENUMERATED HEREIN, OR IN THE ARTICLES OF INCORPORATION AND BYLAWS, AND IS NOT OBLIGATED TO DO ANY OTHER ACTS WITH RESPECT TO THE SAFETY OR PROTECTION OF PERSONS OR PROPERTY WITHIN THE COMMUNITY AREA. JP\DOCICOR,COV13.30.99 48 IN WITNESS WHEREOF, Declarant has executed this Declaration the day and year first above written. CORYELL RANCH COMPANY. L.L.C., a Colorado limited liability company By: Coryell Ranch Management Company, Inc., a South Carolina corporation By: Title: STATE OF SS. COUNTY OF The foregoing instrument was acknowledged before me this day of 199,, by for Coryell Ranch Management Company, Inc., a South Carolina corporation, Manager of Coryell Ranch Company, L.L.C., a Colorado limited liability company. ,as WITNESS my hand and official seal. My commission expires: Notary Public JP\DOC\COR.COV\3.30.99 49 0 UNITED SUMMARY APPRAISAL REPORT of CORYELL RANCH Section 29, Township 7 South Range 88 West Garfield County, Colorado Date of Value: November 15, 1998 Date Prepared: October 6, 1999 FOR: Mr. Don Parris Aspen GIen Realty, Inc. 9929 Highway 82 Carbondale, Colorado 81623 PREPARED BY: Elizabeth Krizmanich, SRA Associate Appraiser The Aspen Appraisal Group, Ltd. The Aspen Appraisal Group, Ltd.Real Estate Appraisers & Consultants Crystal Palace Building • 300 E. Hyman • Aspen, CO 81617 • 970/925-8987 • FAX 970/925-5046 October 6, 1999 Mr. Don Parris Aspen Glen Realty, Inc. 9929 Highway 82 Carbondale, Colorado 81623 RE: Limited Summary Appraisal of Coryell Ranch (Section 29, Township 7 South, Range 88 West), Garfield County, Colorado Mr. Parris: At your request, 1 inspected the above -referenced property and gathered and analyzed market activity for the purpose of estimating its Market Value (most probable selling price), as of November 15, 1998. This valuation is a "Limited Appraisal" written in a "Summary Appraisal Format" summarizing the data germane to the analysis of the subject property. As such, the discussion of zoning, highest and best use, neighborhood and valuation section are less detailed than typically found in a "Self -Contained Appraisal Report." The analysis is limited in scope in that I have not appraised the subject based on the Development Approached to Value. At your request, 1 have appraised it prior to any approvals for the Coryell Ranch and Midland Point Subdivisions, based on recent sales of similar ranch parcels with comparable development potential. The analysis has been in depth, and the value conclusion would not change given the detail reporting requirements of a "Self -Contained Appraisal Report". The analysis conforms with the requirements of the Uniform Standards of Professional Appraisal Practice and the Code of Professional Ethics of the Appraisal Institute. I am aware that the subject has some water rights. I am not an expert in the appraisal of water rights and have only considered them in terms of their contributory value to the subject parcel. ASSOCIATE APPRAISERS Elizabeth A. Newman Salt' Salvi Scott M. Bowie, MAI, SRA Randy Gold, MAI, SRA Elizabeth Krizmanich, SRA Based upon an analysis of the accumulated data, it is my conclusion that the subject property has an estimated Market Value (most probable selling price), "as is," as of November 15, 1998 of: SLY MILLION DOLLARS S6,000,000 Please note that this value assumes a cash or cash -effective transaction and includes real estate commission. Had the property been listed at or close to the appraised value, it would have had an exposure time of approximately 6 to 12 months. Marketing time would also be 6 to 12 months. The attached report sets forth the methods, data, reasoning and conclusions, if1 can be of any further assistance in the interpretation or application of the findings in this report, please do not hesitate to call. Thank you for this opportunity to be of service. Respectfully submitted, 7 Elizabeth Krizmanich, SRA Associate Appraiser Cert.Genl. Appr. #CG01313336 The Aspen Appraisal Group, Ltd. CERTIFICATION I certify to the best of my knowledge and belief: 1. I have taken into consideration the factors that have an impact on value in my development of the estimate of Market Value in the appraisal report. I have not knowingly withheld any significant information from the appraisal report and I believe, to the best of my knowledge, that all statements of fact contained in this appraisal report are true and correct. 2. I have stated in the appraisal report only my own personal, unbiased, and professional analysis, opinions, and conclusions, which are subject only to the contingent and lirniting conditions specified in this form. If I have relied on significant professional assistance from any individuals in the performance of the appraisal or the preparation of the appraisal report, I have named such individual(s) and disclosed the specific tasks performed by them in the Scope of the Appraisal section of this report. 3. I have no present or prospective interest in the property that is the subject to this report, and I have no present or prospective personal interest or bias with respect to the parties involved. 4. My engagement in this assignment was not contingent upon developing or reporting predetermined results. 5. My compensation for completing this assignment is not contingent upon the development or reporting of a predetermined value or direction in value that favors the cause of the client, the amount of the value opinion, the attainment of a stipulated result, or the occurrence of a subsequent event directly related to the intended use of this appraisal. 6. I did not base, either partially or completely, my analysis and/or the estimate of Market Value in the appraisal report on the race, color, religion, sex, handicap, familial status, or national origin of either the prospective owners or occupants of the subject property or of the present owners or occupants of the properties in the vicinity of the subject property. 7. My analyses, opinions, and conclusions were developed, and this report has been prepared in conformity with the Uniform Standards of Professional Appraisal Practice, adopted and promulgated by the Appraisal Standards Board of The Appraisal Foundation and that were in place as of the effective date of this appraisal. 8. Unless specifically stated in the Scope of the Appraisal section and reiterated in the box below, I have made a personal inspection of the property that is the subject of this report. ADDRESS OF PROPERTY APPRAISED: Section 29, Township 7 South Range 88 West, Garfield County, Colorado APPRAISER: Signature: Name: Elizabeth Krizmanich. SRA 44 Date Signed: 0 1 L_ CiG1 Cert. Genl. Appr,#: CG01313336 State: Colorado Expiration Date of Certification: 12/31/00 I did ❑ did not 0 personally inspect the subject The Aspen Appraisal Group, Ltd. ADDITIONAL CERTIFICATION The undersigned does hereby further ceriify that, to the best of my knowledge and belief: 1. The reported analyses, opinions and conclusions were developed, and this report has been prepared in conformity with the requirements of the Code of Professional Ethics and the Standards of Professional Appraisal Practice of the Appraisal Institute. 2. The use of this report is subject to the requirements of the Appraisal Institute relating to review by its duly authorized representatives. I have personally inspected the subject property and have contributed materially to the value conclusion. As of the date of this report, I have completed the requirements of the continuing education program of the Appraisal Institute. Elizalbeth Krizmamcc Associate Appraiser Cert. Genl. Appr. #CG01313336 The Aspen Appraisal Group, Ltd. STATEMENT OF LIMITING CONDITIONS CONTINGENT AND LIMITING CONDITIONS: The appraiser's certification that appears in the appraisal report is subject to the following conditions: 1. The appraiser will not be responsible for matters of a Iega1 nature that affect either the property being appraised or the title to it. The appraiser assumes that the title is good and marketable and, therefore, will not render any opinions about the title. The property is appraised on the basis of it being under responsible ownership. 2. The appraiser has provided a sketch in the appraisal report to show approximate dimensions of the improvements and the sketch is included only to assist the reader of the report in visualizing the property and understanding the appraiser's determination of size. 3. The appraiser has examined the available flood maps that are provided by the Federal Emergency Management Agency (or other data sources) and has noted in the appraisal report whether the subject site is located in an identified Special Flood Hal rd Area. Because the appraiser is not a surveyor, he or she makes no guarantees, express or implied, regarding this determination. 4. The appraiser will not give testimony or appear in court because he or she made an appraisal of the property in question, unless specific arrangements to do so have been made beforehand. 5. The appraiser has estimated the value of the land in the Cost Approach at its highest and best use and the improvements at their contributory value. These separate valuations of the land and improvements must not be used in conjunction with any other appraisal and are invalid if they are so used. 6. The appraiser has noted in the appraisal report any adverse conditions (such as, needed repairs, depreciation, the presence of h t12rdous wastes, toxic substances, etc.) observed during the inspection of the subject property or that he or she became aware of during the normal research involved in performing the appraisal. Unless otherwise stated in the appraisal report, the appraiser has no knowledge of any hidden or inapparent conditions of the property or adverse environmental conditions (including the presence of hpinrdous wastes, toxic substances, etc.) that would make the property more or less valuable, and has assumed that there are no such conditions and makes no guarantees or warranties, express or implied, regarding the condition of the property. The appraiser will not be responsible for any such conditions that do exist or for any engineering or testing that might be required to discover whether such conditions exist. Because the appraiser is not an expert in the field of environmental hamrds, the appraisal report must not be considered as an environmental assessment of the property. 7. The appraiser obtained the information, estimates, and opinions that were expressed in the appraisal report from sources that he or she considers to be reliable and believes them to be true and correct. The appraiser does not assume responsibility for the accuracy of such items that were furnished by other parties. 8. The appraiser will not disclose the contents of the appraisal report except as provided for in the Uniform Standards of Professional Appraisal Practice. 9. The appraiser has based his or her appraisal report and valuation conclusion for an appraisal that is subject to satisfactory completion, repairs, or alterations on the assumption that completion of the improvements will be performed in a workmanlike mariner. 10. The appraiser must provide his or her prior written consent before the lender/client specified in the appraisal report can distribute the appraisal report (including conclusions about the property value, the appraiser's identity and professional designations, and references to any professional appraisal organizations or the firm with which the appraiser is associated) to anyone other than the borrower; the mortgagee or its successors and assigns; the mortgage insurer; consultants; professional appraisal organizations; any state or federally approved financial institutions; or any department, agency, or instrumentality of the United States or any state or the District of Columbia; except that the lender/client may distribute the property description section of the report only to data collection or reporting service(s) without having to obtain the appraiser's prior written consent. The appraiser's written consent and approval must also be obtained before the appraisal can be conveyed by anyone to the public through advertising, public relations, news, sales, or other media. ELIZABETH ICRIZNIAIIICH, SRA Professional Affiliations The Appraisal Institute, SRA #2647 Certified General Appraiser, State of Colorado, #CG01313336 Licensed Real Estate Salesperson in the State of Colorado Member of the National Association of Realtors Member of the Aspen Board of Realtors Education University of North Carolina at Chapel Hill, Master of Regional Duke University, BA,1978 Appraisal Institute: Real Estate Principles Basic Valuation Procedures Capitalization Theory & Techniques A&B Case Studies in Real Estate Valuation Business Report Writing Standards of Professional Appraisal Practice Planning, 1983 Experience University of North Carolina: Real Estate Development Real Estate Finance Housing and Public Policy Investment and Low Income Housing Public/Private Investment Appraiser -Consultant, The Aspen Appraisal Group, Ltd. (formerly Moilica & Assoc.): October 1985—present 'Colorado Real Estate Salesperson: 1988—present Associate Appraiser, A.J.Kelly, Inc., Denver CO June 1984—October 1985 Chief Planner, Stamford Educational Public Policy Impact Team, Stamford CN, May—Sept, 1982 Designated RM by American Institute of Real Estate Appraisers: September 1990 Exchanged for SRA Designation effective January 1, 1991 Norwest Bank Boston Safe D&T Am. Mort. Capital U.S. Marshal's Office Single Family Residential Comrnercial Retail Lodges/Hotels Special Purpose Buildings Mortgage Financing Listing Tax Appeal. Pitkin County Bank Chase Manhattan Bluebonnet Savings Major Clients Alpine Bank Ute City Mortgage Pitkin County Appraisal Experience Multi -Family Residential Office Vacant Building Sites Easements/Condemnation Purposes Tax Planning Estate Planning Acquisition Insurable Cost Statement of Certification The Appraisal Institute conducts a voluntary program of continuing education for its designated members. SRA's who meet the minimum standard of this program are awarded periodic education certification. I am currently certified under this program through December 31, 2000. Colorado Natl. Banks 1st Western Lending City of Aspen Condominiums Proposed Construction Development Land Condemnation Marriage Dissolution The Aspen Appraisal Group, Ltd. TABLE OF CONTENTS Letter of Transmittal Certifications Assumptions, Contingencies and Limiting Conditions of the Report Appraisers' Qualifications ABOUT THE APPRAISAL Function of the Appraisal Scope of the Appraisal Property Rights Appraised Purpose and Date of the Appraisal PROPERTY IDENTIFICATION Page 1 1 7 Legal Description 4 Present Owner of Record and Sales History 4 Neighborhood Comments 4 Comments on the Subject Property 5 Zoning 5 Highest and Best Use 6 SALES COMPARISON APPROACH VALUE CONCLUSION ADDENDUM: Location Map Coryell Ranch Boundary Map Subject Photographs 7 14 The Aspen Appraisal Group, Ltd. ABOUT THE APPRAISAL Function and Intended User of the Appraisal: The function of this appraisal is to assist the owners in determining the Market Value of the subject property as November 15, 1998 for a School District impact fee. The intended user is Garfield County and the developers of Coryell Ranch. Scope of the Appraisal: This report is a "Limited, Summary Appraisal Report" in narrative format, conforming to the reporting requirements of the Uniform Standards of Professional Appraisal Practice and the Code of Professional Ethics. As such, the discussion of zoning, highest and best use, neighborhood and valuation section are less detailed than typically found in a "Self -Contained Appraisal Report." Nevertheless, the analysis has been in-depth, and the value conclusion would not changed given the detailed reporting requirements of a "Self -Contained Appraisal Report." The appraisal is limited in scope in that at your request, 1 have not considered the value under the Development Approach. I have only considered the value of the subject prior to approvals for the Coryell Ranch and Midland Point Subdivisions based on recent sales of comparable properties with similar development potential. The methodology employed in arriving at the Market Value of the subject property is based upon one of the three traditional approaches to value; the Sales Comparison Approach. The Income and Cost Approaches are not appropriate as the improvements will in all likelihood be demolished in the redevelopment of the site and do not contribute to value. I inspected the subject property on September 21, 1999. At the time of my inspection the development of the Coryell Ranch and Midland Point Subdivisions was underway. I had, however, inspected the ranch in 1997 and 1998, prior to these changes and have assumed that it was in this condition as of the date of value; November 15, 1998. I reviewed a plat and survey of the property. The size of the parcel was taken from the survey. I also obtained information on the subject property from the Garfield County Assessor's Office. I discussed the property with Don Parris and Kevin Owen. I am aware that the subject has some water rights. I am not an expert in the appraisal of water rights and have only considered them in terms of their contributory value to the parcel. In the course of verifying the comparable data in this analysis, I have discussed the transactions with ane or more of the following parties: the buyer, seller, seller's agent (real estate broker, salesperson or attorney), or with the project's managing agent, if any. The Aspen Appraisal Group, Ltd. Closing data and physical characteristics have been confirmed in the records of the Garfield, Eagle or Pitkin County Clerk & Recorder's & Assessor's Office. All of the sales discussed in this analysis were inspected by the appraiser. I have not received an environmental study of the property. The subject was originally used as ranch land. 1 have no evidence that the site has been used for any purpose other than agricultural use or open space. I have only performed a cursory, visual observation of the property. 1 have not researched the title or interviewed current or prior owners, nor have I done any research beyond that normally associated with the appraisal process unless otherwise stated. We as appraisers are not trained or qualify to identify potential environment problems and thus, this appraisal report must not be considered an environmental assessment of the property, nor may we be held liable for the detection or identification of a possible environmental problem. Property Rights Appraised: The property rights appraised in this report are "fee simple," subject to easements and mineral rights reservations of record. The subject does not have any unusual easements which would preclude development. I have not considered any Iiens which may exist on the property and I am not aware of any encroachments which adversely affect Market Value. I have not been provided with a copy of the title policy and do not now if subsurface mineral rights are included as part of the estate analyzed. As a practical matter, the properties in our area are often transferred without mineral rights, and their absence has not proven to neeatively affect value. Thus, the inclusion or exclusion of mineral rights does not, in my opinion, affect the value. Purpose and Date of the Appraisal: The purpose of this appraisal is to estimate the Market Value of the fee ownership of the subject property, "as is," as of November 15, 1998. The Aspen Appraisal Group, Ltd. Market Value is defined as: The most probable price which a property should bring in a competitive and open market under all conditions requisite to a fair sale, the buyer and seller each acting prudently and knowledgeably, and assuming the price is not affected by undue stimulus. Implicit in this definition is the consummation of a sale as of a specified date and the passing of title from seller to buyer under conditions whereby: a. buyer and seller are typically motivated; b. both parties are well informed or well advised, and acting in what they consider their own best interests; c. a reasonable time is allowed for exposure in the open market; d. payment is made in terms of cash in United States dollars or in terms of financial arrangements comparable thereto; and e. the price represents the normal consideration for the property sold unaffected by special or creative financing or sales concessions granted by anyone associated with the sale. (SOURCE: Uniform Standards of Professional Appraisal Practice of the Appraisal Foundation, 1996 Edition) The reader should understand that this analysis includes real estate commission and is based upon a cash or cash -effective transaction. T estimate a 6 to 12 month exposure time for the subject if had been listed for sale at or near the appraised value. Marketing time is the prospective estimate of how long it would take to sell the property if a listing begin as of the date of the value estimate. Exposure time is retrospective and estimates the length of time the property should have been listed to achieve a sale at the appraised value as of the date of the value estimate. As the market is generally stable at this time, I feel these periods are equivalent. The Aspen Appraisal Group, Ltd. 4 PROPERTY IDENTIFICATION Legal Description: The subject property is known as Coryell Ranch. According to Garfield County its Parcel Identification number is 2393-291-00-024. It is legally described by a metes and bounds description, a copy of which has been included in the addendum. Briefly stated, it is a parcel of land located in:. Sections 29, Township 7 South, Range 88 West of the 6th P.Ni., Garfield County, Colorado Present Owner of Record and Sales History: The subject property last sold November 6, 1998 from Glenwood Land, LLC to Coryell Ranch Company, LLC for $6,000,000 as recorded in Deed Book 535 at Page 184. Terms were cash. The property was not listed prior to sale, although, according to the buyer, the negotiated price included a 2.5% broker fee. Prior to this sale, the property sold as part of a bulk transaction along with the Sanders and Wulfsohn Ranch from Union Oil Company of California to Glenwood Land, LLC for a recorded price of $9,800,000 in September, 1996. Water rights for the three ranches were transferred separately, valued at $2,000,000, resulting in a total price paid of $11,800,000. Both the buyer and seller felt that there was a bulk discount due to the nature of the sale. The buyer noted that during negotiations, the Sanders Ranch (with an asking price of $4,300,000 and final sale price of $3,853,000) had an offer of $4,400,000. Terms involved cash plus short-term owner financing for which no cash equivalency adjustment is warranted. The Coryell Ranch sold for $2,883,300, exclusive of the water rights. Adding in for the contributory value of the water rights, which I valued at $700,000, results in an effective paid of $3,583,300, Neighborhood Comments: The subject neighborhood consists of Aspen Glen, Sanders Ranch, and a variety of commercial developments along Highway 82. The center of Carbondale is approximately 2 miles away. Other residential developments in the area include River Valley Ranch, Hendrick Ranch, Crystal Village, Crystal Village Acres, as well as a variety of commercial development along Highway 133. Highway 82 offers access to Glenwood Springs and Interstate 70 to the north and Aspen the South. The Aspen Appraisal Group, Ltd. Major development in the area includes Aspen Glen which is directly north of the subject accessed from off` of Highway 82. Aspen Glen is a private gated community on an 18 hole, 7,400 yard Jack Nicholas golf course that is currently being developed on 938 acres. River Valley Ranch is approximately 2 miles away and is also currently under development. Once complete, it will include approximately 675 units centered around an 18 hole public golf course. Chenoa, near the CMC Spring Valley Campus, approximately 10 miles from the subject is currently under construction and once complete it will include a private golf course community with two 18 hole courses and 476 single family lots. Rose Ranch, north of Aspen Glen is also currently under construction and will include a golf course and approximately 135 single family lots. Sanders Ranch, aka Cattle Creek Crossing is on the west side of Aspen Glen. This 280 acre ranch is currently going through the approval process for a mixed residential, multi -family and commercial project. Comments on the Subject Property: The Coryell Ranch is approximately 2 miles north of Carbondale. It is bordered on the south by BLM land, the east by a ranch, and the north by the Roaring Fork River, Aspen Glen and Highway 82, and the west by Aspen Glen. Access to the subject parcel is by way of Garfield County Road 109 which runs through the southern portion of the subject. This road is publicly maintained. The subject site is irregular and contains 259.435 acres. According to the Assessor's Office approximately 39% is irrigated pasture, 28% is grazinglwasteland and 34% is meadow hay. The ranch is Iocated on either side of Highway 109. The portion on the south side of Highway 109 is more steeply sloping. The area between Highway 109 and Roaring Fork River is level and easily developable. A portion of the property along the river includes wetlands, ponds and spring. It is my understanding that the property has approximately 22 cfs of water rights. The ranch has an agreement to tie into the Aspen Glen sewer districts should it so desire. Other utilities are on site. According to the Assessor's Office site improvements include a 3 bedroom, 1 '1/ bath ranch house that was built in 1930 and has 1,366 square feet, a 474 square foot unfinished basement, plus a 504 square foot garage. Other improvements include a 336 square foot bunk house, 80 square foot storage shed, 240 greenhouse and 1,200 square foot metal shed. Zoning: The subject property is currently zoned AJRJRD (AgriculturallResidentialfRural Density), Garfield County. Allowed uses include single family homes and agricultural uses. The minimum lot area for a single family home is 2 acres. The maximum lot coverage is 15%. The minimum front yard setback varies from 25 to 75 feet depending upon the type of street. The rear yard setback is 25 feet, and the side yard setback is 10 feet. The maximum The Aspen Appraisal Group, Ltd. building height is 25 feet. The subject property contains 259 acres and hypothetically, zoning would allow for a maximum built out of 129 single family lots. Highest and Best Use: In common appraisal practice, the concept of highest and best use represents the premise upon which the value is based. The determination of highest and best use is the result of the appraiser's judgment and analytical skill. The use determined from this analysis represents an opinion, not a fact to be found. The term highest and best use as used in this report is defined as follows: "The reasonably probable and legal use of vacant land or an improved property, which is physically possible, appropriately supported, financially feasible, and that results in the highest value. The four criteria the highest and best use must meet are legal permissibility, physical possibility, financial feasibility, and maximum profitability," (SOURCE: The Dictionary of Real Estate Appraisal, The Appraisal Institute, Third Addition, Copyright 1993) The subject site is currently improved with a small ranch house and outbuildings which do not represent the highest and best use of the site and will probably be demolished when the property is developed. As noted, it is zoned A/R/RD, a Garfield County zoning category requiring a minimum lot size of 2 acres for a single family home. As this is the only allowed use, the highest and best use of the site would be in the development of single family project. Hypothetically, zoning would allow for up to 129 lots. Given the surrounding residential development, and the subject's site characteristics with wetlands, ponds, and more steeply sloping terrain, it is likely that fewer than 129 lots would be approved. The most likely location for residential development would be between Highway 109 and the river, with the majority of the lots scattered around the river and the ponds to maximize this amenity. Access to the development would be old' of Highway 109. Electric and telephone are already on site. The property has extensive water rights which could be used for the development and the Coryell Ranch has the right to tie into the nearby Aspen Glen sewer system. As of the date of this appraisal, based upon an analysis of the accumulated data, it would appear that the highest and best use of the Coryell Ranch would be in some type of residential development with single family lots. The Aspen Appraisal Group, Ltd. 7 SALES COMPARISON APPROACH In this appraisal, three sales of ranch parcels with similar development potential to the subject, were analyzed to arrive at a Market Value indication. Althourrh the sales considered in this analysis are located on the facing page and described as follows: The Aspen Appraisal Group, Ltd. 5 Land Sale 1 Sanders Ranch Legal: Parcel I.D. #: Location: Sale Date: Contract Date: Reception #: Grantor: Grantee: Terms: Sale Price: Effective Price: Eff. Price Per Acre: Size: Zoning: Water Rights: Section 7, Township 7 South, Range 88 West, Garfield County, Colorado 2393-182-00-102 Highway 82 and Cattle Creek Road October, 1998 November, 1997 516529 Glenwood Land Co, LLC Sanders Ranch Holdings, LLC Cash , Short Term OWC $6,890,000 $3,008,768 $25,902 266 acres (per Assessor) A/R/RD, Garfield County Substantial Comments: This property was not listed prior to sale, although a 2.5% commission was taken by the purchaser. However, as I do not feel it would have sold any higher no adjustment for the remaining commission not paid is warranted. Terms involved a $3,470,000 loan at 7% with all principal and interest due in the second year. Due to the short term nature of the note no cash equivalency adjustment is warranted. Included in the sale were approximately 16 cfs of water rights in various ditches. The contract was not contingent upon approvals being received for any specific development. This property previously sold as part of a bulk transaction, discussed in the Sales History section of the report, along with the Coryell and Wulfsahn Ranch. The recorded price for Sanders Ranch was $3,333,330. Water rights were transferred under a separate bill of sale resulting in a total sale price with the water rights of $3,853,330. This ranch is directly north of Aspen Glen at the intersection of Hig'. w y 82 and Cattle Creek Road, on the south side of Highway 82, The parcel contains a total of 279 acres. However, once the railroad right-of-way is deducted, this results in an effective size of 266 acres. According to the Assessor's Office, roughly 55% is irrigated pasture, 40% is meadow hay Field and 5% is grazing/wasteland. The property has water rights in the Stanton Ditch, Glenwood Ditch and Glenwood Ditch 2. The land is level to gently sloping. It includes a triangular piece between the Highway and the Denver and Rio Grand right-of- way. The Aspen Appraisal Group, Ltd. Site improvements are in the drainage across from Cattle Creek Road and include an 1836 square foot three-bedroom, two -bath farmhouse built in 1919, with a detached 2 -car garage. The property also has a 1600 square foot metal shed with dirt floor, a 5600 square foot barn, a 1200 square foot loafing shed with 7 stalls, and 2000 square foot barn. This parcel also has an agreement with Aspen Gen for use of the sewer system. Other utilities are on site. The purchasers of this parcel are in the process of trying to obtain approvals for a mixed use project. The original application called for 502 residential units and 708,000 square feet of commercial development. The owners are in the planning stages. The Aspen Appraisal Group, Ltd. Land Sale 2 Wulfsohn Ranch Legal: Parcel T.D. #: Location: Sale Date: Contract Date: Reception #: Grantor: Grantee: Terms: Sale Price: Effective Price: Ef. Price Per Acre: Size: Zoning: Water Rights: Section 9, Township 6 South, Range 89 West, Garfield County, Colorado 2185-081-00-143 Glenwood Springs, extension of Midland Avenue October 16, 1998 NIA 535877 Glenwood Land Co., LLC Glenwood Meadows, LLC Cash $7,065,100 $,3,771,895 $16,585 426 acres (per assessor) A/R/RD, Garfield County Substantial, transferred separately 10 Comments: This property was not listed prior to sale, but was a direct transaction between buyer and seller. It was purchased by some of the partners in the Glenwood Land Co, LLC. Discussions with one of the purchasers indicate that the price was based on what was paid for the Coryell and Sanders Ranch and that the negotiated price was at market. It sold in October, 1998 for $7,065,100. The sale included substantial water rights, approximately 24 cfs of water rights. As discussed earlier, this property originally sold along with the Coryell and Sanders Ranch as part of a bulk transaction in September, 1996. The property transferred for $3,583,300, with water rights, (which I valued at $780,000), transferring separately. This results in an effective price paid for the parcel of $4,363,300. This property is located in Glenwood Springs approximately 17 miles from the subject. It is across Interstate 70 and the Colorado River from the Glenwood Springs Mall near where the new alternate route intersects. It is next to the Glenwood Springs City limits. It contains approximately 426 acres. This ranch was originally larger, 'lowever, approximately 6 acres were sold off and a.inexed into the City limits for commercial use and a portion was also taken for the Midland Avenue acquisition right-of-way. The Atkinson Canal and Rio Grande Railroad run through the property. The railroad right-of-way is located between Midland Avenue and the Colorado River. The majority of the land is located directly south of Midland Avenue and is gently sloping irrigated and unirrigated pasture land. Were the site developed, it could be annexed into the City of Glenwood Springs and the development would be on City water and sewer. Discussions with the owner indicate that they are going through the approval process to have the parcel annexed into the City and rezoned for a mixed use project. The Aspen Appraisal Group, Ltd. Land Sale 3a Arbaney Ranch Legal: Parcel I.D. #: Location: Sale Date: Contract Date: Reception #: Grantor: Grantee: Terms: Sale Price: Effective Price: Eff. Price Per Acre: Size: Zoning: Water Rights: Arbaney Ranch Parcels A, B and C, Pitkin County, Colorado 2467-171-03-211 and 2467-174-03-012 South of Basalt and north of Holland Hills August, 1996 Summer, 1995 396075, 396070, 396072 Kittle, Arbaney Ranch Partnership Limited, and Arbaney Roaring Fork Club, LP Cash + golf course membership $3,200,000 $3,380,000 $44,994 99.26 acres Pitkin County, AFR-10 Substantial 11 Comments: This sale consists of three Arbaney Ranch parcels which were purchased by the Roaring Fork Club from members of the Arbaney Family. They were not listed prior to sale and this was a direct transaction between buyer and seller. However, as 1 do not feel they would have sold any higher today, no adjustment for the commission not paid has been made. Terms involved cash plus a golf club membership for each parcel valued at $60,000. The property went under contract in the summer of 1995 and closed August, 1996. The contract was contingent upon annexation and final plat approval for a golf course; the cost of which was paid by the developer. This parcel is next to the Town of Basalt on the east side of Highway 82 directly north of Holland Hills. It contains 99 acres. According to the Assessor's Office all of the land was considered irrigated hayfield. The property is gently sloping, with Highway 82 and Holland Hills to the west and BL1v1 land to the east. Water rights were substantial and were not valued separately. This ranch along with Arbaney Ranch on the east side of Highway 82 was purchased by the Roaring Fork Club for a golf course. The parcels were annexed into the Town of Basalt, and approvals were received for an 18 hole golf course, plus 45 cottages scattered around the golf course. As of the date of this appraisal, the golf course and cottages were in the process of being completed. The Aspen. Appraisal Group, Ltd. 12 Listings: Current listings as of November, 1998 were also considered. The Cerise property located off Highway 82 was listed for $3,000,000 and was under contract for an undisclosed amount. According to the NILS the property contains approximately 200 acres. It is on the valley floor and foothills west of El Jebel. It is zoned A/R/RD Garfield County and has good water rights. Hypothetically, zoning would allow for up to 100 units. This listing reflects approximately $15,000 per acre. The Cerise Ranch in Missouri Heights was available for $4,500,000. This ranch contains 303 acres and reflects an asking price of just under $15,000 per acre. These were the most comparable properties available as of the date of this appraisal. Market Value Analysis: Unit of Comparison: Sales vary in size from just under 100 to 426 acres. The most relevant unit of comparison for this analysis is a sales price per acre. Adjustments for Property Rights Conveyed: All sales involved a fee simple estate of the property and no adjustment for property rights conveyed is required. Adjustments for Financing: Adjustments for financing are discussed under each individual sale. Sale 3 involved three separate transactions for cash plus 3 golf club memberships valued at $60,000 each, Adjustments for Conditions of Sale: Sale 3a was purchased as part of an assemblage for the development of the Roaring Fork Club, a private golf course development. 1 felt that this sale helped to establish the upper range of value, as prices paid for an assemblage of three parcels are often higher than Market Value. Sale 2 was purchased by some of the partners of the Glenwood Land Co., LLC. However, the price paid was at market and no adjustment is warranted. Adjustments for Time: The date of value in this analysis is November 15, 1998. Sales 1 and 2 occurred in October and no time adjustment is warranted. Sale 3 occurred in August, 1996 and my analysis suggests an upward adjustment for time is warranted. In determining a rate of The Aspen Appraisal Group, Ltd. The Aspen Appraisal Group, Ltd i cr 0 Arbaney Ranch ca CD 0 0 WuIfsohn Ranch Carbondale 0 0 cm N CO cn 0 �r- Sanders Ranch Carbondale 0 0 m co e 0 Cis 0 0 Carbondale 0n L t9 o co 0 0 cis tofa la o o 0 0 LO T r CO u_, uz c+ 0 0 tet CO' to 0 0 0 0 0 Cf3 OD in CO CD N cri co 69, 403. 409' C) ▪ c C cn cu CL m 41 Cl.„ N N `_ N ZiR 0 0 Moderately Sup. Significantly Smllr m 3 a 0 m e 0 0 C'7 0 0 0 Slightly Inferior Significantly Lgr ur b 0 x Slightly Inferior 0 0 0 0 0 as E '' E N m d} x 2 G -Good/Good 0) 11-1 0 0 N Residential Dev. Adjusted Price la appreciation, I performed a paired sales analysis of the Sanders, Wulfsohn and Coryeli Ranches. These ranches showed an appreciation of 1.4% to 1.85% per month. I feel that they help to establish the upper range of appreciation as they first sold in bulk, and were not exposed to the open market. I also performed a paired sales analysis of single family lots in the Basalt and Carbondale area. This analysis suggests that an appreciation rate from .5% to 1.5% per month. In the final analysis, I feel an appreciation rate of approximately I% per month is appropriate and this was applied to Sale 3, the Arbaney Ranch. Saks Comparison Summary: On the facing page I have adjusted the 3 comparable sales for location/prestige, size, potential use and topography/site characteristics. Positive and negative adjustments were made depending upon the magnitude of the difference between the comparable and the subject. The adjustments in increasing order of magnitude vary from slightly to moderately to significantly to substantially to extremely. Location: Sale 1 is near the subject on the other side of Aspen Glen. Sale 2 has a less desirable location further removed from Aspen's amenities in Glenwood Springs. Sale 3 has a more desirable location in Basalt approximately 12 miles from the subject and closer to Aspen. A downward adjustment is warranted. Size Adjustment: The subject property contains approximately 259 acres. Sales vary in size from just under 10 to 426 acres. The size adjustment was arrived at by ranking the properties from smallest to largest and noting the percentage difference in value. The adjustment reflects roughly 10% per 50 acres. Potential ;]se/Zoning: All of the sales have relatively similar underlying zonings. Given the location of the subject, it is most likely that it would be developed with a residential development. Sales 1 and 2 have highway frontage and would probably be developed with some type of mixed use project with both residential and commercial uses, and a downward adjustment is warranted. Sale 3 has since been improved with residential cabins and a golf course, potentially similar uses to the subject. The Aspen Appraisal Group, Ltd. 14 Topography/Site Characteristics/Miscellaneous The subject property has a mixture of sloping terrain, as well as a large level pasture, river and ponds. Sale 1 has similar site characteristics. Sales 2 and 3 are primarily pasture land and an upward adjustment is warranted. Value Conclusion: On facing page 13 is a summary of this analysis. Unadjusted, sales vary from $16,500 to $44,500 per acre. Once compared to the subject, sales vary from roughly $23,000 to almost $27,000 per acre. As discussed earlier, I feel Sale 3 helps to establish the upper range of value as these parcels were purchased as part of an assemblage and the buyer may have paid a premium for this factor. The subject is most comparable to Sale 1 which suggests $23,000 per acre. In this analysis, 1 also considered the fact that the subject property sold in November, 1998 for $6,000,000, or roughly $23,000 per acre. This contract between a willing buyer and seller is given strong consideration in this analysis and appears supported in the current market. In the final analysis, I feel a Market Value indication for the subject, in a range from $23,000 to $24,000 per acre is appropriate. This results in the following range of value: $23,000 per acre x $259.438 acres = $5,967,000 $24,000 per acre x $259.438 acres = $6,226,512 Indicated Range in Value: $5,965,000 to $6,225,000 Giving strongest consideration to Sale 1 and the most recent sale of the subject, directs me toward the lower end of the range. I therefore select an estimated Market Value (most probable selling price) for the subject property, "as is," as of November 15, 1998 of: SIX MILLION DOLLARS $6,000,000 Please note that this value assumes a cash or cash -effective transaction and includes real estate commission. Had the property been listed at or close to the appraised value, it would have had an exposure time of approximately 6 to 12 months. Marketing time would also be 6 to 12 months. The Aspen Appraisal Group, Ltd.