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HomeMy WebLinkAbout1.0 Submittals & Existing ConditionsACKNOWLEDGMENT OF SATISFACTION SUBDIVISION IMPROVEMENTS AGREEMENT KNOW ALL MEN BY THESE PRESENT that: WHEREAS, Elk Creek Development Corporation (hereinafter "Owner"), entered into a Subdivision Improvements Agreement with the Board of County Commissioners of Garfield County, Colorado, (hereinafter "Board") dated August 19, 1996, recorded in Book 989, at Page 403 as Reception No. 497361 of the Garfield County records on August 19, 1996, for the improvement of The Cedars PUD Subdivision; and WHEREAS, Owner has requested the release of $1,520.00 plus interest, based on a statement from John Taufer, Landscape Architect, that the revegetation work required as a part of Subdivision Improvements Agreement has been completed per the agreement. NOW THEREFORE, at the request of the Owner and in consideration of the premises and prior agreements, the Board hereby acknowledges the atisfaction of the Subdivision Improvements Agreement entered into by Owner and the Board for : Cedars PUD Sub ion, and releases security in the amount of $1520.00 plus interest. STATE OF COLORADO )ss COUNTY OF GARFIELD ) By: Cha The foregoing instrument was acknowledge before me on this ,A,"42-" day of , 1999, by John Martin, as Chairman of the Board of County Commissioners of Gld County, Colorado. WITNESS my hand and official seal. My commission expires N /q rfield County Clerk Elk Creek Development Corporation Kent Jolley, Secretary 45855 Highway 6, #36 Glenwood Springs, CO 81601 945-9525 July 6, 1999 Garfield County Planning Department 109 8th Street, Suite 103 Glenwood Springs, CO 81601 To Whom it May Concern, 1 am requesting that Garfield County return the $1,520.00 plus interest that was held as security for revegetating The Cedars PUD, as per Paragraph 2.0 of the Subdivision Improvements Agreement dated August 19, 1996. As a point of clarification, Elk Creek Development Corporation wrote a check to the Garfield County Treasurer's Office for $1,520.00 rather than submitting a Letter of Credit. We have seeded the disturbed areas as many as three times, and have a good stand of native grasses in most areas that were disturbed during construction of the infrastructure of The Cedars. We feel we have done what was required, and would like our Security returned. When we delivered the check rather than a Letter of Credit, we were told by the County that the Security would be returned with interest when we performed our responsibilities. In closing, I would ask that the County retum these funds to the address on this letterhead. As per our agreement, John Taufer, a Landscape Architect, has inspected this project and indicates his approval our revegetation efforts by signing below. S' re Kent Jplley Secretary„ Elk Creek Development Corporation Jblarr Tauter, Landscape Architect RECEIVED JUL 2 2 1999 4t 7 / 0( e%0/99 SUBDIVISION IMPROVEMENTS AGREEMENT THIS AGREEMENT, made and entered into this /% , day of er, 199, between ELK CREEK DEVELOPMENT CORPORATION, hereinafter referred to as "Owner", and the BOARD OF COUNTY COMMISSIONERS OF GARFIELD COUNTY, COLORADO, hereinafter referred to as the "County", WITNESSETH: WHEREAS, Owner owns certain real property located in Garfield County, Colorado, more particularly described on the final plat for The Cedars PUD Subdivision, which is filed on even date herewith, hereinafter referred to as the "Subdivision"; and WHEREAS, for record as a condition of approval of the aforesaid final plat (hereinafter referred to as the "Final Plat") for the Subdivision, Owner wishes to enter into this Subdivision Improvements Agreement (hereinafter referred to as "Agreement") with the County; and WHEREAS, the County has required and Owner has agreed to provide security sufficient in the judgment of the County to make reasonable provision for completion of certain public improvements (hereinafter referred to as "Improvements") and set forth on Exhibit "A" attached hereto and incorporated herein by this reference and required to be installed in the Subdivision as set forth in Resolution No. 95-060, recorded in the office of the Clerk and Recorder of Garfield County, Colorado as Reception No. in Book at Page ; and WHEREAS, Owner has agreed to execute and deliver a letter of credit to the County to secure and guarantee Owner's performance of this Agreement and has agreed to certain restrictions regarding the issuance of building permits and certificates of occupancy within the subdivision, 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. Owner's Performance. On or before September 1, 1997, Owner agrees to construct and install, or to cause to be constructed and installed, at Owner's sole expense, those Improvements set forth on Exhibit "A" attached hereto. Owner agrees that all of the Improvements to be completed as identified on Exhibit "A" attached hereto shall be constructed in compliance with the following: a. All documents submitted prior to or at the time of Final Plat approval. b. All requirements of Resolution No. 95- 060, including all requirements of the Garfield County Zoning Code and the Garfield County Subdivision Regulations. c. All laws of the United States, State of Colorado, Garfield County and any of various agencies having jurisdiction, affected special districts and municipalities providing utility services. H:VRS\HIKCREEK,SUBDIVIS. IMP- Draft Dated 9/7/95 1 d. Such other designs, drawings, maps, specifications, sketches and other materials submitted to and approved by any of the above stated governmental entities. The County agrees that provided the Improvements are installed in accordance with this Agreement, then Owner shall be deemed to have satisfied all terms and conditions of the zoning and subdivision laws, resolutions and regulations of Garfield County, Colorado, including, but not limited to, Resolution No. 95-060 adopted by the County on August 8, 1995. 2. Cost of Improvements. It is understood for purposes of this Agreement that the cost of the Improvements is $132,361.00 ("Total Construction Costs") based upon the engineering cost estimates set forth on Exhibit "A", which amount the County finds reasonable and hereby approves and accepts. Owner shall provide, on request of the County, written confirmation of such estimates by Owner's engineering consultants and the public utilities furnishing the Improvements. 3. Security for Improvements. On or before the date of the recording of the Final Plat in the records of the Clerk and Recorder of Garfield County, Colorado, Owner shall deliver a letter of credit issued by a state or national banking institution which is licensed to do business in the State of Colorado, in a form acceptable to the County, which acceptance shall not be unreasonably withheld. No Final Plat shall be recorded pursuant to this Agreement until a letter of credit in a form acceptable to the County is received by the County. The amount of said letter of credit shall be equal to the Total Construction Costs. Such letter of credit must be valid for a minimum of ninety (90) days beyond the completion date stated above for the Improvements. Any extension of the time period for completion of the Improvements shall cause the line of credit required herein to be extended for an equal amount of time. 4. Certification of Completion. Certification of completion of the Improvements must be submitted to the County by a professional engineer. Such certification shall certify that the Improvements have been constructed in accordance with the requirements of this Agreement, including the Final Plat, and shall be stamped by said professional engineer. 5. Notice of Deficiencies. If the County determines that the Improvements are not constructed in compliance with the relevant specifications, the County shall furnish a written list of specific deficiencies to Owner. If the County determines that the Improvements are not constructed in compliance with the relevant specifications, it shall furnish a letter of potential deficiencies to the Owner within fifteen (15) days from the date the County receives certification from the Owner that all Improvements as set forth in Exhibit "A" have been completed. If that letter is not furnished within fifteen (15) days, all Improvements shall be deemed accepted and the County shall release the appropriate amount of security as such relates to the completed Improvements. If a letter of potential deficiencies is furnished by the County, the County shall have thirty (30) days to complete its investigation and provide written confirmation of the deficiencies to the Owner. If, upon further investigation, the County finds that all Improvements are acceptable, then the appropriate security shall be released to the Owner within ten (10) days after completion of such investigation. In the event that such Improvements are not accepted by the County, the Board of County Commissioners shall make written findings before requesting payment on the letter of credit. 1I:URS\EIXCREER.\SDBDIVIS.IMR Dreg Dated 9/7/95 2 6. Release of Security. Upon receipt of an acceptable certification of completion and acceptance of Improvements by the County, the County shall return to Owner the letter of credit marked "satisfied in full" and shall acknowledge in writing that all Improvements have been completed in a satisfactory manner and shall otherwise release the aforesaid letter of credit, in recordable form if requested by Owner. The County may, at its option, provide Owner with partial releases of the security for Improvements provided by Owner upon satisfactory evidence of partial completion of the Improvements. 7. Substitute Security. The County may, at its option, permit the Owner to substitute other collateral acceptable to the County for the collateral originally given by the Owner to secure the completion of the Improvements as hereinabove provided. 8. Roads. The Homeowners Association to be created by the Owner for the Subdivision shall bear the sole responsibility for the maintenance, upkeep, repair, restoration, snow removal and reconstruction of all roads within the subdivision. 9. School Impact Fees. Owner shall be obligated to pay Two Hundred Dollars ($200.00) per lot for school impact fees, except for one lot the fee for which has already been paid through a related subdivision exemption proceeding. Owner shall tender Two Hundred Dollars ($200.00) to the County for all lots within the subdivision at the time of recording of the Final Plat. 10. Sale of Lots. No lots within the Subdivision shall be conveyed prior to the recording of the Final Plat. 11. Approval of Final Plat. The County agrees to approval of the Final Plat subject to the terms and conditions of this Agreement, as well as the terms and conditions of the Preliminary Plan. 12. Consent to Vacate Final Plat. In the event the Owner fails to comply with the terms of this Agreement, including the terms of the Preliminary Plan, the County shall have the ability to vacate the Final Plat as it pertains 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 Final Plat as to those lots shall remain valid. The Owner shall provide a survey and complete legal description with a map showing the location of that portion of the Final Plat so vacated. 13. Recording. Upon execution, Owner shall record this Agreement with the office of the Clerk and Recorder for Garfield County, Colorado. 14. Indemnity. To the extent allowed by law, Owner agrees to indemnify and hold the County harmless and defend the County from all claims which may arise as a result of Owner's installation of the Improvements pursuant to this Agreement, provided, however, Owner does not indemnify the County for claims made asserting that the standards imposed by the County on Owner are improper or the cause of the injury asserted. The County shall be required to notify the Owner of receipt of a notice of claim or a notice of intent to sue and shall afford Owner the option of defending any such claim or action. Failure to notify and provide HAIRS \FLCCRFF]CISUBDlVIS.IMR Draft Dated 9/7/95 3 such option to Owner shall extinguish the County's right under this paragraph. Nothing herein stated shall be interpreted to require Owner to indemnify the County from claims which may arise from the negligent acts or omissions of the County or its employees. 15. Enforcement. In addition to any rights which may be provided by Colorado statue, it is mutually agreed that the County or any buyer of a lot within the Subdivision shall have the authority to bring an action in the District Court of Garfield County, Colorado to compel enforcement of this Agreement. In the event no action is commenced before issuance of the final certificate of completion of Improvements and acceptance thereof by the County, any buyer's rights to commence an action shall thereafter be extinguished. 16. 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 and be construed pursuant to the laws of the State of Colorado. 17. Binding Effect. This Agreement shall be a covenant running with the title to each lot within the Subdivision and the rights and obligations as contained herein shall be binding upon and inure to the benefit of the Owner, its successors and assigns. OWNER: ELK CREEK DEVELOPMENT CORPORATION By: COUNTY: BOARD OF COUNTY COMMISSIONERS GARFIELD COUNTY, COLORADO Attest: By: Deputy Clerk to the Board Elmer "Buckey" Arbaney II:VRS\EIJ(CRC1j(\SI/BDIVIS.IMR Dreg Dated 9/7/95 4 Exhibit "A" SCHMUESER GORDON MEYER, INC. PRELIMINARY COST ESTIMATE PROJECT NAME: CEDARS SUBDIVISION SITE CONSTRUCTION ESTIMATE COMMENTS: THIS COST ESTIMATE IS FOR THE WORK REQUIRED FOR THE CONSTRUCTION OF WORK ASSOCIATED WITH AND FOR THE PROVISION OF WATER UTILITIES, GAS, ELECTRIC, TELEPHONE AND CABLE T.V. INSTALLATIONS AND THE CONSTRUCTION OF THE ROAD FOR THE CEDARS SUBDIVISION AS DEFINED ON SGM DRAWINGS DATED 5-95. THIS ESTIMATE IS FOR BUDGET PURPOSES AND DOES NOT REFLECT THE TOTAL COSTS ASSOCIATED WITH THE PROJECT. VERIFICATION OF THESE NUMBERS CAN ONLY BE OBTAINED THROUGH AN ACTUAL BID PROCESS. ITEM QUANT. UNIT U. PRICE SUB TOTAL MOBILIZATION 1 LS 1000 $1,000.00 CLEAR AND GRUB 1.84 AC 2500 $4,600.00 ROAD CONSTRUCTION EARTHWORK -CUT 4634 CY 2.5 $11,585.00 EARTHWORK -FILL 3756 CY 5 $18,780.00 EARTHWORK -WASTE EXCESS 878 CY 2.5 $2,195.00 ROAD BASE 1650 TON 13.5 $22,275.00 SIGNAGE 2 EA. 150 $300.00 DRAINAGE IMPROVEMENTS 18" DIA. CMP @ 16+00 34 LF 27 $918.00 24" DIA. CMP @ 7+47 55 LF 32 $1,760.00 18" DIA. CMP @ 0+00 34 LF 27 $918.00 MISCELLANEOUS UTILITIES TELEPHONE INSTALLATION 1280 LF 3 $3,840.00 GAS LINE INSTALLATION 1280 LF 5 $6,400.00 ELECTRIC INSTALLATION 1280 LF 5 $6,400.00 CABLE T.V. INSTALLATION 1280 LF 3 $3,840.00 WATERLINES AND APPURTENANCES 6" DIA. WATERLINE (ON SITE) 1200 LF 25 $30,000.00 6" DIA. WATERLINE (OFF SITE) 400 LF 25 $10,000.00 FIRE HYDRANTS 2 EA 1500 $3,000.00 6" GATE VALVES 2 EA 350 $700.00 MISC. FITTINGS 7 EA 250 $1,750.00 BLIND FLANGE 1 EA 200 $200.00 SERVICE TAPS TO LOTS 10 EA 750 $7,500.00 REVEGETATION 30400 SF 0.05 $1,520.00 TOTAL FOR IMPROVEMENTS $132,361.00 (970) 945-1004 FAX (970) 945-5948 SCHMUESER GORDON MEYER ENGINEERS SURVEYORS 118 West 6th, Suite 200 Glenwood Springs, CO 81601 July 3, 1996 John Schenk, Esq. Schenk, Kerst & deWinter 302 8th Street, Suite 310 Glenwood Springs, CO 81601 RE: Cedars PUD Dear John: Per your July 1, 1996 letter to Kent Jolley regarding the Cedars PUD, I am providing this letter to transmit the attached Exhibits B and C and, in addition, provide certification that the work identified on Exhibits B and C has been completed with the exception of the revegetation. The revegetation work to be completed results in an amount of approximately $1520. Upon your review of this letter, if you have any questions or comments, please don't hesitate to call. Sincerely, SCH E» ER GO' a ON MEYER, INC. IJ Jef Enclosur 1 : on • n, P.E. JSS: el/107 7A ,ek���ru�tu e- „,n fi 4, C � l S. Sl,�'^A, EXHIBIT "B" REQUIRED CONSTRUCTION PROJECT NAME: CEDARS SUBDIVISION SITE CONSTRUCTION ESTIMATE DEVELOPER: ELK CREEK DEVELOPMENT CORPORATION COMMENTS: THIS COST ESTIMATE IS FOR THE WORK REQUIRED FOR THE SUBDIVISION IMPROVEMENTS AGREEMENT. ITEM QUANT. UNIT U. PRICE SUB TOTAL MOBILIZATION 1 LS 1000 $1,000.00 CLEAR AND GRUB 1.84 AC 2500 $4,600.00 ROAD CONSTRUCTION EARTHWORK -CUT 4634 CY 2.5 $11,585.00 EARTHWORK -FILL 3756 CY 5 $18,780.00 EARTHWORK -WASTE EXCESS 878 CY 2.5 $2,195.00 ROAD BASE 1650 TON 13.5 $22,275.00 SIGNAGE 2 EA 150 $300.00 DRAINAGE IMPROVEMENTS 18" DIA CMP (4316+00 34 LF 27 $918.00 24" DIA CMP if 7+47 55 LF 32 $1,760.00 18" DIA. CMP @ 0+00 34 LF 27 $918.00 MISCELLANEOUS UTILITIES TELEPHONE INSTALLATION 1280 LF 3 $3,840.00 GAS LINE INSTALLATION 1280 LF 5 $6,400.00 ELECTRIC INSTALLATION 1280 LF 5 $6,400.00 CABLE T.V. INSTALLATION 1280 LF 3 $3,840.00 WATERLINES AND APPURTENANCES 6" DIA. WATERLINE (ON SITE) 1200 LF 25 $30,000.00 6" DIA. WATERLINE (OFF SITE) 400 LF 25 $10,000.00 FIRE HYDRANTS 2 EA 1500 $3,000.00 6" GATE VALVES 2 EA 350 $700.00 MISC. FITTINGS 7 EA 250 $1,750.00 BLIND FLANGE 1 EA 200 $200.00 SERVICE TAPS TO LOTS 10 EA 750 $7,500.00 REVEGETATION 30400 SF 0.05 $1,520.00 TOTAL FOR IMPROVEMENTS 1132,361.00 EXHIBIT "C" ENGINEERS CERTIFICATION OF IMPROVEMENTS PROJECT NAME: CEDARS SUBDIVISION SITE CONSTRUCTION ESTIMATE COMMENTS: THIS COST ESTIMATE IS FOR THE WORK REQUIRED FOR THE CONSTRUCTION OF WORK ASSOCIATED WITH AND FOR THE PROVISION OF WATER UTILITIES, GAS, ELECTRIC, TELEPHONE AND CABLE T.V. INSTALLATIONS AND THE CONSTRUCTION OF THE ROAD FOR THE CEDARS SUBDIVISION AS DEFINED ON SGM DRAWINGS DATED 5-95. THIS ESTIMATE IS FOR BUDGET PURPOSES AND DOES NOT REFLECT THE TOTAL COSTS ASSOCIATED WITH THE PROJECT. VERIFICATION OF THESE NUMBERS CAN ONLY BE OBTAINED THROUGH AN ACTUAL BID PROCESS. ITEM QUANT UNIT U. PRICE SUB TOTAL STATUS MOBILIZATION 1 LS 1000 $1,000.00 COMPLETE CLEAR AND GRUB 1.84 AC 2500 $4,600.00 COMPLETE ROAD CONSTRUCTION EARTHWORK -CUT 4634 CY 2.5 $11,585.00 COMPLETE EARTHWORK -FILL 3756 CY 5 $18,780.00 COMPLETE EARTHWORK -WASTE EXCESS 878 CY 2.5 $2,195.00 COMPLETE ROAD BASE 1650 TON 13.5 $22,275.00 COMPLETE SIGNAGE 2 EA 150 $300.00 COMPLETE DRAINAGE IMPROVEMENTS 18" DIA CMP tg 16+00 34 LF 27 $918.00 COMPLETE 24" DIA. CMP (g 7+47 55 LF 32 $1,760.00 COMPLETE 18" DIA. CMP Q 0+00 34 LF 27 $918.00 COMPLETE MISCELLANEOUS UTILITIES TELEPHONE INSTALLATION 1280 LF 3 $3,840.00 COMPLETE GAS UNE INSTALLATION 1280 LF 5 $6,400.00 COMPLETE ELECTRIC INSTALLATION 1280 LF 5 $6,400.00 COMPLETE CABLE T.V. INSTALLATION 1280 LF 3 $3,840.00 COMPLETE WATERLINES AND APPURTENANCES 6" DIA WATERUNE (ON SITE) 6" DIA WATERLINE (OFF SITE) FIRE HYDRANTS 6" GATE VALVES MISC. FITTINGS BUND FLANGE SERVICE TAPS TO LOTS 1200 LF 400 LF 2 EA 2 EA 7 EA 1 EA 10 EA tEGETAT{ON: _ -. V_.._ i_ 30400 --- - - SF - = - 25 $30,000.00 COMPLETE 25 $10,000.00 COMPLETE 1500 $3,000.00 COMPLETE 350 $700.00 COMPLETE 250 $1,750.00 COMPLETE 200 $200.00 COMPLETE 750 $7,500.00 COMPLETE $1 xfpo0 -- _ __.— A1- `e if TOTAL FOR IMPROVEMENTS $132,361.00f its SCHENK, KERST & deWINTER, P.C. ATTORNEYS AT LAW SUITE 310, 302 EIGHTH STREET GLENWOOD SPRINGS, COLORADO 81601 TELEPHONE: (970) 945-2447 TELECOPIER: (970) 945-2977 JOHN R. SCHENK DAN KERST WILLIAM J. deWINTER, III August 6, 1996 Eric McCafferty Garfield County Planning Department 109 Eighth Street Glenwood Springs, CO 81601 Re: The Cedars PUD Subdivision Dear Eric: AUC a 6. 194 GAF.' :%D a..zXJ4444r Y I spoke with Don Deford last Friday on the Elk Creek Development project and the water availability issue. I wrote Don on July 23rd on this matter and provided a copy of the two other agreements which bear on this issue. Enclosed is a copy of my letter to Don as well as copies of the two agreements for your reference. Don advised that he would be out of town during this week and he encouraged me to contact you with this additional information. JRS/ts Enc. cc: Kent S. Jolley (w/o enc.) H:\RTS\FLCCRFERNTCCAFF R.LTR ry truly JO " N R. ENK • C ELK CREEK AREA WATER SYSTEM CONSTRUCTION AGREEMENT THIS AGREEMENT, made on December VsCN , 1994, between the TOWN OF NEW CASTLE, Colorado, hereinafter referred to as "Town;" ELK CREEK HOMEOWNERS ASSOCIATION, of P. 0. Box 518, New Castle, County of Garfield, State of Colorado, hereinafter referred to as "Homeowners Association;" THREE ELK RUN, L.L.C. (Ed McCune/ Dirk Larsen), of P. O. Box 182, 681 East Main Street, New Castle, County of Garfield, State of Colorado, hereinafter referred to as "Three Elk Run;" and ESTHER and KAZIMIERZ KOZAK, ROBERT KOZAK and MARIA CARRION-KOZAK, NATHAN KING -and ALINA KING, of 0095 Peach Court, New Castle, County of Garfield, State of Colorado, herein- after collectively referred to as "Kozaks." I RECITALS A. The parties agree that the Town shall supply water, as stated herein, to a total of one hundred (100) users, sixty-five (65) of which are in Elk Creek Development and fourteen (14) of which are to be in the proposed Three Elk Run Subdivision, with the remaining twenty-one (21) users, including Esther and Kazimierz Kozak, being outside the boundaries of either of these subdivisions. All one hundred (100) users are located outside the boundaries of the Town of New Castle Municipal limits in Garfield County, State of Colorado. B. The Town agrees to construct a new water system for the purposes of up -grading the water storage capacity and fire protection capabilities for the property owners located as stated above, constructing and utilizing a system to be known as the Elk Creek Area Water System. H ADMINISTRATION A. The parties agree that the Town will administer the projected bid process and all expenditures related to construction of the water system and reporting to the State of Colorado. Expenditure of funds in excess of $304,666.00 shall not be incurred without written agreement of Town, Homeowners Association and Three Elk Run. B. The parties agree that upon completion of the water system, which includes inspection and approval by the Town's engineer as to construction of the water system, the Town will assume ownership and operation of all newly constructed water lines as outlined in the Town of New Castle, Elk Creek Area Water System Improvements drawings, as drawn and engineered by Peter Belau of Enartech, Inc. C. The Town shall not be responsible for any delay in the installation of said water system resulting from shortage of labor or materials, strikes, war, riot, weather conditions, governmental rule, regulation, or order, including orders or judgments of any court, act of God, or any other condition beyond the control of the Town. The Town may, in the event it is unable to obtain supplies, material or labor for all of its construction requirements, allocate materials -and labor to the construction project that it, in its sole discretion, deems most important towards completion of the water system project, and any delay in construction hereunder resulting from such allocation shall be deemed a cause beyond the Town's control. f EASEMENTS A. The Homeowners Association, upon signing this contract, agrees to vacate all their water lines and water tank easements upon the Kozaks' property and Three Elk Run's property, located adjacent to the Elk Creek Development, north of the Town, when replacement water line easements have been deeded from the Kozaks and Three Elk Run to the Town, and upon delivery of water service via the Elk Creek Water System. B. Kozaks, upon signing this contract, agree to deed to the Town a water line easement upon their property located north of the Town, for purposes of installation, maintenance or future replacement of the Elk Creek Area Water System. C. Three Elk Run, upon signing this contract, agrees that upon recordation of the Final Plat for the Three Elk Run Subdivision, easements for water line and water storage tank will be provided to the Town of New Castle for the purposes of installation, maintenance and/or future replacement of the Elk Creek Area Water System. D. Kozaks and Three Elk Run, upon signing this contract, agree to allow the Homeowners Association to remove the existing water lines or water tanks in place on the date of this contract provided the following conditions are met: (1) prior to the removal of the water lines and storage tanks, the Homeowners Association agrees that it shall give a minimum written notice of seven (7) calendar days to the owners of the properties which may be affected by the removal of water lines and storage tank(s); (2) 2 <G� should the Homeowners Association elect not to remove water lines and storage tanks within a three (3) year period from the signing of this contract, this provision is waived by the parties and the water lines and storage tanks shall become the property of the property owners as of that date; (4) that any and all property which is or has been disturbed by the removal of water lines and water storage tanks are repaired and reseeded with weed free, native plant seed; (5) and that upon the completion of the Elk Creek Area Water System, the Homeowners Association will be held harmless from any and all claims or liability arising out of, or connected with, the said water lines and storage tank(s), except as outlined in this sub -section (D) and sub -section (E). E. Upon removal of said water tanks, the Homeowners Association agrees not to disturb soils outside of the water tank and water line easement locations and to perform reclamation and revegetation of said water line and water tank easement locations and any affected land areas needed due to the removal of said water tanks and/or water lines at the Homeowners Association's expense. IV FUNDING A. It is agreed between the parties that the Town will commit the $120,000.00 combination State Grant/Loan monies toward the construction of the Elk Creek Area Water System. B. It is agreed between the parties that cash contributions to the construction of the new water system project will be made by the parties as follows; (1) Homeowners Association - $16,500.00; (2) Three Elk Run agrees to commit funding up to $168,166.00. C. In administering the construction project, the Town shall make contract payments when due, first utilizing State Grant/Loan monies, next Homeowners Association cash contributions, and finally Three Elk Run cash contributions. D. It is acknowledged between the parties that the following contributions have or will be made by the parties toward the construction of the water system as follows: (1) Three Elk Run: (a) Negotiated with and hired a professional grant writer, Mike Blair, in the amount to date of $1,050.00, for 3 the application and subsequent award of a State Impact Assistance Grant, wherein the Town was awarded a combination loan in the amount of $60,000.00 and a cash grant in the amount of $60,000.00 for the construction of the water system. (b) Will provide necessary easements for waterline and storage tank. (c) Will provide topographic, design and easement surveys for project construction through Three Elk Run Subdivision. (2) Homeowners Association: (a) Will vacate their existing water line and storage tank site which runs through and on property presently owned by Kozaks and Three Elk Run. (3) Kozaks: (a) Will provide easements for water lines and pump house as indicated on the Elk Creek Area Water System Plan as designed by Enartech, Inc., said easement being reciprocal for the relinquishment of water line easement presently owned by the Homeowners Association. (b) Will provide a survey of said water line easement, to replace the easement to be vacated by the Elk Creek Homeowners Association as stated above. E. It is acknowledged by the parties that funds from a $60,000.00 loan and $60,000.00 grant from the State of Colorado, Department of Local Affairs, which was obtained through the Town, will be utilized for the construction of the water system. The Homeowners Association and Three Elk Run agree to pay to the Town all costs, including principal and interest associated with the $60,000.00 loan from the State of Colorado, Department of Local Affairs, for the construction of the water system. F. Repayment of the loan with respect to the above- named parties shall be as follows: (1) Homeowners Association shall be responsible for 65% of the repayment of the loan principal and interest; (2) Three Elk Run shall be responsible 35% of the repayment of the loan principal and interest, and as further outlined in the following subsections. G. However, at the time a lot within the Three Elk Run Subdivision is sold, the new owner of said lot shall assume 1% of the repayment of loan principal and interest to the Town, with the 4 35% repayment responsibilities of Three Elk Run reduced accordingly. Additionally, at the time a new water user outside of the Elk Creek or Three Elk Run Subdivisions is added to the water system, said user shall assume 1% of the repayment of loan principal and interest to the Town with the 35% loan principal and interest repayment responsibilities of Three Elk Run being reduced accordingly. H. All parties acknowledge and agree that said loan shall be in effect for a period of ten (10) years, beginning September 1, 1995. It is agreed by the parties that all payments concerning the loan shall be made to the Town on a monthly basis until the loan has been repaid in full. The Town agrees to incorporate billing for loan repayment with regular water use billings. I. It is acknowledged between the parties that all new water users which are added to the Elk Creek Area Water System after the date of this contract shall pay to the Town an out-of- town water tap fee and a cash contribution recoupment fee equal to 1/35 of the aggregate cash contributions of Homeowners Association and Three Elk Run. The Town agrees to distribute the cash contribution recoupment fees to the Homeowners Association and Three Elk Run in proportion to each party's cash contribution made towards the total funding associated with the construction of the water system. J. All parties acknowledge that no cash contribution recoupment fees will be collected from the sixty-five (65) potential users in the Elk Creek Development, or the fourteen (14) potential users in the Three Elk Run Subdivision. V WATER SUPPLY A. The Town shall be responsible only to make available to the Homeowners Association and Three Elk Run such water at such pressure as may be available at the point of delivery as a result of the Town's normal operation of its expanded water distribution system. B. Concerning fire protection capabilities, it is agreed between the parties, that since the Town is supplying water, extra territorially to the Elk Creek Development and the Three Elk Run Subdivision, the appropriate county and/or fire district gallon per minute (gpm) fire flow rates regulations will be utilized. The Town may temporarily discontinue the flow of water in the main at the point of delivery in order to repair, maintain, improve or 5 replace the main or other portions of the Town's water distribution and supply system from which the main is dependent for its supply. C. No provision in this Agreement shall be construed to diminish water service quality to Elk Creek Development, as defined in Water Agreement of June 2, 1992 between the Town and the Homeowners Association. VI WAIVER OF CLAIMS A. Homeowners Association and Three Elk Run shall not assert any claim hereunder against the Town for loss or damage which may result from the inadequacy or non-availability of water as to both pressure and quantity. VII TERM OF AGREEMENT A. This agreement shall continue among the parties until such time as the State of Colorado loan is paid in full and the twenty-one (21) users outside the boundaries of the subdivisions have been added to the Elk Creek Area Water System with payment of all recoupment fees as set forth in Paragraph IV.H., above. VIII CHANGES AND MODIFICATIONS A. This agreement can only be changed or modified by written agreement between the parties. IX ATTORNEY FEES A. Should legal action be needed to enforce any of the provisions of this contract, it is agreed between the parties that any breaching party or parties shall be liable to any non -breaching party or parties for their reasonable attorney fees, costs and 6 ( interest incurred as a result of enforcing the terms of this contract. X BINDING EFFECT A. This Agreement shall be binding upon, and shall inure to the benefit of, each of the parties, their successors and assigns. IN WITNESS WHEREOF, the parties acknowledge that they have read and understand the terms of this contract and agree to the terms provided herein as evidenced by their signatures. ATTEST: Town\ Clerk STATE OF COLORADO COUNTY OF GARFIELD ) ss TOWN OF NEW CASTLE By: Mayor i J Date SUBSCRIBED AND SWORNn to before me this c--a-�� day of .Q-c..rn Qom.,- 1 99 A L_ - _+ as Mayor of the TOWN OF NEW CASTLE and attested to by \ 1 1 S - \ Secretary of the TOWN OF NEW CASTLE. Witness my hand and official seal. My commission expires: My Commission expires 418-961 Notarhj Public ELK CREEK HOMEOWNERS ASSOCIATION 7 ice,/- J9 ate STATE OF COLORADO ) ss COUNTY OF GARFIELD SUBSCRIBED AND SWORN to before me this 2C7` day , 1994, by cAJ7/ 1,<I,v- 3.,,.,a/Icr as ?2c-s,ELK CREEK HOMEOWNERS ASSOCIATION. Witness my hand and official seal. My commission expires: //-/0 SS Notary Pub Kt Esther Kozak, of of c �tv dividually )2/2.-2/9 y - De Kazimierz Kozak, Individually /2//z e t( Date STATE OF COLORADO ) ss COUNTY OF GARFIELD ) ‘d ,SUBSCRIBED AND SWORN to before me this day , 1994, by ESTHER KOZAK and KAZIMIERZ KOZAK. Witness my hand and official seal. My Commission Expires: n of Notary Publ`c Robert Kozak, Individually Date 2 ,Marfa Carrion -Kozak, ,Iiid vidually Date 8 STATE OF COLORADO ) ss COUNTY OF GARFIELD ) SUBSCRIBED AND SWORN to before me this day of , 1994, by ROBERT KOZAK and MARIA CARRION-KOZAK. Witness my hand and official seal. `-� My Commission Expires: � \ - STATE OF COLORADO ) ss COUNTY OF GARFIELD ) Notary Public /-/ ,-- , /. - ‘,7s) -77 , 71-(/';`"--.__y4- ""( ..,4( Nathan King, Indiv,idually/ Date rvt &NJ Alina King, Individually SUBSCRIBED AND SWORN to before me this ��� , 1994, by NATHAN KING and ALINA KING. Witness my hand and official seal. My Commission Expires: 9 Notary Pubic Date day of THRE-ELK RUN, L.L.C. By: Edward A. 'McCune, Manager Date By: Dirk Larsen, Manager Date STATE OF COLORADO ) ss COUNTY OF C-/cr-ZA C -`L6 ) SUBSCRIBED AND SWORN to before me this ;;l•- day of , 1994, by EDWARD A. McCUNE as Managers of THREE ELK RUN, L.L.C. Witness my hand and official seal. My Commission Expires: 55 7;;-Z__„n Notary Pulpit 10 STATE OF COLORADO ) ss COUNTY OF By: THREE ELK RUN, L.L.C. Edward A. McCune, Manager Date By: Z`LA.- dirk Larsen, Manager ' Date SUBSCRIBED AND SWORN to before me this "-, day of C, 1994, by EDWARD A. McCUNE and DIRK LARSEN, as Managers of THREE ELK RUN, L.L.C. Witness my hand and official seal. My Commission Expires: //> t/ \ / / • , ,? -� ;� Notarfy Public! / I(1 10 c13 • JAN 3 RocCrr„0d Ckt e� U :� i cr SWI COUNTY, COLORADO WATER TAP AGREEMENT !rer.O930r1r:297 THIS AGREEMENT, entered into by and between the TOWN OF NEW CASTLE, COLORADO (hereinafter the "Town") and THREE ELK RUN, LLC (hereinafter "Three Elk Run"); WITNESSETH: WHEREAS, the Town operate a municipal water supply system and by ordinance may supply water available to water users located outside of the Town limits; and WHEREAS, Three Elk Run desires to obtain water service from the Town for a subdivision consisting of fourteen (14) lots which will be located on the property as described in Exhibit A which is attached hereto and incorporated herein by this reference lf\ (hereinafter "Three Elk Run Subdivision") which is located outside of the boundaries of the Town; and WHEREAS, the parties desire to express their agreement on m� the payment of water tap fees, the installation of a tap to the b. Town's water system, and the Town's regulation and requirements surrounding such tap and water service. NOW, THEREFORE, for and in consideration of the mutual promises and covenants contained herein, the parties agree as follows: 1. Warranties. Covenants and Representations. Three Elk Run makes the following representations, covenants and warranties to the Town: A. Three Elk Run is the fee owner of the property and has good, marketable and indefeasible title to the property, subject to any mortgage, covenants, deeds of trust or easements now or hereafter affecting the property. B. Three Elk Run has the full right, power and authority to enter into, perform and observe this Agreement. C. To the best of Three Elk Run's knowledge, neither the execution of this Agreement, the consummation of the transactions contemplated hereunder, nor the fulfillment of or the compliance with the terms and conditions of this Agreement by Three Elk Run will conflict with, or result in, a breach of any terms, conditions or provisions of, or constitute a default under, or result in the imposition of any prohibited lien, charge or encumbrance of any nature under any agreement, instrument, indenture or judgment, order or decree of any court to which Three Brf.0930:.c:298 Elk Run is a party or by which Three Elk Run or the property are bound. D. The covenants, obligations, terms, conditions and provisions set forth in this Agreement shall be construed as, and during the term of this Agreement shall remain, covenants running with the property. E. Subject to the provisions of this Agreement, if Three Elk Run fails to satisfy, keep or perform any obligation, covenant or agreement contained in this Agreement according to its terms, the Town may take or cause to be taken such action as it deems necessary to enforce the performance of such covenants and agreements, and any sums advanced or expenses incurred by the Town in connection therewith, including attorneys' fees, shall become due immediately without notice and shall bear interest at an annual percentage rate equal to two percent (2%) above the net effective interest rate then paid by the Town on its outstanding bond indebtedness. 2. purchase of Tap. Three Elk Run shall purchase fourteen (14) water tans from the Town's municipal water supply system in order to obtain water service for its residence(s). Three Elk Run agrees to pay all applicable tap fees as established by Town ordinance in effect upon execution of this Agreement in the amount of $2,500.00, which amount shall remain fixed for a period of three (3) years and at the expiration of the three (3) year period, the tap fees shall reflect the current rate; without additional tap fee payment to the Town to maintain, operate, use, repair, enhance or replace its water supply system or to acquire additional water rights, water storage diversion or delivery structures, other than the construction made by Three Elk Run to the Elk Creek Area Water System, as provided under separate contract between the parties. 3. Use o; Water. The Town agrees to provide water service to Three Elk Run for the residences subject to the terms and conditions as more fully set forth herein. Three Elk Run agrees that all water supplied to it through the Town's municipal water supply system shall be for ordinary residential uses only, including outside lawn and garden irrigation of an area not to exceed 3,000 square feet per lot. Three Elk Run further agrees that it shall not use water supplied under this Agreement for watering of livestock or domestic animals other than those domestic animals allowed by Town ordinance for a single family residence located within Town boundaries. Violation of this restriction shall subject the Purchaser to penalties as established by the Town ordinances then in effect. 4. Meters and Water Fees. Three Elk Run shall install at its own cost and expense a water meter to the specifications acceptable to the Town at the time of connection of each lot to the 2 enpi j930:.,c:299 Town's water system. Three Elk Run shall maintain such in good working order at all times. Three Elk Run shall pay fees and charges for the use of water as established by Town ordinances from time to time, and according to payment schedules contained therein. 5. Connection Charges. Notwithstanding payment by Three Elk Run for the system development fees required to be paid hereunder, the Town may, prior to Three Elk Run making physical connection of any such tap to the water system, impose reasonable charges for any labor and materials supplied by the Town that may be required to make such physical connection. 6. Water Rationing. In the event of shortage, Three Elk Run hereby acknowledges and agrees that the water supply to the subdivision may be rationed or curtailed by the Town. Three Elk Run also acknowledges that, in the event of shortage, its water supply may be subject to rationing first, before residents of the Town are so rationed, and to curtailment first, before residents of the Town are rationed and/or curtailed, both as deemed necessary by the Town in its sole discretion to satisfy the requirements of the Town and Town residents residing within the Town's municipal limits. By this Agreement, the Town is making no statement, guaranty or warranty that sufficient water will be available to Three Elk Run to satisfy the ordinary residential needs of Three Elk Run at all times. Three Elk Run specifically acknowledges that water service may be interrupted on a temporary basis with no advance warning or notice. Three Elk_Run specifically waives any and all claims it may otherwise have against the Town which may arise from water rationing or curtailment. 7. Tap Connection. Three Elk Run shall install, maintain, operate, repair and replace, at its own cost and expense, all facilities associated with its tap connections to and use of the Town's Elk Creek Area Water System. Three Elk Run shall connect to the Town's Elk Creek Area water main using materials which are acceptable to the Town. Additional requirements for installation may be imposed on Three Elk Run at the time of installation. By setting such specifications, the Town makes no guaranty or warranty that installation pursuant to these minimum specifications will be adequate for the continuous and uninterrupted delivery of water to the residences. Three Elk Run shall be solely responsible for such connection and installation to ensure that such is made according to accepted engineering and construction principles and guidelines. Any failure of such system shall be the sole responsibility of Three Elk Run and in the event that a failure affects the Town water delivery system to other users, Three Elk Run shall be liable to the Town for cost of any repair or replacement resulting therefrom or for damages incurred. Three Elk Run agrees to promptly upgrade any such connection or pipeline connecting to the Town's system to meet any additional specifications as may be deemed necessary by the Town for the 3 cpCgO 93O: L;3OO efficient and prompt delivery of water to the property in the future. 8. Administration of Rates Fees and Charges. The Town shall establish all rates, fees and charges for the use of its facilities. Such rates, fees and charges shall be applicable to all users of the Town's facilities, but may provide for different rates, fees and charges for in -Town and out -of -Town users. Unless expressly provided to the contrary herein, services to Three Elk Run lots shall be subject to all duly promulgated rates, policies and rules and regulations of the Town. 9. Remedies Upon Default. Upon the occurrence of any event of default as specified in this Agreement, the Town shall have the following rights and remedies which shall be cumulative and which may be exercised with or without notice, unless otherwise specified herein, and which may be exercised separately, concurrently or repeatedly and without any election of remedies to be deemed made: A. To declare by written notice any or all of the rates, charges or fees be immediately due and payable in full, subject to the limitations of Subparagraph D. B. To shut off or discontinue water service to any defaulting user, that the Town shall have all rights against such third party who may acquire the residence in the event of default of such third party. C. To perfect and foreclose any and all lien rights which the Town may have under and in the manner specified by applicable law. D. To enforce any provisions of this Agreement by appropriate legal proceeding for the specific performance of any covenant or agreement contained herein or for the enforcement of other appropriate legal or equitable remedy or for the recovery of damages caused by breach of this Agreement, including attorneys' fees and all other costs and expenses incurred in enforcing this Agreement. In the event of the Town's default under this Agreement, Three Elk Run may assert any available legal or equitable remedy and shall be entitled to recover reasonable attorneys' fees and all other costs and expenses incurred in enforcing this Agreement. 10. Indemnity. Three Elk Run hereby agrees to indemnify and hold the Town harmless for any and all losses resulting from any actions taken in the implementation of this Agreement and for injuries resulting from Three Elk Run's use of Town water. Furthermore, it is the understanding of the parties that this indemnification shall include actual attorneys' fees, damages, costs and expenses incurred by the Town in the event that any party 4 scu•O930; tc..`�O1 brings an action against the Town specifically relating to injury, property damage, or other damages caused by Three Elk Run's purchase, installation, use, maintenance or operation of the facilities or by interruption of water service under this Agreement. 11. Term. This Agreement shall remain in full force and effect until this Agreement is otherwise terminated in accordance with the provisions hereof. 12. Successors and Assigns. The covenants, obligations, terms, conditions, and provisions contained herein an all amendments of this Agreement shall inure to the benefit of and be binding upon the heirs, personal representatives, successors and assigns of the parties hereto and shall also be a covenant running with the property. 13. Remedies. The remedies provided to the Town hereunder are cumulative and are not intended to be exclusive of any other remedy to which the Town may be lawfully entitled. None of the remedies provided to either party under this Agreement shall be required to be exhausted or exercised as a prerequisite to resort to any further relief to which it may then be entitled. Every obligation assumed by or imposed upon either party hereto shall be enforceable by any appropriate action, petition or proceeding at law or in equity and may be initiated by the Town, separately or jointly. In addition to_any other remedy provided by law, this Agreement shall be specifically enforceable. This Agreement shall be construed in accordance with the laws of the State of Colorado. 14. Statutory Requirements. It is the express intention of the parties that all charges, assessments, fees or rates to be paid hereunder shall constitute a perpetual lien on and against the property until paid. It is the further intention of the parties that unpaid fees hereunder shall be considered to be fees within the meaning of the applicable statutes of the State of Colorado authorizing the Town to certify the unpaid fees as general property taxes to the Garfield County Treasurer. 15. Future Ordinances. Three Elk Run acknowledges that the Town may adopt ordinances and resolutions from time to time concerning regulations of the continued delivery of water to users located outside of the Town limits. By entering into this Agreement, Three Elk Run is agreeing to be bound by such future regulation. 16. Scope of Agreement. No additional rights as may be established by Town ordinance or resolution for residences of the Town are implied or created on behalf of Three Elk Run by entry into this Agreement. 5 e00,(0930nc; 02 17. Amendment. This Agreement constitutes the full agreement between the parties and may be amended only by a writing signed by the parties. 18. Binding Effect. This Agreement is binding upon and shall inure to the benefit of the parties, their heirs, successors and assigns. Specifically, Three Elk Run may assign its rights nd obligations hereunder proportionately among the owners of the individual lots within the Three Elk Run Subdivision. 19. Recording. This Agreement shall be recorded with the Garfield County Clerk and Recorder, at the expense of Three Elk Run, in the amount of $ 19°% , which expense shall be paid simultaneously with the execution of this Agreement. IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement in duplicate originals on the day and year first above written. TOWN OF NEW CASTLE, COLORADO By: ATTEST: Clerk THREE ELK RUN, LLC By: By: Manager Manager STATE OF COLORADO ss COUNTY OF GARFIELD grioK 0930 tr:303 The foregoing instrument was acknowledged before me on this atD day of ,JatJ,c.1-eLy , 1995, by s M -1-4c, f=(PP y , Mayor, andmfr -. -)/ rZ.- ; , Clerk, TOWN OF NEW CASTLE, COLORADO. Witness my hand and official seal. . 1`�� ,.,... My commission expires: s2 Notary Publ • STATE OF COLORADO ) ss COUNTY OF GARFIELD ) T�e foregoing instrument was acknowledged before me on this LO _ day ofL, a -,re, Eu-+ , 1993, by EDWARD, McCUNE, Manager, AND DIRK LARSEN, Manager, THREE ELK RUN, LLC; ;� .1 ary Public Witness my hand and official seal. My commission expires: a'7-y(o SCHENK, KERST & deWINTER, P.C. ATTORNEYS AT LAW SUITE 310, 302 EIGHTH STREET GLENWOOD SPRINGS, COLORADO 81601 TELEPHONE: (970) 945-2447 TELECOPIER: (970) 945-2977 JOHN R. SCHENK DAN KERST WILLIAM J. deWINTER, III July 23, 1996 Don Deford Garfield County Attorney 109 Eighth Street Glenwood Springs, CO 81601 Re: The Cedars PUD Subdivision Dear Don: To follow up our conversation last Friday and my discussions with Kent Jolley, additional information is provided on the adequacy of the water supply for this subdivision. Enclosed with this letter is a copy of the Elk Creek Area Water System Construction Agreement dated December 22, 1994, between the Town of New Castle and various parties. Also enclosed is a copy of the Water Tap Agreement which is recorded between Three Elk Run LLC and the Town of New Castle. These documents were executed in connection with the County's approval of the Three Elk Run Subdivision which is located near the proposed Cedars PUD Subdivision. Under the Elk Creek Water System Construction Agreement, the Town of New Castle committed to supply water to a total of 100 users, 14 of which were in the Three Elk Run Subdivision. All 100 users were located outside the boundaries of the Town of New Castle. The Town of New Castle further agreed and did construct new water facilities to upgrade the water storage capacity for these out of town users now known as the Elk Creek Area Water System. Under this agreement, the developer of Three Elk Run paid $116,166.00 to the Town of New Castle in consideration of this work. This agreement is directly tied into the Water Service and Pre -Annexation Agreement for the Cedars PUD Subdivision. Under paragraph 11 of that agreement, Elk Creek Development Corporation has agreed to pay $52,761.71 to the Town for costs associated under the Elk Creek Area Water System Construction Agreement and for such payment, receive the benefit of ten (10) of the twenty-one (21) taps referenced in the Elk Creek Area Water System Construction Agreement. Since the Town of New Castle assumed the obligation to serve these 100 users it is hard to imagine that the Town of New Castle could at some later point refuse to provide service to this project, absent an extraordinary condition such as a general water tap moratorium. Please note that the Three Elk Run Water Service Agreement does not provide for mandatory prepayment of the water taps to the Town of New Castle and, in fact, the tap fee rate H 'JRMLCc DEPOLLD.L1R July 23, 1996 Page -2- is fixed for a period of only three (3) years. Thus, the Town of New Castle might decline a tap for one of the these 3 lots as easeily as for the Cedars PUD Subdivision. That eventuality, however, is very unlikely given the fact that the developers of Three Elks advanced the sum of $168,166.00 for the water improvement project and Elk Creek Development Corporation will reimburse $52,761.00 to be added to the Town's service system. The Water Service and Pre -Annexation Agreement for the Cedars PUD Subdivision will be recorded and this will be chargeable notice to the purchaser of each lot in the subdivision of the terms of water service before the closing of any purchase. Each party will be able to confirm the costs of a tap and the availability of a tap before completing their purchase. We believe that risk is so remote as to not require further security under these circumstances. If we can provide further information, please advise at your first opportunity. Very truiy yours, JOHN R. SCHENK JRS/ts Enc. cc: Kent S. Jolley (w/o enc.) GARFIELD COUNTY Building and Planning July 23, 1996 Mr. Jeffrey S. Simonson, P.E. Schmueser, Gordon, Meyer 118 West Sixth St., Suite 200 Glenwood Springs, CO 81601 RE: Cedars PUD Final Plat Dear Jeff, The Planning Department is conducting its review of the Final Plat information submitted for the Cedars PUD and we offer the following comments: The Plat shows a '40 ft. Private Access and Public Utility Easement' on Lot #9 and the Public Open Space portion located at the extreme southern corner of the tract. The Certification of Dedication and Ownership states "That said owner does hereby dedicate and set apart all of the streets and roads as shown on the accompanying plat to the use of the public forever..." This information needs to be reconciled, essentially stating on the Plat that the 40 ft. access and utility easement is Public. Calculations made by star to the thousandth digit, indicate that a total of 24.988% of the tract has been reserved as Public Open Space. PUD regulations specify that 25% of the total area within the boundary of any PUD shall be devoted to Common Open Space. Please redraw a line to achieve this requirement. I offer the suggestion that the westerly lot line of Lot #5 be moved approximately one (1) foot to the east. 3. Plat note #1 contains a typographical error, in brief, "... building envelopes exceed 20% of basements..." For clarification purposes, the word "of' should be replaced with the word or. Additionally, it has been the position of the County Attorney, to require that the improvements certification letter be wet -stamped by the P.E. who is making the certification. I discussed this with Mr. DeFord and he does require that you provide the County a wet -stamped copy of your letter to John Schenk, dated July 3, 1996, or the equivalent. 109 8th Street, Suite 303 945-8212/285-7972 Glenwood Springs, Colorado 81601 Please provide the items requested at your earliest opportunity so we may review them. If you have any questions, please do not hesitate to call. Sincerely, Eric D. McCafferty Garfield County Planner SCHENK, KERST & deWINTER, P.C. ATTORNEYS AT LAW SUITE 310, 302 EIGHTH STREET GLENWOOD SPRINGS, COLORADO 81601 TELEPHONE: (970) 945-2447 TELECOPIER: (970) 945-2977 JOHN R. SCHENK DAN KERST WILLIAM J. deWINTER, III July 10, 1996 Mark Bean Garfield County Planning Department 109 Eighth Street Glenwood Springs, CO 81601 Re: The Cedars PUD Subdivision Dear Mark: Included with this letter are the following documents: HAND DELIVERED ❑ 1. Two mylar prints of the final plat of The Cedars PUD Subdivision prepared by Schmueser Gordon Meyer, Inc. signed by the Developer, Regional Bank of Colorado as sole lienholder and myself. ❑ 2. Original Subdivision Improvements Agreement for The Cedars PUD Subdivision with annexed Exhibits A, B, C and D. ❑ 3. Copy of proposed Declaration of Covenants, Conditions, Restrictions, and Easements for the Subdivision. ❑ 4. Copy of Deed from Elk Creek Ventures LLC to Elk Creek Development recorded on April 2, 1996. ❑ 5. Title Insurance Commitment issued by Stewart Title as of June 10, 1996 for one of the proposed lots in the Subdivision. ❑ 6. Copy of the Water Service and Pre -annexation Agreement with the Town of New Castle which provides for water to serve the Subdivision. ❑ 7. Engineer's letter from Schmueser Gordon Meyer, Inc. on the improvements for the Subdivision as of July 3, 1996. ❑ 8. Copy of a letter from Chief of the Burning Mountain Fire Protection District on acceptance of the Subdivision design plans for fire protection dated March 22, 1995. 11,116 EIXCREEK \ BEAN. Lilt July 10, 1996 Page -2- • 9. Copy of the Articles of Incorporation for The Cedars at Elk Creek Homeowners Association filed and accepted with the Colorado Secretary of State. ❑ 10. Copy of the Bylaws of The Cedars at Elk Creek Homeowners Association. ❑ 11. Form of Quit Claim Deed for conveyance of common elements to the homeowners association. ❑ 12. Check in payment of RE -2 School Impact Fees ($1,800.00). Specific responses to the conditions of approval by the Garfield County Commissioners, using the section numbers of Resolution No. 95-088 as a reference, are as follows: 1. All representations of the applicant, either within the application or stated at the public hearing with the Panning Commission, be considered conditions of approval. RESPONSE: Agreed. No action required. 2. The applicants shall establish a Homeowners Association and shall be incorporated in accordance with the requirements of Colorado Revised Statutes RESPONSE: See filed Articles of Incorporation and CCR §§ 3.5 and 3.9. 3. The applicants shall prepare and submit a Subdivision Improvements Agreement, addressing all improvements, prior to recording a final plat. RESPONSE: See attached Subdivision Improvements Agreement. 4. All cut slopes created during construction shall be revegetated with native grasses with adequate weed control. All revegetation shall be in accordance with the applicant's revegetation plan which shall be submitted prior to final plat. Revegetation and landscaping shall be included in the SIA. In addition, adequate security shall remain in place for a period of two (2) years to guarantee the survival of all plantings. RESPONSE: Agreed. See Subdivision Improvements Agreement, Section 3.C. 5. The applicants shall pay $200 per lot in school impact fees prior to approval of the final plat. RESPONSE: Payment has been made for the RE -1 School District School Impact Fees, evidenced by the receipt enclosed. 11'. VRS\LIACREFX\NCAN. LTR July 10, 1996 Page -3- 6. All roadways shall be designed and constructed in conformance with design standards set forth in the Subdivision Regulations and in place at the time of final plat. RESPONSE: See Engineering document. 7. No open hearth solid -fuel fireplaces will be allowed; each dwelling unit will be allowed one (1) new wood -burning stove as defined by C.R.S. 25-7-407, et. seq., and the regulations promulgated thereunder; and there will be no restriction on the number of natural gas burning fireplaces or appliances. RESPONSE: See Final Plat Notes and CCR §7.6. Further, that all residences shall be built in accordance with the Colorado Forest Service urban interface wildfire guidelines. RESPONSE: See CCR §7.7. 8. One dog will be allowed in each residential dwelling unit in the PUD. This requirement will be included in the protective covenants, and will be enforced by the homeowners association. RESPONSE: See CCR §7.5. 9. All proposed utilities shall be located underground. RESPONSE: See CCR §3.8, third sentence. 10. Noxious weeds are the responsibility of the property owner. RESPONSE: See Final Plat and CCR §8.5. 11. The applicant shall be required to address the issue of material injury, consistent with C.R.S. 30-28-136(1)(H)(II) and the referral letter form the State Engineer dated July 7, 1995. Prior to Final Plat, compliance with this condition shall be verified by a letter of approval from the State Engineer, based on submittal of water rights and available water from the Town of New Castle. RESPONSE: See Water Service Agreement. We look forward to the staff review of this matter and will be glad to respond to any questions or comments you might have. II: IRS\IiIJCCREEK DEAN. LIR July 10, 1996 Page -4- Very truly fours, JOHN R. CHEN JRS/clh Enc. cc: Kent S. Jolley (w/o enc.) II: \JRV\ELKCRI;FX B AN.I:IR Cedars PUD Final Plat 8/19/96 This is a public meeting to consider the approval of the final plat for the Cedars PUD, located north of New Castle on CR 245. The Planning Dept. and the County Attorney have reviewed the submittal and exclusive of a question concerning the water supply, appears to be complete. Essentially, the water supply for the lots would come from the New Castle municipal supply, who has guaranteed the price of 10 water taps for 5 years after the Town's certification of acceptance of the construction of the water facilities. The concern comes from the Taps Availability statement contained within the Water Service and Pre -Annexation Agreement with the Town. It states: "The right to purchase a water tap hereunder is at all times subject to general availability of water taps" and "The Town shall have no commitment to furnish water taps after the period stated above except on its then existing first-come, first-served basis. DeFord and I have discussed these provisions and we discussed it with John, who has indicated there is an almost zero probability that the provision of water taps to these lots would not occur. At this time, I request that John discuss with the Board the nature of the water agreement with the Town. According to the engineer's statement regarding the improvements completed within the subdivision, it appears that the only improvement not completed is the revegetation that would require the retention of funds sufficient to guarantee the plantings for a period of two years. This security has been estimated at $1520 and if the developer turns these funds over to the County, then I request that the Board authorize the Chair to sign the Final Plat. DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS AND EASEMENTS FOR THE CEDARS PUD SUBDIVISION ELK CREEK DEVELOPMENT CORPORATION, a Colorado corporation, ("Declarant"), as owner of certain real property in the County of Garfield, State of Colorado, known as The Cedars PUD Subdivision ("The Cedars Subdivision") depicted on the plat of same recorded on , 1996, as Reception No. in the records of the Clerk and Recorder of Garfield County, Colorado, (the "Plat"), and described as follows: A tract of land situate in the NE1/4 of the SE'/a of Section 25, Township 5 South, Range 91 West of the 6th Principal Meridian being more particularly described as follows: Beginning at the east 1/4 corner of said Section 25; thence S 0°49'11" E 1250.31 feet along the east line of said Section 25 to the easterly right-of-way line of County Road No. 245; thence along said right-of-way line the following courses: N 33°11'34" W 151.35 feet; thence N 43°40'23" W 160.54 feet; thence N 46°42'42" W 164.50 feet; thence N 50°00'25" W 829.80 feet; thence N 54'42'50" W 126.02 feet; thence N 65°37'33" W 131.66 feet; thence N 68°58'52" W 11.97 feet; thence N 44°58'55" W 63.50 feet; thence leaving said right-of-way line N 16°34'47" W 171.98 feet to a point on the north line of the NE 14 of the SE1/4 of Section 25; thence N 89°05'00" E 1259.39 feet along said north line to the point of beginning. COUNTY OF GARFIELD STATE OF COLORADO (the "Property"). Declarant wishes to create a Planned Community Common Interest Community, called The Cedars Subdivision PUD, with certain common property owned by The Cedars at Elk Creek Homeowners Association, a Colorado nonprofit corporation, its successors and assigns (the "Association"). Declarant makes the following declarations: ARTICLE I STATEMENT OF PURPOSE AND IMPOSITION OF COVENANTS 1.1 Imposition of Covenants. Declarant hereby makes, declares, and establishes the following covenants, conditions, restrictions, and easements ("Covenants") which shall affect all of the Property. From this day forward, the Property shall be held, sold and conveyed subject to these Covenants. These Covenants shall run with the land and shall be binding upon all persons or entities having any right, title, or interest in all or any part of the Property, including Declarant, and their heirs, successors, assigns, tenants, guests and invitees. These Covenants shall inure to and are imposed for the benefit of all Lot Owners of parcels of land located within the Property. These Covenants create specific rights and privileges that may be shared and enjoyed by all owners and occupants of any part of the Property. Declarant hereby submits The Cedars Subdivision PUD to the provisions of the Colorado Common Interest Ownership Act, Sections 38-33.3-101, et seq., Colorado Revised Statutes, as it may be amended from time to time (the "Act"). In the event the Act is repealed, the Act, on the effective date of this Declaration, shall remain applicable. 1.2 Declarant's Intent. Declarant wishes to ensure the attractiveness of individual Lots and improvements to be made within the Property, to prevent any future impairment of the Property, and to preserve, protect, and enhance the values and amenities of the Property. It is the intent of Declarant to guard against the construction on the Property of Improvements built of improper or unsuitable materials or with improper quality or methods of construction. Declarant intends to encourage the construction of attractive permanent Improvements of advanced technological, architectural, and engineering design, appropriately located to preserve the harmonious development of the Property. ARTICLE II DEFINITIONS Each capitalized term not otherwise defined in this Declaration or in the Map shall have the meanings specified or used in the Act. The following terms, as used in this Declaration, are defined as follows: 2.1 "Design Guidelines" shall mean the rules and regulations adopted by the Association in conformance with and pursuant to this Declaration to maintain the quality and architectural harmony of Improvements in The Cedars Subdivision. 2.2 "Improvements" shall mean all buildings, parking areas, loading areas, fences, walls, hedges, plants, poles, antennae, driveways, signs, changes in any exterior color or shape, excavation and all other site work, including, without limitation, grading, roads, utility improvements, removal of trees or plants. "Improvements" do include both original improvements and all later changes and improvements. "Improvements" do not include turf, shrub or tree repair or replacement of a scale which does not change exterior colors or exterior appearances. 2.3 "Lot" shall mean any lot shown on the Plat of The Cedars Subdivision which may be conveyed in conformance with the laws of the State of Colorado. 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. ARTICLE III DESCRIPTION OF COMMON INTEREST COMMUNITY 3.1 Units. The maximum number of Lots in The Cedars Subdivision is ten (10) Lots for Single -Family Dwellings. 3.2 Common Elements. The Common Elements include all access and utility easements depicted on the map of The Cedars Subdivision and other easements depicted on said map or described below, together with the water distribution system all of which are designated by this Declaration for the common use and enjoyment of Lot Owners and their families, II: IRS\EIICCRIjX\DECEARAT.CC2- 06/21'96 2 tenants, guests and invitees and not for the public. The Association, subject to the rights and obligations of the Lot Owners set forth in this Declaration, shall be responsible for the management and control of the Common Elements. 3.3 Allocated Interests. The undivided interest in the Common Elements, the Common Expense liability and votes in the Association allocated to each Lot Owner shall be allocated to each Lot and calculated as follows: (a) the undivided interest in Common Elements, on the basis of an equal interest for each Lot; (b) the percentage of liability for Common Expenses, on the basis of equal liability for each Lot; and (c) the number of votes in the Association, on the basis of one vote per Lot. 3.4 Recorded Easements. The Property, and all portions thereof, shall be subject to all easements shown on the recorded Map affecting the Property, or any portion thereof, and to any other easements of record or of use as of the date of recordation of the Declaration. 3.5 Operation and Maintenance of Common Elements. The primary roadway easement and right of way depicted on the Plat for access to the Property to be known as Cedar Way shall be conveyed to the Association by Declarant. The Association shall be responsible for the operation and maintenance of said roadway. Such maintenance will include periodic maintenance of the surface and regular snow, ice, and trash removal. The Association will not be responsible for maintenance of private drives located on any Lot. The Association shall cooperate with the applicable traffic and fire control officials, and shall post the roadway with required traffic control, fire lane, and parking regulation signs. Costs of the operation and maintenance of the roadway shall be borne equally by the Lot Owners of Lots 1 through 10 regardless of the length of road serving a particular lot. 3.6 Utility Easements. Declarant reserves to Declarant and hereby grants to the Association a general non-exclusive easement upon, across, over, in, and under the utility easements on, across, over, in, and under each Lot as follows: (a) Ten (10) feet in width adjacent to each street right-of-way. (b) Five (5) feet in width on each side of each side yard lot line within the Property. (c) Other easements as shown and depicted on the Plat. Such easements may be used for ingress and egress and for installation, replacement, repair, and maintenance of all utilities, including but not limited to water, sewer, gas, telephone, television and electrical systems. By virtue of this Easement, it shall be expressly permissible and proper for the companies providing electrical, telephone and other communication services to install and maintain necessary electrical, communications, and telephone wires, circuits, and conduits in the II:ARS i CRCk7C,DECIARAT.CC2- 06/1K/S,6 3 easement. No utility shall be installed or relocated on the surface of any Lot, except for necessary surface facilities. Such utilities may be installed temporarily above ground during construction. Any utility company using this general easement shall use its best efforts to install and maintain the utilities provided for without disturbing the uses of the Lot Owners, the Association, and Declarant; shall prosecute its installation and maintenance activities as promptly and expeditiously as possible; and shall restore the surface to its original condition when possible after completion of its work. Should any utility company furnishing a service covered by this general easement request a specific easement by separate recordable document, either Declarant or the Association shall have, and are hereby given, the right and authority to grant such easement upon, across, over, or under any part of all of the Property without conflicting with the terms of this Declaration. This general easement shall in no way affect, avoid, extinguish, or modify any other recorded Easement on the Property. All service connections to (including transformers) primary utility lines serving each Lot shall be the responsibility of the Lot Owner. 3.7 Emergency Access Easement. A general easement is hereby granted to all law enforcement, fire protection, ambulance, and all other similar emergency agencies or persons to enter upon the Property in the proper performance of their duties. 3.8 Drainage Easement. An easement is reserved to Declarant and granted to the Association, its officers, agents, employees, successors and assigns to enter upon, across, over, in and under any portion of the Property for changing, correcting, or otherwise modifying any existing drainage channels on the Property to protect the historic drainage pattern of water. Reasonable efforts shall be made to use this easement so as not to disturb the uses of the Lot Owners, the Association and Declarant, as applicable, to the extent possible; to prosecute such drainage work promptly and expeditiously; to avoid interference with existing structures; and to restore any areas affected by such work to the condition existing before the work as soon as possible following such work. 3.9 Maintenance Easement. An easement is hereby reserved to Declarant, and granted to the Association, its officers, agents and employees, successors and assigns, upon, across, over, in and under the Property and a right to make such use of the Property as may be necessary or appropriate to make emergency repairs or to perform the duties and functions which the Association is obligated or permitted to perform, including without limitation, any actions in respect to the water distribution systems and individual sewage disposal systems (ISDS). 3.10 Easements Deemed Created. All conveyances of any part of the Property made after the date of this Declaration, whether by Declarant or otherwise, shall be construed to grant and reserve the easements contained in this Article III though no specific reference to such easements or to this Declaration appears in the instrument for such conveyance. ARTICLE IV THE ASSOCIATION 4.1 Membership. Every person, by virtue of being a Lot Owner and while such person is a Lot Owner, shall be a member of the Association. Membership shall be appurtenant to and may not be separated from Ownership of any Lot. No Lot Owner, whether one or more persons, shall have more than one membership per Lot owned, but all of the persons owning II:VRS\EIXCREEK\DGCIARAT CC2-O6Jzg/ fi 4 each Lot shall be entitled to rights of membership and use and enjoyment appurtenant to such Ownership. 4.2 Authority. The business affairs of The Cedars Subdivision shall be managed by The Cedars at Elk Creek Homeowners Association, a Colorado nonprofit corporation. 4.3 Powers. The Association shall have all of the powers and authority permitted under the Act necessary and proper to manage the business and affairs of The Cedars Subdivision. 4.4 Declarant Control. The Declarant shall have all the powers reserved in Section 38-33.3-303(5) of the Act to appoint and remove officers and members of the Executive Board. ARTICLE V DESIGN REVIEW 5.1 Design Guidelines. The Association may adopt, establish and publish from time to time Design Guidelines. The Design Guidelines shall not be inconsistent with this Declaration, but shall more specifically define and describe the design standards for The Cedars Subdivision. The Association may also establish reasonable criteria, including, without limitation, requirements relating to design, scale and color, as the Association may deem appropriate in the interest of preserving the aesthetic standards of The Cedars Subdivision. The Design Guidelines may be modified or amended from time to time by the Association. Further, the Association, in its sole discretion, may excuse compliance with the Design Guidelines as are not necessary or appropriate in specific situations and may permit compliance with different or alternate requirements. Compliance with the Association's Design Review process shall not be a substitute for compliance with applicable governmental building, zoning and subdivision regulations. Each Lot Owner shall be responsible for obtaining all approvals, licenses and permits as may be required before commencing construction. 5.2 Design Review. The Association shall review, study and either approve or reject proposed Improvements in The Cedars Subdivision, in compliance with this Declaration and the Design Guidelines. Each application for design review shall include such plans and specifications and other information as may reasonably be required by the Association. In any Design Review, the Association shall exercise its best judgment to see that all Improvements conform and harmonize with any existing structures as to external design, quality and type of construction, materials, color, location of Improvements, height, grade and finished ground elevation and all aesthetic considerations set forth in this Declaration and in the Design Guidelines. The Association's exercise of discretion in approval or disapproval of plans or with respect to any other matter before it, shall be conclusive and binding on all parties. 5.3 Design Review Procedures. The President or other executive officer of the Association shall preside over all meetings for Design Review and shall provide for reasonable notice to each member of the Association before any such meeting. The notice shall set forth the time and place of the meeting, and notice may be waived by any member. The affirmative vote of the majority of the members of the Association shall govern its actions and be the act of the Association. A quorum shall consist of a majority of the members. Any applicant 5 member seeking a Design Review nevertheless shall be entitled to vote on any action or decision. The Association may avail itself of technical and professional advice and consultants as it deems appropriate. The Association shall make such rules as it may deem appropriate to govern its such proceedings. 5.4 Design Review Expenses. The Association shall have the right to charge a reasonable fee for each application submitted to it for Design Review, in an amount which may be established by the Association from time to time, and recover the reasonable costs and expenses of any technical and professional advice and consultants required to properly consider the application and to generally defray the expenses of the Association for this purpose. 5.5 Limitation of Liability. The Association shall use reasonable judgment in accepting or rejecting plans and specifications submitted to it for Design Review. Neither the Association, Declarant, nor any officer, Executive Board member or individual Association member, shall be liable to any person for any act of the Association concerning submitted plans and specifications, except for wanton and willful acts. Approval by the Association does not necessarily assure approval by any governmental authority having jurisdiction. Notwithstanding Association approval of plans and specification, neither the Association nor any of its members shall be responsible or liable to any Lot Owner, developer or contractor with respect to any loss, liability, claim or expenses which may arise because of approval of the construction of the Improvements. Neither the Executive Board, the Association, nor Declarant, nor any of their employees, agents or consultants shall be responsible in any way for any defects in any plans or specifications submitted, revised or approved in accordance with the provisions of the Declaration, nor for any structural or other defects in any work done according to such plans and specifications. ARTICLE VI CONSTRUCTION AND ALTERATION OF IMPROVEMENTS 6.1 General. The Design Guidelines and the provisions set forth in these Covenants shall govern the right of a Lot Owner to construct, reconstruct, refinish, alter or maintain any Improvement upon, under or above any of The Cedars Subdivision, and to make or create any excavation or fill on The Cedars Subdivision, or make any change in the natural or existing surface contour or drainage, or install any utility line or conduit on or over The Cedars Subdivision. 6.2 Approval Required. No Improvement in The Cedars Subdivision shall be erected, placed, reconstructed, replaced, repaired or otherwise altered, nor shall any construction, repair or reconstruction be commenced until plans for such Improvement shall have been approved by the Association; provided, however, that Improvements and alterations which are completely within a structure may be undertaken without such approval. 6.3 Specific Requirements for Buildings. The minimum floor area of the dwelling on each Lot shall not be less than 1,500 square feet measured on the outside foundation walls and exclusive of all areas utilized for garages, basements and open porches. Only new materials shall be used in construction. The maximum building height and setbacks shall be as determined and defined by the regulations of Garfield County. Subject to the Design Guidelines, the 11:\IRS\ELKCREI1C\UI:CLARAT,CC2- 06/2W96 6 exterior of all buildings shall be surfaced with either brick, stone, wood, stucco, a combination thereof or other materials approved by the Association. Subject to the Design Guidelines, all Lots will utilize white or earth tones for exterior surfaces and non -reflective roofing materials or as otherwise approved by the Association. All construction materials shall be new, except for the limited use of antique treatments, fixtures and accessories. No building or structure originally constructed in whole or in part at another location shall be moved onto any Lot, provided that log homes which are to be erected on a log by log basis on the Lot may have been fitted together at a place other than the Lot. 6.4 Wildfire Prevention. The guidelines of the Colorado State Forester for wildfire prevention as presently specified in the pamphlet titled "Wildfire Protection in the Wildland Urban Interface" prepared by the Colorado State Forest Service (C.S.F.S. #143-691) or any successor document shall be followed in the construction of all future Improvements. 6.5 Fireplaces and Stoves. In order to protect against air quality degradation from the utilization of solid fuel burning devices, no open hearth solid fuel fireplaces shall be allowed. There shall be no restriction on the number of natural gas burning fireplaces or appliances. Each dwelling unit will be allowed one (1) new wood -burning stove as defined by C.R.S. 25-7- 401, et. seq., and the regulations promulgated thereunder. 6.6 Fences and Hedges. The type and location of all fences and hedges will be subject to the approval of the Association prior to installation. Only wooden fences shall be permitted within the Property, with limited exceptions for small gardens, kennels, play areas for small children or otherwise and only in circumstances where a wooden fence would not serve the required purpose. Barbed wire fencing shall be prohibited. The perimeter of a Lot shall not be fenced. 6.7 Lawns and Other Irrigated Areas. All water supplied to the Property through the Town of New Castle's municipal water supply system shall be for ordinary residential uses only, for one single-family home per lot, including outside lawn and garden irrigation of an area not to exceed 3,000 square feet per lot. The Town of New Castle shall be a third -party beneficiary of this provision, with a right of enforcement thereunder. No water shall be used for watering of animals, other than those domestic animals (excluding livestock) allowed by Town ordinances for a single-family residence located within Town boundaries. Violation of these restrictions may subject the violator to penalties as established by ordinances of the Town of New Castle then in effect for such restrictions. 6.8 Removal of Nonconforming Improvements. The Association after reasonable notice to the offender and to the Lot Owner, may remove any Improvement constructed, reconstructed, refinished, altered or maintained violating these Covenants, and the Lot Owner of the Improvement shall immediately reimburse the Association for all expenses incurred in such removal. 7 ARTICLE VII PROPERTY USE RESTRICTIONS 7.1 Permitted Uses. The Property shall be used only for single family residential purposes, subject to the applicable regulations of Garfield County and the laws of the State of Colorado and the United States. Within the Property a building or land shall be used only for the following purposes: (a) Single -Family Dwellings, but excluding mobile homes and manufactured homes. (b) Customary accessory buildings and structures, including private garages, recreational structures and non-commercial workshops and greenhouses; provided that: (i) Such buildings and structures (except for private garages) shall be located in the rear yard and shall comply with all applicable setback requirements. (ii) No accessory building on a corner lot shall extend beyond the front yard line required for abutting property on the side street. (iii) No accessory building shall be used for residential purposes. (c) Public and private open space, parks and playgrounds. (d) Temporary construction trailers, which shall not be used for habitation, provided such trailers must be removed within fifteen (15) days of the completion of construction of infrastructure or issuance of a Certificate of Occupancy for a dwelling unit, whichever is applicable. Notwithstanding the foregoing, business activities associated with the sale of Lots or residences constructed thereon shall be allowed. In addition and subject to any applicable governmental regulation, in-home businesses or occupations not involving the provision of services for customers or use of employees on site (other than the Lot Owners) shall be allowed, provided such activities are conducted solely within an enclosed structure 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, offensive odors, discernable increases in noise, increased parking requirements, or any other offensive or noxious activities. Bed and Breakfast operations, other rentals of less than the entire Lot, and all other business, commercial and manufacturing activities shall not be permitted. 7.2 General Restriction. Subject to the rights of reasonable contest, each Lot Owner shall promptly comply with the provisions of all applicable laws, regulations and ordinances with respect to The Cedars Subdivision including, without limitation, all applicable environmental laws and regulations. H. VILS E KCRCOCSDECIARAT.CC2- 06/2&96 8 7.3 Vehicles. No trucks, trail bikes, recreational vehicles, motor homes, motor coaches, snowmobiles, campers, trailers, boats or boat trailers, or similar vehicles (other than passenger automobiles or pickup or utility trucks with a capacity of one ton or less) or any other vehicles shall be parked, stored, or in any manner kept or placed on any portion of the Property which vehicles are visible from a street or any other Lot except for vehicles which are kept in an enclosed garage or screened enclosure. This restriction, however, shall not be deemed to prohibit occasional parking of vehicles on driveways or commercial and construction vehicles, in the ordinary course of business, from making deliveries or otherwise providing service to the Property or for approved construction by Declarant or Lot Owners. No trail bikes, four wheelers, snowmobiles, other similar recreational vehicles, automobiles, pickups, utility trucks or any other vehicles shall be operated on any portion of the Property except for travel to and from a Lot to another location in a nonrepetitive fashion. 7.4 Excavation or Fill. No excavation or fill shall be made except in connection with Improvements approved as provided in these Covenants. For purposes of this Section, "excavation" shall mean any disturbance of the surface of the land (except to the extent reasonably necessary for approved landscape planting) which results in a removal of earth, rock or other substance a depth of more than 18 inches below the natural surface of the land and "fill" shall mean any importation and placement of earth, rock or other substance a height of more than eighteen inches (18") above the natural surface of the land. 7.5 Erosion and Vegetation Control. The surface of the Property, including all Lots, shall be maintained in a condition which will minimize the risk of soil erosion and weed infestation. All excavations, fills and other construction which disturb the existing vegetation shall be revegetated with weed free seed and mulch. Any disturbed area on a Lot shall be fully restored by the Lot Owner. 7.6 Signs. No signs of any kind shall be displayed to the public view on or from any portion of the Property except ordinary real estate sale signs, signs approved by the Association, or signs required by law. 7.7 Animals and Pets. No animal, livestock, or poultry of any kind shall be kept, raised, or bred on any Lot, except that not more than one (1) dog and other typical small household pets, such as cats, birds and fish shall be allowed. The following special requirements apply to any permitted dog: (a) Each dog shall be kept under the control of the Lot Owner at all times and shall not be permitted to run free or to cause a nuisance on the Property. (b) No dog shall be allowed to bark excessively, which is defined as barking more or less continuously during any 15 -minute period. (c) Each dog shall be leashed or kept in a humane kennel, run or fenced yard at all times. Metal chainlink fencing will be allowed for the purposes of kenneling a dog. The location and style of each kennel shall be subject to review by the Association. A kennel shall be installed prior to issuance of a Certificate of Occupancy for any Lot WARS \EIKCREFX\DGCIARAT.CC2- 06/28/96 9 if the Lot Owner possesses a dog at such time and, in any event, prior to the introduction of a dog on any Lot. (d) Each dog shall be kept reasonably clean and free of disease and each Lot shall be kept free of animal waste. (e) Should any dog chase or molest deer, elk, poultry or any domestic animals or persons, or destroy or disturb property of another, the Association may prohibit the Lot Owner from continuing to keep the offending dog on such Owner's Lot. If necessary, to protect wildlife or other Owners' domestic animals, persons or property, the Association may take additional steps, including the destruction of the offending dog. Except in an emergency or as provided by law, the Owner of an offending dog shall be provided written notice of such action at least five (5) days before disposal occurs. Such notice shall be posted on the front door of the residence of the Owner of the offending dog. Within such five (5) day period, the offending dog may be kenneled at a licensed kennel with all costs incurred by the Association assessed against the Owner. (0 The Association shall assess and enforce penalties against Owners violating the restrictions applying to dogs as follows: One Hundred Dollars ($100.00) shall be assessed for the first violation. The fine shall be increased at the rate of One Hundred Dollars ($100.00) for each succeeding violation. 7.8 Drainage. No Lot Owner shall do or permit any work, construct any Improvements, place any landscaping or suffer the existence of any condition whatsoever which shall alter or interfere with the drainage pattern for the Property, or cause any discharge onto any adjacent property, except to the extent such alteration and drainage pattern is approved in writing by the Association and any other affected property owner. 7.9 Sanitation. No trash, ashes, garbage, rubbish, debris or other refuse shall be thrown, dumped or allowed to accumulate on the Property. There shall be no burning of refuse. Each Lot Owner shall provide suitable receptacles for the temporary storage and collection of refuse. All such receptacles shall be screened from the public view and protected from wind, animals and other disturbances. Each Lot shall be kept in a reasonably sanitary condition, free of offensive odors and protected from rodent and insect infestations. 7.10 Temporary Structures. No temporary structures shall be permitted except as may be determined to be necessary during construction and specifically authorized by the Association. 7.11 Towers and Antennae. No towers or exterior radio, television and communications antennae shall be permitted without the prior written consent of the Association. Large dish receivers shall be screened from view. 7.12 Outside Burning. There shall be no exterior fires, except barbecues, outside fireplaces and braziers. No Lot Owner shall permit any condition upon such Lot Owner's Lot which creates a fire hazard or is in violation of fire prevention regulations. II:VN.E JCCRFflOOLClARAT.CC2- 06I28/95 10 7.13 Noise. No exterior horns, whistles, bells or other sound devices, except security devices shall be placed or used on any portion of the Property. Lot Owners shall not permit any noise or disturbance on their respective Lots which is offensive, disturbing or otherwise detrimental to any other person. 7.14 Lighting. No flood lighting, security lighting or other kind of high intensity lighting which is not shielded to prevent glare on adjacent Lots shall be permitted without the written approval of the Association. 7.15 Obstructions. There shall be no obstruction or interference with the free use of the roadway, water delivery and distribution system or any utility or easement, except as may be reasonably required for repairs. The Association shall promptly take such action as may be necessary to abate or enjoin any interference with or obstruction of any easement. The Association shall have a right of entry on any part of the Property for the purposes of enforcing this Section. Any costs incurred by the Association in connection with such enforcement shall be assessed to the persons responsible for the interference. 7.16 Continuity of Construction. All Improvements commenced on the Property shall be prosecuted diligently to completion and shall be complete within 12 months of commencement, unless an exception is granted in writing by the Association. 7.17 Service Facilities. All clothes lines, storage tanks, equipment, service yards, wood piles and similar service facilities shall be screened by adequate plantings or fencing so as to conceal same from other Lots and streets and roads. 7.18 Maintenance of Landscaping. Each Lot Owner shall keep the landscaping situate on such Owner's Lot in a neat and well maintained fashion, shall properly irrigate the lawns and other planting on such Lot and shall otherwise maintain the appearance of such Lot in a first class condition. 7.19 Minerals. No portion of the Property shall be used for the exploration, extraction or storage of oil, gas, minerals, sand, gravel, rock, earth or other materials. 7.20 Hunting and Firearms. Firearms shall not be discharged on the Property and no hunting shall be allowed. 7.21 Nuisances. No obnoxious or offensive activity shall be carried on within the Property so as to unreasonably interfere with or disturb the use, enjoyment and access of any other occupant of the Property, nor shall anything be done, permitted or placed thereon which is or may become a nuisance or cause an unreasonable offense, embarrassment, disturbance or annoyance to others. 7.22 Compliance With Laws. Subject to the rights of reasonable contest, each Lot Owner shall promptly comply with the provisions of all applicable laws, regulations and ordinances with respect to The Property including, without limitation, all applicable environmental laws and regulations. URSTLXCRFFK\DFELARAT.CC2- 06/28/. 11 ARTICLE VIII DEVELOPMENT RIGHTS AND OTHER SPECIAL DECLARANT RIGHTS 8.1 Development Rights and Special Declarant Rights. Declarant reserves all rights to the maximum extent allowed by the Act as well as the following Development Rights and other Special Declarant Rights for the maximum time limit allowed by law: (a) The right to complete or make improvements indicated on the Plat; (b) The right to maintain a sales and management office; (c) The right to maintain signs on the Property to advertise the sale of Lots in The Cedars Subdivision; (d) The right to use, and to permit others to use, easements on the Property as may be reasonably necessary for the purpose of discharging Declarant's obligations under the Act and this Declaration; and (e) The right to appoint or remove any officer of the Association or any Director during the Declarant control period consistent with the Act. 8.2 Limitations on Development Rights and Special Declarant Rights. Unless sooner terminated by a recorded instrument signed by Declarant, any Development Right or Special Declarant Right may be exercised by the Declarant for the period of time specified in the Act. ARTICLE IX ENFORCEMENT OF COVENANTS 9.1 Violation Deemed a Nuisance. Every violation of this Declaration is deemed to be a nuisance and is subject to all the remedies provided for the abatement of the violation. In addition, all public and private remedies allowed at law or equity against anyone in violation of these Covenants shall be available. 9.2 Compliance. Each Lot Owner and any other occupant of any part of the Property shall comply with the provisions of these Covenants as the same may be amended from time to time. Failure to comply with these Covenants shall be grounds for an action to recover damages or for injunctive relief to cause any such violation to be remedied, or both. 9.3 Who May Enforce. In addition to any enforcement rights of third parties under Colorado law, any action to enforce these Covenants may be brought by the Declarant or the Executive Board in the name of the Association on behalf of the Lot Owners. If, after a written request from an aggrieved Lot Owner, neither of the foregoing entities commence an action to enforce these Covenants, then the aggrieved Lot Owner may bring such an action. 9.4 Nonexclusive Remedies. All the remedies set forth herein are cumulative and not exclusive. HAIRS \EERCREER\DEC WtAT. CC2- 06/28/96 12 9.5 Nonliability. No member of the Executive Board, the Declarant, the Association or any Lot Owner shall be liable to any other Lot Owner for the failure to enforce these Covenants at any time. 9.6 Recovery of Costs. If legal assistance is obtained to enforce any provision of these Covenants, or in any legal proceeding (whether or not suit is brought) for damages or for the enforcement of these Covenants or the restraint of violations of these Covenants, the prevailing party shall be entitled to recover all costs incurred, including reasonable attorney's fees. ARTICLE X MISCELLANEOUS PROVISIONS 10.1 Severability. This Declaration, to the extent possible, shall be construed or reformed to give validity to all of its provisions. Any provision of this Declaration found to be prohibited by law or unenforceable shall not invalidate any other provision. 10.2 Construction. In interpreting words in the Declaration unless the context shall otherwise provide or require, the singular shall include the plural, the plural shall include the singular, and the use of any gender shall include all genders. Headings are included only for reference and shall not affect the meaning or interpretation of this Declaration. 10.3 Notice. All notices or requests required shall be in writing. Notice to any Lot Owner shall be considered delivered and effective upon personal delivery, or three (3) days after posting when sent by certified mail, return receipt requested, to the address of the Lot Owner on file in the records of the Association at the time of the mailing. Notice to the Association or the Executive Board shall be considered delivered and effective upon personal delivery, or three (3) days after posting when sent by certified mail, return receipt requested, to the Association or the Executive Board at the address established by the Association from time to time by notice to the Lot Owners. General notices to all Lot Owners need not be certified, but may be sent by regular first class mail. 10.4 Waiver. No failure by the Association or the Executive Board to give notice of default or any delay in exercising any right or remedy shall operate as a waiver, except as specifically provided above. No waiver shall be effective unless it is in writing signed by the President or Vice President of the Executive Board on behalf of the Association. 10.5 Amendments. Except as otherwise provided by the Act (including amendments by the Declarant and the Association which are expressly permitted by the Act) this Declaration shall not be amended unless at least (i) sixty-seven percent (67%) of the Lot Owners and (ii) fifty-one percent (51 %) of the First Mortgagees (based on one vote for each First Mortgage held) have given their prior written approval. Notwithstanding the foregoing, and except to the extent expressly permitted or required by the Act, no amendment may (i) create or increase special Declarant rights, (ii) increase the number of Lots, (iii) change the boundaries of any Lot, (iv) change the allocated interests of a Lot or (v) change the uses to which any Lot is restricted in the absence of unanimous consent of the Lot Owners. Unless a First Mortgagee provides the Secretary of the Association with written notice of its objection to a proposed 11: IRS\PLCCRCFWC\DECIARAT.CC2- O6l2S/96 13 amendment within 30 days following the First Mortgagee's receipt of notice of such proposed amendment, the First Mortgagee will be deemed conclusively to have approved the proposed amendment. The term "Mortgage" shall include a Deed of Trust and the term "Mortgagee" shall include a beneficiary under a Deed of Trust. 10.6 Term. This Declaration and any amendments or supplements hereto shall remain in effect from the date of recordation until December 31, 2026. Thereafter, these Covenants shall be automatically extended for five (5) successive periods of ten (10) years each, unless otherwise terminated or modified as provided herein or by the Act. IN WITNESS WHEREOF, the Declarant has executed this Declaration this day of June, 1996. STATE OF COLORADO ) COUNTY OF GARFIELD ) ss ELK CREEK DEVELOPMENT CORPORATION, a Colorado corporation By: President The foregoing instrument was acknowledged before me this day of , 1996, by Richard C. Jolley, President of Elk Creek Development Corporation. WITNESS my hand and official seal. My commission expires: 11.URSIIXCR[FX\"CCIARAT.CC2- 06/28/% 14 Notary Public 491002 B-972 P-544 04/02/96 04:07P PG 1 OF 1 REC DOC MILDRED ALSDORF GARFIELD COUNTY CLERK AND RECORDER 6.00 SPECIAL WARRANTY DEED NOT ELK CREEK VENTURES, LLC, Grantor, for consideration of Ten Dollars and other good and valuable consideration, in hand paid, hereby sell and convey to ELK CREEK DEVELOPMENT CORPORATION, Grantee whose legal address is 532 Traver Trail, Glenwood Springs, Colorado, the following real property in the County of Garfield and State of Colorado, to wit: • A tract of land situate in the NE'/a of the SE % of Section 25, Township 5 South, Range 91 West of the 6th Principal Meridian being more particularly described as follows: Beginning at the east '4 corner of said Section 25; thence S 0°49'11" E 1250.31 feet along the east line of said Section 25 to the easterly right-of-way line of County Road No. 245; thence along said right-of-way line the following courses: N 33°11'34" W 151.35 feet; thence N 43°40'23" W 160.54 feet; thence N 46°42'42" W 164.50 feet; thence N 50°00'25" W 829.80 feet; thence N 54'42'50" W 126.02 feet; thence N 65°37'33" W 131.66 feet; thence N 68°58'52" W 11.97 feet; thence N 44°58'55" W 63.50 feet; thence leaving said right-of-way line N 16°34'47" W 171.98 feet to a point on the north line of the NE 'A of the SE 1/4 of Section 25; thence N 89°05'00" E 1259.39 feet along said north line to the point of beginning. Said parcel contains 18.077 acres more or less. with all its appurtenances, and warrant the title to the same against all persons claiming under the Grantor. SIGNED this 29th day of March, 1996. STATE OF COLORADO ) COUNTY OF GARFIELD ) ss Elk Cre entu es, L. C By: anager The foregoing instrument was acknowledged before me this 29th day of March, 1996, by Kent S. Jolley, Manager of Elk Creek Ventures. LLC. WITNESS my hand and official seal My commission expires: % I No 12cto ": VRSEIX°.IDCWEVELOPM.S WD Notary Public S k,Kh%4-,,w Lti 3o- 8-71 Si Si 6. s . ro F/Go S Y7 SCHEDULE A • Order Number: 96025561 1. Effective date: June 10, 1996 at 8:00 A.M. 2. Policy or Policies to be issued: (a) A.L.T.A. Owner's (Standard) Proposed Insured: TO BE AGREED UPON Amount of Insurance $ TBD (b) A.L.T.A. Loan $ Proposed Insured: (c) Leasehold $ Proposed Insured: 3. The estate or interest in the land described or referred to in this Commitment and covered herein is fee simple 4. Title to the fee simple estate or interest in said land is at the effective date hereof vested in: ELK CREEK DEVELOPMENT CORPORATION S. The land referred to in this Commitment is described as follows: SEE ATTACHED LEGAL DESCRIPTION Purported Address: STATEMENT OF CHARGES These charges are due and payable before a Policy can be issued. 1992 Owners Premium $ TBAU Order Number: 96025561 SCHEDULE A LEGAL DESCRIPTION A tract of land situate in the NE1/4 of the SE1/4 of Section 25, Township 5 South, Range 91 West of the 6th Principal Meridian being more particularly described as follows: Beginning at the East 1/4 corner of said Section 25; thence S. 00 degrees 49'11" E. 1250.31 feet along the East line of said Section 25 to the Easterly right of way line of County Road No. 245; thence along said right of way line the following courses: N. 33 degrees 11'34" W. 151.35 feet; thence n. 43 degrees 40'23" W. 160.54 feet; thence N. 46 degrees 42'42" W. 164.50 feet; thence N. 50 degrees 00'25" W. 829.80 feet; thence N. 54 degrees 42'50" W. 126.02 feet; thence N. 65 degrees 37'33" W. 131.66 feet; thence N. 68 degrees 58'52" W. 11.97 feet; thence N. 44 degrees 58'55" W. 63.50 feet; thence leaving said right of way line N. 16 degrees 34'47" W. 171.98 feet to a point on the North line of the NE1/4 of the SE1/4 of Section 25; thence N. 89 degrees 05'00" E. 1259.39 feet along said North line to the Point of Beginning. aka LOT 1 OF THE CEDARS ACCORDING TO THE PLAT RECORDED COUNTY OF GARFIELD STATE OF COLORADO AS RECEPTION NO. SCHEDULE B Section 1 Order Number: 96025561 REQUIREMENTS The following are the requirements to be complied with: Item (a) Payment to or for the account of the grantors or mortgagors of the full consideration for the estate or interest to be insured. Item (b) Proper instrument(s) creating the estate or interest to be insured must be executed and duly filed for record, to wit: 1. Execution of Affidavit as to Debts and Liens, which is attached or will be provided at closing. 2. Duly acknowledged partial release by Regional Bank of Colorado, N.A., Mortgagee, of Mortgage from Elk Creek Development Corporation in favor of Regional Bank of Colorado, N.A., in the amount of $220,000.00, dated October 4, 1995, recorded April 30, 1996 in Book 976 at Page 110 as Reception No. 492271. Disburser's Notice, filed in connection with the above Deed of Trust, recorded April 30, 1996 in Book 976 at Page 111 as Reception No. 492272. 3. Release of Oil and Gas Lease recorded May 5, 1987 in Book 710 at Page 964 as Reception No. 381498. 4. Certificate of Organization issued by the Secretary of State for Elk Creek Ventures, LLC, a Colorado Limited Liability Company. 5. A copy of the Operating Agreement for Elk Creek Ventures, LLC, must be delivered to and approved by Stewart Title, or evidence that the LLC was formed after July 1, 1994, if there is not a written Operating Agreement. 6. Termination Statement for Financing Statement from Elk Creek Development Corp., debtor(s), to Regional Bank of Colorado, N.A., secured party, recorded March 11, 1996, as Reception No. 490028, giving notice of a security interest pursuant to the Uniform Commercial Code. 7. Deed, executed by the President, Vice President or other designee authorized by the Board of Directors from Elk Creek Development Corporation to TO BE AGREED UPON. NOTE: Corporate seal or facsimile must be affixed. 8. Certificate of Good Standing of Elk Creek Development Corporation, a Colorado corporation, issued by the Secretary of State of Colorado must be delivered to and approved by Stewart Title Guaranty Company. 9. Certificate from the Secretary of State or other appropriate officer of Colorado showing that Elk Creek Development Corporation is a duly organized and existing corporation under the laws of Colorado . 10. Properly executed and recorded Plat for the Cedars. Continued on next page -1- Continuation of Schedule B - Section 1 Order Number: 96025561 NOTE: Stewart Title of Glenwood Springs reserves the right to make additional Requirements and/or Exceptions after disclosure of Buyers, Lender and static of Vested Owners. NOTE: For an additional charge, Stewart Title of Glenwood Springs, Inc. will provide any copies of exceptions as shown on Schedule B - Section 2. ° Order Number: 96025561 SCHEDULE B Section 2 EXCEPTIONS 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 or 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 boundarylines, 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 heretofore or hereafter furnished, imposed by law and not shown by the public records. S. 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. Unpatented mining claims; reservations or exceptions in patents, or an act authorizing the issuance thereof; water rights, claims or title to water. 7. Any and all unpaid taxes and assessments and any unredeemed tax sales. 8. 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. 9. Right of the proprietor of a vein or lode to extract and remove his ore therefrom, should the same be found to penetrate or intersect the premises hereby granted, as reserved in United States Patent recorded February 13, 1892 in Book 12 at Page 107 as Reception No. 13559. 10. Right of way for the ocntinuos flow of the Haggerty Enlargement of the Coryell Ditch and the Ellen Connelly Ditch as the same may cross subject property and as evidenced by Plat recorded May 16, 1995 as Reception No. 478086. 11. Oil and Gas Lease between Richard C. Jolley and Mary Louise Jolley and Astroil, Inc. recorded May 5, 1987 in Book 710 at Page 964 as Reception No. 381498 and any and all assignments thereof, or interests therein, or amendments thereto. NOTE: Above Exception will be deleted from the Policy upon completion of Requirement No. 3. 12. Terms and conditions of Resolution No. 95-038 recorded May 1'6, 1995 in Book 940 at Page 812 as Reception No. 478103. 13. Terms and conditions of Resolution 95-60 regarding preliminary plan for The Cedars PUD Subudivision, recorded August 10, 1995 in Book 949 at Page 831 as Reception No. 481783, as it may affect subject property. NOTE: There was no legal attached to above Resolution. Continued on next page WATER SERVICE AND PRE -ANNEXATION AGREEMENT THIS AGREEMENT is entered into by and between the TOWN OF NEW CASTLE, COLORADO, a municipal corporation (hereinafter "Town"), whose address is 450 West Main Street, New Castle, Colorado, and ELK CREEK DEVELOPMENT CORPORATION, a Colorado Corporation, whose address is % Kent S. Jolley, 532 Traver Trail, Glenwood Springs, Colorado, 81601 (hereinafter "Developer"). WITNESETH: WHEREAS, the Town operates a municipal water supply system and, by ordinance, the Town may supply available water to users located outside of the Town boundaries; and WHEREAS, pursuant to C.R.S. §31-12-121 et seq., the Town may require. as a condition precedent to supplying extraterritorial municipal services, an agreement from the water users and owners of the property to be served that such parties will apply for and consent to the annexation of the property to be supplied, when the property becomes eligible for annexation; and WHEREAS, Developer is the owner of certain real property located outside the Town boundaries within the County of Garfield, State of Colorado, which property is described on Exhibit A, attached hereto and incorporated herein by this reference (hereinafter the "property"); and WHEREAS, Developer intends to develop the property pursuant to Garfield County Land Use Regulations into a subdivision to be known as The Cedars Planned Unit Development (hereinafter the "subdivision"), and Developer desires to obtain Town water service for the subdivision; and WHEREAS, the Town has a water distribution line located adjacent to the property, which is capable of providing water service to the property; and WHEREAS, Developer intends to construct internal water facilities within the subdivision which shall be connected to the Town's water distribution lines and upon the Town's inspection and acceptance of same to dedicate and convey said facilities to the Town; and WHEREAS, at the time each lot owner within the subdivision desires Town water service, such owner shall pay the Town all required tap fees, connection charges, and water service charges at the out -of -Town rates, as set forth in the Town of New Castle Municipal Code, in effect or as hereafter amended; and WHEREAS, at the time the property becomes eligible for annexation to the Town and at the Town's request, Developer agrees to petition for and consents to annexation which obligation shall be a covenant running with the land and binding upon successors in title to Developer; and C:\FILES\CASTLE.5AG April 3, 1996 WHEREAS, the Town and Developer desire to execute this Agreement to provide for the above-described connection of Developer's lines to the Town's water system, the delivery of Town water service to the property, and the eventual annexation of the property to the Town. NOW, THEREFORE, for and in consideration of the mutual promises and covenants contained herein, the sufficiency and adequacy of which is hereby acknowledged, the parties agree as follows: 1. Purpose. The purpose of this Water Service and Pre -Annexation Agreement (the "Agreement") is to set forth the terms and conditions related to Developer's construction of water facilities and connection to the Town's water distribution lines; Developer's installation of internal lines in the subdivision; the Town's provision of water to the property; and the future annexation of the property to the Town. All terms and conditions herein are in addition to any and all requirements set forth in the Town of New Castle Municipal Code now in effect or as hereafter amended. This Agreement is authorized and executed pursuant to the provisions of C.R.S. §31-12-121. 2. Developer's Obligations to Construct Water Facilities. Within two (2) years of the date of execution of this Agreement, Developer agrees to install and construct, at its sole expense, all water facilities required for connection of the property to the Town's water distribution lines and all internal water service lines within the subdivision, pursuant to plans and specifications now or hereafter approved in writing by the Town Engineer which are incorporated herein by this reference, and in accordance with Town standards (hereinafter the "water facilities"). Review of such plans and specifications by the Town shall be at Developer's expense. Approval of Developer's plans and specifications hereunder does not constitute a guarantee by the Town that such installation shall be adequate for the continuous and uninterrupted delivery of water to the Subdivision. Developer shall be solely responsible to ensure that all connections and installations are performed in accordance with generally accepted engineering and construction standards. During the construction of the water facilities, the Town may undertake or require such inspections as it deems necessary, pursuant to Paragraph 3 below. Construction of the water facilities shall be subject to the approval of the Town Engineer, which approval shall not be unreasonably withheld. Upon completion of construction of the water facilities, Developer shall at its expense obtain "as -built" drawings prepared by a professional engineer and a registered land surveyor, which drawings shall include all legal descriptions the Town may require. The "as -built" drawings shall be forwarded to the Town for review and approval. Once the as -built drawings are approved, and any and all corrections are completed, the Town Engineer shall certify in writing that the water facilities conform with the plans and specifications, and the date of such certification shall be known as the Acceptance Date. The Town shall not unreasonably refuse to accept the water facilities. Upon acceptance of the water facilities by the Town, such water facilities shall be owned and maintained by the Town; subject to the warranty provision set forth in Paragraph 16, below. Within fifteen (15) days of the Acceptance Date, the Town shall cause a written approval document to be recorded in the Garfield County Clerk and Recorder's Office, evidencing the Town's certification of acceptance of the construction of the water facilities. Simultaneously with the recordation of the approval document, Developer shall by Bill of Sale dedicate and convey the water facilities to the Town, together with, to the extent not shown on C:\FILES\CASTLE.5AG April 3, 1996 -2- the Final Plat, any and all easements necessary to own, operate, maintain, repair and replace said water facility. Upon the Town's acceptance of the water facilities, recordation of the approval document, and conveyance of the water facilities to the Town, all of which are conditions precedent to the Town's extension of water service, lot owners shall have the right to purchase water taps from the Town, subject to the conditions set forth in Paragraph 5, below. Prior to the occurrence of the above-described conditions precedent, the Town shall have no obligation to provide water service to the property. 3. Inspections. During construction of the water facilities, the Town Engineer shall have the right to make engineering inspections at reasonable intervals, at Developer's sole expense. Inspection, acquiescence in or approval by any engineering inspector of the construction of any physical facilities, at any particular time prior to the final inspection by the Town, shall not constitute Town approval of construction of the water facilities. Town approvals shall be made only after completion of construction and in the manner set forth in Paragraph 2. To assist the Town in monitoring the installation of the water facilities, a supervisor employed by Developer shall inspect the improvements on at least a weekly basis, and shall provide the Town Engineer with the supervisor's field and inspection notes relating to the installation of the water facilities. The supervisor shall regularly apprise the Town Engineer of the status of the work on the water facilities. Further, Developer, at its own expense, shall have an approved professional engineer monitor the methods of construction and backfill to ensure such work is being completed in conformance with the approved plans and specifications, and accepted standards for such work. Developer's engineer shall conduct inspections and testing as directed by the Town Engineer. 4. Review of Final Plat. The Town shall have the right to review the final plat of the subdivision prior to recording of the plat in Garfield County for the sole purpose of ensuring that adequate utility easements have been reserved for the purposes of operation, maintenance, repair, or replacement of the water facilities. 5. Lot Owner Obligations. Upon compliance with all conditions precedent set forth in Paragraph 2 , each lot owner within the subdivision shall have the right to purchase a water tap from the Town, to connect such owner's improvements to the Town's water system, and to receive water form the Town subject to the following: A. Payment of applicable water tap fees to the Town, at out-of-town rates. B. Payment of all connection charges imposed by the Town for labor and materials used in the physical connection of the service lines in the subdivision to the Town's main lines, at the out-of-town rates. C. Payment of all service charges for water usage, at the out-of-town rates. D. Assumption of 1% of the then remaining loan obligation payable according to its terms and chargeable to a purchaser of a tap subject to Elk Creek Area Water System Construction Agreement dated December 22, 1994. The portion assumed by a lot owner under this provision will be 1/10th of the prior assumption by Developer under the provisions of Paragraph 11 below. C:\FILES\CASTLE.SAG April 3. 1996 -3- E. Compliance with all terms and conditions of this Agreement. F. Compliance with all ordinances, rules, and regulations of the Town of New Castle, including all provisions of the Town of New Castle Municipal Code, now in effect or as hereafter amended, provided that no amendment shall be enacted which shall have the effect of making water service more expensive or more restrictive than similar service provided to other out of town properties similarly situated. All fees and charges for water service shall be paid at the rate for water service customers residing outside the Town limits as set forth in the Town of New Castle Municipal Code, and as amended from time to time for all customers in a similar status (out-of-town rates), and in the manner provided therein. The Town reserves the right to modify these charges or regulations. The above-described tap fees and connection charges shall be paid to the Town prior to the time of actual physical connection of a lot to a service line within the subdivision, and prior to commencement of actual water service to the property. 6. Taps Availability. The right to purchase a water tap hereunder is at all times subject to general availability of water taps. Notwithstanding the foregoing, Developer and any subsequent lot owner shall have a right to acquire water taps for a lot in the subdivision for a period of five (5) years after the recordation of the Town's certification of acceptance of the construction of the water facilities at the out of town tap rate then in effect; provided however said fee shall not exceed the following during the specified year: Year Price 1996 $ 2,500.00 1997 $ 2,750.00 1998 $ 2,750.00 1999 $ 3,000.00 2000 and after Prevailing Price The Town shall have no commitment to furnish water taps after the period stated above except on its then existing first-come, first-served basis. If water taps are purchased pursuant to this paragraph, the lot owner shall comply with the provisions of the New Castle Town Code regarding standby fees. 7. Permitted Uses of Water. All water supplied to the property through the Town's municipal water supply system shall be for ordinary residential uses only, for one single-family home per lot, including outside lawn and garden irrigation of an area not to exceed 3,000 square feet per lot. This limitation on irrigated lawn size also shall be set forth in the restrictive covenants for the subdivision and the Town shall be a third -party beneficiary of that provision, with a right of enforcement thereunder. No water shall be used for watering of animals, other than those domestic animals (excluding livestock) allowed by Town ordinances for a single- family residence located within Town boundaries. Violation of these restrictions shall subject the violator to the penalties as established by the Town ordinances then in effect for such restrictions. C:\FILES\CASTLE.5AG April 3, 1996 -4- 8. Annexation of Property. At such time as the property meets the legal requirements for annexation to the Town, as the same are prescribed by statute or ordinance (or within 60 days from the date hereof, if the property is currently capable of being annexed), Developer may petition the Town to annex the property to the Town. If the Town desires the annexation of the Property, Developer shall consent to same. Notwithstanding the foregoing, it is acknowledged that except for the express provisions of this Agreement, the rights of the parties with respect to annexation are not altered and the Town is under no special obligation to annex the property and may impose terms and conditions upon any annexation. Annexation shall occur only after a public hearing is held pursuant to C.R.S. §31-12-108 to -110, and only upon a fording by the Town that the petition is in substantial compliance with the requirements of the Municipal Annexation Act of 1965, C.R.S. §31-12-101, et seq. 9. Curtailment or Interruption of Service. In the event of a water shortage, Developer hereby acknowledges that the water supply to the subdivision may be rationed or curtailed by the Town; however the Town shall use its good faith best efforts to prevent such a water supply shortage. Developer also acknowledges that, in the event of shortage, water supply for out-of-town properties shall be subject to rationing or curtailment first, before properties within the Town are rationed or curtailed, as deemed necessary by the Town in its sole discretion to protect the health, safety, and welfare of Town residents. Nothing herein shall be construed as a guarantee or warranty by the Town that sufficient water will be available for the subdivision. Developer specifically acknowledges that water service is provided hereunder on an interruptible basis, and the Town may temporarily discontinue such service in the manner provided in the Town Code. In the event of such discontinuation of service, the Town will not be held responsible for any harm or damage resulting from such termination, such claims being waived by Developer. 10. No Expansion of Service. Developer agrees that there is no right to receive additional or expanded water service from the Town, and that Developer is entitled only to the nature and quantity of service approved herein, or as later modified by the parties. 11. Cost Recovery. Developer's use of an existing water line for connection to the Town's water system is subject to cost recovery in the amount of $52,761.71 for costs associated with the original installation of such line, pursuant to that certain Elk Creek Area Water System Construction Agreement dated December 22, 1994. Developer shall pay the cost recovery fee not later than August 1, 1996, or upon the sale of the first lot, whichever first occurs. At such time, Developer shall also assume 10% of the then remaining loan obligation payable according to its terms and chargeable to a purchaser of a tap subject to the Elk Creek Area Water System Construction Agreement dated December 22, 1994. 12. Attorneys' Fees. Upon execution of this Agreement, Developer shall pay to the Town the actual cost for attorneys' fees incurred by the Town in connection with the negotiation and drafting of this Agreement, in the amount of not to exceed a maximum of $2,000.00. Should this Agreement become the subject of litigation to resolve a claim of default under the Agreement, the prevailing party shall pay the other party's attorneys' fees, expenses, and court costs. C:\FILES\CASTLE.5AG April 3, 1996 -5- 13. Administration of Rates, Fees, and Charges. The Town shall establish all rates, fees, and charges for the use of its water delivery facilities. Such rates, fees, and charges shall be applicable to all users of the Town's facilities but may provide for different rates, fees, and charges for in -Town and out -of -Town users. Unless expressly provided to the contrary herein, service to the property shall be subject to all duly promulgated rates, policies, rules, regulations, and ordinances of the Town as are now in effect, or as they may hereafter be amended. 14. Contractual Basis. Developer agrees to comply with all of the terms and conditions of this Agreement on a voluntary and contractual basis, as a condition of receiving municipal services for the property. The payment by Developer, and all future lot owners, of the fees and charges required under this Agreement is an express condition of the Town's provision of municipal services to the property. 15. Covenants and Representations. Developer makes the following representations and covenants to the Town: A. Developer is the fee owner of the property and has good, marketable, and indefeasible title to the property, subject to any mortgage, covenants, deeds of trust, or easements now or hereafter affecting the property. B. Developer has the full right, power, and authority to enter into, perform, and observe this Agreement. C. To the best of Developer's knowledge, neither the execution of this Agreement and the consummation of the transactions contemplated hereunder, nor the fulfillment of or the compliance with the terms and conditions of this Agreement by Developer, will conflict with, or result in, a breach of any terms, conditions, or provisions of, or constitute a default under, or result in the imposition of any prohibited lien, charge, or encumbrance of any nature under any agreement, instrument, indenture, or judgment, order, or decree of any court to which Developer is a party or by which Developer or the property are bound. D. Subject to the provisions of this Agreement, if Developer fails to satisfy, keep, or perform any obligation, covenant, or agreement contained in this Agreement according to its terms, the Town may take or cause to be taken such action as it deems necessary to enforce the performance of such covenants and agreements, and any sums advanced or expenses incurred by the Town in connection therewith, including attorneys' fees, shall become due immediately without notice and shall bear interest at an annual percentage rate equal to two percent (2%) above the net effective interest rate then paid by the Town on its outstanding bond indebtedness. 16. Developer Warranty. Developer shall warrant any and all structures and physical facilities installed for the extension of municipal water service to the property which are conveyed to the Town pursuant to this Agreement, for a period of one (1) year from the date the Town's engineer certifies that the same conform with the approved plans and specifications. Specifically, but not by way of limitation, Developer shall warrant the following: C:\FILES\CASTLE.5AG April 3, 1996 -6- A. That the title conveyed shall be good and its transfer rightful. B. Any and all facilities conveyed shall be free from any security interest or other lien or encumbrance; and C. Any and all facilities so conveyed shall be free of any defects in materials or workmanship for a period of one (1) year, as stated above. Said warranty shall include the payment of the costs of any repair or replacement of the water facilities due to any such defect in materials or workmanship. 17. Remedies Upon Default. In the -event of a breach of any of the terms and conditions of this Agreement by Developer or his successors in interest, the Town shall have the following rights and remedies which shall be cumulative and which may be exercised with or without notice, unless otherwise specified herein, and which may be exercised separately, concurrently, or repeatedly and without any election of remedies to be deemed made: A. To declare by written notice any or all of the rates, charges, or fees be immediately due and payable in full, subject to the limitations of subparagraph D. B. To shut off or discontinue water service to the residence or any portion thereof, and to resume service only when the account is current; to impose certain fees to resume service to the property after discontinuance; and to charge interest on the unpaid amounts at the rate of one and a half percent (1 1/2%) per month, compounded monthly. C. To perfect and foreclose any and all lien rights which the Town may have hereunder, and in the manner specified by applicable law. D. To enforce any provision of this Agreement by appropriate legal proceeding for the specific performance of any covenant or agreement contained herein, or for the recovery of damages caused by breach of this Agreement, including attorneys' fees and all other costs and expenses incurred in enforcing this Agreement. E. Any other remedy available at law or in equity. The remedies provided to the Town hereunder are cumulative, and are not intended to be exclusive of any other remedy to which the Town may be lawfully entitled. None of the remedies provided to either party under this Agreement shall be required to be exhausted or exercised as a prerequisite to seeking further relief. Every obligation assumed by or imposed upon either party hereto shall be enforceable by any appropriate action, petition, or proceeding at law or in equity and may be initiated by the Town, separately or jointly. 18. Indemnification. Developer hereby agrees to indemnify and hold the Town harmless for any and all losses resulting from any actions taken in the implementation of this Agreement, and for injuries resulting from Developer's use of Town water which losses or injuries do not arise from the Town's own negligent actions or negligent failure to act. Furthermore, it is the C:\FILES\CASTLE.5AG April 3, 1996 -7- understanding of the parties that this indemnification shall include actual attorneys' fees, damages, costs, and expenses incurred by the Town in the event that any party brings an action against the Town specifically relating to injury, property damage, or other damages caused by Developer's installation, use, maintenance, or operation of the facilities. Any failure of the water facilities due to faulty connection or installation by Developer shall be the sole responsibility of Developer, for a period of one (1) year following the date of completion, regardless of the Town's acceptance of such facilities. Developer agrees to indemnify and hold the Town harmless for any failure caused by Developer which adversely affects the Town's water system and delivery of water to other users. Developer shall reimburse the Town for the cost of any repair or replacement resulting from such a failure and for damages incurred. 19. Covenants Run With Land. All terms, conditions, covenants, obligations and provisions of this Agreement constitute covenants running with the property. 20. Statutory Lien. It is the express intention of the parties that all charges, assessments, fees, or rates to be paid hereunder shall constitute a perpetual lien on and against the appropriate lots until paid. It is the further intention of the parties that the Town is authorized to certify all unpaid fees to the Garfield County Treasurer in the same manner as general property taxes pursuant to applicable statutes of the State of Colorado. 21. Affidavit of Timely Completion and Acceptance. Upon the timely completion or satisfaction by Developer or its successors in title of all of the terms and conditions of this Agreement and acceptance thereof by the Town, the Mayor of the Town shall prepare an affidavit to that effect, which may be recorded with the Garfield County Clerk and Recorder. 22. Successors and Assigns. This Agreement may not be assigned by Developer without the prior written consent of the Town, which consent shall not be unreasonably withheld. In the event Developer desires to assign its rights and obligations herein, it shall so notify the Town in writing, together with the proposed assignee's written agreement to be bound by the terms and conditions contained herein. Subject to the preceding, the covenants, obligations, terms, conditions, and provisions contained herein and all amendments of this Agreement shall inure to the benefit of and be binding upon the heirs, personal representatives, successors, and assigns of the parties hereto. By signing this Agreement, Developer agrees not only for itself, but for its agents, employees, tenants, and successors in title, to be bound by all Town rules, regulations, and ordinances insofar as they may pertain to the providing of water service herein described, as amended from time to time. 23. Notice. All notices required under this Agreement shall be in writing and shall be hand -delivered or sent by registered or certified mail, return receipt requested, postage prepaid, to the addresses of the parties herein set forth. All notices so given shall be considered effective seventy-two (72) hours after deposit in the United States mail with the proper address as set forth below. Either party by notice so given may change the address to which future notices shall be sent. C:\FILES\CASTLE.5AG April 3, 1996 -8- Notice to Town: With copy to: Notice to Developer: With copy to: Town of New Castle P. O. Box 90 New Castle, CO 81647 Loyal E. Leavenworth, Esq. Leavenworth & Associates, P.C. P. O. Drawer 2030 Glenwood Springs, CO 81602 Phone (970) 945-2261 Fax (970) 945-7336 Elk Creek Development Corporation Kent S. Jolley 532 Traver Trail Glenwood Springs, CO 81601 John R. Schenk, Esq. Schenk, Kerst & deWinter, P.C. 302 Eighth Street, Suite 310 Glenwood Springs, CO 81601 Phone (970) 945-2447 Fax (970) 945-2440 24. Ordinances. Developer acknowledges that the Town may adopt ordinances and resolutions from time to time concerning regulation of the continued delivery of water to users located outside of the Town limits. By entering into this Agreement, Developer agrees to be bound by such future regulation. 25. Amendment. This Agreement constitutes the full agreement between the parties and may be amended only by a writing signed by the parties. 26. Recording. This Agreement shall be recorded with the Garfield County Clerk and Recorder, at the expense of Developer. 27. Governing Law. This Agreement shall be construed in accordance with the laws of the State of Colorado. In the event of litigation pertaining to this Agreement, the exclusive forum, venue, and place of jurisdiction shall be Colorado, unless otherwise designated in writing by the parties. IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement in duplicate originals on the day and year first written above. ATTEST: Clerk C:\FILES\CASTLE.5AG April 3, 1996 By TOWN OF •(,-/ Steve Rippy, Mayor -9- E, COLORADO ATTEST: Kent S. Jol y, STATE OF COLORADO ) ) ss. COUNTY OF GARFIELD ) By ELK CREEK DEVELOPMENT CORPORATION Richard C. Jolley, Acknowledged, subscribed, and sworn to before me this /04 day of / r,'/ 1996, by Steve Rippy, as Mayor, and by /Pa m J Gros , as Clerk, on behalf of the Town of New Castle, Colorado. WITNESS my hand and official seal. My Commission expires: - -- "� a Notary ; blic STATE OF COLORADO ) ) ss. COUNTY OF GARFIELD ) Acknowledged, subscribed, and sworn to before me this C7 qday of , 1996, by Richard C. Jolley as President and Kent S. Jolley as Secretary o Elk Creek Development Corporation. WITNESS my hand and official seal. My Commission expires: g/ 1% /(1q C:\FILES\CASTLE.5AG April 3, 1996 -10- Notary Public 05/16/96 15:14 $303 945 2593 V. GREEN & ASSOC 4-+4 SCHENK Board toss Talbott - Chairman VUUam Moatorer stn Mello Pam Voight ;orlon Wit7ke Burning Mountains Fire Protection District Box 236 Silt, CO 81652 [� 003/003 Don Zordel - Chief Stn Cerise - Ambit. Chief i4cr'c4 .27.9 9 cv ( /77:2/5/.., (ma, re' el- h r / 4 110 rr� g rh' va T.0/(°( 41,4d-s•O1 G G k LAG 19-n r cA). TA, r h^c°C/ire�C'� ARTICLES OF INCORPORATION OF THE CEDARS AT ELK CREEK HOMEOWNERS ASSOCIATION (A NONPROFIT CORPORATION) The undersigned natural person, being more than twenty-one years of age, and acting as incorporator, does hereby establish a nonprofit corporation under and by virtue of the Colorado Nonprofit Corporation Act and adopts the following Articles of Incorporation: ARTICLE I ' 96102 U NAME SECRETARYSTATE OFSTATE 02-26-96 1?:0i The name of the nonprofit corporation is: The Cedars at Elk Creek Homeowners Association, ("the Association"). ARTICLE II DURATION The Corporation shall have perpetual existence. ARTICLE III NONPROFIT The Corporation shall be a nonprofit corporation, without shares of stock. ARTICLE IV PURPOSES The purposes for which the Corporation is formed are as follows: (a) To be and constitute the Association to which reference is made in the Declaration of Covenants, Conditions, Restrictions and Easements (the "Declaration") for The Cedars Subdivision, located in Garfield County, Colorado, which Declaration is to be recorded in the Office of the Clerk and Recorder of Garfield County, Colorado and to operate the Common Interest Community for same, in accordance with the requirements for an association of Unit Owners charged with the administration of property under the Colorado Common Interest Ownership Act, C.R.S. 38-33.3-101, et seq., as amended from time to time (the "Act"). Each capitalized term not otherwise defined in these Articles shall have the meanings specified or used in the Act. Without limiting the generality of the foregoing, the Association may perform the following acts and services on a not-for-profit basis: (i) To acquire, construct, manage, supervise, care for, operate, maintain, renew and protect any buildings, structures, grounds, roadways and other facilities, installations and appurtenances thereto relating to the property of the Common Interest Community; to enforce any and all covenants, restrictions and H URS'ELKCREEKWRTICLES. HOM 1 agreements applicable to the Common Interest Community; and, insofar as permitted by law, to do any other thing that, in the opinion of the Executive Board, will promote the common benefit and enjoyment of the residents of the Common Interest Community. (ii) To prepare estimates and budgets of the costs and expenses of rendering these services and the performance, or contracting or entering into agreements for this performance, as provided for in or contemplated by this subparagraph (ii); to apportion these estimated costs and expenses among the Unit Owners; and to collect these costs and expenses from the Unit Owners obligated to assume or bear the same; and to borrow money for the Association's purposes, pledging as security the income due from Unit Owners and from others, the property of the Association. (iii) To enforce, on behalf of the Unit Owners, rules made or promulgated by the Executive Board with respect to the safe occupancy, reasonable use and enjoyment of the buildings, structures, grounds and facilities of the Common Interest Community, and, to levy fines to enforce compliance with these rules. (iv) To perform, or cause to be performed, all other and additional services and acts as are usually performed by managers or managing agents of real estate developments, including without limitation, keeping or causing to be kept, appropriate books and records, preparing and filing necessary reports and returns, and making or causing to be made audits of books and accounts. (b) To retain counsel, auditors, accountants, appraisers and other persons or services that may be necessary for or incidental to any of the activities described in this document. (c) To do and perform, or cause to be performed, all other necessary acts and services suitable or incidental to any of the foregoing purposes and objects to the fullest extent permitted by law, and to acquire, sell, mortgage, lease or encumber any real or personal property for these purposes. (d) To promote the health, safety, welfare and common benefit of the residents of the Common Interest Community. (e) To do any and all permitted acts, and to have and to exercise any and all powers, rights and privileges which are granted to a Common Interest Community Association under the Act, the Declaration, the Bylaws, and the laws applicable to a nonprofit corporation of the State of Colorado. The foregoing statements of purpose shall be construed as a statement of both purposes and powers. The purposes and powers stated in each clause shall not be limited or restricted by reference to or inference from the terms or provisions of any other clause, but shall be broadly construed as independent purposes and powers. The Association shall not, except to an insubstantial degree, engage in any activities H. V RSIELKCREEKNRTICLES.HOM 2 or exercise any powers that are not in furtherance of the primary purposes of the Association. ARTICLE V MEMBERS Every person, by virtue of being a Unit Owner and while such person is a Unit Owner, shall be a member of the Association. Membership shall be appurtenant to and may not be separated from Ownership of any Unit. Membership shall be automatically transferred upon the conveyance of a Unit. No Unit Owner, whether one or more persons, shall have more than one membership per Unit owned, but all of the persons owning each Unit shall be entitled to rights of membership and use and enjoyment appurtenant to such Ownership. Voting shall be based on one vote per Unit. The members shall be of one class as defined in the Declaration. Unit Owners shall elect all members of the Executive Board and shall otherwise have all rights of a Unit Owner as provided by the Act. Notwithstanding the foregoing, during the period of Declarant control as defined in the Act and in the Declaration, the Declarant of the Common Interest Community shall have certain superseding rights and powers as permitted under the Act and the Declaration, including the right to appoint members of the Executive Board. Holders of Security Interests in the Units may have, or be granted, rights of approval or disapproval for certain actions of the Association or its members. ARTICLE VI EXECUTIVE BOARD The initial Executive Board shall consist of three (3) persons, and this number may be changed by a duly adopted amendment to the Bylaws, except that in no event may the number of directors be less than three (3). The names and addresses of the persons who shall serve as directors until their successors shall be elected and qualified are as follows: Name Address Richard C. Jolley Kent S. Jolley Brett L. Jolley R: VRS\ELKCREEKURTICLES MOM 1288 County Road 245 New Castle, CO 81647 532 Traver Trail Glenwood Springs, CO 81601 0985 County Road 245 New Castle, CO 81647 3 ARTICLE VII LIMITATION OF LIABILITY The Association shall indemnify its directors and officers to the fullest extent permitted by Colorado law as the same now exists or may hereafter be amended. The personal liability of a director or officer to the Association or its members for monetary damages for breach of fiduciary duty as a director or officer is limited to the fullest extent permitted by Colorado law as the same now exists or may hereafter be amended. The foregoing provisions of this Article shall be deemed to be a contract between the Association and each director and officer who serves in such capacity at any time while this Article is in effect, and any repeal or modification hereof shall not affect the rights or obligations then or theretofore existing or any action, suit or proceeding theretofore or thereafter brought based in whole or in part upon any such stated facts. The foregoing right of indemnification shall not be deemed exclusive of any other rights to which any director or officer may be entitled apart from the provisions of this Article. ARTICLE VIII DISTRIBUTION OF ASSETS UPON DISSOLUTION Upon dissolution of the Association, the Executive Board shall provide for the distribution of all assets and liabilities of the Association in the following manner: (a) All liabilities and obligations of the Association shall be paid and discharged, or adequate provisions shall be made therefor. (b) Assets held by the Association on condition requiring return, transfer, or conveyance, which condition occurs by reason of the dissolution, shall be returned, transferred, or conveyed in accordance with such requirement. (c) Assets received and held by the Association, subject to limitations permitting their use only for charitable, religious, eleemosynary, benevolent, educational, or similar purposes, but not held upon a condition requiring return, transfer, or conveyance by reason of the dissolution shall be transferred or conveyed to one or more domestic or foreign corporations societies, or organizations engaged in activities similar to those of this Association, in accordance with a plan of distribution adopted pursuant to the Colorado Nonprofit Corporation Act which is not inconsistent with these Articles of Incorporation. (d) Assets received and held by the Association not subject to liabilities, conditions or use limitations, as specified in paragraphs (a), (b) and (c) above, shall be distributed to the Owners of Units pro rata according to their ownership interests as specified in the Declaration. (e) Any remaining assets may be distributed to such persons, societies, organizations, governmental entities, political subdivisions, or domestic or foreign corporations, whether for profit or nonprofit, as may be specified in a plan of URSELKCREEK\ARTICLES. MOM 4 distribution adopted pursuant to the Colorado Nonprofit Corporation Act and which is not inconsistent with these Articles of Incorporation. ARTICLE IX INITIAL REGISTERED OFFICE AND AGENT The address of the initial registered office of the Association is 532 Traver Trail, Glenwood Springs, Colorado, 81601. The name of its initial registered agent at such address is Kent S. Jolley, ARTICLE X INCORPORATOR The name of the incorporator is Kent S. Jolley and the incorporator's address is 532 Traver Trail, Glenwood Springs, Colorado, 81601. ARTICLE XII AMENDMENT Amendment of these Articles shall require the assent of at least 67 percent of the Members. IN WITNESS WHEREOF, the undersigned has subscribed his name to these Articles of Incorporation this 2 G day of February, 1996. Kent S. Jolley, ncorpo tor The undersigned, Kent S. Jolley, hereby consents to appointment as the initial registered agent as provided above. H: V RSELXCREEMARi1CLES. HOM 5 Kent S. Jolley BY-LAWS OF THE CEDARS AT ELK CREEK HOMEOWNERS ASSOCIATION INTRODUCTION These Bylaws of The Cedars at Elk Creek Homeowners Association, (the "Association") are adopted for the regulation and management of the Association in conformance with the Colorado Nonprofit Corporation Act, C:R.S. 7-20-101, et seq., as amended from time to time (the "Nonprofit Corporation Act") and the Colorado Common Interest Ownership Act, C.R.S. 38-33.3-101, et seq., as amended from time to time (the "Act"). The Association is referenced in the Declaration of Covenants, Conditions, Restrictions and Easements (the "Declaration") for The Cedars Subdivision, located near New Castle, Colorado, which Declaration is to be recorded in the Office of the Clerk and Recorder of Garfield County, Colorado. The Association is to operate the Common Interest Community for same, in accordance with the requirements for an association of Unit Owners charged with the administration of property under the Act. Each capitalized term not otherwise defined in these Articles shall have the meaning specified or used in the Act or as defined in the Declaration. ARTICLE I UNIT OWNERS/MEMBERS 1.1 Unit Owners/Members. Every Unit Owner while such person is a Unit Owner, shall be a Member of the Association. Membership shall be appurtenant to and may not be separated from Ownership of any Unit. No Unit Owner, whether one or more persons, shall have more than one membership per Unit owned, but all of the persons owning each Unit shall be entitled to rights of membership and use and enjoyment appurtenant to such Ownership. 1.2 Annual Meeting. Annual meetings of Members shall be held in November of each year on such date and time as set forth in the notice. At the annual meetings, the Directors of the Executive Board shall be elected by ballot of the Members, in accordance with the provisions of Article II of these Bylaws. The Members also shall set a time (within 10 days of each such annual meeting) and place for the first regular meeting of the Executive Board. The Members may transact other business as may properly come before them at these annual meetings. 1.3 Special Meetings. Special meetings of the Association may be called by the president, by a majority of the Directors of the Executive Board or by Members comprising 20 percent of the votes in the Association. 1.4 Place of Meetings. Meetings of the Members shall be held at the Property or at a suitable place convenient to the Members, as may be designated by the Executive Board. 1.5 Notice of Meetings. The secretary or other officer specified in the Bylaws shall cause notice to be hand delivered or sent prepaid by United States mail to the mailing address H NRSIFLCQtFFi(1 BY IA W S.11OM 1 DRAFT DATED 9.95 of each Unit or to the mailing address designated in writing by the Member, not less than ten (10) nor more than fifty (50) days in advance of a meeting. Such notice shall state the time and place of the meeting and the items on the agenda, including, if applicable, the general nature of any proposed amendment to the Declaration or these bylaws, any budget changes, and any proposal to remove an officer or member of the Executive Board. No action shall be adopted at a meeting except as stated in the notice. 1.6 Waiver of Notice. Any Member may, at any time, waive notice of any meeting of the Members in writing, and the waiver shall be deemed equivalent to the receipt of notice. 1.7 Adjournment of Meeting. At any meeting of Members, a majority of the Members who are present at that meeting, either in person or by proxy, may adjourn the meeting to another time. 1.8 Order of Business. The order of business at all meetings of the Members shall be as follows: vote; (a) Roll call or equivalent check-in procedure of Members present and entitled to (b) Inspection and verification of proxies; (c) Proof of notice of meeting; (d) Reading of minutes of preceding meeting; (e) Reports of officers; (f) Committee reports; (g) Establish number and terms of Directors of the Executive Board (if required and noticed); (h) Election of inspectors of election (when required); (i) Election of Directors of the Executive Board (when required); (j) Establish a time (within 10 days of the annual meeting) and place for the first regular meeting of the Executive Board; (k) Ratification of budget (if required and noticed); (1) Unfinished business; and (m) New business. If: URS\ E1XCRFIX\ BY LA W S. I IOM 2 DRAFT DATED W8/95 1.9 Voting. Voting shall be based on one vote per Unit. The Members shall be of one class as defined in the Declaration. (a) If only one of several co-owners of a Unit is present at a meeting of the Association, the owner present is entitled to cast the vote allocated to the Unit. Individual co-owners may not cast fractional votes. If more than one of the co-owners are present, the vote allocated to the Unit may be cast only in accordance with the agreement of a majority in interest of the co-owners. There is majority agreement if any one of the co-owners casts the vote allocated to the Unit without protest being made promptly to the person presiding over the meeting by another co-owner of the Unit, in which case such Member's vote shall not be counted. The Members shall be of one class as defined in the Declaration. (b) Votes allocated to a Unit may be cast under a proxy duly executed by a Member, provided that any proxy shall be filed with the Secretary of the Association at least 24 hours prior to the time of any meeting. If a Unit is owned by more than one person, each owner of the Unit may vote or register protest to the casting of votes by the other owners of the Unit through a duly executed proxy. A Member may revoke a proxy given under this section only by actual notice of revocation to the person presiding over a meeting of the Association. A proxy is void if it is not dated or purports to be revocable without notice. A proxy terminates one year after its date, unless it specifies a shorter term. (c) The vote of a corporation or business trust may be cast by any officer of that corporation or business trust in the absence of express notice of the designation of a specific person by the board of directors or bylaws of the owning corporation or business trust. The vote of a partnership may be cast by any general partner of such entity in the absence of express notice of the designation of a specific person by the owning partnership. The vote of a limited liability company may be cast by any manager of such entity in the absence of express notice of the designation of a specific person by the owning limited liability company. The moderator of the meeting may require reasonable evidence that a person voting on behalf of a corporation, partnership, limited liability company or business trust owner is qualified to vote. 1.10 Quorum. Members present in person or by proxy at any meeting of Members but no less than 20 percent of the Members, shall constitute a quorum at that meeting. 1.11 Majority Vote. The vote of a majority of the Members present in person or by proxy at a meeting at which a quorum is present shall be binding upon all Members for all purposes except where a higher percentage vote is required in the Declaration, these Bylaws or by law. ARTICLE I EXECUTIVE BOARD 2.1 Number and Qualification. The affairs of the Common Interest Community and the Association shall be governed by an Executive Board which shall consist of three (3) persons to be known as "Directors", who, excepting the Directors appointed by the Declarant, shall be Unit Owners. If any Unit is owned by a partnership or corporation, any officer, partner or employee of that Unit Owner shall be eligible to serve as a Director and shall be deemed to be 11:URSFLC[RmC\9YLAW SROM 3 DRAFT DATED 9/!/95 a Unit Owner for the purposes of the preceding sentence. Directors shall be elected by the Unit Owners, except for those appointed by the Declarant. Directors shall serve until their successors are duly elected and qualified. 2.2 Powers and Duties. The Executive Board may act in all instances on behalf of the Association, except as provided in the Declaration, the Articles of Incorporation of the Association (the "Articles"), these Bylaws or the Act. The Executive Board shall have, subject to the limitations contained in the Declaration, the Articles and the Act, the powers and duties necessary for the administration of the affairs of the Association and of the Common Interest Community, which shall include the powers and duties set forth in the Declaration. 2.3 Election and Term of Office. At annual meetings of the Members of the Association to be held as herein provided, the terms of office of the Directors may be fixed for such period of time as the Members entitled to vote may determine, and such terms may be staggered, that is to say, various Directors may be elected for terms of different lengths so that there will be a carryover of old Directors at each annual meeting, and only new Directors will be designated thereafter, provided that nothing herein contained shall prevent the election of a Director whose term has expired to a new term as such Director. At any meeting at which Directors are to be elected, the Members may, by resolution, adopt specific procedures which are not inconsistent with these Bylaws or the Corporation Laws of the State of Colorado for conducting the elections. 2.4 Vacancies. Vacancies in the Executive Board, caused by any reason other than the removal of a Director by a vote of the Members, may be filed at a special meeting of the Executive Board held for that purpose at any time after the occurrence of the vacancy, even though the Directors present at that meeting may constitute less than a quorum. Vacancies shall be filled in the following manner: (a) As to vacancies of Directors whom Members other than the Declarant elected, by a majority of the remaining elected Directors constituting the Executive Board, and (b) As to vacancies of Directors whom the Declarant has the right to appoint, by the Declarant. Each person so elected or appointed shall be a Director for the remainder of the term of the Director so replaced. The term of office of any Director shall be declared vacant when such Director ceases to be a Member of the Association by reason of the transfer of such Director's ownership of a Unit. 2.5 Removal of Directors. Members, by a majority vote of all persons present and entitled to vote, at any meeting of the Members at which a quorum is present, may remove any Director of the Executive Board, other than a Director appointed by the Declarant, with or without cause. 2.6 Regular Meetings. The first regular meeting of the Executive Board following each annual meeting of the Members shall be held within 10 days after the annual meeting at a time and place to be set by the Members at the meeting at which the Executive Board shall II IRS‘FL(CRFEP(BYL,WS 10M 4 GRAFT DATED wvss have been elected. No notice shall be necessary to the newly elected Directors in order to legally constitute such meeting, provided a majority of the Directors are present. The Executive Board may set a schedule of additional regular meetings by resolution, and no further notice is necessary to constitute regular meetings. 2.7 Special Meetings. Special meetings of the Executive Board may be called by the President or by a majority of the Directors on at least three (3) business days' notice to each Director. The notice shall be hand delivered or mailed and shall state the time, place and purpose of the meeting. 2.8 Location of Meetings. All meetings of the Executive Board shall be held within the County of Garfield, unless all Directors consent in writing to another location. 2.9 Waiver of Notice. Before or at any meeting of the Board of Directors, any Director may, in writing, waive notice of such meeting, and such waiver shall be deemed equivalent to giving of such notice. Attendance by a Director at any meeting of the Executive Board shall constitute a waiver of notice. If all the Directors are present at any meeting, no notice shall be required, and any business may be transacted at such meeting. 2.10 Quorum of Directors. At all meetings of the Executive Board, a majority of the Directors shall constitute a quorum for the transaction of business, and the votes of a majority of the Directors present at a meeting at which a quorum is present shall constitute a decision of the Executive Board. If, at any meeting, there shall be less than a quorum present, a majority of those present may adjourn the meeting. At any adjourned meeting at which a quorum is present, any business which might have been transacted at the meeting originally called may be transacted without further notice. 2.11 Compensation. A Director shall not receive a fee from the Association for acting as a Director, as may be set by resolution of the Members, but may receive reimbursement for necessary expenses actually incurred in connection with the Director's duties. Directors acting as officers shall not be compensated for those duties. 2.12 Consent to Corporate Action. If all the Directors or all Directors of a committee established for such purposes, as the case may be, severally or collectively consent in writing to any action taken or to be taken by the Association, and the number of the Directors constitutes a quorum, that action shall be a valid corporate action as though it had been authorized at a meeting of the Executive Board or the committee, as the case may be. The secretary shall file these consents with the minutes of the meetings of the Executive Board. 2.13 Telephone Communication in Lieu of Attendance. A Director may attend a meeting of the Executive Board by using an electronic or telephonic communication method whereby the Director may be heard by the other Directors and may hear the deliberations of the other Directors on any matter properly brought before the Executive Board. The Director's vote shall be counted and the presence noted as if that Director were present in person on that particular matter. H:JRSFLCCRF}EIBYLA WS.HOM 5 DRAFT DATED 9/V93 2.14. Manager or Managing Agent. The Executive Board may engage the services of a manager or managing agent for the purpose of administering and carrying out the purposes and intent of the Declaration; provided, however, the manager or managing agent shall not have authority to levy assessments or to take action which affects the title of a Member in and to such owner's Unit, or his interest in the common elements, which rights shall be reserved to the Board of Directors, subject to the vote of the Members of the Association as provided in the Articles or these By -Laws, the Declaration or the Act. 2.15 Indemnification. The Directors of the Executive Board shall not be liable to the Members of the Association or to any other person for any mistake of judgment, negligence, or otherwise, except in the event of wanton and willful acts or omissions. The Association shall indemnify and hold harmless each of the Directors of the Executive Board against all contractual liabilities of others arising out of contracts made by the Executive Board on behalf of the Association and its Members, and in connection with any act performed pursuant to the Declaration, unless such Director or Directors are adjudged guilty of wanton and willful acts or omissions in the performance of their duties as Directors. Without limiting the forgoing, the Directors of the Executive Board of the Association shall have the liabilities, and be entitled to indemnification, as provided in Colorado's nonprofit corporation laws. ARTICLE III OFFICERS 3.1 Designation. The principal officers of the Association shall be the president, the vice president, the secretary and the treasurer, all of whom shall be elected by the Executive Board. The Executive Board may appoint an assistant treasurer, an assistant secretary and other officers as it finds necessary. The president and vice president, but no other officers, need to be Directors. Any two offices may be held by the same person, except the offices of president and secretary. The office of vice president may be vacant. 3.2 Election of Officers. The officers of the Association shall be elected annually by the Executive Board at the organizational meeting of each new Executive Board. They shall hold office at the pleasure of the Executive Board. 3.3 Removal of Officers. Upon the affirmative vote of a majority of the Directors, any officer may be removed, either with or without cause. A successor may be elected at any regular meeting of the Executive Board or at any special meeting of the Executive Board called for that purpose. 3.4 President. The president shall be the chief executive officer of the Association. The president shall preside at all meetings of the Members and of the Executive Board. The president shall have all of the general powers and duties which are incident to the office of president of a non -stock corporation organized under the laws of the State of Colorado, including but not limited to the power to appoint committees from among the Members from time to time as the president may decide is appropriate to assist in the conduct of the affairs of the Association. The president may fulfill the role of treasurer in the absence of the treasurer. The president may cause to be prepared and may execute, certify, and record amendments, attested 11 NRSSFLCCRIDC1BYLA W S. HOM 6 DRAFT DATED 9/6,95 by the secretary, to the Declaration and these Bylaws on behalf of the Association, following authorization or approval of the particular amendment as applicable. 3.5 Vice President. The vice president shall take the place of the president and perform the president's duties whenever the president is absent or unable to act. If neither the president nor the vice president is able to act, the Executive Board shall appoint some other Director to act in the place of the president on an interim basis. The vice president shall also perform other duties required by the Executive Board or by the president. 3.6 Secretary. The secretary shall keep the minutes of all meetings of the Members and the Executive Board. The secretary shall have charge of the Association's books and papers as the Executive Board may direct and shall perform all the duties incident to the office of secretary of a non -stock corporation organized under the laws of the State of Colorado. The secretary may attest to the execution by the president of amendments to the Declaration and the Bylaws on behalf of the Association, following authorization or approval of the particular amendment as applicable. 3.7 Treasurer. The treasurer shall be responsible for Association funds and securities, for keeping full and accurate financial records and books of account showing all receipts and disbursements and for the preparation of all required financial data. The treasurer shall be responsible for the deposit of all monies and other valuable effects in depositories designated by the Executive Board and shall perform all the duties incident to the office of treasurer of a non -stock corporation organized under the laws of the State of Colorado. The treasurer may endorse on behalf of the Association, for collection only, checks, notes and other obligations and shall deposit the same and all monies in the name of and to the credit of the Association in banks designated by the Executive Board. Except for reserve funds described below, the treasurer may have custody of and shall have the power to endorse for transfer, on behalf of the Association, stock, securities or other investment instruments owned or controlled by the Association or as fiduciary for others. Reserve funds of the Association shall be deposited in segregated accounts or in prudent investments, as the Executive Board determines. Funds may be withdrawn from these reserves for the purposes for which they were deposited, by check or order, authorized by the treasurer, and executed by two Directors, one of whom may be the treasurer if the treasurer is also a Director. 3.8 Agreements, Contracts, Deeds, Checks and Other Instruments. Except as otherwise provided in these Bylaws, all agreements, contracts, deeds, leases, checks and other instruments of the Association may be executed by any officer of the Association or by any other person or persons designated by the Executive Board. 3.9 Compensation. An officer may receive a fee from the Association, in an amount set by resolution of the Members, for acting as an officer. An officer may also receive reimbursement for necessary expenses actually incurred in connection with Association duties. 3.10. Indemnification. Officers of the Association shall be indemnified for any act they may perform upon behalf of the Association in the same manner herein provided for indemnification of the Board of Directors. Without limiting the forgoing, the officers of the HARSIE (CREOOBYLAWS.IB]M 7 DRAFT DATED W!/95 Association shall have the liabilities, and be entitled to indemnification, as provided in Colorado's nonprofit corporation laws. 3.11 Statements of Unpaid Assessments. The treasurer, assistant treasurer, a manager employed by the Association or, in their absence, any officer having access to the books and records of the Association may prepare, certify, and execute statements of unpaid assessments, in accordance with Section 38-33.3-316 of the Act. The Association may charge a reasonable fee for preparing statements of unpaid assessments. The amount of this fee and the time of payment shall be established by resolution of the Executive Board. The Association may refuse to furnish statements of unpaid assessments until the fee is paid. Any unpaid fees may be assessed as a Common Expense against the Unit for which the statement is furnished. ARTICLE IV ENFORCEMENT 4.1 Abatement and Enjoinment of Violations by Members. The violation of any of the Rules and Regulations adopted by the Executive Board or the breach of any provision of the Declaration shall give the Executive Board the right after notice and hearing, except in case of an emergency, in addition to any other rights set forth in these Bylaws: (a) To enter the Unit or Limited Common Element in which, or as to which, the violation or breach exists and to summarily abate and remove, at the expense of the defaulting Member, any structure, thing or condition (except for additions or alterations of a permanent nature that may exist in that Unit) that is existing and creating a danger to the Common Elements contrary to the intent and meaning of the provisions of the Declaration. The Executive Board shall not be deemed liable for trespass by this action; or (b) To enjoin, abate or remedy by appropriate legal proceedings, either at law or in equity, the continuance of any breach. 4.2 Fine for Violation. By resolution, following notice and hearing, the Executive Board may levy a fine of up to $25 per day for each day that a violation of the Declaration or Rules and Regulations persists after notice and hearing. 5.1 applicable : ARTICLE VI RECORDS Records. The Association shall keep the following records to the extent they are (a) An account for each Unit, which shall designate the name and address of each Member, the name and address of each mortgagee who has given notice to the Association that it holds a mortgage on the Unit, the amount of each Common Expense assessment, the dates on which each assessment comes due, the amounts paid on the account and the balance due; (b) An account for each Member showing any other fees payable by the Member; H:VRSIMCCREEKNBYIAWS. HOM 8 DRAFT DATED 9/.3 (c) A record of any capital expenditures in excess of $1,000 approved by the Executive Board for the current and next two succeeding fiscal years; (d) A record of the amount and an accurate account of the current balance of any reserves for capital expenditures, replacement and emergency repairs, together with the amount of those portions of reserves designated by the Association for a specific project; (e) The most recent regularly prepared balance sheet and income and expense statement of the Association; (f) The current operating budget; (g) A record of the actual cost, irrespective of discounts and allowances, of the maintenance of the Common Elements; (h) All insurance policies then in force, in which the Unit Owners, the Association, or its Directors or officers are named as insured persons; (i) The original or a certified copy of the recorded Declaration, as amended, the Association's Articles of Incorporation, Bylaws, Minute Books, other books and records and any Rules and Regulations which may have been promulgated; (j) An inventory list of the Association's tangible personal property; (k) Copies of any plans and specifications used in the construction of the improvements in the common elements in the common interest community; (1) Employment contracts in which the Association is a contracting party; (m) Any service contract in which the Association is a contracting party or in which the Association or the Unit Owners have any obligation to pay a fee to the persons performing the services; (n) A record of any alterations or improvements to Units or Limited Common Elements which violate any provisions of the Declaration of which the Executive Board has actual knowledge; (o) A record of any violations, with respect to any portion of the Common Interest Community, of health, safety, fire or building codes or laws, ordinances, or regulations of which the Executive Board has actual knowledge; and (p) A record of any unsatisfied judgments against the Association and the existence of any pending suits in which the Association is a defendant. 5.2 Records Availability. All records maintained by the Association or a manager employed by the Association shall be available for examination and copying by any Member, any holder of a Security Interest in a Unit or its insurer or guarantor, or by any of their duly H.VRS\FL(CRETX DYLAWS. NOM 9 DRAFT DATED W8/95 authorized agents or attorneys, at the expense of the person examining the records, during normal business hours and after reasonable notice. ARTICLE VII GENERAL 6.1 Notices. All notices for the Association or the Executive Board shall be delivered to the office of the Association, or to such other address as the Executive Board may designate by written notice to all Members and to all holders of Security Interests in the Units who have notified the Association that they hold a Security Interest in a Unit. Except as otherwise provided, all notices to any Member shall be sent to the Member's address as it appears in the records of the Association. All notices to holders of Security Interests in the Units shall be sent by registered or certified mail to their respective addresses, as designated by them in writing to the Association. All notices shall be deemed to have been given when mailed, except notices of changes of address, which shall be deemed to have been given when received. 6.2 Waiver. No restriction, condition, obligation or provision contained in these Bylaws shall be deemed to have been abrogated or waived by reason of any failure to enforce the same, irrespective of the number of violations or breaches which may occur. 6.3 Amendment. These Bylaws may be amended only by the assent of at least 67 percent of the Members. No amendment of these Bylaws shall be adopted which would affect or impair the validity or priority of any security interest encumbering any Unit or which would otherwise change the provisions of the Bylaws with respect to such security interests of record. ATTEST: Certified to be the Bylaws adopted by the Directors of THE CEDARS AT ELK CREEK HOMEOWNERS ASSOCIATION, dated , 1995. IL' RStL CREEKIBYIAW5.IoM 10 Secretary DRAFT DATED W11/95 QUIT CLAIM DEED THIS DEED made this day of , 1996, between ELK CREEK DEVELOPMENT CORPORATION whose address is % Kent S. Jolley, 532 Traver Trail, Glenwood Springs, Colorado, 81601, Grantor, and THE CEDARS AT ELK CREEK HOMEOWNERS ASSOCIATION, whose address is % Kent S. Jolley, 532 Traver Trail, Glenwood Springs, Colorado, 81601, Grantee, WITNESSETH, That Grantor, for and in consideration of the sum of Ten Dollars and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, has remised, released, sold, conveyed and QUIT CLAIMED, and by these presents does remise, release, sell, convey and QUIT CLAIM unto the Grantee, Grantee's successors and assigns, forever, all the right, title, interest, claim and demand which Grantor has in and to certain property to held as common elements and located in The Cedars PUD Subdivision, which subdivision is depicted on a plat recorded in the records of Garfield County and otherwise situate, lying and being in the County of Garfield and State of Colorado, more particularly described as follows: All common areas depicted on the plat of The Cedars PUD Subdivision, including without limitation all easements and rights of way, roadways, signs, fences and other improvements thereon. TO HAVE AND TO HOLD the same, together with all and singular the appurtenances and privileges thereunto belonging or in anywise thereunto appertaining, and all the estate, right, title, interest and claim whatsoever, of Grantor, either in law or equity, to the only proper use, benefit and behoof of Grantee, Grantee's successors and assigns forever. IN WITNESS WHEREOF, Grantor has executed this deed on the date set forth above. ELK CREEK DEVELOPMENT CORPORATION By: STATE OF COLORADO ) COUNTY OF GARFIELD ) ss. The foregoing instrument was acknowledged before me this day of 1996, by as of Elk Creek Development Corporation. WITNESS my hand and official seal. My commission expires: Notary Public x•mstaxatmc�Qcv.noA AFTER RECORDING, RETURN TO: Schenk, Kerst & deWinter, P.C. 302 Eighth Street, Suite 310 Glenwood Springs, CO 81601 ARTICLES OF INCORPORATION OF ELK CREEK DEVELOPMENT CORPORATION For office use only F1L.FLL C SECRETARY OF 3U-flL 06-02-T.; 11:45 The undersigned (who, if a natural person, is eighteen years of age or older), acting as the incorporator of a corporation to be incorporated pursuant to the Colorado Business Corporation Act as amended and adopts the following Articles of Incorporation: FIRST: The name of the corporation is Elk Creek Development Corporation. SECOND: The corporation shall have and may exercise all of the rights, powers and privileges now or hereafter conferred upon corporations organized under the laws of Colorado. In addition, the corporation may do everything necessary, suitable or proper for the accomplishment of any of its corporate purposes. The corporation may conduct part or all of its business in any part of Colorado, the United States or the world and may hold, purchase, mortgage, lease and convey real and personal property in any of such places. THIRD: The aggregate number of shares which the corporation shall have the authority to issue is 100,000 shares of common stock. The shares of this class of common stock shall have unlimited voting rights and shall constitute the sole voting group of the corporation, except to the extent any additional voting group or groups may hereafter be established in accordance with the Colorado Business Corporation Act. The shares of this class shall also be entitled to receive the net assets of the corporation upon dissolution. Shareholders shall be entitled to preemptive rights. Each shareholder of record shall have one vote for each share of stock standing in such shareholder's name on the books of the corporation and entitled to vote, except that in the election of directors each shareholder shall have as many votes for each share held by such shareholder as there are directors to be elected and for whose election the shareholder has a right to vote. Cumulative voting shall be permitted in the election of directors or otherwise. Unless otherwise ordered by a court of competent jurisdiction, at all meetings of shareholders one-third of the shares of a voting group entitled to vote at such meeting, represented in person or by proxy, shall constitute a quorum of that voting group. FOURTH: The number of directors of the corporation shall be fixed by the bylaws, or if the bylaws fail to fix such a number, then by resolution adopted from time to time by the board of directors, provided that the number of directors shall not be more than three (3) nor Tess than one (1). Three (3)directors shall constitute the initial board of directors. The following persons are elected to serve as the corporation's initial directors until the first annual meeting of shareholders or until successors are duly elected and qualified: N VRSSELKCREEKURT1CLES. INC 1 Richard C. Jolley Kent S. Jolley Brett L. Jolley 1288 County Road 245 New Castle, CO 81647 532 Traver Trail Glenwood Springs, CO 81601 0985 County Road 245 New Castle, CO 81647 FIFTH: The street address of the initial registered office of the corporation is 532 Traver Trail, Glenwood Springs, Colorado, 81601. The name of the initial registered agent of the corporation at such address is Kent S. Jolley. SIXTH: The address of the initial principal office of the corporation is 532 Traver Trail, Glenwood Springs, Colorado, 81601. SEVENTH: The following provisions are inserted for the management of the business and for the conduct of the affairs of the corporation, and the same are in furtherance of and not in limitation or exclusion of the powers conferred by law. (a) Conflicting Interest Transactions. As used in this provision, "conflicting interest transaction" means any of the following: (i) a loan or other assistance by the corporation to a director of the corporation or to an entity in which a director of the corporation is a director or officer or has a financial interest; (ii) a guaranty by the corporation of an obligation of a director of the corporation is a director or officer or has a financial interest; or (iii) a contract or transaction between the corporation and a director of the corporation or between the corporation and an entity in which a director of the corporation is a director or officer or has a financial interest. No conflicting interest transaction shall be void or voidable, be enjoined, be set aside, or give rise to an award of damages or other sanctions in a proceeding by a shareholder or by or in the right of the corporation, solely because the conflicting interest transaction involves a director of the corporation or an entity in which a director of the corporation is a director or officer or has a financial interest, or solely because the director is present at or participates in the meeting of the corporation's board of directors or of the committee of the board of directors which authorizes, approves or ratifies a conflicting interest transaction, or solely because the director's vote is counted for such purpose if: (A) the material facts as to the director's relationship or interest and as to the conflicting interest transaction are disclosed or are known to the board of directors or the committee, and the board of directors or committee in good faith authorizes, approves or ratifies the conflicting interest transaction by the affirmative vote of a majority of the disinterested directors, even though the disinterested directors are less than a quorum; or (B) the material facts as to the director's relationship or interest and as to the conflicting interest transaction are disclosed or are known to the shareholders entitled to vote thereon, and the conflicting interest transaction is specifically authorized, approved or ratified in good faith by a vote of the shareholders; or (C) a conflicting interest transaction is fair as to the corporation as of the time it is authorized, approved or ratified by the board of directors may be counted in determining the presence of a quorum at a meeting of the board of directors or of a committee which authorizes, approves or ratifies the conflicting interest transaction. HVRS'ELKCREEKURTICLES. INC 2 (b) Loans and Guaranties for the Benefit of Directors. Neither the board of directors nor any committee thereof shall authorize a loan by the corporation to a director of the corporation or to an entity in which a director of the corporation is a director or officer or has a financial interest, or a guaranty by the corporation of an obligation of a director of the corporation or of an obligation of an entity in which a director of the corporation is a director or officer or has a financial interest, until at least ten days after written notice of the proposed authorization of the loan or guaranty has been given to the shareholders who would be entitled to vote thereon if the issue of the loan or guaranty were submitted to a vote of the shareholder. The requirements of this paragraph (b) are in addition to, and not in substitution for, the provisions of paragraph (a) of Article SEVENTH. (c) Indemnification. The corporation shall indemnify, to the maximum extent permitted by law, any person who is or was a director or officer of the corporation against any claim, liability or expense arising against or incurred by such person made party to a proceeding because such person is or was a director or officer of the corporation or because such person is or was serving another entity as a director, officer, partner, trustee, employee, fiduciary or agent at the corporation's request. The corporation shall further have the authority to the maximum extent permitted by law to purchase and maintain insurance providing such indemnification. (d) Limitation on Director's Liability. No director of this corporation shall have any personal liability for monetary damages to the corporation or its shareholders for breach of such director's fiduciary duty as a director, except that this provision shall not eliminate or limit the personal liability of a director to the corporation of its shareholders for monetary damages for: (i) any breach of the director's duty of loyalty to the corporation or its shareholders; (ii) acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (iii) voting for or assenting to a distribution in violation of Colorado Revised Statutes § 7-106-401 or the articles of incorporation if it is established that the director did not perform such director's duties in compliance with Colorado Revised Statutes § 7-108-401, provided that the personal liability of a director in this circumstance shall be limited to the amount of the distribution which exceeds what could have been distributed without violation of Colorado Revised Statutes § 7-106-401 or the articles of incorporation, or (iv) any transaction from which the director directly or indirectly derives an improper personal benefit. Nothing contained herein will be construed to deprive any director of such director's right to all defenses ordinarily available to a director nor will anything herein be construed to deprive any director of any right such person may have for contribution from any other director or other person. (e) Negation of Equitable Interests in Shares or Rights. Unless a person is recognized as a shareholder through procedures established by the corporation pursuant to Colorado Revised Statutes §7-107-204 or similar law, the corporation shall be entitled to treat the registered holder of any shares of the corporation as the owner thereof for all purposes permitted by the Colorado Business Corporation Act, including without limitation all rights deriving from such shares, and the corporation shall not be bound to recognize any equitable or other claim to, or interest in, such shares or rights deriving from such shares on the part of any other person including without limitation, a purchaser, assignee or transferee of such shares, unless and until such other person H. VRSIE1KCREEK1ARTICLES INC 3 becomes the registered holder of such shares or is recognized as such, whether or not the corporation shall have either actual or constructive notice of the claimed interest of such other person. By way of example and not of limitation, until such other person has become the registered holder of such shares or is recognized pursuant to Colorado Revised Statutes § 7-107-204 or any similar applicable law, such person shall not be entitled: (i) to receive notice of the meetings of the shareholders; (ii) to vote at such meetings; (iii) to examine a list of the shareholders; (iv) to be paid dividends or other distributions payable to shareholders; or (v) to own, enjoy and exercise any other rights deriving from such shares against the corporation. Nothing contained herein will be construed to deprive any beneficial shareholder, as defined in Colorado Revised Statutes § 7-113-101(1), of any right such person may have pursuant to Article 113 of the Colorado Business Corporation Act or any subsequent law. EIGHTH: The name and address of the incorporator is Kent S. Jolley 532 Traver Trail, Glenwood Springs, Colorado, 81601. DATED the 3v day of /%/r , 1995. Incorpora or - Kent . Jolle Kent S. Jolley hereby consents to the appointment as the initial registered agent for Elk Creek Development Corporation. 1 JRS\ELKCREEKaRTCLES ihC 4 Initial Registe ed Agent - ent S. Jol DECLARATION OF PROTECTIVE COVENANTS FOR THE CEDARS PUD SUBDIVISION LOCATED IN GARFIELD COUNTY, COLORADO Know all men by these presents that THE ELK CREEK DEVELOPMENT CORPORATION, being the owners of The Cedars PUD Subdivision located in Garfield County, Colorado, and being desirous of protecting property values and the health, convenience, welfare, and use of the owners of lots herein, does hereby declare and adopt the following Restrictions, Covenants, and Conditions, each and all of which shall be applicable to and run with the lots in The Cedars PUD Subdivision as the same appear upon plat thereof filed for record on , 1995, as Document No. in the office of the Garfield County Clerk and Recorder, said Restrictions, Covenants, and Conditions being as follows: 1. Definitions. As used in these Protective Covenants, the following work, terms, and letter designations shall have the following meanings: 1.1 "Subdivision" shall mean The Cedars PUD Subdivision. 1.2 "Association" shall mean The Cedars at Elk Creek Homeowners Association. 1.3 "Lot" shall mean a lot in the Subdivision. 1.4 "Owner" shall mean the owner of a lot in the Subdivision. 1.5 "ACC" shall mean the Architectural Control Committee for the Subdivision. 1.6 "Act" shall mean the Colorado Common Interest Ownership Act, CRS. 38- 33.3-101 et seq. 1.7 "Declarant" The Elk Creek Development Corporation as property owners and Developers of The Cedars PUD Subdivision. 2. The Cedars at Elk Creek Homeowners Association: 2.1. Each owner shall automatically become a member of the Association. 2.2. The purposes and powers of the Association are as set forth in its Articles of Incorporation, Bylaws, and the Act and include, but are not necessarily limited to, the management, control, and maintenance of: 1 2.2.1. The water distribution system; Provided, however, that at any time should the Town of New Castle elect to assume ownership, operations, control, management, maintenance, replacement of any portion of the water supply system as indicated on the Final Plat and in the Subdivision Improvements agreement of the subdivision the Association shall upon receiving an agreement approved by the Declarant convey, dedicate, transfer and otherwise relinquish all operations, control, management, maintenance, and replacement of such portion of the water system to the Town of New Castle; 2.2.2 Roadways dedicated to the public; 2.2.3 Easements for utilities, ingress and egress as platted. 2.3. The Association may assign its future income, including its rights to receive common expense assessments, upon an affirmative vote of the majority of the lot Owners at a meeting called for such purpose. 2.4 During the period of Declarant control, as described in paragraph 28, below, the Declarant shall have the right, pursuant to Section 38-33.3303(5) of the Act to appoint and remove officers of the Board of Directors of the Association. In the event the Declarant surrenders such right, it may require, by separate recorded instrument, that certain Association actions shall nonetheless require Declarant approval to become effective. 2.5 The Association shall have one (1) class of voting membership. Owners of lots shall be entitled to one (1) vote as Association members for each Lot owned. In the event there are multiple owners of a Lot, the Owners shall designate in writing one (1) of them as the voting representative who shall cast the vote on behalf of all said lot Owners at any Association meeting. Such representative shall be the only person entitled to issue proxies on behalf of the lot whose Owners he represents. 2.5.1 The Association shall have the right to enter into agreements with Property Owners outside the boundaries of the Subdivision relating to utility, access, and other easements which it deems necessary. 3. Limitations of Structures: Single family residential use only. The property in the Subdivision is intended to be developed for single-family residential purposes only with all structures designed to blend into and complement the natural surroundings. 3.1 No more than one (1) single-family dwelling shall be erected upon any lot inclusive of an attached or detached garage for no more than four (4) vehicles. Other building(s) for recreational functions, work shop, vehicle storage, or other 2 uses which are approved by the Association and the ACC and are in accordance with Garfield County Regulations are acceptable. 3.2 No building or structure intended or adapted to business, commercial, or manufacturing purposes, nor any multi -family dwellings, shall be erected, placed, maintained, or permitted upon any lot. 3.3 All structures shall be situated on each lot in accordance with approval by the ACC. Unless varied by the provisions of Paragraph 21.4 hereafter, no structure on any lot shall be constructed closer to any side or rear lot line or any front lot line than the standard established under applicable Garfield County codes. In locating a structure, the ACC shall approve its location with as minimal impact on neighboring lots as possible. 3.4 No structures shall be placed or located on any lot in such a manner that will obstruct, divert, or otherwise alter the natural water drainage courses and patterns or irrigation ditch. In any event no structure shall be placed in the bottom or mouth of natural drainage and ravines. No landscaping, driveways, or changes to the existing terrain shall be made which shall obstruct, divert, or otherwise alter such drainage. 3.5 The minimum size of each dwelling shall be not Tess than fifteen hundred (1500) square feet of finished living space exclusive of basements (finished or not), of open porches, garages, carports, or accessory building and structures. 3.6 No structure shall be permitted on any lot which exceeds the standard established under applicable Garfield County codes. The ACC may further restrict the height or elevation of structures as to not obstruct the view plane of the other owners. 3.7 No building shall be erected by means of other than new construction, it being the purpose of this covenant to ensure that old buildings will not be moved from previous locations and placed upon a lot. 3.8 All structures shall be constructed so as the exterior is of either brick, stone, lumber, stucco, or a combination thereof. Interior materials may be at the discretion of the Owner provided that the exterior appearance is of the materials stated above and approved by the ACC. The use of cinderblock shall not be allowed unless it is faced with another material herein approved. United States Forest Service and Colorado State Forester Wildfire Prevention guidelines should be incorporated into residential site planning and design. 3.9 No structure shall be placed or erected upon any lot which is, ever has been, or could be made the subject of a specific ownership tax as now defined in 3 Title 42 of the Colorado Revised Statutes, nor shall structures constructed in a fashion and manner as mobile homes be allowed. 3.10 Each structure shall be completed within one (1) year from date of commencement of construction. 3.11 Except as provided in Paragraph 28, no lot or portion thereof may be used for access easement or right of way to real property outside the Subdivision. 4. Resubdivision Prohibited. The resubdivision of a lot by an individual lot owner other than the Declarant is prohibited. Boundary line adjustments which do not result in the creation of additional lots shall not constitute resubdivision. 5. Existing Foliage: Wildfire Prevention. The existing foliage and vegetation on each lot shall be preserved in as near a natural state as possible. However, consideration must be given to the United States Forest Service and Colorado State Forester Wildfire Prevention guidelines. In particular, except for low ground cover, such as mowed grass, all vegetation within ten (10) feet of the structure shall be removed. Brush or trees within thirty (30) feet of residences shall be thinned, if practicable without adversely diminishing the natural esthetics of the lot, so that remaining clumps are no more than then (10) feet wide 6. Utility Lines. No gas lines, light and power lines, telephone lines or television cable shall be permitted unless said lines are buried underground at the owner's expense and out of sight from their primary source at the lot line to the dwelling. 7. Sewage Disposal. All sewage shall be disposed of by means of an individual sewage treatment facility or septic tank and leachfield approved by the local health agencies having jurisdiction thereof. Owners shall maintain such treatment facilities in good operating condition. 8. No Temporary Structures. No structures of a temporary character, trailer, basement, shack, garage, or any other outbuildings of any description shall be used on any lot, except on a temporary basis not exceeding nine (9) months by the owner or construction contractor constructing a dwelling on a lot. Compliance with the Garfield County Regulations is required with respect to such temporary structure permitted under this paragraph. 9. No Commercial Use. There shall not be permitted or maintained upon any lot or any part thereof any trade, business, or industry, except "in-house or cottage business" whose employees are limited to the immediate family of the owner, shall be permitted and that Owners may rent or lease their dwelling for residential purposes when not required for the Owner's use. Renting or leasing of the dwelling may only be done for the entire dwelling. No apartments or other 4 divisible use of the dwelling shall be utilized by anyone other than the Owner and Owner's guests, and any such use shall be deemed a commercial use and subject to immediate injunction by the Association or other Owners. 10. Fences. The ACC must approve the type and location of all fencing prior to installation. In no event will fencing of property boundaries be permitted. Fencing shall be in architectural harmony with the main dwelling and out- buildings. Fencing shall be limited to gardens, kennels, or other elements within a one hundred (100) foot perimeter of the main dwelling structure. 11. Animals. 11.1 Domestic Animals. Domestic livestock shall not be permitted in the Subdivision. 11.2 Lot owners shall be entitled to keep a dog on their property pursuant to the following restrictions and limitations: 11.2.1 Dogs shall be kept under the control of the owner at all times and shall not be permitted to run free or to cause a nuisance in the Subdivision. No dog shall be allowed beyond the boundaries of the lot owned by the persons where the dog is housed unless accompanied by a person in full control of such dog. 11.2.2 No more than one (1) dog shall be kept per lot. 11.2.3 Dogs shall not be allowed to bark continuously, which shall be defined as barking for a continuous ten minute period or continual intermittently for over one (1) hour. 11.2.4 Dogs shall be leashed, chained, fenced, "electric fenced," kenneled, or under control of the owner, which shall mean that the dog does not leave the boundaries of the lot or house at all times. Metal fencing will be allowed for the purposes of kenneling a dog. Location of kennels shall be subject to review of the ACC. 11.2.5 The Association shall assess and enforce civil penalties against Owners violating the restrictions applying to dogs as follows: One Hundred Dollars ($100.00) for the first violation committed by an Owner's dog; Two Hundred Dollars ($200.00) for the second violation; Three Hundred Dollars ($300.00) for the third violation and for each succeeding violation the fine increases in One Hundred Dollar ($100.00) increments. Should any dog chase or molest deer, elk, or other pets or persons, or destroy or disturb property of another, the Association shall be authorized to prohibit the property Owner or resident from continuing to maintain the offending animal on his property and may dispose of that animal, if necessary, to protect wildlife or other Owner's pets, persons, or 5 property. The offending dog owner shall be provided written notice of such action at least two (2) days before disposal occurs. Within such two-day period, the offending dog shall be kenneled at a licensed kennel. All charges associated with action taken by the Association may be assessed against either the lot Owner and/or the dog owner, or both, at the Association's sole option. 12. Maintenance of Property. 12.1 The owner of each lot shall keep the same clean and free of rubbish and trash and shall keep structures thereon in good repair doing such maintenance as required for this purpose. 12.2 No noxious or offensive conduct or activity shall be carried on upon any lot or in any structure which may constitute a health hazard or nuisance to the neighborhood. 12.3 In the event clothes lines, equipment, garbage cans, service yards, woodpiles or storage areas are not screened form view by natural elements the ACC may require screening by planting or construction to conceal them from view of neighboring lots and streets. 12.4 The outside burning of trash, rubbish or other materials shall not be permitted. 12.5 Woodburning Stoves. Each lot within the Subdivision shall be allowed not more than one (1) EPA phase 3 stove. Dwellings shall be entitled an unrestricted number of proppane/natural has burning fireplaces or allpiances. Open hearth, solid fueling devices shall be prohibited. 13. Vehicles. 13.1 All motor vehicles must be currently licensed and operational unless fully enclosed within a garage or shop. 13.2 No vehicles, boats, campers, trailers, snowmobiles, or other such recreational vehicles shall be parked in view of public right-of-way. 14. Signs. No billboards, signs, or other advertising devices of any nature shall be erected, placed, maintained, or permitted, provided that this restriction shall not be construed to prevent appropriate names and address signs and signs that advertise property for sale or rent insofar as it is necessary to promote the sale and development of such properties. 15. Collection of Assessments: Enforcement. 6 15.1 Assessments: All lot owners shall be obligated to pay any assessments lawfully imposed by the Board of Directors of the Association. To the extent the Association is responsible therefor, assessments may be lawfully imposed for any items of common expense which may include, among other things: the provision of water to the lots, which shall be metered; expenses and costs of maintaining, repairing, and plowing of roads within and accessing the Subdivision; expenses of the ACC; and insurance, accounting, and legal functions of the Association. The Board of Directors may establish contingency and reserve funds for the maintenance and improvement of the roadways and other anticipated costs and expenses the Association to be incurred in pursuit of its purposes. Contingency and reserve funds shall be in such an amount as the Board of Directors may deem necessary and appropriate for the aforesaid purposes. Each owner shall be required to pay his prorate portion of these funds. As used herein, an owner's prorata portion of common expenses shall mean a fraction formed by the number of lots purchased and held by the lot owner (numerator) and the number lots in the Subdivision (denominator). The Board of Directors shall have the right during any calendar year to levy and assess against all of the owners special assessments for such purpose or purposes, in accordance with this Declaration, or the Articles or Bylaws of the Association, as may be necessary. Any such special assessment shall be paid by the owners obligated to pay such assessment and shall be due and payable as determined by the Board of Directors. 15.2 Lien for Nonpayment of Assessments. All sums assessed by the Association, including without limitation the share of common expense assessments chargeable to any lot owner, and fines, charges, late charges, penalties, attorney fees, and interest which may be levied on a lot owner, and unpaid utility fees and assessments charged to a lot owner, shall be the personal obligation of the lot owner at the time such assessment or charges becomes due. Such obligation may not be passed to a successor in title, unless expressly assumed by the successor, and such assumption is approved by the Association. All sums shall also constitute a continuing lien against such lot superior (prior) to all other liens and encumbrances, excepting only: 15.2.1 Liens for real estate taxes and other assessments against the lots in favor of any governmental assessing unit. 15.2.2 All sums unpaid on a first mortgage, deed of trust, or other encumbrance of record, including any unpaid obligatory sums as may be provided by encumbrance, except the lien shall have limited priority over such first mortgage, deed of trust, or other encumbrance as provided by the Act. 15.2.3 Liens and encumbrances recorded before the recordation of the Declaration, except as otherwise provided herein or by the Act. 7 If an assessment is payable in installments, each installment shall also constitute a continuing lien from the date it becomes due, including any valid acceleration date. 15.3 Waiver of Homestead Exemption. Each owner hereby agrees that the Association's Lien on a lot for assessments as hereinabove described shall be superior to the Homestead exemption provided by C.R.S. 38-41-201 et seq., and acceptance of conveyance in regard to any lot within the Subdivision shall signify such grantee's waiver of the homestead right granted in said article of the Colorado statutes. 15.4 Penalties: Notice of Lien. If any assessment shall remain unpaid after thirty days after the due date thereof, such unpaid sums shall bear interest from and after the due date thereof at the maximum rate of interest permitted by law, or at such a rate as is determined by the Board of Directors. The Board of Directors may impose a late charge and/or penalties on such defaulting owner as may be established by the Board. In addition, the Board of Directors shall be entitled to collect reasonable attorney's fees incurred in connection with any demands for payment and/or collection of delinquent assessments. To evidence such lien, the Board of Directors shall prepare a written notice setting forth the amount of such unpaid indebtedness, the name of the owner of the lot, and its legal description. Such a notice shall be signed by one (1) member of the Board of Directors and may be recorded in the office of the Clerk and Recorder of the County of Garfield, Colorado. 15.5 Foreclosure: Release of Lien. Such lien may be enforced by foreclosure of the defaulting owner's lot by the Association in like manner as a mortgage on real property, upon the recording of a notice of claim thereof. In any such foreclosure, the owner shall be required to pay the costs and expenses of such proceedings, the costs and expenses for filing the notice or claim of lien, and all reasonable attorney's fees. The owner shall also be required to pay to the Association any additional assessments against the lot during the period of foreclosure, and the Association shall be entitled to the appointment of a receiver to collect the same. The Board of Directors, for the Association, shall have the power to bid on the lot at foreclosure sale and acquire and hold, lease, mortgage, and convey the same. The Association, at its election, and in addition to any other remedies it may have at law or in equity, may also sue an owner personally to collect any monies owed the Association. Any recorded lien for nonpayment of the common expenses may be released by recording a release of lien executed by a member of the Board of Directors. 16. Enforcement of Covenants and Restrictions. 16.1 Right of Action. The Association, acting by and through its Board of Directors, shall have the right to prosecute any action to enforce the provisions 8 of all of the Covenants by injunctive relief, on behalf of itself and all or part of the owners of the lands within the Subdivision. In addition, each owner of the land within the Subdivision, including the Association, shall have the right to prosecute any action for injunctive relief and for damages by reason of any violation of these Covenants The prevailing party in any enforcement action shall be entitled to an award of its reasonable costs and attorney's fees. After thirty days written notice to any owner of a violation of these Covenants, and the owner's failure to eliminate or cure said violation, the Association, in addition to the other remedies set forth herein, may levy a penalty of $50.00 per day every day the violation exists or continues after the expiration of said thirty day period. 16.2 Limitations of Action. In the event any construction or alteration or landscaping work is commenced upon any of the lands in the Subdivision in violation of these Covenants, and no action is commenced within one (1) year thereafter to restrain such violation, then injunctive or equitable relief shall be denied, but an action for damages shall still be available to any party aggrieved. This one-year limitation shall not apply to injunctive or equitable relief against other violations of the Covenants. 17. Easements shown on Final Plat. The Association is entitled to use such easements as are reflected on the Final Plat for the Subdivision and that are conveyed to it by deed. Except by agreement with an owner, the Association shall have no obligation to pay any amount for the use and enjoyment of such easements. The Association shall pay for the cost of maintaining and repairing any improvements which it places on any easements. 17.1 Easements for Access. The Association may access all lots within the Subdivision at reasonable times to determine compliance with the conditions of approvals of the Subdivision granted by the Garfield County Commissioners and to determine and enforce compliance with all of the provisions of these Covenants. 17.1.1 Easements and Right -of -Way for Coryell Ditch. Easements and right-of- way for Coryell Ditch shall be as shown on the Final Plat and have unrestricted access from all roads as shown on the Final Plat for proper maintenance and repairs of the ditch by authorized personnel of the ditch companies and/or owners of water rights which flow through the ditch. Lot owners shall not restrict the flow of water, siphon, pump, or in any means transport water form the ditch without written authorization from the ditch owners and water right holders. Further, Association Members shall assist in keeping ditches free of refuse and debris as is needed and promptly contact the ditch owners in the event of any leakage, overflow or other detrimental occurrences relating to the ditch. 17.1.2 Easements and Right -of -Ways for Ingress, Egress, and Utilities for Properties Outside the Subdivision. Easements and right-of-ways for ingress, 9 egress, and utilities serving properties lying outside the boundaries of the Subdivision shall be as indicated on the Final Plat. The Association and/or Declarant shall enter into specific agreements/contracts with the owners of said properties, prior to any construction or use, defining the cost, responsibilities for maintenance, repairs, and replacement relating to easements and right-of-ways. 17.2 Easements for Utilities. Easements and rights-of-way in perpetuity are hereby reserved for the erection, construction, maintenance, and operation of wire, cables, pipes, conduits, apparatus for the transmission of electrical current, telephone, television and radio lines, and for the furnishing of water, gas, or for the furnishing of other utilities together with the right to enter for the purpose of installing, maintaining, repairing, replacing, and improving the same along, across, upon, and through all roadway easement, right-of-ways, and utility easements and right-of-ways as shown on the Final Plat of the Subdivision. 18. Roadways. All roadways in the Subdivision shall be dedicated to the public. Such roadways shall be subject to an easement and right-of-way for ingress and egress for the installation and maintenance of utilities as provided in Paragraph 17.2 , above. The costs for maintenance, repairs, and snow removal shall be funded by fees collected as assessments by the Association. 19. Domestic Water. The domestic water supply shall be from a central water system, which shall be operated by the Association, except in the event the Town of New Castle should be desirous to accept dedication of the water supply system. Such water shall be for domestic in-house use only excepting the exterior watering of no more than 3,000 square feet of lawn and garden will be permitted. All water use shall be metered by the water meters approved by the Town of New Castle. Agreements and/or additional Rules and Regulations concerning the use and operation of the water system may be executed, proposed, and adopted by the Association and/or the Town of New Castle to allow for the efficient use and operation of such system. 20. Lighting. The ACC shall consider exterior lighting plans and will recommend that all exterior lighting (with possible exceptions for lighting necessary for safety) be directed towards the applicant's property. It will also recommend that all lot owners make every effort possible to limit the use of exterior lighting at night. It shall encourage Owners to build in such a fashion that all light sources not be directly visible from outside of the Owner's property. The intent behind these considerations is to preserve the rural character of, and wildlife presence in the Subdivision by limiting exterior lighting as much as possible while maintaining a safe atmosphere. 21. Architectural Control Committee (ACC). 10 21.1. No improvements of any kind, including, but not limited to, dwelling houses, garages, fences, parking areas, drives, antennas, flagpoles, walks, and every other type of improvement, shall ever be constructed or altered on any lands within the Subdivision, nor may any vegetation be altered or destroyed, nor any landscaping performed on any tract unless three (3) complete sets of plans and specifications for such construction, alteration, or landscaping are submitted to the ACC and approved in writing prior to the commencement of such work. All decisions of the ACC shall be in writing. One (1) set of plans and specifications shall remain on file and become a permanent record of the ACC. If the ACC fails to take any action within thirty days after complete plans have been submitted, then all such plans shall be deemed to be approved; provided, however, that no uses may be authorized or deemed approved unless adequate water resources are available to sustain such use. This provision is not to be construed to require plans for the planting of gardens and the planting of flowers and decorative plants immediately adjoining the main dwelling or on decks or patios. 21.2 The ACC shall exercise its best judgment to see that all improvements, construction, landscaping, and alterations on the land within the Subdivision conform to and harmonize with the natural surroundings and with existing structures as to extemal design, materials, color, setting, height, topography, grade, and finished ground elevation. The ACC shall protect the seclusion of each homesite from other homesites as much as possible and shall adhere to United States Forest Service and Colorado State Forest Wildfire Prevention Guidelines. 21.3 Plans and specifications submitted under Paragraph 21.1 hereof shall show the nature, kind, shape, height, materials, floor plan, building elevations, location, exterior color scheme, alterations, grading, and all other matters necessary for the ACC to properly consider and make a determination thereon. The applicant shall also submit a plan showing any proposed landscaping or revegetation required to restore disturbed areas, together with a schedule for the completion of such work . The ACC shall disapprove any plans submitted to it which are not sufficient for it to exercise the judgment required of it by these Covenants. 21.4 The ACC may grant a reasonable variance or adjustment of these conditions and restrictions in order to overcome practical difficulties and prevent unnecessary hardship arising by reason of the application of the restrictions contained herein. Such variances or adjustments shall be granted only in case the granting thereof shall not be materially detrimental or injurious to other property or improvements of the neighborhood and shall not defeat the general intent and purpose of these Covenants. 11 21.5 The ACC shall not be liable in damages to any person or association submitting any plans for approval or to any owner by reason of any action, failure to act, approval, disapproval, or failure to approve or disapprove with regard to such plans. 21.6 The initial members of the ACC shall be: Mary Jolley Brett Jolley Jeanne Jolley The initial address for the official correspondence with the ACC shall be 1288 County Road 245, New Castle, CO 81647. A majority of the ACC may designate a representative to act for it. Should a member resign or become unable to act, the other members shall appoint a successor. Subsequent to the sale of all lots, one or more members may be replaced by written designation recorded in the Garfield County Clerk and Recorder's Office showing approval by the majority of the owners. 22. Insurance. 22.1 Not later than the time of the first conveyance to an owner other than the Declarant, the Association shall, to the extent reasonably available, obtain and keep in full force and effect the following coverage: 22.1.1 Property insurance on the common elements as provided by the Act. 22.1.2 Commercial general liability insurance as provided by the Act. 22.1.3 Coverage for members of the Board and officers of the Association, including committee members, against libel, slander, false arrest, invasion of privacy, errors and omissions, and other forms of liability generally covered in officers and directors liability policies. 22.1.4 Any additional coverage required by the Act or other laws. 22.2 The Board of Directors, at its discretion or if otherwise required by law, may elect to secure fidelity coverage against the dishonesty of employees, destruction or disappearance of money or securities, and forgery. This policy shall also cover persons who serve the Association without compensation. The Board of Directors may maintain coverage against such other risks of a similar or dissimilar nature as it deems appropriate. 12 23. Covenants Run With the Land. These Covenants are to run with the land and shall be binding upon all parties and all persons claiming under them until the year 2015, at which time said Covenants shall be automatically extended for successive periods of ten years unless by vote reflected by signed documents duly recorded by the majority of the then owners, it is agreed to change said Covenants in whole or in part. 24. Termination of Covenants. These Covenants may be lawfully terminated pursuant to any applicable laws of the State of Colorado and Garfield County, Colorado, and the provisions herein contained. 25. Amendment of Declaration. Except for the right of the Declarant to amend this Declaration or sections which give the Declarant rights, as specified herein or by law, this Declaration may be amended by the vote of sixty-seven percent of the votes entitled to be cast by the members of the Association. Any amendment shall become effective upon recordation, provided a properly certified copy of the resolution of amendment is placed on record in Garfield County, Colorado, no more than six (6) months after said meeting. 26. Notice of Lot Owners. Written notice of matters affecting the Subdivision Association shall be sent to all unit owners by delivering such via regular first- class mail to the addresses of such owners. All owners shall register with the Association an address for delivery of such notice and shall timely notify the Association of any change of address. 27. Limited Liability. The Association and the Board shall not be liable to any party for any action or for any failure to act with respect to any matter if the action taken or failure to act was in good faith without malice. The owners severally agree to indemnify the Association and the Board against loss resulting from such action or failure to act if the Association and the Board acted or failed to act in good faith and without malice. 28. Declarant Control. The period of Declarant control of the Association shall terminate sixty days after conveyance to the owners other than the Declarant of seventy-five percent of the lots that may be created. Not later than sixty days after conveyance to owners other than the Declarant of twenty-five percent of the Tots that may be created, at least one (1) member and not less than twenty- five percent of the members of the executive board must be elected by the lot owners other than the Declarant. Not later than sixty days after conveyance to owners other than the Declarant of fifty percent of the lots that may be created, not less that 33.3 percent of the members of the executive board must be elected by the lot owners other than the Declarant. 13 29. Future Development. All persons purchasing Tots in The Cedars PUD Subdivision shall take ownership subject to the development rights of the Declarant as herein set forth and agree to not object to development of the property. 30 Rights Transferable. Any special Declarant right or additional right created or reserved under this Declaration for the benefit of the Declarant may be transferred to any person by an instrument describing the rights transferred and recorded in Garfield County. Such instrument shall be executed by the transferor Declarant and the transferee. 31 Severability. The invalidation of any one of these Covenants by judgment or court shall not affect any of the other provisions which shall remain in full force and effect. DATED this day of , 1995. THE ELK CREEK DEVELOPMENT CORPORATION By Kent Jolley, Vice President State of Colorado County of Garfield The foregoing instrument was acknowledged before me this day of , 19 by My Commission expires: Witness my hand and official seal. Notary Public 14 STATE OF COLORADO OFFICE OF THE STATE ENGINEER Division of Water Resources Department of Natural Resources 1313 Sherman Street, Room 818 Denver, Colorado 80203 Phone (303) 866-3581 FAX (303) 866-3589 October 18, 1995 Mr. Mark Bean, Planning Director Garfield County Building and Planning 109 8th Street, Suite 303 Glenwood Springs, CO 81601 RE: The Cedars PUD Subdivision NE1/4, SE1/4, Section 25, T5S, R91W, 6th P.M. Water Division 5, Water District 39 Dear Mark: 17 717 , r4717.3 ,f 159.5 ay Romer Governor James S. Lochhead Executive Director Hal D. Simpson State Engineer On August 25, 1995 our office received additional information from Steve Rippy, Mayor of the Town of New Castle, regarding New Castle's ability to supply water for the proposed Cedars Subdivision. A copy of Mr. Rippy's letter, without attachments, is enclosed. The Town of New Castle's analysis indicates that it's water supply is legally and physically able to support 741 EQRs. An EQR is defined as the water needed to supply a single family residential housing unit containing 3.5 people and the irrigation of 2500 square feet of lawn and garden. Currently, the Town is serving 570 EQRs and has a reserve capacity of 171 EQRs. The Town also indicates that is has committed 10 EQRs of the 570 to the Cedars Subdivision. Based upon the information provided, it appears that the Town can supply the proposed subdivision without causing injury to other water rights. Should you have further questions or comments regarding the water supply for this project, please contact me at the above address. DJ F/df cc: Orlyn Bell, Division Engineer Jim Lemon, Water Commissioner Steve Rippy, Mayor, Town of New Castle Sincerely, 7/ - David J. Fox Professional Engineer 1. August 14, 1995 Mr. David J. Fox Office of State Engineer Division of Water Resources Dept. of Natural Resources 1313 Sherman Street, Room 818 Denver, Co. 80203 RE: Cedars PUD Subdivision, NE 1/4, SE 1/4, Section 25, Township 5S, Range 91 West, 6th Principal Meridian, Water Division 5, Water District 39 Dear Mr. Fox: Per a resolution of concern with the approval of a preliminary plan for the Cedars PUD Subdivision, the Town of New Castle is responding to item 11 of the Conditions of Approval which states "the applicant shall be required to address the issue of material injury, consistent with C.R.S. 30-28-136 (1)(H)(II) and the referral letter from the State Engineer dated July 7, 1995. Prior to final plat, compliance with this condition shall be verified by a letter of approval from the State Engineer, based on submittal of water rights and available water from the Town of New Castle". To provide you with this information, the Town of New Castle is submitting the following information for your review: 1. Two tables which are entitled "Town of New Castle Compilation of EQR's in New Castle". 2. Town of New Castle EQR calculation worksheet. 3. Data/information for planning for New Castle, Colorado. 4. Water Rights worksheet (without consideration of Castle Valley Ranch). 5. Water Rights worksheet (with consideration of Castle Valley Ranch). 6. Letter from Resource Engineering, Inc. dated July 25, 1995 to Mr. Steve Rippy, Mayor, Town of New Castle. In referring to the data attached, you will note that the compilation of EQR's in New Castle, EQR calculation worksheet and the data/information for planning attachments work hand in hand to identify the demand upon New Castle's water system. Once a known demand is identified upon the water system, that figure can be directly correlated to the legal and physical water rights available to the Town as a supply. To briefly review the demand EQR counts for the Town of New Castle, a matter that is potentially August 14, 1995 Mr. David Fox Page 2 confusing must be clarified. In referring to the Resource Engineering Report to the Town of New Castle, you will note that although the Town of New Castle's existing water right out of East Elk Creek is 2.67 cfs, the physical supply to that water right is anticipated to be 0.9 cfs in the low flow year. Given that consideration, the Town of New Castle's physical (as linked to legal) supply for the town itself is able to support 741 EQR's. This 741 EQR's must be directly correlated back to the demand on the system identified in Table 1 of the compilation of EQR's in New Castle. This number is identified as being at 569.95 EQR's or 570 EQR's. Therefore, the town has a reserve capacity of 171 EQR's available. Please note that these calculations include the 10 EQR units committed by the Mayor to the Cedars Subdivision PUD. When considering the town's water rights in comparison to the service when including Castle Valley Ranch, the 0.9 cfs low flow water right is no longer applicable. As a further review of the Resource Engineering report is performed, you will note that an exchange in water rights (or diversion) by the developer of Castle Valley Ranch must occur by a rate of 0.02 cfs for every 10 units on line. Therefore, in referencing the second water rights worksheet, an additional 0.382 cfs is available to the town for the augmentation of water required for the development within Castle Valley Ranch itself. This in turn would support 1 .282 cfs or 1 ,056 EQR's. This particular number would relate back to the compilation of EQR's in New Castle (Table 2) which includes all of the commitments the town has made including Castle Valley Ranch as of August 1, 1995. This comparative number is 761 EQR's. Therefore, the Town of New Castle feels that it does have available water to provide the 10 additional out of district or out of town water taps to the Cedars PUD Subdivision. Upon review of this report if you have any questions or comments, please don't hesitate to call. Sincerely, TOWN OF NEW CASTLE Steve Rippy, Mayor JSS/93128.3