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Home My WebLink About20013190 KB HOME October 15, 2001 Via Facsimile and Regular Mail Mr. Rick Ring Director, Department of Transportation St. Vrain Valley School District RE-1J 395 South Pratt Parkway Longmont, Colorado 80501 Re: Designation of School Bus Stop for the Idaho Creek Community Dear Mr. Ring: As you may know, KB Home Colorado Inc. will be building approximately 351 single-family detached home's in the Idaho Creek Subdivision that is located approximately .25 miles southeast of the intersection of Highway 119 and County Road 7 '/s (immediately south of Stagecoach Road). I have enclosed a general site plan for the project for your reference. Based on recommendations from Ryan Carlson (the Seller/Developer of the property) and Weld County Sheriffs Department, I would like to propose that the bus stop location for this Community be located in the park area at the intersection of Idaho Creek Parkway and Forester Place. The paved width of these roadways will be a minimum of 40 feet. The proposed route of the bus is also depicted on the enclosed general site plan. Additionally, as part of the conditions for approval made by Weld County, we are to provide an all weather shelter for school and possible future public transportation. It is our understanding that neither the School District nor Weld County, have developed design standards for such a shelter. Also enclosed is a copy of the proposed bus shelter as reviewed and approved by Weld County Sheriffs Department. Please provide any comments you may have concerning this shelter and/or the proposed bus stop location. If, both the bus stop location and the shelter meeting with your requirements, please sign below and return a copy of the executed letter to this office via facsimile to (303) 773-6704. If you have any other questions,please call me at(303) 220-6047. Sincerely, KB HOME COLORADO INC., a Colorado corporation By: Robert M. Caravona Project Manager 2001-3190 KB HOME COLORADO, INC. 8401 EAST BELLEVI EW AVENUE, SUITE 200 DENVER, CO 80237 sly./- �.54/ 17 / TEL 303 220 6000 FAX 303 773 1930 KBHOME.COM 0jF-- �T/��' L(JYLJL/r-G C�L�/ ,. 1J-/y-,2 Mr. Rick Ring October 15, 2001 Page 2 The undersigned, as the Director of the Department of Transportation for the St. Vrain Valley School District RE-1J, finds that both the bus stop location and the design of the shelter meet the requirements of the School District. Date: Signature Printed Name . . . . . . . . . . . . . . . . . . . . . _oAA • a.. 4,,,,,„............. . : : . . . . Niii . . . . . . . . . . � � 4Avo�� 4 � • e� E @ �� Op��i�©Owl Q 4A�(B u►,_ as �►, !o a �Q oa' ns ��I mod' •• °►� 1 an '00 ri ` ©i 0© , r ' •frlii 41111 PAW na EC .a Enun _ - _ i \ i Imo *le I _ O �� *Ai eeII°� , ,... a �� 771 `I t, �© ai111hYc4gj gik n - :. 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UGHT LOCATIONS TO HVE FINAL APPROVAL BY UNITED POWER. O O n 12 r� 4. cn c v I y CO BUS SHELTER 1/4-=1 '-o" BUS SHELTER INFORMATION: A. MODEL: APEX SP-12 MADE BY CENTRAL DENVER IRONWORKS, INC OR EQUAL. 12' X 12' SHELTER WITH SQUARE COLUMNS AND HI-COR ROOF TO MATCH COLOR OF ROOF OF PLAY AREA (FOREST GREEN). m B. REFER TO THE 12' X 12' SHELTER SPECIFICATIONS AND DETAIL DRAWINGS PROVIDED BY IRON WORKS C. REPRESENTATIVE: RECREATION PLUS, LTD 15209 WEST ELLSWORTH DRIVE GOLDEN, COLORADO 80401 (303-278-1455) OR FAX (303-278-1606) 1; KERR-MCGEE r,var '.:u" 1999 BROADWAY SUITE 3600 • DENVER,COLORADO 80202 Weld County Planning Dept, October 8, 2001 r Cr 1 0 ?G01 RECEIVED Ms. Monica Daniels-Mika Weld County Planning and Zoning 1555 North 17th Avenue Greeley, CO 80631 Via Facsimile and U.S. Mail Re: Idaho Creek PUD (S #554 - Idaho Creek) Township 2 North, Range 68 West, Section 10: E/2NW/4, W/2NE/4 Weld County, Colorado Dear Ms. Daniels-Mika: Carlson Associates and Kerr-McGee Rocky Mountain Corporation, the successor to HS Resources, Inc. have reached an agreement covering the development of the surface by both parties. Kerr-McGee as owner of the right to development the oil and gas under this tract will not drill any wells within the proposed boundaries of the Idaho Creek Planned Unit Development. Kerr-McGee has no objections to Weld County approving the final plat for the Idaho Creek Development. Please contact me at (303)296-3600 x 220 if you have any questions. Sincerely, KERR-MeGEE ROCKY MOUNTAIN CORPORATION V‘40- Melvin R. Stahl Landman CC: Ryan Carlson Marvin Dyer September 12,2001 Monica Mica-Daniels Weld County Planing&Building Inspection 1555 North 17th Avenue Greeley,Colorado 80631 Re: SIA Idaho Creek Dear Monica: Please find enclosed the"Improvements Agreement According Policy Regarding Collateral for Improvements". Per discussions with Don Carroll, Engineer of Weld County, Engineer Cost Estimates have been provided for the total project as well as the individual phases and off-site improvements. The project is a three-phased project. The first phase,as indicated on the attached phase plan, includes the park,which commences this fall. The off-site improvements of constructing Weld County 7 1/2 also will begin this fall. The intention is to have finished lots available for sale in November and model completion by January 2001. If there should be a problem, concern or issue with this application or other matters,please contact me at via phone at the following: (303)220-6047(office)or(303)358-2451 (mobile). Sincerely, Bob Caravona Project Manger,Forward Planning KB HOME COLORADO INC. 8401 E. BELLEVIEW AVENUE SUITE 200 DENVER, CO 80237 TEL 303 220 6000 FAX 303 773 1930 KBHOME.COM MEMORANDUM WIlDTO: Don Carroll, Engineering Administrator COLORADO• DATE September 9, 2001 FROM: Kim Ogle, Planner II SUBJECT: Material hauling for Idaho Creek Subdivision (S-460) The Department of Planning Services reviewed the facsimile letter dated September 5, 2001 from Ron Kellish, CFO for Bemas Construction Incorporated to Don Carroll, Weld County Department of Public Works requesting comment from the Department of Planning Services regarding the hauling of fill material from a Hall-Irwin pit on property located within the Town of Firestone. Given that Weld County Planning does not regulate the hours of operation for facilities within incorporated municipalities, this office has no conflict with the hours of operation. Please note, other County departments may have concerns and/or issues that shall be addressed prior to commencing operations. SEPH15-01 WED 03 : 22 PM WELD COUNTY PUBLIC -WKS7 FAX: 9703046497 PAGE -- 4.raC) BEMAS CONSTRUCTION INC. 6890$.TUCSON WAX•SUITE 105 ENGLEWOOD,CO 80112 September 5, 2001 Mr. Don Carol' Weld County Division of Public Works Dear Don: We have been contracted with-KB Home as well as Hall Irwin to provide excavation services in Weld County. In order to complete the job we will be loading and hauling dirt from the Hall Irwin Pit along State Highway 119 and hauling to the future KB Home project, Idaho Creek. The trucking operation is expected to begin the week of September 9,2001 and be completed in early November 2001. Based on experience we believe the most efficient and safest method of completing the trucking operation would be to perform all trucking during the night from 6:00 pm to 6:00 am- We therefore are requesting permission to perform our hauling operation during the night through completion of the project: In order to minimize any impact on.residents in the area we will only perform excavation operations on site during the day,therefore we will only be loading trucks on Hall Irwin's site and dumping on the KB Home site- Also, we will minimize the impact of the night haul by ensuring all trucks Maintain quiet brakes as well as minimize noise levels while accelerating and decelerating. All light plants will be pointed away from existing residents in the area, and when we have a choice of multiple areas to dump we will choose those areas furthest away from existing residents during normal sleeping hours. Again, this letter is only to provide a brief overview of the trucking operation,upon your request we will provide you with any other necessary information including a written traffic control plan, schedule, etc. in order to be granted the ability to perform our hauling during the night. Please call me with any further questions at (303) 662-0649.(office), (303)901-6552 (mobile), Thank you. • Sincerely, l� Post-rte Pax Note 7671 DOW j a o/ pa°ges� / .- - To K(w. From De,w I�. Re elfish Co./Des Chief Financial Officer Phone* Phone a Fax N Fax* v yyJt: --c 0A4-0 !S- Ct _ 0CAN-rAwry- V m4i. hrn FAX!(303)662-1878 OFFICE-(303)662-1871 \L, 'Yt".Zt. f"�* F IN woos use OPINION OF PROBABLE COST ON isi`- T WELD COUNTY DEPARTMENT OF PLANNING SERVICES 1555 NORTH 17T"AVENUE 46T Relate. GREELEY, CO 80631 970 353 6100 X 3540 970 304 6498 FAX PROJECT: IDAHO CREEK PLANNED UNIT DEVELOPMENT DATE: SEPTEMBER 17, 2001 DESCRIPTION QUANTITY UNIT UNIT PRICE TOTAL DECIDUOUS TREES 7+ EA 275.00 23925 EVERGREEN TREES @ 6 FEET HT. EA 275.00 1375 EVERGREEN TREES @ 8 FEET HT. 3+ EA 300.00 900 ORNAMENTAL TREES 10+ EA 225.00 2250 DECIDUOUS SHRUBS 116+ EA 22.00 2552 EVERGREEN SHRUBS 57+ EA 23.00 1311 GROUND COVERS EA PERENNIALS EA 6.25 NATIVE SEEDING (IRRIGATED) SF 0.04 NATIVE SEEDING (NON-IRRIGATED) SF 0.04 BLUEGRASS SOD SF FINE GRADING SF 0.015 WEED BARRIER SF 0.10 STEEL EDGING LF 2.35 GRAVEL FINES FOR 8'-0" WALKS/TRAILS SF 0.65 TOPSOIL/ORGANIC MATTER @ 3 CY/1000 FOR SF SEEDED AREAS TOPSOIL/ORGANIC MATTER @ 5 CY/1000 FOR SF PLANTERS/BEDS 3'-6"WITH 2"CAP LF 15.00 3-RAIL FENCE WITH 2X4 WIRE MESH LF 15.00 CEDAR RAIL AND PLANK PRIVACY FENCE KID BUILDER 103 PLAT STRUCTURE WITH CONC 1 EA FOOTINGS FIBAR SYSTEM 300 PLAY SURFACE SF 4"DIAM PERF PIPE UNDER DRAINAGE LF 4" DEPTH X 1" DIAM RIVER RUN ROCK SF TRADITIONAL PARK BENCH WITH CONC FOOTINGS EA PICNIC SHELTER EA PROJECT SIGNAGE EA ADA ACCESSIBLE RESTROOM FACILITY EA TYPICAL LOT LANDSCAPE PACKAGE 360 450.00 162,000 PEDESTRIAN SCALE LIGHTS EA STREET/BOULEVARD LIGHTS EA STREET/BOULEVARD PLANTING AND BERMING SUB TOTAL 10% CONTINGENCY TOTAL THIS PHASE Opinion of Probable Cost is based on known construction and industry standards. by: barney Chk'd: kogle PUBLIC WORKS DEPARTMENT Wel I DIPHONE (970) 356-4000, EXT. 3750 FAX: (970) 304-6497 C SITE www.co.weld.co.us BOX 758 1111 H STREET, P.O. BOX 758 O GREELEY, COLORADO 80632 COLORADO' March 6, 2001 Carlson P.O. Box 247 12460 1' Street Eastlake, Colorado 80614 Re: Idaho Creek Subdivision - Construction of WCR 7.5 Gentlemen: Your request for traffic impact fee credits for constructing portions of WCR 7.5 (within and north of the Idaho Creek Subdivision) and a traffic signal at State Highway 119 has been reviewed based on two principles. The first principle is whether the improvements qualify as a part of the Impact Fee Improvement Plans. The second principle is whether the improvements should be considered "a cost associated with development." Consideration for traffic impact fee credits for construction of the median for an additional two lanes of WCR 7.5 within and north of Idaho Creek Subdivision to State Highway 119, and the traffic signal at the intersection was presented to the Southwest Weld Road Impact Fee Committee on March 1, 2001 . The Committee approved the concept of granting credits for construction of the additional two lanes north of the subdivision to State Highway 119. The Committee denied your request for traffic fee credits for construction work on that portion of WCR 7.5 within the subdivision. The Committee denied inclusion of the traffic signal for impact fee credits. The signal is not part of the scheduled improvements included in the impact fee study. The cost of the traffic signal to Idaho Creek Subdivision has been prorated to 14% of the total signal cost. That amount will be requested as a part of the subdivision plat improvements agreement. For your information, the Road Impact Fee Committee's decision concerning credits may be appealed to the Road Impact Fee Board. If you decide to appeal, please contact Monica Daniels-Mika, Director of Planning Services. Carlson March 6, 2001 Page 2 It is the position of the Department of Public Works that all improvements to WCR 7.5 within the subdivision are the responsibility of the Idaho Creek Subdivision. The proposed subdivision borders both sides of the ultimate roadway improvement. The cost for these improvements should be considered "a cost associated with development." Phasing of the ultimate improvements of the subdivision will be acceptable depending upon the development plan. If you have further questions on these issues, please contact me. Sincerely, Frank B. Hempen, Jr., P. E. Director of Public Works/County Engineer pc: Monica Daniels-Mika, Director of Planning Services Idaho Creek Subdivision File Southwest Weld Impact Fee File WCR 7.5 file m:\wpfiles\fran k17.5impact.wpd I 47. C1Rjs®f \„ �.��. Er; 2/7 1)(4 12460 131 Stree: Eastlake, Colorado 301.,,14 ntfi ice. 303'45'-2439€ Fax. 203.'°50-2978 February 20, 2001 Ms. Diane Haughtaling Weld County Public Works Department 1111 'H' Street Greeley, CO 80632 Re: Construction of WCR 7.5 Dear Diane: During the processing of the "Change of Zone" for the Idaho Creek Subdivision,the County Commissioners granted the right to build one-half of WCR 7.5 as shown on the attached Exhibit A. The one-half roadway did not include any portion of the median,nor did it anticipate any construction to the existing half of WCR 7.5 lying north of our property. The Weld County Public Works Department has again requested that we construct a full section for WCR 7.5. This letter shall propose a compromise that should benefit all the parties. The owners of Idaho Creek propose to construct the remaining one-half of WCR 7.5 within the Milky Way Subdivision and the full width (110 feet) from the Milky Way property to the southern boundary line of the Idaho Creek Property. The owners of Idaho Creek will also be responsible for the construction o f a traffic signal at the intersection of WCR 7.5 and Hwy 119, and a pedestrian crossing at the southern boundary of the Idaho Creek Property. As consideration fore doing such,the developers of Idaho Creek will receive a full credit against the "Weld County Traffic Impact Fee" imposed on each single family home within the subdivision. The credit will be calculated solely upon the cost to build the remaining one-half of WCR 7.5 within the Milky Way property and the half of WCR 7.5 within Idaho Creek over and above that shown on Exhibit A. The developers will also receive a full credit against the cost to purchase and install the traffic signal at WCR 7.5 and Hwy 119 and the pedestrian crossing. In the event that the cost of one-half of WCR 7.5 and expense of the traffic signals is less than the total amount of the Traffic Impact Fees that would be collected on the single family lots, the remaining balance of fees will be prorated and collected at the time of issuance of building permits for each lot. The developer will provide Weld County with an accurate accounting of the cost of WCR 7.5 and the expense of the traffic signals in a timely manner. The developers shall be allowed to phase the improvements of WCR 7.5 and the traffic signal. The one-half of WCR 7.5 within Idaho Creek will be constructed before the first building permit is pulled. The remaining one-half of WCR 7.5 and the traffic signal will be installed before the 250th building permit is issued. This arrangement will also be more thoroughly detailed within the "Off- Site Road Improvements Agreement". Thank you for the time and consideration on this matter. If this proposal is agreeable to the Public Works Department, we would appreciate you assistance in informing the Weld County Planning Department and the Weld County Board of County Commissions that we have reached an consensus on this issue. • Sincerely, '64i-ley 132,L.L.C. (Owner) Parkwood Br , L.L.C. (Owner) RLC:jlc Enclosure: Exhibit A cc: Monica Daniels Weld County Planning Department PUD FINAL PALN, S #554-KENT CARLSON/IDAHO CREEK NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld County, Colorado, that the application of Kent Carlson/Idaho Creek for a Site Specific Development Plan and Planned Unit Development Final Plan, S #554, for 351 Residential lots in the Mixed Use Development area, on the above referenced parcel of land be, and hereby is, granted subject of the following conditions: 1. Prior to the Recording the Planned Unit Development Final Plat: Note, these conditions are required before recording the plat, not acceptance of the plat. Therefore, the opportunity to make further adjustment to the plat exists after the County Commission accepts the plat. A. The applicant shall submit and receive approval from the Weld County Attorney's office for the proposed covenants or other legal documents pertaining to the maintenance and ownership of the open space. A recorded copy of the approved covenants shall be provided to the Department of Planning Services. Please find within Exhibit 1, enclosed for your review, the proposed "Articles of Incorporation", "Bylaws" and "Declaration of Covenants, Conditions and Restrictions". The Land Use Table found on Sheet 2 of 6 of the plat declares these open space tracts as common elements. Section 1.8 of the Covenants defines "Common Elements". Section 8.2.1 describes restrictions and responsibilities of common elements. Note, this condition should be fulfilled prior to recording the final plat, not acceptance. KBHOME assumes the County Attorney will make timely recommendations to KBHOME for compliance and adjustments, if any. A copy of the approved and recorded covenants will be provided to the Department of Planning Services once the final plat is recorded. B. The applicant shall receive approval for the proposed Landscaping and Site Amenities Plan. The plan shall meet the requirement of Section 27-2-100 of the Weld County. The Landscaping Plan shall include site amenities for the open space and park areas to include,but not limited to,park benches, lighting, signage, fencing, and pathways/trails. Rather than the 8 1/2"x 14"copy of the Landscape Plan that has been previously referred to in informal discussions,for ease of reference I enclosed a full set of 1 Landscape Plans at 24"x 36"which has site amenities for open space and park areas indicated. Said areas include park benches, signage,fencing and pathways/trails. This is compliant with Section 27-2-100. Also, see Exhibit 2 for lighting fixtures and types as indicated throughout the landscape plan which are also subject to United Power's approval. Per our conversation on October 11, 2001, Landscape sheet 8 shows the trail improvements and water bodies. At said meeting,you were looking for the improvements for that particular area since it did not show upon the plat. C. The Final Plat shall not be recorded until an Improvements Agreement or contract has been entered into and received approval by the Board of County Commissioners. Any such agreement or contract shall be made in conformance with the Weld County Policy on Collateral for Improvements. Per conversations with Don Carroll, Weld County Engineer,please find enclosed in Exhibit 3, Weld County's standard Subdivision Improvements Agreement in the amount of$5,289,887 for the overall project as well as pro rata per phase. Per Mr. Carroll's instructions, the SIA represent the projects total cost which are then broken-out according to the designated phases within the approved subdivision as well as off-site improvements. Rob Thomas of Mahhard Engineering left voice messages with Mr. Carroll concerning the pedestrian walk. $20,000 has been allocated for conduit and pedestrian flashing signal. What is at question is whether or not the pedestrian signal is the developer's responsibility. D. The applicant shall provide evidence that all possible class three mineral extraction has occurred on this site. Per the checklist provide on October 11,2001, this condition has been met. E. The applicant shall provide evidence that the Weld County Department of Public Works and the St. Vrain School District have agreed to the school bus pick up location. Conversations with the Sheriff's Department occurred with Ryan Carlson and Valerian Consultants. The optimal safety location is at the Corner of Forester Place and Idaho Creek Parkway. They also agreed upon a proposed bus shelter 2 for said location as well. The shelter had to be placed within the park, thereby eliminating the need for an `elephant ear pull-out'. The bus stop is centralized within the subdivision and permits an approach the allows curbside pick-up. Along with the bus shelter, the final proposed route is indicated on a map in attached Exhibit 4. Lastly, Saint Vrain School District has never required construction of bus shelters in other new subdivisions. Hence, they do not have a typical bus shelter design. Therefore, a 12'x 12'shelter is submitted to Weld County Planning as recommended. However, a smaller design may be more appropriate to fit neighborhood's subdivision scale and bulk. KBHOME sent a formal approval letter to the District and is waiting for the signed copy from Mr. Ring who returns on October 17, 2001. Input was received from Mr. Ring's administrative assistant during his absence. Although an important community issue, the centralized location of the bus stop and shelter should meet the intent of condition,1.E, as well as subsequent condition 1.N.4. Since standards do not exist, nor has there been precedence of school bus shelter design, KBHOME and consultants had to use their best judgement. KBHOME welcomes any input and guidance to reasonably amend its proposal. F. The applicant shall revise the open space agreement to show the future owner of the 50 acres of defined open space parcel as the Homeowners Association or a nonprofit agency as previously defined. All other defined open space falls under the responsibility of the Homeowners Association. Per the Land Use Table found upon sheet 2 of 6 the open space, the open space and common areas are appropriately defined with maintenance responsibility as "HO.A or Assigns". The covenants reflect the ability to assign such open space should a non-profit agency (i.e. a nature conservancy) desire to acquire and maintain the open space. See also Condition A listed above for further explanation of the common element. G. The applicant shall provide evidence that the signed agreement has been reached between the applicant and HS Resources. Please see Exhibit 5 that contains the letter addressed to Ms. Monica Daniel- Mica and dated October 8, 2001 from Kerr-McGee, successors of HS Resources, 3 stating that ". . . have reached an agreement covering the development of the surface by both parties. " H. The applicant shall provide an electronic file of the Plats in Auto Cad 2000 version to the Department of Planning Services. Once the final plat has been approved(along with any conditional corrections), an Auto Cad 2000 electronic file of the Plats will be provided. I. The applicant shall provide the construction plans for the utilities showing the location of the fire hydrants, the size of water mains, and available fire flows to the Fire District for review and approval. Spacing between hydrants should not exceed 500 feet, and a hydrant located within 250 feet of the front of the property lines of all lots is required. A minimum fire flow of 1,000 gallons per minute (g.p.m.), measured at a residual pressure of 20 pounds per square inch (p.s.i), is required for one and two family dwellings not exceeding 3,600 gross square feet. Hydrants shall be spaced no more than 300 feet apart in commercial portions of subdivisions (the school site) and a minimum fire flow of 2,500 g.p.m., at access roads is required. The installation of fire hydrants, water mains, and access roads is required to parallel construction and storage of combustible materials on site. Construction drawings depicting these elements have been approved per the Weld County stamped copies of construction drawings dated 5/7/01. J. The applicant shall provide the Fire District with an eight and one-half by eleven- inch map of the subdivision showing the street configuration, street names, hydrant locations and addresses of the lots. After the final plat has been approved, it is typical the subdivision is addressed. Once Weld County's numerator provides the addresses, an 8 1/2"x 11"map will be provided. Due to the large scale of this project, KBHOME will also provide 24"x 36" copies such the addresses are legible. K. The applicant shall demonstrate that the proposed improvements at State Highway 119 have been included in the plan and bonded. Per the conditions and requirements of the SIA, these costs have been provided. L. Current plans submitted for Weld County Road 7.5 propose construction of only two lanes of the ultimate roadway. If the Board of County Commissioners decline to require the applicant build all four lanes of the roadway, the 4 Department of Public Works requires sufficient roadway design to ensure the second of two lanes of the roadway plus the median can be constructed. KBHOME provided funds for two lanes which is sufficient to serve the needs of the subdivision. 'flour lanes are desired, then a cost sharing or county reimbursement agreement is required. However, said agreement discussions should not hinder the acceptance of the enclosed SIA and final plat application for negotiations could proceed afterwards. M. The applicant shall receive approval from the Weld County Department of Public Works for the revised Drainage Study, which was submitted on February 24, 2001. Has been approved per the Weld County stamped copies of construction drawings dated 5/7/01. N. The Plat shall include the following: 1. A redesign of the oil and gas buffer to be in conformance with a 250- foot oil and gas setback. Sheet 4 of 6 on the plat displays the "250' Oil Well Setback" circumference. 2. The intersection sight distance triangle shall be shown on the plat. Plat sheets 3 through 6 graphically display the site triangles with a shaded gray area. 3. One designated school bus drop off and pick up area. This facility shall be designed to provide and all weather facility for the students. Statutory plat requirements do not include displaying bus shelters. However, the 24"x 36"submitted landscape/site improvements plan displays the bus location within the central park at the intersection of Idaho Creek Parkway and Forester Place on Tract N. KBHOME recognizes and accepts the requirement to construct said shelter. 4. A Fencing Plan, including, and not limited to, the Oil and Gas Buffer area shall be reviewed and approved by the Weld County Sheriff's Office and the Department of Planning Services staff. The Fencing 5 Plan shall contain all security issues related to the ponds, ditch, and oil and gas areas defined on the plat. Discussions between Valerian and the Sheriffs Department determined a 6'fence should be constructed to enclose the non- potable water pond located upon tract M. Please see the enclosed Landscape Plan for sheet L5 displaying that 6'privacy fence for this area. According to Rick Dills of the Sheriff's department, a letter stating the requirements were mailed to Carlson's as well as a copy forwarded to the Weld County Planning Department. KBHOME strongly believes the ponds in the open space area (a.k.a. Open Classroom) located in Tract L should not be fenced. By doing so, the intent of keeping beauty of nature and wild life in an undisturbed state is compromised. Discussions with Rick Dills on October 15, 2001 confirmed and concurred with this belief and planning issue. 5. All rights-of-way reservations shall be delineated on the plat. Complies. 6. A listing of all tract designation and type of trail construction in each defined area. The plat and landscape plan both show trail locations. The approved resolution's recitals state the trails are to be of hard surface or concrete. Weld County Planning desires steel edging to maintain rough fines. Weld County Planning indicated it would consider an alternative edging material. Many discussions occurred with the Weld County Planning staff and KBHOME consultants concerning surface type and edging. At the center of discussions, KBHOME has safety and liability concerns of installing a steel edge materials that could become worn and torn, thereby potentially exposing sharp,jagged edge to pedestrians. Please recall, the trails will be heavily used as they are part of the Open Classroom and are in close proximity to the future school site. KBHOME recommends using a recycled asphalt material that is environmentally sound and would not require the installation of a steel edge. 6 Direction is requested to the appropriate surface and/or edging. 7. Typical sections for internal and external roadways shall be provided. The required right-of-way for internal and external roadways shall be dedicated to the County. Right of Ways are indicated upon the plat with appropriate dedications. Usually, `typical sections'are not called out upon the plat but are usually found within the County construction standards or Construction drawings. Construction Drawings dated 5-7-01 have been approved by Diane Houghtaling, Weld County Engineer. 8. The proposed public parking areas as defined in the open space/school site location must be Americans with Disabilities Act (ADA) compatible and meet the design criteria of Weld County Departments of Public Works and Building Inspection. Appropriate lighting shall be required and approved by the Weld County Department of Planning Services. Per the October 11, 2001 meeting with Ms. Monica Daniels-Mica, the areas were added to the plat. In addition, see Landscaping sheet L-8. Typical lighting cut sheets have been provided as shown in Exhibit 2. 9. At the intersection of Idaho Creek Parkway and Weld County Road 7.5, the applicant shall place the appropriate conduit in the pavement for the eventual construction of the pedestrian crosswalk approved by the Department of Planning Services. Per the October 11, 2001 meeting with Ms. Monica Daniels-Mica, Rob Thomas of Manhard included the conduit costs within the SIA along with a flashing pedestrian light. Once again, an outstanding issue is the signalized crossing device to be used at the site and who pays. 10. The location and type of signs, including open class room shall be placed on the plat. All signs shall adhere to Section 26-2-90 of the Weld County Code. See Landscape L-14 for signs. Sign specification and copy are typically not incorporated into a plat. A site plan or landscape plan is typically where one finds sign specifications. As part of the landscape plan,please see sheet L-14 for informational signs. Please note, KBHOME is bound to these improvements shown on the landscape plan. 11. The vicinity map of the site shall be defined to include the entire site. Complies, see sheet 1 of 6. 12. The reference to the rest station areas shall be relabeled as information areas. Not located upon the plat however shown upon site improvements/landscaping plans. 13. The certificate of approval shall be redrawn to show a signature block for the Board of County Commissioners. Complies. See sheet 1 of 6 in the lower right corner 14. The following Utility Board conditions shall be placed on the plat: a. The Rural Ditch shall be delineated with a thirty (30) foot easement and identified on the Utility plan Complies. The appropriate Rural Ditch Easement, recorded at reception number 2735734, is indicated upon sheets 4 of 6 and 6 of 6. The approved utility plan dated 05/07/01 displays this requirement. b. All space with tracts A through K and M, shall be identified on the Utility Plan The approved utility plan, dated 05/075/01 displays this requirement. c. The open space adjacent to Weld County Road 7.5 and Lots 26 through 29,Block 2, shall be identified as a tract and be used as a utility corridor. Complies. Tract I is clearly defined on the Land Use Table as Drainage and utility. 8 2. Prior to Building Permits: The following conditions concern building permits which do not pertain to the platting procedure. KBHOME recognizes these conditions as they pertain to obtaining building permits. A. Proper building permits shall be obtained prior to any construction, remodeling, demolition or excavation. B. Building permits are required for an accessory buildings being constructed or moved onto the property. C. Separate building permits are required for all monument signs. Signs shall adhere to Article IV, Division 2 of the Weld County Code and Appendix 26-M of the Weld County Code as applicable. Engineering may be required. D. Engineered foundations are required for all primary residences and may be required for accessory buildings. Engineered foundations shall be based on a site specific geotechnical report or an open hole inspection performed by a Colorado licensed engineer. Any fill material shall contain no rock or similar irreducible material with a maximum dimension greater than 12 inches. All fills shall be compacted to a minimum of 90 percent of maximum density. Engineering reports shall be supplied for all fill material. E. All buildings or structures shall maintain distances from property lines and adjacent buildings as outlined in Table 5-A of the 1997 Uniform Building Code. F. Development documents shall be supplied to the appropriate fire district for its review. G. Effective December 1, 1999, Building Permits issued on the proposed subdivision will be required to adhere to the fee structure of the Southwest Weld Road Impact Program Area 1 as stated in Chapter 20, Article II of the Weld County Code. 3. The Final Plat is conditional upon the following being placed on the Final Plat as notes prior to recording: A. Utility provisions shall be placed on the plat in accordance with those utilities approved by the Utility Board and each utility provider. Complies. See sheet 2 of 6,plat note 3. B. The Bulk Requirements and setbacks as approved at the time of the Change of Zone shall be delineated on the plat and shall apply to all parcels in this subdivision. 9 Complies. See sheet 2 of 6, note 4. C. As stated in Chapter 26 of the Weld County Code, the maximum lot coverage shall not at any time exceed fifty percent (50%). Complies. See sheet 2 of 6,plat note 4. Complies. In addition, many discussions with various staff members occurred about Weld County definition of lot coverage. KBHOME's product offering and covenants and restrictions incorporate said limitation. D. Setbacks to oil and gas facilities shall be 250 feet. Complies. See sheet 2 of 6,plat note 6. For graphical representation, see sheet 4 of 6, Tract B. E. All construction or improvements occurring in the flood plain as delineated on Federal Emergency Management Agency (FEMA) Community Panel Map 080266 0850 C, dated September 28, 1982, shall comply with the Flood Hazard Overlay District requirements of Chapter 23 of the Weld County Code. Complies. See sheet 2 of 6,plat note 7. F. The site shall maintain compliance at all times with the requirements of the Weld County Departments of Public Works, Public Health and Environment, and Planning Services. Complies. See sheet 2 of 6,plat note 8. G. Educational facilities shall fall under the building and electrical requirements of the State of Colorado. Complies. See sheet 2 of 6,plat note 9. H. Water service shall be provided by the Left Hand Water District and sewer service provided by the Saint Vrain Sanitation District. Complies. See sheet 2 of 6,plat note 10. I. The applicant shall obtain a Storm Water Discharge Permit from the Water Quality Control Division of the Colorado Department of Public Health and Environment, if required. Slit fences shall be maintained on the down gradient portion of the site during all parts of the construction phase of the project. 10 Complies. See sheet 2 of 6,plat note 11. J. During the development of the site, all land disturbance shall be conducted so that nuisance conditions are not created. If dust emissions create nuisance conditions, at the request of the Weld County Health Department, a Fugitive Dust Control Plan must be submitted. Complies. See sheet 2 of 6,plat note 12. K. In accordance with the Regulations of the Colorado Air Quality Control Commission any development that disturbs more than five acres of land must incorporate all available and practical methods which are technically feasible and economically reasonable in order to minimize dust emissions. Complies. See sheet 2 of 6,plat note 13. L. If land development creates more than 25 acres of contiguous disturbance, or exceeds six months in duration, the responsible party shall prepare a Fugitive Dust Control Plan, submit an Air Pollution Emissions Notice, and apply for a permit from the Colorado Department of Public Health and Environment. Complies. See sheet 2 of 6,plat note 14. M. Weld County's "Right to Farm" statement, as it appears in the Weld County Code, Appendix 22-E, shall be placed on the plat. Complies. See sheet 2 of 6,plat note 15. N. Fire apparatus roads must be designed and maintained to support the imposed loads of fire apparatus (60,000 pounds) and must have a surface that provides all- weather driving capabilities. Access roads shall be maintained when building construction begins. Complies. See sheet 2 of 6,plat note 16. O. Street intersections must be marked with signs showing the street name and address range when building construction begins. If non-standard street signs are used, the Fire District respectfully requests to comment with regard to sign visibility. Complies. See sheet 2 of 6,plat note 17. P. All intersections shall have Stop signs for two-way stop control and street name signs. 11 Complies. See sheet 2 of 6,plat note 18. Q. Landscaping within the intersection sight distance triangle shall be less than 3.5 feet at maturity. Complies. See sheet 2 of 6,plat note 19. Also, see grey shaded area on subsequent final plat sheets. R. All outdoor storage shall be screened from public rights-of-way, and adjacent properties. Complies. See sheet 2 of 6,plat note 20. S. All development shall adhere to all requirements of the Mountain View Fire Protection District. Complies. See sheet 2 of 6,plat note 21. T. The maximum permissible noise level shall not exceed the residential limit as measured according to Section 25-12-103, C.R.S. Complies. See sheet 2 of 6,plat note 22. U. All single family residences shall have a legible address that is clearly visible from the street fronting the property. Complies. See sheet 2 of 6,plat note 23. V. Effective December 1, 1999, Building Permits issued on the proposed subdivision will be required to adhere to the fee structure of the Southwest Weld Road Impact Program Area 1 as stated in Chapter 20, Article II, of the Weld County Code. Complies. See sheet 2 of 6,plat note 24. W. Approval of this plan may create a vested property right pursuant to Chapter 23, Article VIII, of the Weld County Code. Complies. See sheet 2 of 6,plat note 25. X. The applicant shall comply with Chapter 27, Article VIII. Complies. See sheet 2 of 6, plat note 26 12 4. The Final Plat shall be submitted to the Department of Planning Services for recording within 60 days of approval by the Board of County Commissioners. Once the Final Plat and SIA is accepted by the Board of County Commissioners. Signed mylars will be submitted to the Department of Planning Services for County Commissioners signatures and recording. 13 DRAFT 10/15/01 ARTICLES OF INCORPORATION OF IDAHO CREEK HOMEOWNERS ASSOCIATION,INC. In compliance with the requirements of the Colorado Revised Nonprofit Corporation Act, Sections 7-121-101 through 7-137-301, C.R.S., as amended, the undersigned, of full age, has this day, for the purpose of forming a non-profit corporation, certified as follows: ARTICLE 1. NAME The name of the corporation is IDAHO CREEK HOMEOWNERS ASSOCIATION, INC., hereafter called the "Association." ARTICLE 2. PRINCIPAL OFFICE The principal office of the Association is c/o KB Home Colorado Inc., 8401 East Belleview Avenue, Suite 200,Denver, Colorado 80237. ARTICLE 3. REGISTERED AGENT Robert Caravona, whose address is c/o KB Home Colorado Inc., 8401 East Belleview Avenue, Suite 200, Denver, Colorado 80237, is hereby appointed the initial registered agent of this Association, and such address shall be the registered address of this Association. ARTICLE 4. PURPOSE AND POWERS OF THE ASSOCIATION Section 4.1. This Association does not contemplate pecuniary gain or profit to the Members thereof, and the specific purposes for which it is formed are to provide for maintenance, preservation and architectural control of certain property and improvements within the property described on Exhibit A to the Declaration (as hereinafter defined), and any additions thereto as may hereafter be brought within the jurisdiction of this Association (hereinafter called the "Community"), and to promote the health, safety and welfare of the residents within the Community, and to: 4.1.1. exercise all of the powers and privileges and perform all of the duties and obligations of the Association as set forth in that certain Declaration of Covenants, Conditions and Restrictions of Idaho Creek, hereinafter called the "Declaration," applicable to the Community and recorded or to be recorded in the Office of the Clerk and Recorder of Weld County, Colorado, as the same may be amended, clarified and supplemented from time to time, said Declaration being incorporated herein as if set forth at length (terms which are defined in the Declaration shall have the same meanings herein unless otherwise defined); 4.1.2. have and exercise any and all powers, rights and privileges which a corporation organized under the Colorado Revised Nonprofit Corporation Act by law may now or hereafter have or exercise; 4.1.3. exercise any powers enumerated these Articles of Incorporation or in the Bylaws of the Association; and DRAFT 10/15/01 4.1.4. exercise any other powers incidental to the governance and operation of the Association, including without limitation those powers granted in CCIOA. ARTICLE 5. MEMBERSHIP The Owners of each Lot which is now or hereafter subject to assessment as provided in the Declaration, including contract sellers, shall be a Member of the Association. Following termination of the Community, the membership shall consist of all former Owners entitled to distribution of proceeds under CCIOA or their heirs,personal representatives, successors or assigns. The foregoing is not intended to include persons or entities that hold an interest merely as security for the performance of an obligation. Membership shall be appurtenant to and may not be separated from ownership of any Lot that is subject to assessment by the Association. A transfer of membership shall occur automatically upon the transfer of title to the Lot to which the membership pertains. Each Lot shall have one (1) membership in the Association and there is only one (1) Member per Lot, even if the Lot is owned by multiple Owners. ARTICLE 6. VOTING RIGHTS Section 6.1. All Members shall have voting rights as more fully provided in the Declaration, the Articles of Incorporation and the Bylaws of the Association, but subject to any limitations or restrictions contained therein. Section 6.2. Cumulative voting is prohibited. ARTICLE 7. BOARD OF DIRECTORS The affairs of this Association shall be managed by a Board of Directors of five (5) directors, except that the Board which shall serve until fifty percent (50%) of the Lots that May Be Included have been conveyed to Owners other than the Declarant, shall consist of three (3) directors. Directors shall be Members which, in the case of any Members who are not natural persons, may include the officers, directors, partners, employees, members, or authorized agents of each such Member. Notwithstanding the foregoing, the number of directors may be changed from time to time as provided in the Bylaws; provided,however, that the number of directors may not be greater than nine(9)nor less than three(3). The names and addresses of the Persons who are to act in the capacity of directors until the selection of their successors are: NAME ADDRESS Robert Caravona 8401 East Belleview Avenue, Suite 200 Denver, Colorado 80237 Ken Lambrecht 8401 East Belleview Avenue, Suite 200 Denver, Colorado 80237 Cynthia M. Myers 8401 East Belleview Avenue, Suite 200 Denver, Colorado 80237 2 DRAFT 10/15/01 The successors to the initial and subsequent Board of Directors shall be appointed or elected in the manner set forth in the Bylaws. ARTICLE 8. DISSOLUTION The Association may be dissolved with the assent given in writing and signed by the Members to whom at least sixty-seven percent (67%) of the votes in the Association are allocated. Upon dissolution of the Association other than incident to a merger or consolidation, the assets of the Association shall be dedicated to an appropriate public agency to be used for purposes similar to those for which this Association was created. In the event that such dedication is refused acceptance, such assets shall be granted, conveyed and assigned to any nonprofit corporation, association, trust or other organization to be devoted to such similar purposes. ARTICLE 9. OFFICERS The Board of Directors shall appoint a president, a secretary, a treasurer and such other officers as the Board, in accordance with the provisions of the Bylaws, believes will be in the best interests of the corporation. The officers shall have such duties as may be prescribed in the Bylaws and shall serve at the pleasure of the Board of Directors. ARTICLE 10. DURATION The Association shall exist perpetually. ARTICLE 11. LIMITED LIABILITY OF DIRECTORS AND OFFICERS; INDEMNIFICATION Section 11.1. There shall be no personal liability, either direct or indirect, of any director or officer of the Association to the Association or its Members, for monetary damages for any breach(es) of fiduciary duty as a director or officer; except that this provision shall not eliminate the liability of a director or officer, to the Association or its Members, for monetary damages for any breach, act, omission or transaction as to which the Colorado Revised Nonprofit Corporation Act (as in effect from time to time) expressly prohibits the elimination of liability. This provision is effective on the date of incorporation of the Association, and shall not eliminate or limit the liability of a director or officer to the Association or to its Members for monetary damages for any act or omission occurring prior to such date. However,this provision shall not limit the rights of directors or officers of the Association for indemnification or other assistance from the Association. Also, this provision shall not restrict or otherwise diminish the provisions of Section 13-21-116(2)(b), Colorado Revised Statutes, as amended, or any other law that would limit or eliminate liabilities. Any repeal or modification of the foregoing provisions of this Article by the Members, or any repeal or modification of the provisions of the Colorado Revised Nonprofit Corporation Act which permits the limitation or elimination of liability of directors or officers, shall not adversely affect any elimination of liability, or any right or protection, for any breach, act, omission or transaction that occurred prior to the time of such repeal or modification. Section 11.2. The Association shall indemnify its directors and officers as now or hereafter required by the Colorado Revised Nonprofit Corporation Act or CCIOA, and may 3 DRAFT 10/15/01 indemnify its directors, officers, and employees as otherwise permitted by law or as the Board may deem appropriate from time to time. ARTICLE 12. AMENDMENTS Section 12.1. Amendment(s) of these Articles shall be approved if the votes cast by Members favoring the amendment exceed the votes cast by Members opposing the amendment at an annual or special meeting of the Members at which a quorum is present in person or by proxy; provided, however, that no amendment to these Articles of Incorporation shall be contrary to or inconsistent with any provision of the Declaration. In addition to the foregoing, these Articles of Incorporation may be amended by a vote of Members by written ballot as provided in the Bylaws of the Association. Section 12.2. Notwithstanding the foregoing, the Board of Directors may at any time amend these Articles of Incorporation, without Member action, as provided in the Colorado Revised Nonprofit Corporation Act(§7-130-102 or other applicable section(s)). Section 12.3. Notwithstanding anything to the contrary contained in this Article, the written approval of HUD or VA shall be required for any amendments enacted during the 75% Control Period if, at the time such amendment is enacted, HUD has insurance or VA has guarantee(s) on one or more Security Interests and HUD or VA requires such approval. ARTICLE 13. CONFLICT OF PROVISIONS In case of any conflict between the Declaration and these Articles of Incorporation, the Declaration shall control. In the case of any conflict between these Articles of Incorporation and the Bylaws of the Association, these Articles of Incorporation shall control. IN WITNESS WHEREOF, for the purpose of forming this corporation under the laws of the State of Colorado, the undersigned, the incorporator of this Association, has executed these Articles of Incorporation this day of , 20 Incorporator: Cynthia M. Myers Address: KB Home Colorado Inc. 8401 E.Belleview Avenue, Suite 200 Denver, Colorado 80237 4 DRAFT 10/15/01 STATE OF COLORADO ) ) ss. CITY AND COUNTY OF DENVER ) The foregoing ARTICLES OF INCORPORATION OF IDAHO CREEK HOMEOWNERS ASSOCIATION, INC. were acknowledged before me this day of 20 ,by Cynthia M. Myers, Incorporator. Witness my hand and official seal. (SEAL) Notary Public My Commission expires: CONSENT OF THE INITIAL REGISTERED AGENT The undersigned hereby consents to the appointment by the Corporation as its Initial Registered Agent. ,Director and Initial Registered Agent STATE OF COLORADO ) ss. CITY AND COUNTY OF DENVER) The foregoing Consent of the Initial Registered Agent was acknowledged before me this day of , 20 ,by ,Initial Registered Agent. Witness my hand and official seal. (SEAL) Notary Public My Commission expires: 5 DRAFT 10/15/01 BYLAWS OF IDAHO CREEK HOMEOWNERS ASSOCIATION, INC. ARTICLE 1. NAME AND LOCATION The name of the corporation is Idaho Creek Homeowners Association, Inc., hereinafter referred to as the "Association." The principal office of the Association shall be c/o KB Home Colorado Inc., 8401 East Belleview Avenue, Suite 200, Denver, Colorado 80237, but meetings of Members and directors may be held at such places within the State of Colorado as may from time to time be designated by the Board of Directors of the Association("Board of Directors" or "Board"). ARTICLE 2. PURPOSE The purpose for which the Association is formed is to govern the Community, exercise the rights, power and authority, and fulfill the duties of the Association, as provided in that certain Declaration of Covenants, Conditions and Restrictions of Idaho Creek, and all amendments, clarifications and supplements thereto, recorded or to be recorded in the office of the Clerk and Recorder of Weld County, Colorado ("Declaration") (terms which are defined in the Declaration shall have the same meanings herein unless otherwise defined), and those certain Articles of Incorporation of Idaho Creek Homeowners Association, Inc., and any amendments thereto, filed in the office of the Secretary of State of the State of Colorado ("Articles of Incorporation"). All present and future Owners, tenants, occupants, and any other Person who may use any Lot, the Common Elements or any portion thereof, or any facilities or appurtenances thereto or thereon, in any manner, shall be subject in all respects to the covenants, conditions, restrictions, reservations, easements, regulations, and all other terms and provisions set forth in the Declaration, Articles of Incorporation and these Bylaws. The mere acquisition, rental or occupancy of any Lot, or any portion thereof, shall signify that all terms and provisions of the Declaration, Articles of Incorporation and these Bylaws are accepted,ratified and shall be complied with. ARTICLE 3. MEETINGS OF MEMBERS Section 3.1. Annual Meetings. The first annual meeting of the Members shall be held within twelve (12) months from the date of incorporation of the Association, and each subsequent regular annual meeting of the Members shall be held on such date, at such time and location as may be designated by the Board of Directors from time to time. At each annual meeting, the Members shall elect directors to fill vacancies and conduct such other business as may properly come before the meeting. Section 3.2. Special Meetings. Special meetings of the Members may be called at any time by the President or by a majority of the Board of Directors or by Owners having at least twenty percent(20%) of the votes of the Association. Section 3.3. Notice of Meetings. Written notice of each meeting of the Members shall be given by, or at the direction of, the secretary of the Association or Person authorized to call the meeting.Not less than ten(10)nor more than fifty(50) days in advance of such meeting,the Person giving such notice shall cause notice of the meeting to be hand delivered or sent prepaid by United States first class mail to the mailing address of each Lot or to any other mailing address designated in writing by the Owner. The notice of any meeting must state the time and place of the meeting DRAFT 10/15/01 and the items on the agenda, including the general nature of any proposed amendment to the Declaration or Bylaws, any budget changes, and any proposal to remove an officer or director. Section 3.4. Quorum and Voting Requirements. 3.4.1. A quorum is deemed present throughout any meeting of the Association if Persons entitled to cast twenty percent (20%) of the votes that may be cast on a matter are present, in person or by proxy, at the beginning of the meeting. 3.4.2. Unless otherwise specifically provided by the Declaration, the Articles of Incorporation, these Bylaws or by statute, action on all matters, except election of the Board of Directors, coming before a meeting of Members at which a proper quorum is in attendance, in person or by proxy, is approved if the votes cast favoring such action exceed the votes cast opposing such action. Section 3.5. Proxies. 3.5.1. If only one of the multiple Owners of a Lot is present at a meeting of the Association, such Owner is entitled to cast the vote allocated to that Lot. If more than one of the multiple Owners of a Lot are present, the vote allocated to that Lot may be cast only in accordance with the agreement of a majority in interest of the Owners, unless the Declaration expressly provides otherwise. There is majority agreement if any one of the multiple Owners casts the vote allocated to that Lot without protest being made promptly to the Person presiding over the meeting by any of the other Owners of the Lot. 3.5.2. The vote allocated to a Lot may be cast pursuant to a proxy duly executed by an Owner. If a Lot is owned by more than one Person, any Owner of such Lot may register protest to the casting of a vote by any other Owner of such Lot through a duly executed proxy; but each Lot shall only have one vote allocated to it, as provided in the Declaration. An Owner may not revoke a proxy given pursuant to this Section except 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 eleven(11)months after its date unless it provides otherwise. Section 3.6. Action by Written Ballot. Any action that may be taken at any annual, regular, or special meeting of the Members may be taken without a meeting if the Association delivers (by mail or otherwise) a written ballot to every Member entitled to vote on the matter which sets forth each proposed action and provides an opportunity to vote for or against each proposed action. Approval by written ballot is valid only when the number of votes cast by ballot equals or exceeds the quorum required to be present at a meeting authorizing the action and the number of approvals equals or exceeds the number of votes that would be required to approve the matter at a meeting at which the total number of votes cast was the same as the number of votes cast by ballot. Solicitations for vote by written ballot must be accompanied by written information sufficient to permit a Member to reach an informed decision on the matter and must specify: 3.6.1. the number of responses needed to meet the quorum requirements; 2 DRAFT 10/15/01 3.6.2. the percentage of approvals necessary to approve each matter other than election of the directors; and 3.6.3. the time by which a ballot must be received in order to be counted. Section 3.7. Security Interest Holders. Each Security Interest Holder shall have the right to designate a representative to attend all meetings of Members. ARTICLE 4. BOARD OF DIRECTORS- SELECTION-TERM OF OFFICE Section 4.1. Number. The affairs of this Association shall be managed by a Board of Directors of five (5) directors, except that the Board which shall serve until fifty percent (50%) of the Lots that May Be Included have been conveyed to Owners other than the Declarant, shall consist of three (3) directors. Directors shall be Members which, in the case of any Members who are not natural persons, may include the officers, directors, partners, members, employees or authorized agents of each such Member. Notwithstanding the foregoing, the number of directors may be changed from time to time by a vote of the Board of Directors; provided, however, that the number of directors may not be greater than nine(9)nor less than three(3). Section 4.2. Power to Appoint or Elect. During the 75% Control Period, except as otherwise provided in the Declaration,the Declarant shall have the power to appoint the directors as more fully described in the Declaration. Subject to the Declarant's right to appoint, the Members shall elect the directors. Section 4.3. Term of Office. Any director who is elected by the Members prior to the first Association annual meeting after termination of the 75% Control Period shall serve for one (1) year or until such director's duly-elected successor takes office on the Board of Directors,whichever occurs first; except that any director may at any time resign,be removed(subject to these Bylaws), or otherwise be disqualified to serve. At the first annual meeting of the Members held subsequent to termination of the 75% Control Period, the Members shall elect two directors for terms of one year and three directors for terms of two years, and at each annual meeting thereafter the Members shall elect the same number of directors as there are directors whose terms are expiring at the time of each election, for terms of two years. Section 4.4. Removal. The Members, by a vote of sixty-seven percent (67%) of the Association votes cast by Members present in person or by proxy at any meeting of the Members at which a quorum is present, may remove any director with or without cause, other than a director appointed by the Declarant. Declarant may at any time remove, and appoint the successor of, any director who was appointed by the Declarant. In the event of death, resignation or removal of a director, his or her successor shall be selected by a majority of the remaining directors, whether or not such remaining directors constitute a quorum, and shall serve for the unexpired term of the director being replaced; provided, however, that the Declarant may appoint the successor of any director who served in such capacity as a result of being appointed by the Declarant Section 4.5. Compensation. No director shall receive compensation for any service rendered to the Association as a director. However any director may be reimbursed for actual expenses incurred in the performance of the director's duties. 3 DRAFT 10/15/01 ARTICLE 5. NOMINATION AND ELECTION OF DIRECTORS Section 5.1. Nomination. Nomination for election to the Board of Directors may be made by a nominating committee if such a committee is appointed, from time to time, by the Board of Directors.Nominations may also be made from the floor at any Member meeting. Section 5.2. Election. Election to the Board of Directors shall be by secret written ballot if any Member so requests or in the discretion of the Board of Directors. At such election the Members or their proxies may cast, in respect to each vacancy, as many votes as they are entitled to exercise under the provisions of the Declaration. Cumulative voting is not permitted. Unless otherwise specifically provided by the Declaration, the Articles of Incorporation, these Bylaws, or by statute, the election of the Board of Directors at a meetings of the Members at which a proper quorum is in attendance, in person or by proxy, shall be decided as follows: 5.2.1. When only one director is being voted upon, the affirmative vote of a majority of the Members constituting a quorum at the meeting of the Members at which the election occurs shall be required for election to the Board of Directors; 5.2.2. If multiple persons are running for one directorship and no one receives a majority of the votes, then another election shall be held at which the two (2) persons running for such directorship who received the most votes in the prior election shall be voted upon and the person receiving a majority of the affirmative votes cast by Members shall be elected; or 5.2.3. When multiple directors are being elected, that number of candidates equaling the number of directors to be elected, having the highest number of votes cast in favor of their election, are elected to the Board of Directors. ARTICLE 6. MEETINGS OF THE BOARD OF DIRECTORS Section 6.1. Regular Meetings. Regular meetings of the Board of Directors shall be held not less often than quarterly, without notice, at such place and hour as may be fixed from time to time by the Board. Should said meeting fall upon a legal holiday, then that meeting shall be held at the same time on the next day which is not a legal holiday. Section 6.2. Special Meetings. Special meetings of the Board of Directors shall be held when called by the president of the Association, or by any two directors, after not less than three (3) days'notice to each director. Section 6.3. Quorum; Actions of Board of Directors. A quorum at any meeting of the Board of Directors is present if directors entitled to cast fifty percent (50%) of the votes on the Board of Directors are present. Every act or decision done or made by a majority of a quorum of the directors present, in person or by proxy granted to another director (as more specifically set forth below), at a duly held meeting shall be regarded as the act of the Board of Directors. 4 DRAFT 10/15/01 Section 6.4. Action Taken Without a Meeting. The directors shall have the right to take any action in the absence of a meeting which they could take at a meeting if each and every director in writing("Written Vote(s)") does either of the following: 6.4.1. Votes for such action; or 6.4.2. 6.4.2.1. Votes against such action or abstains from voting; and 6.4.2.2.Waives the right to demand that a meeting be held. Action under this Section is valid only if the affirmative vote for such action equals or exceeds the minimum number of votes that would be necessary to take such action at a meeting at which all of the directors then in office were present and voted. For any action taken under this Section to be effective the Association must receive the Written Votes described in subsections 6.4.1 and 6.4.2 signed and not revoked. Written Votes may be received by the Association by facsimile. A director may revoke such director's Written Vote by a writing signed and dated describing the action and stating that the director's prior vote is revoked ("Revocation") if such Revocation is received by the Association before the last Written Vote necessary to effect the action is received by the Association. The Association shall keep the Written Votes and any Revocations with the minutes of the meetings of the Board of Directors. Section 6.5. Proxies. For purposes of determining a quorum with respect to a particular proposal, and for purposes of casting a vote for or against a particular proposal, a director may be deemed to be present and to vote if the director has granted a signed written proxy to another director who is present at the meeting, authorizing the other director to cast the vote that is directed to be cast by the written proxy with respect to the particular proposal that is described with reasonable specificity in the proxy. Except as provided in this Section and in Section 6.4 hereof, directors may not vote or otherwise act by proxy. ARTICLE 7. POWERS AND DUTIES OF THE BOARD OF DIRECTORS Section 7.1. Limitation on Powers. The Board of Directors may not act on behalf of the Association to amend the Declaration, to terminate this Community, or to elect directors or determine the qualifications, powers and duties, or terms of office of directors, but the Board of Directors may fill vacancies in its membership for the unexpired portion of any term. Section 7.2. Powers. The Board of Directors shall have power to: 7.2.1. adopt and publish rules and regulations governing the use of the Lots, the Common Elements, the Community, any property which is visible from any Lot, or any portion thereof, and any facilities thereon and the personal conduct of the Members, their guests and other Persons thereon, and to establish penalties for the infraction thereof; 7.2.2. suspend the voting rights of any Member during any period in which such Member shall be in default in the payment of any assessment levied by the Association. Such rights may also be suspended after notice and hearing, for a period not to exceed sixty 5 DRAFT 10/15/01 (60) days, for infraction of the Declaration, Articles of Incorporation, these Bylaws or published Association rules and regulations; 7.2.3. enter into, make, perform or enforce contracts, licenses, leases and agreements of every kind and description; 7.2.4. borrow money; 7.2.5. provide for direct payment of assessments to the Association from Owners' checking, credit or other accounts; 7.2.6. exercise for the Association all powers, duties and authority vested in or delegated to the Association and not reserved to the membership by other provisions of these Bylaws,the Articles of Incorporation or the Declaration; 7.2.7. declare the office of a director to be vacant in the event such director shall be absent from two (2)regular meetings of the Board of Directors during any one year period; 7.2.8. employ a manager, an independent contractor(s), or such other employees as they deem necessary and prescribe their duties; and 7.2.9. exercise any and all powers granted by the Colorado Revised Non-Profit Corporation Act and by CCIOA. Section 7.3. Duties. It shall be the duty of the Board of Directors to: 7.3.1. cause to be kept a complete record of all its acts and corporate affairs and present a statement thereof to the Members at the annual meeting of the Members, or at any special meeting when such statement is requested in writing by Owners entitled to cast at least one-fourth(1/4)of the votes at such meeting; 7.3.2. supervise all officers, agents, and employees of the Association, and see that their duties are properly performed; 7.3.3. as more fully provided in the Declaration,to: 7.3.3.l.determine the amount of the annual assessment against each Lot, from time to time, in accordance with the Association budget, and revise the amount of the annual assessment if such budget is not ratified by the Owners; and 7.3.3.2.foreclose the lien against any Lot for which assessments are not paid within such time as may be determined by the Board of Directors from time to time, or bring an action at law against the Owner personally obligated to pay the same; 7.3.4. issue, or cause an appropriate officer or authorized agent to issue, upon demand by any Person, a certificate setting forth whether or not any assessment has been paid. A reasonable charge may be made by the Board for the issuance of these certificates. 6 DRAFT 10/15/01 If a certificate states that an assessment has been paid, such certificate shall be conclusive evidence of such payment as to all Persons who rely thereon in good faith; 7.3.5. procure and maintain insurance, as more fully provided in the Declaration; 7.3.6. provide for maintenance, repair and/or reconstruction of the Common Elements, other property, and Improvements, as more fully provided in the Declaration; 7.3.7. keep financial records sufficiently detailed to enable the Association to comply with the requirement that it prove statements of unpaid assessments. All financial and other records shall be made reasonably available for examination by any Owner and such Owner's authorized agents; and 7.3.8. cooperate with any other community association and/or any district, as provided in the Declaration. Any of the aforesaid duties, but not the responsibility therefor, may be delegated by the Board of Directors to any other Person(s) or to the Association's managing agent. ARTICLE 8. RIGHTS OF THE ASSOCIATION The Association may exercise any and all rights or privileges given to it under the Declaration, the Articles of Incorporation or these Bylaws, or as may otherwise be given to it by law, and every other right or privilege reasonably to be implied therefrom or reasonably necessary to effectuate any such right or privilege. ARTICLE 9. OFFICERS AND THEIR DUTIES Section 9.1. Enumeration of Offices. The officers of this Association shall be a president, a secretary, a treasurer, and such other offices as the Board may from time to time by resolution create. Section 9.2. Election of Officers. The election of officers shall take place at the first meeting of the Board of Directors following each annual meeting of the Members. Section 9.3. Term. The officers of this Association shall be elected annually by the Board of Directors and each officer who is elected subsequent to the first annual meeting of the Association after termination of the 75% Control Period shall hold office for one (1) year or until such officer's duly-elected successor takes office, whichever occurs later; except that any officer may at any time resign,be removed, or otherwise be disqualified to serve. Section 9.4. Special Appointments. The Board of Directors may elect such other officers as the affairs of the Association may require, each of whom shall hold office for such period, have such authority, and perform such duties as the Board may, from time to time, determine. Section 9.5. Resignation and Removal. Any officer may be removed from office,with or without cause, by the Board of Directors. Any officer may resign at any time by giving written 7 DRAFT 10/15/01 notice to the Board of Directors, the president, or the secretary. Such resignation shall take effect on the date of receipt of such notice or at any later time specified therein and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. Section 9.6. Vacancies. A vacancy in any office may be filled by appointment by the Board of Directors. The officer appointed to such vacancy shall serve for the remainder of the term of the officer replaced. Section 9.7. Multiple Offices. The same individual may simultaneously hold two or more offices, subject to any applicable requirements or limitations contained in the Declaration, Articles of Incorporation, these Bylaws or applicable law. Section 9.8. Duties. The duties of the president, vice president, secretary and treasurer, which are delegable to other persons or the managing agent, are as follows: 9.8.1. President: The president shall preside at all meetings of the Board of Directors and Members; shall see that orders and resolutions of the Board are carried out; shall sign all leases, mortgages, deeds and other written instruments; and shall co-sign or authorize a designated agent to co-sign promissory notes and checks of the Association. 9.8.2. Vice President. The vice president, if any, shall act in the place and stead of the president in the event of the president's absence, inability, or refusal to act, and shall exercise and discharge such other duties as may be required of the vice president by the Board of Directors. 9.8.3. Secretary: The secretary shall record the votes and keep the minutes of all meetings and proceedings of the Board of Directors and of the Members; shall keep the corporate seal of the Association and affix it on all papers requiring said seal; shall serve notice of meetings of the Board and of the Members; shall keep appropriate current records showing the names of the Members together with their addresses; shall prepare, execute, certify and record amendments to the Declaration on behalf of the Association; shall keep a record of the names and addresses of Security Interest Holders furnished to the Association by the Members; and shall perform such other duties as required by the Board. 9.8.4. Treasurer: The treasurer shall receive and deposit in appropriate bank accounts all monies of the Association and shall disburse such funds as directed by resolution of the Board of Directors; shall sign or authorize a designated agent to sign promissory notes and checks of the Association; shall keep proper books of account; shall cause an annual compilation report of the Association books to be made after the completion of each fiscal year or, at the option of the Board of Directors, an annual review or audited financial statement may be done; and shall prepare an annual budget to be presented to the membership, and give a copy or summary thereof to the Members (as provided in the Declaration). The president,vice president, secretary or treasurer of the Association may prepare, execute, certify, file and/or record amendments to the Declaration, the Articles of Incorporation or these 8 DRAFT 10/15/01 Bylaws, on behalf of the Association, except that the Board of Directors may authorize other officers to do so. ARTICLE 10.DELEGATION OF AUTHORITY TO A MANAGING AGENT Section 10.1. Delegation of Authority to a Managing Agent. At such time, if ever, that the Association includes thirty (30) Lots, if the Board of Directors or officers of the Association delegate any of their powers of collection, deposit, transfer or disbursement of Association funds to other Persons or to a managing agent, then the following provisions shall be required: 10.1.1. The other Person or managing agent must maintain fidelity insurance coverage or a fidelity bond in an amount of not less than Fifty Thousand and no/100 Dollars ($50,000.00) or such higher amount as the Board of Directors may require from time to time; and 10.1.2. The other Person or managing agent must maintain all funds and accounts of the Association separate from the funds and accounts of other homeowners associations that are managed by such other Person or managing agent, and must keep and maintain all reserve accounts of each such homeowners association so managed separate from operational accounts of the Association; and 10.1.3. An annual accounting of the Association funds and a financial statement must be prepared and presented to the Association by the managing agent, a public accountant, or a certified public accountant. ARTICLE 11.COMMITTEES The Board of Directors shall appoint an Architectural Review Committee, subject to the provisions of the Declaration, and may appoint a nominating committee. In addition, the Board of Directors may appoint other committee(s) as it deems appropriate, from time to time, in carrying out its purposes. ARTICLE 12.BOOKS AND RECORDS The Association shall make available to Owners current copies of the Declaration, Articles of Incorporation, these Bylaws, the rules and regulations,books,records and financial statements of the Association. "Available" shall mean available for inspection, upon request, during normal weekday business hours or under other reasonable circumstances. ARTICLE 13.CORPORATE SEAL The Association shall have a seal in circular form and within its circumference the words: IDAHO CREEK HOMEOWNERS ASSOCIATION,INC. 9 DRAFT 10/15/01 ARTICLE 14.AMENDMENTS These Bylaws may be amended by the Board of Directors. These Bylaws may also be amended by the Members as long as, prior to any meeting of Members at which an amendment will be voted on: the Association gives notice to each Member entitled to vote on the amendment; such notice states that one of the purposes of the meeting is to consider the amendment; such notice is accompanied by a copy or summary of the amendment; and, at such regular or special meeting of the Members at which a quorum is present in person or by proxy, the votes that are cast in favor of said amendment exceed the votes that are cast against such amendment. In addition, these Bylaws may be amended by a vote of Members by written ballot as provided in these Bylaws. Notwithstanding anything to the contrary contained in this Article, the written approval of HUD or VA shall be required for any amendments enacted during the 75% Control Period if, at the time such amendment is enacted, HUD has insurance or VA has a guarantee(s) on one or more Security Interests, and HUD or VA require such approval. ARTICLE 15.CONFLICTS OF PROVISIONS In the case of any conflict between the Articles of Incorporation and these Bylaws, the Articles shall control; in the case of any conflict between the Declaration and these Bylaws, the Declaration shall control; and in the case of any conflict between the Articles of Incorporation and the Declaration,the Declaration shall control. ARTICLE 16.FISCAL YEAR The fiscal year of the Association shall begin on the first day of January and end on the last day of December of every year, except that the first fiscal year shall begin on the date of incorporation. IN WITNESS WHEREOF, we, being all of the directors of IDAHO CREEK HOMEOWNERS ASSOCIATION, INC., have hereunto set our hands this day of , 20 DIRECTORS: Robert Caravona Ken Lambrecht Cynthia M. Myers I,the undersigned, do hereby certify: That I am the duly elected and acting Secretary of IDAHO CREEK HOMEOWNERS ASSOCIATION, INC., a Colorado non-profit corporation, and 10 DRAFT 10/15/01 That the foregoing Bylaws constitute the Bylaws of said Association as duly adopted at a meeting of the Board of Directors thereof, held on the day of , 20 In Witness Whereof, I have hereunto subscribed my name and affixed the seal of said Association this day of , 20 (SEAL) , Secretary 11 DRAFT 10/15/01 DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS OF IDAHO CREEK THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS OF IDAHO CREEK is made and entered into by KB HOME COLORADO INC., a Colorado corporation("Declarant"). WTINESSETH: WHEREAS, the Declarant is the owner of the real property situated in the County of Weld, State of Colorado, which is described on Exhibit A, attached hereto and incorporated herein by this reference; and WHEREAS, the Declarant desires to subject and place upon the property described on the attached Exhibit A certain covenants, conditions, restrictions, easements, reservations, rights-of- way, obligations, liabilities and other provisions; and WHEREAS, a common interest community may be created pursuant to CCIOA (as hereinafter defined) only by recording a declaration executed in the same manner as a deed. The declaration must be recorded in every county in which any portion of the common interest community is located and must be indexed in the grantee's index in the name of the common interest community and in the name of the association, and in the grantor's index in the name of each person executing the declaration. No common interest community is created until the plat or map for the common interest community is recorded. NOW, THEREFORE, Declarant hereby declares that a plat which includes the property described on the attached Exhibit A has been recorded and that all of the real property described on the attached Exhibit A shall be held, sold, and conveyed subject to the following covenants, conditions, restrictions, easements, rights-of-way, obligations, liabilities, charges and other provisions set forth herein. ARTICLE 1. DEFINITIONS Section 1.1. Agencies. "Agencies" means the Government National Mortgage Association (GNMA), the Federal National Mortgage Association (FNMA), the Federal Home Loan Mortgage Corporation (FHLMC), the Department of Housing and Urban Development, including the Federal Housing Administration (HUD), the Veterans Administration (VA) or any other governmental or quasi- governmental agency or any other public, quasi-public or private entity which performs (or may in the future perform) functions similar to those currently performed by any of such entities. Section 1.2. Allocated Interests. "Allocated Interests" means the assessment liability and votes in the Association allocated to each Lot. The Allocated Interest for each Lot shall be a fraction, the numerator of which is one (1) and the denominator of which is the total number of Lots within the Community from time to time. DRAFT 10/15/01 Section 1.3. Annexable Area. "Annexable Area" means the property described on Exhibit D attached hereto and incorporated herein by this reference plus, as provided in CCIOA, such additional real estate from such locations as the Declarant may elect in its sole discretion in an amount not to exceed the maximum permitted pursuant to CCIOA. Section 1.4. Architectural Review Committee or Committee. "Architectural Review Committee" or "Committee" means the committee appointed by the Declarant or by the Association to review and approve or disapprove plans for Improvements, as more fully provided in this Declaration. Section 1.5. Association. "Association" means Idaho Creek Homeowners Association, Inc., its successors and assigns, a community association as provided in CCIOA. Section 1.6. Board of Directors or Board. "Board of Directors" or "Board" means the body, regardless of name, designated in this Declaration, the Articles of Incorporation and the Bylaws of the Association to act on behalf of the Association. Section 1.7. CCIOA. "CCIOA" means the Colorado Common Interest Ownership Act, C.R.S. §38-33.3-101, et seq., as amended. Section 1.8. Common Elements. "Common Elements" means any property owned or leased by the Association (which may include one or more platted lots) other than a Lot. The Common Elements at the time of recordation of this Declaration are described on Exhibit B attached hereto and incorporated herein by this reference. Section 1.9. Community. "Community" means the real estate and Improvements thereon described on the attached Exhibit A, as supplemented and amended from time to lime. The Community is a planned community under CCIOA. The name of the Community is "Idaho Creek". Section 1.10. Declarant. "Declarant" means KB Home Colorado Inc., a Colorado corporation, and any other Person(s) acting in concert, to whom the Declarant, by recorded document, expressly assigns one or more of the Declarant's rights under this Declaration (which shall be the extent of the Declarant's rights to which such assignee succeeds), and who: 1.10.1. As part of a common promotional plan, offers to dispose of to a purchaser such Declarant's interest in a Lot not previously disposed of to a purchaser; or 2 DRAFT 10/15/01 1.10.2. Reserves or succeeds to any Special Declarant Right. Section 1.11. Declaration. "Declaration" means this Declaration of Covenants, Conditions and Restrictions of Idaho Creek and any other recorded instruments, however denominated, that create this Community, including any supplements and amendments to those instruments and also including,but not limited to,plats and maps. Section 1.12. Development Rights. "Development Rights" means the following rights or combination of rights hereby reserved by the Declarant, as such Development Rights may be further described in this Declaration, to: 1.12.1. add real estate to this Community and create Lots or Common Elements within this Community in connection with the addition of such real estate, as provided in Section 13.5 of this Declaration; 1.12.2. subdivide or replat Lots, as provided in Section 13.7 of this Declaration; or 1.12.3. withdraw real estate from this Community, as provided in Section 13.5 of this Declaration. The Declarant may exercise its Development Rights in all or any portion of the Community, and no assurances are made as to the boundaries or order of exercise of any Development Rights. The Declarant's rights to exercise Development Rights shall terminate automatically as provided in Section 1.22 of this Declaration. Section 1.13. Improvements. "Improvements" means all structures now or hereafter located on a Lot or in the Common Elements, exterior improvements to any such structures, and any other improvements made to a Lot or the Common Elements, and any appurtenances thereto or components thereof of every type or kind, including all landscaping features. The foregoing include, without limitation, buildings, outbuildings (including storage sheds), painting or other finish materials on any visible structure, additions and/or expansions, garages, carports, driveways, swimming pools, tennis courts, stairs, walkways, patios/decks and patio/deck covers, awnings, hot tubs,jacuzzis and/or saunas, antennas, satellite dishes, exterior light fixtures, poles, basketball backboards and hoops, whether fixed or movable, play yards (including swing sets and jungle gyms), exterior tanks, solar collectors, fences (including dog runs), screening walls, retaining walls, sprinkler systems, fountains, ponds, hedges, windbreaks, gardens, trees, shrubs, flowers, vegetables, sod, and other plantings, rock, gravel,bark, mulch and any other landscaping components, signs, exterior decorations, mailboxes, and exterior air conditioning, cooling,heating and water softening equipment, if any. Section 1.14. Lot "Lot" means each platted lot shown upon any recorded subdivision map of the real property described on the attached Exhibit A, as the same may be subdivided or replotted from time to time 3 DRAFT 10/15/01 (and "Lot" shall include all lots created as a result of such subdivision or replatting), or any other real property as may hereafter be brought within the jurisdiction of the Association, with the exception of the Common Elements and any publicly dedicated property. Each Lot shall constitute a "unit" under CCIOA, and it shall not be necessary to use the term "unit" as a part of a legally sufficient description of a Lot. Section 1.15. Lots that May Be Included "Lots that May Be Included"means three hundred eighty-five (385)Lots,which shall be the maximum number of Lots that may be subject to this Declaration, including those Lots which may be included if all of the Annexable Area is annexed to this Declaration. However, the aforesaid number of Lots that May Be Included is not a representation or a guarantee as to the actual number of Lots that will ultimately be included in the Community. Section 1.16. Member. "Member" means all Owners of a Lot collectively or, following termination of the Community, all former Owners entitled to distributions of proceeds under CCIOA, or their heirs, personal representatives, successors or assigns. The basic rights and attributes of membership in the Association are specifically provided in Articles 2 and 3 of this Declaration. Section 1.17. Owner. "Owner" means each fee simple title holder of a Lot, including without limitation, the Declarant or other Person who owns a Lot, but does not include a Person having an interest in a Lot solely as security for an obligation. There may be more than one Owner of a Lot. Section 1.18. Person. "Person" means a natural person, a corporation, a limited liability company, a partnership, an association, a trust, a joint venture, or any other entity recognized under the laws of the State of Colorado or any combination thereof. Section 1.19. Security Interest "Security Interest" means an interest in real estate or personal property created by contract or conveyance, which secures payment or performance of any obligation. The term includes a lien created by a mortgage, deed of trust,trust deed, security deed, contract for deed, land sales contract, lease intended as security, assignment of leases or rents intended as security, pledge of an ownership interest in the Association, and any other consensual lien or title retention contract intended as security for an obligation. For purposes of Section 4.11 of this Declaration, and, with respect to notice of cancellation or substantial modification of certain insurance policies, to Section 6.3 of this Declaration, "Security Interest" shall also mean and refer to any executory land sales contract wherein the Administrator of Veterans Affairs, an Officer of the United States of America, is the seller, whether such contract is recorded or not, and whether such contract is owned by the said Administrator or has been assigned by the Administrator and is owned by the Administrator's assignee, or a remote assignee, and the land records in the County in which such property is located show the Administrator as having the record title to the Lot. 4 DRAFT 10/15/01 Section 1.20. Security Interest Holder. "Security Interest Holder" means any Person named as a mortgagee or beneficiary, or in a similar capacity, under any Security Interest (including, for purposes of Section 4.11 of this Declaration, and, with respect to notice of cancellation or substantial modification of certain insurance policies, to Section 6.3 of this Declaration, the Administrator of Veteran's Affairs, an Officer of the United States of America, and his assigns under any executory land sales contract wherein the said Administrator is identified as the seller, whether such contract is recorded or not and the land records in the County in which such property is located show the said Administrator as having the record title to the Lot), or any successor to the interest of any such Person under such Security Interest. Section 1.21. 75% Control Period "75% Control Period" means a length of time expiring seven (7) years after initial recording of this Declaration in the County in which the property described on the attached Exhibit A is located. However, the 75% Control Period shall terminate earlier, upon the first to occur of the following events if any of the following occur within the time period that is specified in the first sentence of this Section: sixty(60) days after conveyance of seventy-five percent(75%) of the Lots that May Be Included to Owners other than a Declarant; two (2) years after the last conveyance of a Lot by the Declarant in the ordinary course of business; or two (2) years after any right to add new Lots to the Declaration was last exercised. Section 1.22. Special Declarant Rights. "Special Declarant Rights" means the following rights, which rights are hereby reserved for the benefit of the Declarant, and which rights may be further described in this Declaration: to build and complete Improvements in the Community; to exercise any Development Right; to maintain sales offices, construction offices, management offices, and signs advertising the Community and sale of Lots; to use easements through the Common Elements for the purpose of making Improvements within the Community or within real estate which may be added to the Community; to make the Community subject to another association; to merge or consolidate with a Community of the same form of ownership; or to appoint or remove any director or officer of the Association during the 75% Control Period. All of the Special Declarant Rights may be exercised by the Declarant with respect to any portion of the property now or hereafter within the Community. Declarant may exercise any or all of these Special Declarant Rights at any time and from time to time. Such rights shall terminate automatically at such time as the Declarant no longer owns any portion of the property described on the attached Exhibits A and D. Section 1.23. Unfinished Lot. "Unfinished Lot" means those Lots on which a certificate of occupancy has not been issued for the dwelling unit now or hereafter located on such Lot. ARTICLE 2. MEMBERSHIP AND VOTING RIGHTS Section 2.1. Membership. The Association shall have one (1) class of membership. Membership in the Association shall be appurtenant to, and may not be separated from, ownership of a Lot. Each Lot shall have 5 DRAFT 10/15/01 one (1) membership and there is only one (1) Member per Lot, even if multiple Owners own the Lot. Section 2.2. Voting Rights. Each Member shall be entitled to one (1) vote for each Lot owned, except that no votes allocated to a Lot owned by the Association may be cast. The total number of votes that may be cast in connection with any matter shall be equal to the total number of Lots then existing within the Association. ARTICLE 3. ASSOCIATION Section 3.1. Association. The Association has been or will be formed as a Colorado non-profit corporation under the Colorado Revised Nonprofit Corporation Act. The Association shall have the duties, powers and rights set forth in this Declaration and in its Articles of Incorporation and Bylaws. Section 3.2. Board of Directors. The affairs of the Association shall be managed by a Board of Directors. The number, term and qualifications of the Board of Directors shall be fixed in the Association's Articles of Incorporation and Bylaws. Subject to Section 3.4 hereof, the Board of Directors shall be elected by the Members. The Board of Directors may, by resolution, delegate portions of its authority to an executive committee or to other committees, to officers of the Association or to agents and employees of the Association, but such delegation of authority shall not relieve the Board of Directors of the ultimate responsibility for management of the affairs of the Association. Section 3.3. Authority of Board of Directors. Action by or on behalf of the Association may be taken by the Board of Directors or any duly authorized executive committee, officer, agent or employee without a vote of the Members, except as otherwise specifically provided in this Declaration, the Articles of Incorporation or Bylaws of the Association. Section 3.4. Election of Part of the Board of Directors During the 75% Control Period Not later than sixty(60) days after conveyance of twenty-five percent(25%) of the Lots that May Be Included to Owners other than the Declarant, at least one (1) director and not less than twenty-five percent (25%) of the directors must be elected by Members other than the Declarant. Not later than sixty (60) days after conveyance of fifty percent (50%) of the Lots that May Be Included to Owners other than Declarant, not less than thirty-three and one-third percent (33 1/3%) of the directors must be elected by Members other than the Declarant. Section 3.5. Authority of Declarant During 75% Control Period. Except as otherwise provided in this Article, during the 75% Control Period, the Declarant or Persons appointed by the Declarant may appoint all officers and members of the Board of Directors and remove all officers and members of the Board of Directors which have been 6 DRAFT 1 0/1 5/01 appointed by the Declarant. The Declarant may voluntarily surrender the right to appoint and remove officers and members of the Board of Directors before termination of the 75% Control Period; but, in that event, the Declarant may require, for the duration of the 75% Control Period, that specified actions of the Association or Board of Directors, as described in a recorded instrument executed by the Declarant,be approved by the Declarant before they become effective. Section 3.6. Termination of 75% Control Period. Not later than the termination of the 75% Control Period, the Members shall elect a Board of Directors, at least a majority of whom must be Owners other than the Declarant or designated representatives of Owners other than the Declarant. The Board of Directors shall elect the officers. Such directors and officers shall take office upon election. Section 3.7. Delivery of Property by Declarant. After the Members other than the Declarant elect a majority of the directors, the Declarant shall deliver to the Association all property of the Owners and of the Association held by or controlled by the Declarant,if and to the extent required by CCIOA. Section 3.8. Budget Within thirty(30)days after adoption of any proposed budget for the Community, the Board of Directors shall mail, by ordinary first-class mail, or otherwise deliver a summary of the Association budget to all the Members and shall set a date for a meeting of the Members to consider ratification of the budget not less than fourteen (14) nor more than sixty (60) days after mailing or other delivery of the summary. Unless at that meeting the budget is rejected by the vote or agreement of Members to which at least ninety percent(90%) of the votes in the Association are allocated, then the budget is ratified, whether or not a quorum is present. In the event that the proposed budget is rejected, the periodic budget last ratified by the Members must be continued until such time as the Members ratify a subsequent budget proposed by the Board of Directors. Section 3.9. Association Books and Records. The Association shall make available to Owners, prospective purchasers, Security Interest Holders, and insurers or guarantors of any such Security Interest, current copies of this Declaration, and the Articles of Incorporation, Bylaws, rules and regulations, books, records and financial statements of the Association. "Available" shall mean available for inspection, upon request, during normal weekday business hours or under other reasonable circumstances. Section 3.10. Information Regarding Security Interests on Lots. Each Member shall, within twenty (20) days of encumbering such Member's Lot with a Security Interest, and at other times upon request of the Association, provide the Association with the name and address of such Security Interest Holder, a copy of the instrument(s) creating the Security Interest(s), and the loan number(s) (or other identifying number of such Security Interest(s)). Within twenty (20) days after any change in the name or address of the Security Interest Holder on a Member's Lot, and at other times upon request of the Association, such Member shall provide the aforesaid information to the Association with respect to each Security Interest held by such Security Interest Holder. 7 DRAFT 10/15/01 Section 3.11. Rules and Regulations. Rules and regulations concerning and governing the Lots, Common Elements, this Community and/or rights-of-way, may be adopted, amended, repealed and enforced from time to time by the Board of Directors, and the Board of Directors may establish and enforce penalties for the infraction thereof, including, without limitation, the levying and collecting of fines for the violation of any of such rules and regulations. The rules and regulations may state procedural requirements, interpretations and applications of the provisions of this Declaration, including without limitation, blanket requirements, blanket interpretations, and blanket applications. By way of example and not by way of limitation, such rules and regulations may state that "reasonable" as used in Section 11.3 of this Declaration means a specified number of pets. Any rules and regulations that are adopted shall be in accordance with, and shall not be inconsistent with or contrary to,this Declaration and all provisions hereof. Section 3.12. Cooperation with any Other Community Associations, and/or any Districts. The Association shall have the right and authority at any time, from time to time, to enter into agreements and otherwise cooperate with any other community association(s), and/or any district(s), to share the costs and/or responsibility for any maintenance, repair, replacement, or other matters, to perform maintenance, repair or replacement for any Person(s) in consideration of payment or reimbursement therefor, to utilize the same contractors, subcontractors, managers, or others who may perform services for the Association and/or any other community association(s) and/or any district(s), or to otherwise cooperate with any other community association(s) and/or any district(s) in order to increase consistency or coordination, reduce costs, or as may otherwise be deemed appropriate or beneficial by the Board of Directors in its discretion from time to time. The costs and expenses for all such matters, if any, shall be shared or apportioned between the Association and/or any other community association(s) and/or any district(s), as the Board of Directors may determine in its discretion from time to time. Additionally, the Association shall have the right and authority at any time, from time to time, to enter into agreements and otherwise cooperate with any other community association(s), and/or any district(s) to collect assessments, other charges, or other amounts which may be due to such entity and to permit any such entity to collect assessments, other charges or other amounts which may be due to the Association; in any such instance, the Association shall provide for remittance to such entity of any amounts collected by the Association or to the Association of any amounts collected by such entity. Section 3.13. Management Agreements and Other Contracts. Any agreement for professional management of the Association's business or other contract providing for the services of the Declarant shall have a maximum term of three (3) years and any such agreement shall provide for termination by either party thereto, with or without cause and without payment of a termination fee, upon not more than ninety (90) days prior written notice; provided, however, that any such management agreement(s) entered into by the Association with a manager or managing agent prior to termination of the 75% Control Period shall be subject to review and approval by HUD or VA if, at the time such agreement is entered into, HUD has insurance or VA has a guarantee(s)on one or more Security Interests (and HUD or VA require such approval), and shall terminate absolutely, in any event, no later than thirty (30) days after termination of the 75%Control Period. 8 DRAFT 10/15/01 Section 3.14. Merger. The Declarant hereby reserves the right to merge the Association with one or more other common interest communities without the approval of any Member or any other Person. This right shall terminate automatically as provided in Section 1.22 of this Declaration. ARTICLE 4. ASSESSMENTS Section 4.1. Personal Obligation for Assessments. Each Owner of a Lot, including Declarant, by acceptance of a deed therefor, whether or not it shall be so expressed in such deed, covenants and agrees and shall be personally obligated to pay to the Association: annual assessments or charges, special assessments, and other charges, fines, fees, interest, late charges, and other amounts, all as provided in this Declaration; with such assessments and other amounts to be established and collected as hereinafter provided. The obligation for such payments by each Owner to the Association is an independent covenant with all amounts due, from time to time, payable in full when due without notice or demand (except as otherwise expressly provided in this Declaration), and without set-off or deduction. All Owners of each Lot shall be jointly and severally liable to the Association for the payment of all assessments, fees, charges and other amounts attributable to their Lot. Each amount, together with interest, late charges, costs, and reasonable attorney's fees, shall also be the personal obligation of the Person(s) who was the Owner of such Lot at the time when the amount became due. The personal obligation for delinquent amounts (including assessments) shall not pass to such Owner's successors in title unless expressly assumed by them. Section 4.2. Purpose of Assessments. The assessments levied by the Association shall be used to promote the recreation, health, safety and welfare of the residents of the Lots, and for all of those purposes and activities which may be required of the Association or which the Association may be empowered to pursue pursuant to this Declaration or the Articles of Incorporation or Bylaws of the Association, or by law. Assessments levied during the 75% Control Period may not be used for the purpose of constructing capital Improvements. Section 4.3. Initial Annual Assessment Until the effective date of an Association budget ratified by the Members with a different amount for the annual assessments, as provided above, the amount of the annual assessment against each Lot shall not exceed ($ ) per Lot per month, exclusive of any amounts due to any district and/or any other Person or entity. However, the rate of assessments paid with respect to the Unfinished Lots may be less than that paid with respect to the other Lots, as provided in the next Section. Section 4.4. Rate of Annual and Special Assessments. 4.4.1. Annual and special assessments shall be sufficient to meet the expected needs of the Association and shall be apportioned among the Lots in accordance with their Allocated Interests. Notwithstanding the foregoing, however, the amount of the annual assessment against the Unfinished Lots may be set at a lower rate than the rate of annual assessments against those Lots on which a certificate of occupancy has been issued, as 9 DRAFT 10/15/01 provided in the following sentence. Specifically, the rate of annual assessments against the Unfinished Lots may be less than the rate of annual assessments against the other Lots, pursuant to C.R.S. §38-33.3-315(3)(b), as amended, since the Unfinished Lots do not receive certain benefits, including without limitation the following: the Unfinished Lots do not receive the same services as the other Lots; and the Unfinished Lots do not receive benefit from the items for which reserves are collected. The annual assessments, except as to the Unfinished Lots (as provided in this Section), shall include an adequate reserve fund for the maintenance, repair and replacement of those items that must be maintained, repaired or replaced on a periodic basis and for the payment of insurance deductibles. The rate of annual assessment against the Unfinished Lots, if it is to be lower than the annual assessments against other Lots, shall be determined by the Board of Directors, from time to time, based on the costs and expenses of the services actually provided to the Unfinished Lots. 4.4.2. During the 75% Control Period, the Declarant may in its discretion, but shall not be required to, cover certain costs of the Association by payment of any amount(s), which shall constitute an advance against future assessments due from the Declarant; provided, however, that any such advances which have not been credited against assessments due from the Declarant as of termination of the 75% Control Period shall then be repaid by the Association to the Declarant, without interest, to the extent that the Association has funds in excess of its working capital funds, reserve funds, and operating expenses to date for the calendar year in which the 75% Control Period terminates; and provided further, however, that any of such advances which are not repaid to the Declarant shall continue to constitute advances against future assessments due from the Declarant until conveyance by the Declarant of all of the property described on the attached Exhibit D. If the Declarant elects in its discretion to pay any amounts as provided in this subparagraph, Declarant shall not, under any circumstances, be obligated to continue payment or funding of any such amount(s)in the future. Section 4.5. Date of Commencement of Annual Assessments. The annual assessments shall commence at such time as the Board of Directors may determine in its discretion. The amount of the initial annual assessment shall not be greater than the amount set forth in Section 4.3 hereof After commencement of annual assessments as provided in the first sentence of this Section, annual assessments shall be made no less frequently than annually and shall be based on an annual budget adopted by the Association as provided in this Declaration. The annual assessments shall be due and payable in monthly installments, in advance, on the first day of each month, or on such other dates, and with such frequency (which may be other than monthly, but not less frequently than annually), as the Board of Directors determines in its discretion from time to time, provided that the first annual assessment shall be adjusted to reflect the time remaining in the first Association fiscal year. Any Owner purchasing a Lot between installment due dates shall pay a pro rata share of the last payment due. Section 4.6. Special Assessments. In addition to the annual assessments authorized in this Article, the Board of Directors may levy, in any fiscal year, with the approval of the votes of two-thirds (2/3rds) of a quorum of the Association's votes cast by Members voting in person or by proxy at a meeting duly called for this 10 DRAFT 10/15/01 purpose, a special assessment applicable to that year only, for the purpose of defraying in whole or in part the cost of any construction, repair or replacement of a capital Improvement upon any portion of real property for which the Association has repair and/or replacement obligations, including fixtures and personal property related thereto, or for repair or replacement of any damaged or destroyed Improvements located on said real property, or for the funding of any deficit incurred by the Association. Any such special assessment shall be set against each Lot in accordance with the Allocated Interests set forth in this Declaration. A meeting of the Members called for the purpose of considering the establishment of a special assessment shall be held in conformance with Section 4.7 hereof. Notwithstanding the foregoing, special assessments levied during the 75% Control Period may not be used for the purpose of constructing capital Improvements. Section 4.7. Notice and Quorum for Any Special Assessments. Written notice of any meeting called for the purpose of taking any action authorized under Section 4.6 hereof shall be sent to all Members not less than thirty (30) days nor more than fifty (50) days in advance of the meeting. At the first such meeting called, the presence of Members or of proxies entitled to cast sixty percent(60%) of all the Association votes shall constitute a quorum. If the required quorum is not present, another meeting may be called subject to the same notice requirement, and the required quorum at the subsequent meeting shall be one-half (1/2) of the required quorum at the preceding meeting. No such subsequent meeting shall be held more than 60 days following the preceding meeting. Section 4.8. Assessments/Charges for Services to Less Than All Lots. The Association may, at any time from time to time, provide services to less than all of the Lots in the Community. If such services are not funded by the Association's annual or special assessments, then such services shall be provided, if at all, pursuant to an agreement in writing between the Association and the Owners of the Lots for which such service is to be provided, with such agreement to include a statement and terms for payment of the costs, fees and expenses that are to be paid by such Owners for such services, and which amounts shall include overhead expenses of the Association. Services which may be provided by the Association pursuant to this Section may include, without limitation, (a) the construction, care, operation, management, maintenance, upkeep, repair, replacement and renovation of Improvements or property owned by such Owner(s); (b) the provision of any services or functions to such Lot(s); (c) the enforcement of the provisions of any document or agreement for, on behalf of, and in the name of the applicable Owners; (d) the payment of taxes or other amounts for Owners with funds provided by such Owners; (e) the collection of charges for use of facilities and (f) the procurement of insurance for Owners. Section 4.9. Lien for Assessments. 4.9.1. The Association has a statutory lien on a Lot for any amount levied against that Lot or the Owner(s) thereof, including for fines imposed against the Lot's Owner(s). Fees, charges, late charges, attorney fees, fines and interest charged pursuant to this Declaration are enforceable as assessments under this Article. The amount of the lien shall include all those items set forth in this Section from the time such items become due. If an assessment is payable in installments, each installment is a lien from the time it 11 DRAFT 10/15/01 becomes due, including the due date set by any valid Association acceleration of installment obligations. 4.9.2. Recording of this Declaration constitutes record notice and perfection of the lien. No further recordation of any claim of lien for assessments is required. However, the Board of Directors or managing agent of the Association may prepare, and record in the county in which the applicable Lot is located, a written notice setting forth the amount of the unpaid indebtedness, the name of the Owner(s) of the Lot, and a description of the Lot. If a lien is filed, the costs and expenses thereof shall be added to the assessments for the Lot against which it is filed and collected as part and parcel thereof. The Association's lien may be foreclosed in like manner as a mortgage on real estate. 4.9.3. A lien for unpaid assessments is extinguished unless proceedings to enforce the lien are instituted within six (6) years after the full amount of assessments becomes due. Section 4.10. Priority of Association Lien. 4.10.1. A lien under this Article is prior to all other liens and encumbrances on a Lot except: 4.10.1.1. Liens and encumbrances recorded before the recordation of the Declaration; 4.10.1.2. A Security Interest on the Lot which has priority over all other security interests on the Lot and which was recorded before the date on which the assessment sought to be enforced became delinquent; and 4.10.1.3. Liens for real estate taxes and other governmental assessments or charges against the Lot. 4.10.2. A lien under this Section is also prior to the Security Interests described in the preceding subsection 4.10.1.2 to the extent, if any,provided in CCIOA. 4.10.3. This Section does not affect the priority of mechanics' or materialmen's liens or the priority of liens for other assessments made by the Association. 4.10.4. The Association's lien on a Lot for assessments and other amounts shall be superior to any homestead exemption now or hereafter provided by the laws of the State of Colorado or any exemption now or hereafter provided by the laws of the United States. The acceptance of a deed to land subject to this Declaration shall constitute a waiver of the homestead and any other exemption as against said Association lien. Section 4.11. Certificate of Status of Assessments. The Association shall furnish to an Owner or such Owner's designee or to a Security Interest Holder or its designee, upon written request delivered personally or by certified mail, first class postage prepaid, return receipt, to the Association's registered agent, a written statement setting forth the amount of unpaid assessments currently levied against such Owner's Lot. The statement 12 DRAFT 10/15/01 shall be furnished within fourteen (14) calendar days after receipt of the request and is binding on the Association, the Board of Directors, and every Owner. If no statement is furnished to the Owner or Security Interest Holder or their designee, delivered personally (including delivery by telefax) or by certified mail, first class postage prepaid, return receipt requested, to the inquiring party, then the Association shall have no right to assert a lien upon the Lot for unpaid assessments which were due as of the date of the request. The Association shall have the right to charge a reasonable fee for the issuance of such certificates. Section 4.12. Effect of Non-Payment of Assessments;Remedies of the Association. Any assessment not paid within ten (10) days after the due date thereof may bear interest from the due date at the rate of twenty-one percent (21%) per annum, or at any lesser rate, if any lesser rate is at any time set by the Board of Directors, and the Board of Directors may charge a monthly late charge thereon. The Association may bring an action at law against the Owner(s) personally obligated to pay the same, or foreclose the lien against such Owner's Lot. If a judgment or decree is obtained, including without limitation, in a foreclosure action, such judgment or decree shall include reasonable attorneys fees to be fixed by the court,together with the costs of the action, and may include interest and late charges, as above provided. No Owner may be exempt from liability for payment of assessments by waiver of the use or enjoyment of any of the Common Elements or by abandonment of the Lot against which the assessments are made, or because of dissatisfaction with the Association or its performance. This Article does not prohibit actions or suits to recover sums for which this Declaration creates a lien, nor does this Article prohibit the Association from taking a deed in lieu of foreclosure. Section 4.13. Surplus Funds. Any surplus funds of the Association remaining after payment of or provision for Association expenses and any prepayment of or provision for reserves shall be retained for use by the Association and need not be paid to the Owners or credited to them. Section 4.14. Working Capital Fund. The Association shall require the first Owner (other than the Declarant) of any Lot who purchases that Lot from the Declarant to make a non-refundable contribution to the Association in an amount equal to three (3) times the then current monthly installment of the annual assessment (regardless of whether or not annual assessments have commenced as provided in Section 4.5 hereof). Said contribution shall be collected and transferred to the Association at the time of closing of the sale by Declarant of each Lot and shall be for the use and benefit of the Association, including, without limitation, to meet expenditures or to purchase equipment, property or services. Such contribution to the working capital fund shall not relieve an Owner from making regular payments of assessments as the same become due. Upon the transfer of his Lot, an Owner shall be entitled to a credit from his transferee (but not from the Association) for the aforesaid contribution to working capital fund. Section 4.15. Other Charges. The Association may levy and assess charges, costs and fees for matters such as, but not limited to, the following, in such reasonable amounts(s) as the Board of Directors may determine in its discretion at any time from time to time, including reimbursement of charges that are made to 13 DRAFT 10/15/01 the Association by its managing agent or other Person: copying of Association or other documents; return checks; telefaxes; long distance telephone calls; transfer charges or fees upon transfer of ownership of a Lot; notices and demand letters; and other charges incurred by the Association for or on behalf of any Owner(s). All such charges, costs and fees shall be in addition to the assessments levied by the Association, but shall be subject to all of the Association's rights with respect to the collection and enforcement of assessments. Section 4.16. Assessments for Misconduct. If any Association expense is caused by the misconduct of any Owner, as determined by the Board of Directors, the Association may assess that Association expense exclusively against such Owner and his Lot. ARTICLE 5. ARCHITECTURAL REVIEW COMMITTEE Section 5.1. Composition of Committee. The Architectural Review Committee shall consist of three (3) or more persons appointed by the Board of Directors; provided, however, that until automatic termination of the Special Declarant Rights as provided in Section 1.22 of this Declaration, the Declarant may appoint the Architectural Review Committee. The power to "appoint" as provided herein, shall include without limitation the power to: constitute the initial membership of the Architectural Review Committee; appoint member(s) to the Architectural Review Committee on the occurrence of any vacancy therein, for whatever reason; and remove any member of the Architectural Review Committee,with or without cause, at any time, and appoint the successor thereof. Each such appointment may be made for such term(s) of office, subject to the aforesaid power of removal, as may be set from time to time in the discretion of the appointor. The terms of office of all then-current members of the Committee who were appointed by the Declarant shall automatically terminate at such time as the Declarant's power to appoint members of the Committee expires. Section 5.2. Review and Approval by Committee; Exemption of Declarant; Requirement for Approval by Governmental Entities. 5.2.1. Except as provided in Section 5.2.3 hereof, no Improvements shall be constructed, erected, placed, planted, applied or installed upon any Lot unless complete plans and specifications therefor (said plans and specifications to show exterior design, height, materials, color, and location of the Improvements, plotted horizontally and vertically, location and size of driveways, location, size, and type of landscaping, fencing, walls,windbreaks and grading plan, as well as such other materials and information as may be required by the Committee), shall have been first submitted to and approved in writing by the Architectural Review Committee. 5.2.2. The Architectural Review Committee shall exercise its reasonable judgment to the end that all proposed Improvements conform to and harmonize with the existing surroundings and Improvements ("Criteria for Approval"). In its review of such plans, specifications and other materials and information, the Architectural Review Committee may require that the applicant(s) reimburse the Committee for the actual expenses incurred by the Committee in the review and approval process. Such amounts, if 14 DRAFT 10/15/01 any, shall be levied in addition to the assessments against the Lot for which the request for approval was made, but shall be subject to the Association's lien for assessments and subject to all other rights of the Association for the collection of such assessments, as more fully provided in this Declaration. 5.2.3. Notwithstanding anything to the contrary contained in this Declaration, the Declarant shall be exempt from the provisions of this Article 5 (except for Section 5.2.4 of this Declaration). 5.2.4. In addition to the required approvals by the Architectural Review Committee as provided in this Article, the construction, erection, addition, deletion, change or installation of any Improvements shall also require the applicant to obtain the approval of all governmental entities with jurisdiction thereover, and issuance of all required permits, licenses and approvals by all such entities. Without limiting the generality of the preceding sentence, issuance of building permit(s) by Weld County, Colorado, if required, shall be a precondition to commencement of any construction or alteration of, addition to or change in any Improvement. Section 5.3. Design Guidelines and Standards. The Architectural Review Committee has the authority to, at any time from time to time, enact, issue, promulgate, modify, amend, repeal, re-enact, and enforce, design or architectural guidelines and standards to interpret and implement the provisions of this Article and the Declaration. Without limiting the generality of the foregoing, such guidelines and/or standards may contain provisions to clarify the criteria for approval of certain Improvements, (e.g. the design, material, size, location, etc.), may state the procedural requirements for submissions to the Committee, and may provide for blanket approvals, interpretations or restrictions on Improvements. By way of example, and not by way of limitation, such provisions may state that a certain type of screen door will be acceptable and will not require approval, or may state that certain types of fences are considered pre-approved (as long as such fences are in an approved location and comply with the applicable guidelines and/or standards) and that no other type of fences will be approved by the Committee. The Committee shall have the authority to enact, issue, promulgate, modify, amend, repeal, re-enact, and enforce separate guidelines and standards that govern the different types of dwelling units and/or Lots in the Community. Any guidelines and standards of the Committee shall be consistent, and not in conflict, with this Article and any other applicable provisions of this Declaration. Section 1.4. Procedures. The Architectural Review Committee shall decide each request for approval within sixty (60) days after the complete submission of all the plans, specifications and other materials and information which the Committee may require in conjunction therewith. If the Architectural Review Committee fails to decide any request within sixty(60) days after the complete submission of all the plans, specifications,materials and other information with respect thereto, then the request for approval shall be deemed to have been denied. 15 DRAFT 10/15/01 Section 5.5. Vote and Appeal. A majority vote of the Architectural Review Committee is required to approve a request for approval pursuant to this Article, unless the Committee has appointed a representative to act for it, in which case the decision of such representative shall control. In the event a representative acting on behalf of the Architectural Review Committee decides a request for approval, then any Owner shall have the right to an appeal of such decision to the full Committee, upon a request therefor submitted to the Committee within ten (10) days after such decision by the Committee's representative. Section 5.6. Prosecution of Work After Approval. After approval of any proposed Improvement, the proposed Improvement shall be accomplished as promptly and diligently as possible and in complete conformity with the terms and conditions of the approval. Failure to complete the proposed Improvement within one(1)year after the date of approval of the application therefor(or such longer time as may be granted in writing by the Committee in its discretion) or to complete the Improvement in complete conformance with terms and conditions of the approval, shall constitute noncompliance with the requirements for approval of Improvements by the Architectural Review Committee. Section 5.7. Notice of Completion. Upon completion of the Improvement, the applicant for approval of the same ("Applicant") shall give a written"Notice of Completion" to the Architectural Review Committee. Until the date of receipt of such a Notice of Completion, the Architectural Review Committee shall not be deemed to have notice of completion of the Improvement on which approval has been sought and granted as provided in this Article. Section 5.8. Inspection of Work. The Architectural Review Committee or its duly authorized representative shall have the right to inspect any Improvement prior to or after completion in order to determine whether or not the proposed Improvement is being completed or has been completed in compliance with the approval granted pursuant to this Article; provided, however, that the right of inspection shall terminate sixty(60) days after the Architectural Review Committee shall have received a Notice of Completion from the Applicant. Section 5.9. Notice of Noncompliance. If, as a result of inspections or otherwise, the Architectural Review Committee finds that any Improvement has been done without obtaining the approval of the Architectural Review Committee or was not done in substantial compliance with terms and conditions of the approval that was granted, or was not completed within one (1) year after the date of approval, subject to any extensions of time granted pursuant to Section 5.6 hereof, the Architectural Review Committee shall notify the Applicant in writing of the noncompliance; which notice shall be given, in any event, within sixty (60) days after the Architectural Review Committee receives a Notice of Completion from the Applicant ("Notice of Noncompliance"). The notice shall specify the particulars of the noncompliance. 16 DRAFT 10/15/01 Section 5.10. Correction of Noncompliance. If the Committee determines that a noncompliance exists, the Applicant shall remedy or remove (and return the subject property or structure to its original condition) the same within a period of not more than thirty(30) days from the date of receipt by the Applicant of the ruling of the Committee. If the Applicant does not comply with the Committee ruling within such period, the Committee may, at its option, record a Notice of Noncompliance against the property on which the noncompliance exists, may remove the non-complying Improvement or may otherwise remedy the noncompliance, and the Applicant shall reimburse the Committee, upon demand, for all costs and expenses incurred with respect thereto. The right of the Committee to remedy or remove any noncompliance shall be in addition to all other rights and remedies which the Committee may have at law, in equity, or under this Declaration. Section 5.11. Variance. The Architectural Review Committee may grant reasonable variances or adjustments from any conditions and restrictions imposed by this Article or Article 10 of this Declaration, in order to overcome practical difficulties or prevent unnecessary hardships arising by reason of the application of any such conditions and restrictions. Such variances or adjustments shall be granted only in case the granting thereof shall not be materially detrimental or injurious to the other property or improvements in the neighborhood and shall not militate against the general intent and purpose hereof. Section 5.12. Waivers;No Precedent The approval or consent of the Architectural Review Committee, or any representative thereof, to any application for approval shall not be deemed to constitute a waiver of any right to withhold or deny approval or consent by the Committee or any representative thereof, as to any application or other matters whatsoever as to which approval or consent may subsequently or additionally be required. Nor shall any such approval or consent be deemed to constitute a precedent as to any other matter. Section 5.13. Records. The Architectural Review Committee shall maintain written records of all applications submitted to it and all actions taken by it thereon for such period of time as may be determined by the Board of Directors from time to time, and such records shall be available to Members for inspection at reasonable hours of the business day. Section 5.14. Liability. Neither the Architectural Review Committee nor any members thereof, shall be liable in equity or damages to any person submitting requests for approval or to any Owner by reason of any action, failure to act, approval, disapproval, or failure to approve or disapprove in regard to any matter within their jurisdiction hereunder. In reviewing any matter, the Architectural Review Committee shall not be responsible for the safety, whether structural or otherwise, of any item(s) submitted for review, nor the conformance with applicable building codes or other governmental laws or regulations, and any approval of an Improvement by the Architectural Review Committee shall not be deemed an approval of any such matters. No Member or other Person shall be a third 17 DRAFT 10/15/01 party beneficiary of any obligation imposed upon, rights accorded to, action taken by, or approval or disapproval granted by the Architectural Review Committee. ARTICLE 6. INSURANCE Section 6.1. Insurance. The Association shall maintain insurance in connection with the Common Elements. The Association shall maintain insurance as required by applicable law or applicable regulation, including CCIOA, which insurance shall include, without limitation, property insurance, commercial general liability insurance and fidelity coverage. In addition, the Association may maintain insurance against such other risks as the Board of Directors may elect from time to time, including, but not limited to, personal liability insurance to protect directors and officers of the Association from personal liability in relation to their duties and responsibilities in acting as directors and officers on behalf of the Association, and may maintain insurance on such other property and/or against such other risks as the Board of Directors may elect, in its discretion from time to time. Section 6.2. Worker's Compensation Insurance. Subject to the following sentence, if the Association performs any work to or on a Lot or the structure(s) thereon, including without limitation any maintenance, repair or replacement, the Association shall obtain and maintain worker's compensation insurance. The Association need not carry worker's compensation insurance if the work performed by or on behalf of the Association is performed by a Person who carries worker's compensation insurance and the Association has obtained proof of such insurance. All policies of worker's compensation insurance shall be in conformance with state law. Section 6.3. General Provisions of Insurance Policies. Except for worker's compensation insurance, which shall comply with Section 6.2 hereof, all policies of insurance carried by the Association shall comply with this Section. All policies of insurance carried by the Association shall be carried in blanket policy form naming the Association as insured, or its designee as trustee and attorney-in-fact for all Owners, and each Owner shall be an insured person under such policies with respect to liability arising out of any Owner's membership in the Association. Additionally, each Owner and each Security Interest Holder shall be beneficiaries of the policy in a percentage equal to the Owner's Allocated Interest. The policy or policies shall contain a standard non-contributory Security Interest Holder's clause in favor of each Security Interest Holder and a provision that it cannot be canceled or materially altered by either the insured or the insurance company until thirty (30) days prior written notice thereof is given to the insured and each Security Interest Holder, insurer or guarantor of a Security Interest. The Association shall furnish a certified copy or duplicate original of such policy or renewal thereof, with proof of premium payment and a certificate identifying the interest of the Owner in question, to any party in interest, including Security Interest Holders, upon request. All policies of insurance carried by the Association shall also contain waivers of subrogation. Further, all policies of insurance carried by the Association shall also contain waivers of any defense based on invalidity arising from any acts or neglect of an Owner where such Owner is not under the control of the Association. 18 DRAFT 10/15/01 Section 6.4. Deductibles. The Association may adopt and establish written non-discriminatory policies and procedures relating to the responsibility for deductibles. Any loss, or any portion thereof, which falls within the deductible portion of a policy that is carried by the Association, shall be borne by the Person who is responsible for the repair and maintenance of the property which is damaged or destroyed,may be apportioned among the Persons sharing in a joint duty of repair and maintenance, and/or may be partly or wholly borne by the Association, and/or may be shared by any such Person(s) and the Association at the election of the Board of Directors. Notwithstanding the foregoing, after notice and hearing, the Association may determine that a loss, either in the form of a deductible to be paid by the Association or an uninsured loss, resulted from the act or negligence of one or more Owners. Upon said determination by the Association, any such loss, or any portion thereof, may be assessed to the Owner(s) in question and the Association may collect such amount(s) from said Owner(s) in the same manner as any assessment. Section 6.5. Payment of Insurance Proceeds. Any loss covered by an insurance policy described in Section 6.1 hereof must be adjusted with the Association, but the insurance proceeds for that loss shall be payable to any insurance trustee designated for that purpose, or otherwise to the Association, and not to any Security Interest Holder. The insurance trustee or the Association shall hold any insurance proceeds in trust for the Association, Owners and Security Interest Holders, as their interests may appear. Subject to the provisions of Section 7.1 of this Declaration, the proceeds must be disbursed first for the repair or replacement of the damaged property; and the Association, Owners and Security Interest Holders are not entitled to receive payment of any portion of the proceeds unless there is a surplus of proceeds after the property has been completely repaired or replaced and any budget or reserve deficit has been funded, or unless the Community is terminated. Section 6.6. Association Insurance as Primary Coverage. If at the time of any loss under any policy which is in the name of the Association, there is other insurance in the name of any Owner and such Owner's policy covers the same property or loss, or any portion thereof, which is covered by such Association policy, such Association policy shall be primary insurance not contributing with any of such other insurance. An Owner shall be liable to the Association for the amount of any diminution of insurance proceeds to the Association as a result of policies of insurance of an Owner, and the Association may collect the amount from said Owner in the same manner as any assessment. Any such Owner's policy shall also contain waivers of subrogation. Section 6.7. Acceptable Insurance Companies. Each insurance policy purchased by the Association must be written by an insurance carrier that is authorized by law to do business in the State of Colorado. The Association shall not obtain any policy where (a) under the terms of the insurance company's charter, bylaws, or policy, contributions or assessments may be made against the mortgagor or mortgagee's designee, or (b) under the terms of the carrier's charter, bylaws, or policy, loss payments are contingent upon action by the carrier's board of directors,policy holders or members, or(c)the policy includes any limiting clauses (other than insurance conditions) which could prevent mortgagees or any Owner from collecting insurance proceeds. 19 DRAFT 10/15/01 Section 6.8. Insurance to be Maintained by Owners. An insurance policy issued to the Association does not obviate the need for Owners to obtain insurance for their own benefit. Insurance coverage on each Owner's Lot and the Improvements thereon, which provides replacement cost coverage, as well as on personal property belonging to an Owner, and public liability insurance coverage on each Lot, shall be the responsibility of the Owner of such Lot. ARTICLE 7. DAMAGE OR DESTRUCTION Section 7.1. Damage or Destruction. 7.1.1. Any portion of the Community for which casualty insurance is required to be carried by the Association under this Declaration which is damaged or destroyed must be repaired or replaced promptly by the Association unless: 7.1.1.1.The Community is terminated; or 7.1.1.2.Repair or replacement would be illegal under any state or local statute or ordinance governing health or safety; or 7.1.1.3.Members casting sixty-seven percent(67%) of the Association votes, including the vote for each Lot that has a dwelling unit that will not be rebuilt, vote not to rebuild; or 7.1.1.4.Prior to conveyance of any Lot to a Person other than the Declarant, a Security Interest Holder of a Security Interest on the damaged portion of the Community rightfully demands all or a substantial part of the insurance proceeds. 7.1.2. The cost of repair or replacement that is covered by insurance carried by the Association, but which is in excess of insurance proceeds and reserves, is an Association expense. If the entire Community is not repaired or replaced, the insurance proceeds attributable thereto must be used to restore the damaged area to a condition compatible with the remainder of the Community and, except to the extent that other Persons will be distributees, the remainder of the proceeds must be distributed to all the Owners or lienholders, as their interests may appear, in proportion to the assessment liability of all the Lots. If the Members vote not to rebuild any Lot, that Lot's Allocated Interest is automatically reallocated upon the vote as if the Lot had been condemned as provided in Section 13.14 of this Declaration, and the Association promptly shall prepare, execute and record an amendment to the Declaration reflecting such reallocations. Section 7.2. Lots. Except as otherwise provided in Section 7.1 hereof; any damage to or destruction of any structure located on a Lot shall be promptly repaired and replaced by the Owner(s) thereof. "Repaired and replaced," as used in this Section, shall mean restoring the structure to substantially the same condition in which it existed immediately prior to such damage or destruction, including having the same boundaries as before. If the Owner(s) of a Lot do not commence repair or replacement activities within a reasonable time, as provided above, and diligently pursue the same 20 DRAFT 10115/01 in conformance with the plans approved by the Architectural Review Committee then, in accordance with and subject to the provisions of Section 8.3 of this Declaration, the Association may, in its reasonable discretion, enter upon the Lot for the purpose of completing such repair and replacement. ARTICLE 8. EXTERIOR MAINTENANCE Section 8.1. Worker's Compensation Insurance. The Association shall carry, or shall ensure that its contractors carry,worker's compensation insurance as provided in Article 6 at any time that the Association performs, or causes to be performed, maintenance,repair or replacement activities. Section 8.2. General. 8.2.1. Maintenance, repair and replacement of all Common Elements and Improvements located thereon and of any other drainage structure or facilities (including any storm sewer facilities and the related appurtenances for the Community), or other public Improvements required by the local governmental entity as a condition of development of the Community or any part thereof, shall be the responsibility of the Association unless such Improvements have been dedicated to and accepted by the local governmental entity for the purpose of maintenance, repair and replacement or unless such maintenance, repair and replacement has been authorized by law to be performed by a special district or other municipal or quasi-municipal entity. Further, the Association may provide such other maintenance,repair and replacement as the Board of Directors deems appropriate from time to time including without limitation, any other publicly dedicated property and Improvements located thereon. The costs, expenses, fees, and other amounts to be expended for the maintenance,repair and replacement that is provided for in this subsection shall, subject to Section 8.5 hereof, be collected by the Association as assessments and paid as Association expenses. 8.2.2. The Owner of each Lot shall provide all maintenance, repair and replacement thereof and of the Improvements thereon. Section 8.3. Association's Right to Repair, Maintain and Replace. In the event any Owner(s) shall fail to perform his maintenance, repair and/or replacement obligations in a manner satisfactory to the Board of Directors, the Association may, if said failure continues for a thirty(30) day period after written notice to said Owner(s) by the Board, enter upon said Lot subsequent to the expiration of said thirty (30) day time period to perform any or all of such maintenance, repair or replacement. The cost of such maintenance, repair and/or replacement shall be the personal obligation of the Owner(s) of the Lot on which such work is performed, and shall be subject to all of the t&sins and provisions applicable to assessments as provided in Article 4 of this Declaration, including without limitation, interest, late charges, attorney's fees and lien rights. 21 DRAFT 10/15/01 Section 8.4. Maintenance of and Non-Interference with Grade and Drainage; Irrigation Recommendations Around Foundations and Slabs. 8.4.1. Each Owner shall maintain the grading on his Lot (including grading around the foundation of the building constructed thereon) at the slope and pitch fixed by the final grading thereof, including landscaping and maintenance of the slopes, so as to maintain the "established drainage pattern". For purposes of this Section, "established drainage" is defined as the drainage that exists at the time final grading by the Declarant or a Builder is completed and the Lot is conveyed to an Owner. 8.4.2. In the event an Owner desires to change the established drainage on his Lot, it shall be the sole responsibility of such Owner to ensure that adequate alternative drainage is provided for both the Owner's Lot and any adjacent property which may be affected by such change. This includes changes which occur due to the installation of any Improvement, including but not limited to perforated drains, channelization, piping, fencing, landscaping, decks, patios,retaining walls,hot tubs,play equipment, and accessory structures. Any damages incurred by an adjacent Owner, the Association or any other Person due to a change in the established drainage pattern of a Lot, shall be the sole liability of the Owner of such Lot. 8.4.3. The Architectural Review Committee reviews and approves or disapproves proposed Improvements based solely upon the Criteria for Approval set forth in Section 5.2.2 of this Declaration. Approval of a proposed Improvement does not in any way imply that the Architectural Review Committee has reviewed or approved any changes in the established drainage pattern of a Lot. Both Association and the Architectural Review Committee shall not be liable for any damages incurred by any Owner or other Person due to a change in the established drainage pattern caused by the installation of an approved Improvement. 8.4.4. The Owner of a Lot should not plant flower beds (especially annuals), vegetable gardens and other landscaping which requires regular watering, within five (5) feet of the foundation of the dwelling unit or any slab on the Lot. If evergreen shrubbery is located within five(5) feet of any foundation wall or slab, then the Owner of the Lot should water such shrubbery by "controlled hand-watering," and should avoid excessive watering. Further,piping and heads for sprinkler systems should not be installed within five(5) feet of foundation walls and slabs. Section 8.5. Owner's Acts or Omissions. Notwithstanding anything to the contrary contained in this Declaration, in the event that the need for maintenance,repair or replacement of or within any property for which the Association has an obligation to maintain, repair or replace, any Lot, or any Improvements located thereon, is caused by the act or omission of any Owner, or by the act or omission of any member of such Owner's family or by a tenant, guest or invitee of such Owner, the cost of such repair, maintenance, replacement or expense to avoid such damage shall be the personal obligation of such Owner to the extent that said Owner would be liable for the acts of such Persons under the laws of the State of Colorado; and any costs, expenses and fees incurred by the Association for such maintenance, repair or replacement shall be added to the assessment to which such Owner's Lot is subject and 22 DRAFT 10/15/01 shall be subject to all of the terms and provisions of Article 4 of this Declaration. A determination of the act or omission of any Owner, or any member of an Owner's family or a tenant, guest or invitee of any Owner, and the amount of the Owner's liability therefor, shall be determined by the Association at a hearing after notice to the Owner, provided that any such determination which assigns liability to any Owner pursuant to the terms of this Section may be appealed by said Owner to a court of law. ARTICLE 9. NON-POTABLE PRIVATE IRRIGATION SYSTEM Section 9.1. Non-Potable Irrigation Water Service. All landscaping in the Community is or will be irrigated through a non-potable (acceptable only for purposes such as irrigation, but not drinking or other household purposes)water system ("Irrigation System"). Water to the Irrigation System will be acquired from the ditch owned by The Rural Ditch Company(the "Ditch")which runs along the eastern boundary of the Community. The Irrigation System and the related appurtenances will be owned, operated, maintained, repaired and replaced by the Association. Generally, the Irrigation System and the related appurtenances include, but are not limited to, water shares in the Ditch, the Check Structure and Turnout/Headgate, the Pump that draws water from the Ditch to the Holding Pond ("Ditch Pump"), the Holding Pond, the Pump which energizes the Irrigation System ("System Pump"), the Pump House which houses both the Ditch Pump and the System Pump, any fencing enclosing the Holding Pond and/or Pump House, all distribution lines (including lateral lines to the Stop Box Shutoff Valve and excluding lateral lines from the Stop Box Shutoff Valve to individual irrigation systems) and the Stop Box Shutoff Valves. Section 9.2. Irrigation Charges. All costs and expenses associated with ownership of the Ditch shares (e.g. ditch maintenance fees), and ownership, operation, maintenance, repair and replacement of the Irrigation System and the related appurtenances ("Irrigation Charges"),will be Association expenses and shall be apportion to and collected from the Owner(s) of each Lot in accordance with their Allocated Interests. Further, all such Irrigation Charges will be subject to all of the Association's rights with respect to the collection and enforcement of assessments as provided in Article 4 of this Declaration. Section 9.3. Availability of Irrigation System and Winterization of Irrigation Systems. The Irrigation System will be unavailable for use from time to time as may be determined by the Board of Directors in its sole discretion. The Irrigation System will be unavailable during winter months and while the Association is performing maintenance and/or repair on the Irrigation System. The Irrigation System (but not the lateral lines from the Stop Box Shutoff Valve to individual irrigation systems) will be winterized by the Association. Each Owner will be responsible for the winterizing the lateral lines from the Stop Box Shutoff Valve to the individual irrigation systems on their Lot. 23 DRAFT 10/15/01 Section 9.4. Acceptable Specifications for Individual Irrigation System Connections From the Stop Box Shutoff Valve to the irrigation connection point and/or the first valve, a minimum of three-quarter inch (3/4"), Schedule 40 Polyvinyl Chloride ("PVC") piping must be utilized to make all connections to the Irrigation System. Section 9.5. Irrigation Easements. Declarant hereby reserves, to itself and to the Association, an easement on, over, across and under the rear seven (7) feet of each Lot for the installation and location of the Irrigation System, and on, over, across and under a portion of each Lot as is reasonably necessary for the installation and location of the Stop Box Shutoff Valve and the lateral line thereto. Further, each Lot shall be subject to an easement in favor of the Association, including the agents, employees and contractors thereof, on, over, across and under each Lot for performing maintenance, repair and/or replacement on the Irrigation System. Further, the rights and easements granted in this Section may be exercised only during reasonable hours after reasonable notice to the Owner(s) or occupant(s) of any affected Lot; except that in emergency situations entry upon a Lot may be made at any time provided that the Owner(s) or occupant(s) of each affected Lot shall be warned of impending emergency entry as early as is reasonably possible. Section 9.6. Rules and Regulations with Respect to the Irrigation System. The Board of Directors may from time to time adopt, amend, repeal and enforce Rules and regulations concerning and governing the Irrigation System, and the Board of Directors may establish and enforce penalties for the infraction thereof, including, without limitation, the levying and collecting of fines for the violation of any of such rules and regulations. Such rules and regulations may state procedural requirements, interpretations and applications of the provisions of this Article, including without limitation,blanket requirements,blanket interpretations, and blanket applications. By way of example and not by way of limitation, such rules and regulations may state that the Irrigation System may only be used during certain morning and certain evening hours. Section 9.7. Owner's Ads or Omissions with Respect to the Irrigation System. In the event that the need for maintenance, repair or replacement of any portion of the Irrigation System and the related appurtenances is caused by the act or omission of any Owner, or by the act or omission of any member of such Owner's family or by a tenant, guest or invitee of such Owner, the cost of such repair, maintenance, replacement or expense to avoid such damage shall be the personal obligation of such Owner to the extent that said Owner would be liable for the acts of such Persons under the laws of the State of Colorado; and any costs, expenses and fees incurred by the Association for such maintenance, repair or replacement shall be added to the assessment to which such Owner's Lot is subject and shall be subject to all of the terms and provisions of Article 4 of this Declaration. A determination of the act or omission of any Owner, or any member of an Owner's family or a tenant, guest or invitee of any Owner, and the amount of the Owner's liability therefor, shall be determined by the Association at a hearing after notice to the Owner, provided that any such determination which assigns liability to any Owner pursuant to the terms of this Section may be appealed by said Owner to a court of law. 24 DRAFT 10/15/01 Section 9.8. Potable Water Service. As of the date of this Declaration, potable water (acceptable for drinking and other household purposes) services will be provided to the Community by Left Hand Ditch Company ("Ditch Company"). Distribution lines (not lateral lines to individual dwelling units) and other appurtenances to the potable water system will be maintained, repaired and replaced by the Ditch Company. All billings for potable water usage will be payable to the Ditch Company or its successors and assigns. In addition, each dwelling unit on a Lot will have external hose bib(s)/faucets(s) that are connected to the potable water service installed thereon. During times when the Irrigation System is unavailable, landscaping may be irrigated by the use of such hose bib(s) (at the normal rate charged by the Ditch Company for potable water usage). ARTICLE 10. EASEMENTS Section 10.1. Other Easements. In addition to any other easements that may be granted or reserved elsewhere in this Declaration, the following Sections describe easements to which the Community is or may be subject. Section 10.2. Access Easement. Each Lot shall be subject to an easement in favor of the Association and the Owners, including the agents, employees and contractors thereof, for performing maintenance, repair and/or replacement or other services as provided in this Declaration, including without limitation, maintenance, repair and/or replacement pursuant to Section 8.3 of this Declaration. If damage is inflicted, or a strong likelihood exists that it will be inflicted, on the Common Elements, any other property, or any Lot, the Owner responsible for the damage or expense to avoid damage, or the Association if it is responsible, is liable for the cost of prompt repair. Further, the rights and easements granted in this Section may be exercised only during reasonable hours after reasonable notice to the Owner(s) or occupant(s) of any affected Lot; except that no such notice shall be required in connection with any exterior, non-intrusive maintenance; and except that in emergency situations entry upon a Lot may be made at any time provided that the Owner(s) or occupant(s) of each affected Lot shall be warned of impending emergency entry as early as is reasonably possible. The interior of any dwelling unit located on a Lot shall not be subject to the easements provided for in this Section. Section 10.3. Utilities Easement. The Declarant hereby reserves a blanket easement upon, across, over and under the Common Elements for utilities and the installation,replacement, repair and maintenance of utilities, including, but not limited to, water, sewer, gas, telephone, electricity, computer cable, and television antenna or cable or satellite television systems, if any. By virtue of this blanket easement it shall be expressly permissible to erect and maintain the necessary facilities, equipment and appurtenances on the Common Elements and to affix, repair, and maintain water and sewer pipes, gas, electric, telephone, computer and television wires, cables, circuits, conduits and meters. In the event any utility or quasi-utility company furnishing a service covered by the general easement created herein requests a specific easement by separate recordable document, Declarant reserves and is hereby given the right and authority to grant such easement upon, across, over or under any 25 DRAFT 10/15/01 part or all of the Common Elements without conflicting with the terms hereof; provided, however, that such right and authority in the Declarant shall automatically cease at such time as the Special Declarant Rights terminate as provided in Section 1.22 of this Declaration, at which time said reserved right shall vest in the Association. The easement provided for in this Section shall in no way affect, avoid, extinguish or modify any other recorded easement(s) on the Common Elements. Section 10.4. Easement for Encroachments. To the extent that any Improvement on a Lot, or on the Common Elements encroaches on any other Lot or the Common Elements, a valid easement for the encroachment exists. Section 10.5. Drainage Easement Declarant hereby reserves, to itself and to the Association, easements for drainage and drainage facilities across the five (5)rear and five (5) side feet of each Lot; provided,however, that if a residence is located upon any of the areas described in this sentence, then such easement shall be reduced in width to the width of the distance from the nearest Lot line to the exterior wall of the dwelling unit on such Lot that is nearest to such Lot line. Except for residences as provided in the preceding sentence, no Improvements shall be placed or permitted to remain on any Lot, nor shall any change in grading be permitted to exist, which may change the direction of flow or obstruct or retard the flow of water or other moisture through channels or swales within such rear and side yard drainage easements. Declarant reserves to itself and to the Association the right to enter in and upon each five (5) foot rear and side yard drainage easements, at any time, to construct, repair, replace or change drainage structures or drainage ways, or to perform such grading, drainage or corrective work as Declarant or the Association may deem necessary or desirable in their sole discretion from time to time; provided, however, that such right and authority in the Declarant shall automatically cease at such time as the Special Declarant Rights terminate as provided in Section 1.22 of this Declaration, at which time said reserved right shall vest solely in the Association. Section 10.6. Easement for Unannexed Property. The Declarant hereby reserves, for the use and benefit of the Annexable Area, a non- exclusive, perpetual easement for pedestrian and vehicular access, ingress and egress, on, over and across the roads, driveways, streets, sidewalks, accessways and similar Common Elements, now or hereafter constructed, erected, installed or located in or on the Community, and on, over, across and under the Common Elements for utilities and the construction, location, erection, installation, storage, maintenance, repair, renovation, replacement and use of any utilities Improvements that may now or hereafter serve the Annexable Area or any portion thereof (herein collectively the "Annexable Area Easement"). By virtue of this Annexable Area Easement, the Declarant generally intends to provide for pedestrian and vehicular access and for utilities services to those portion(s) of the Annexable Area which have not been included, from time to time, in the Community pursuant to Section 13.5 of this Declaration. Hence, the Annexable Area Easement shall be in effect for each portion of the Annexable Area, from and after recording of this Declaration, but shall cease to be effective as to each portion of the Annexable Area at such time as both of the following have occurred with respect to such portion of the Annexable Area: annexation of such portion of the Annexable Area to this Declaration pursuant to the aforesaid Section; and expiration of the Declarant's right to withdraw such portion of the Annexable Area from this Declaration. 26 DRAFT 10/15/01 ARTICLE 11. RESTRICTIONS Section 11.1. General Plan;Restrictions Imposed It is the intention of the Declarant to establish and impose a general plan for the improvement, development, use and occupancy of the Community. This Community is subject to the recorded easements, licenses, and other matters listed on Exhibit C attached hereto and incorporated herein by this reference, as well as all provisions of any plat and/or final development plan applicable to the Community or any portion thereof. In addition, the Declarant declares that the Community (including all of the Lots therein) shall be held and shall henceforth be sold, conveyed, used, improved, occupied, owned, resided upon and hypothecated, subject to the following provisions, conditions, limitations, restrictions, agreements and covenants, as well as those contained elsewhere in this Declaration. Section 11.2. Residential Use;Professional or Home Occupation. Subject to Section 13.8 of this Declaration, Lots shall be used for residential use only, including those uses which are customarily incident thereto, and shall not be used at any time for business, commercial or professional purposes. Notwithstanding the foregoing, however, Owners may conduct business activities within their homes provided that all of the following conditions are satisfied: 11.2.1. The business conducted is clearly secondary to the residential use of the home and is conducted entirely within the home; 11.2.2. The existence or operation of the business is not detectable from outside of the home by sight, sound, smell or otherwise, or by the existence of signs indicating that a business is being conducted; 11.2.3. The business does not result in an undue volume of traffic or parking within the Community, which determination shall be made by the Board of Directors in its sole discretion from time to time; 11.2.4. The business conforms to all zoning requirements and is lawful in nature; and 11.2.5. The business conforms to any rules and regulations that may be imposed by the Board of Directors from time to time on a uniform basis. Section 11.3. Household Pets. No animals, livestock, birds, poultry, reptiles or insects of any kind shall be raised, bred, kept or boarded in or on the Lots; provided, however, that the Owners of each Lot or their tenants may keep a reasonable number of dogs, cats or other domestic animals which are bona fide household pets, so long as such pets are not kept for any commercial purpose and are not kept in such number or in such manner as to create a nuisance to any resident of the Lots. The Association shall have, and is hereby given, the right and authority to determine in its sole discretion that dogs, cats or other household pets are being kept for commercial purposes or are being kept in such number or in such manner as to be unreasonable or to create a nuisance, or that an Owner or an 27 DRAFT 10/15/01 Owner's tenant is otherwise in violation of the provisions of this Section, and to take such action(s) as it may deem appropriate to correct the same. An Owner's right to keep household pets shall be coupled with the responsibility to pay for any damage caused by such pets, as well as any costs incurred by the Association as a result of such pets, and any such costs and damages shall be subject to all of the Association's rights with respect to the collection and enforcement of assessments as provided in Article 4 of this Declaration. Section 11.4. Temporary Structures; Unsightly Conditions. Except as hereinafter provided, no structure of a temporary character, including, but not limited to, a house trailer, tent, shack, storage structure (except as otherwise provided in Section 11.5.8 hereof) or outbuilding shall be placed or erected upon any Lot; provided, however, that during the actual construction, alteration,repair or remodeling of a structure or other Improvements, necessary temporary structures for storage of materials may be erected and maintained by the Declarant or a Person doing such work. The work of constructing, altering or remodeling any structure or other Improvements shall be prosecuted diligently from the commencement thereof until the completion thereof. Further, no unsightly conditions, structures, facilities, equipment or objects shall be so located on any Lot as to be visible from a street or from any other Lot. Section 11.5. Miscellaneous Improvements. 11.5.1. No advertising or signs of any character shall be erected, placed, permitted, or maintained on any Lot other than a name plate of the occupant and a street number, and except for a "For Sale," "Open House," "For Rent," or security sign of not more than five (5) square feet in the aggregate. Notwithstanding the foregoing, reasonable signs, advertising, or billboards used by the Declarant in connection with the sale or rental of the Lots, or otherwise in connection with development of or construction on the Lots, shall be permissible. 11.5.2. No clotheslines, drying yards, service yards, wood piles or storage areas shall be so located on any Lot as to be visible from a street, from the ground level of any other Lot or from the Common Elements. 11.5.3. No type of refrigerating, cooling or heating apparatus shall be permitted on a roof or to protrude from a window and no such apparatus shall be permitted elsewhere on a Lot except when appropriately screened and approved by the Architectural Review Committee, subject to any provisions of any guidelines or standards adopted by the Architectural Review Committee. Without limiting the foregoing, conventional air conditioning units located on the ground of a Lot are permissible when approved in accordance with the preceding sentence. 11.5.4. Except as may otherwise be permitted by the Architectural Review Committee, subject to any provisions of any guidelines or standards adopted by the Architectural Review Committee, no exterior radio antennae, television antennae, or other antennae, satellite dish, or audio or visual reception device of any type shall be placed, erected or maintained on any Lot, except inside a dwelling unit or otherwise concealed from view; provided, however,that any such devices may be erected or installed by the Declarant during its sales or construction upon the Lots; and provided further, however, that the 28 DRAFT 10/15/01 requirements of this subsection shall not apply to those "antennae" (including certain satellite dishes) which are specifically covered by the Telecommunications Act of 1996 and/or applicable regulations, as amended from time to time. As to "antennae" (including certain satellite dishes) which are specifically covered by the Telecommunications Act of 1996 and/or applicable regulations, as amended, the Association shall be empowered to adopt rules and regulations governing the types of "antennae" (including certain satellite dishes) that are permissible hereunder and, to the extent permitted by the Telecommunications Act of 1996 and/or applicable regulations, as amended, establishing reasonable, non-discriminatory restrictions or requirements relating to appearance, safety, location and maintenance. 11.5.5. No fences shall be permitted, except those fences approved in writing by the Architectural Review Committee (which shall include any fences deemed to be approved when constructed, erected, placed, located or installed in complete conformity with the provisions of any guidelines or standards adopted by the Architectural Review Committee) and except such fences as may be constructed, erected, placed, located or installed by the Declarant in its development of, or construction of, Improvements in the Community. 11.5.6. No wind generators shall be constructed, installed, erected or maintained on any Lot. 11.5.7. No dog runs shall be permitted on Lots, except those dog runs approved in writing by the Architectural Review Committee (which shall include any dog runs deemed to be approved when constructed, erected, placed, located or installed in complete conformity with the provisions of any guidelines or standards adopted by the Architectural Review Committee). 11.5.8. Notwithstanding Section 11.4 hereof, permanent storage sheds shall be permitted on Lots, but only with the prior approval of the Architectural Review Committee, (which shall include any storage sheds deemed to be approved when constructed, erected, placed, located or installed in complete conformity with the provisions of any guidelines or standards adopted by the Architectural Review Committee). Section 11.6. Vehicular Parking,Storage and Repairs. 11.6.1. No house trailer, camping trailer, boat trailer, hauling trailer, jet ski, boat, or accessories thereto, truck (excluding pickup trucks that are 1 ton or less), self- contained motorized recreational vehicle, or other type of recreational or commercial vehicle or equipment, may be parked or stored on a Lot unless such parking or storage is entirely within the garage area of any Lot or will be suitably screened from view in accordance with the requirements, and prior written approval of; the Architectural Review Committee (subject to subject to any provisions of any guidelines or standards adopted by the Architectural Review Committee). However, any such vehicle may be otherwise parked as a temporary expedient for loading, delivery, or emergency. This restriction, however, shall not restrict trucks or other commercial vehicles which are necessary for construction or maintenance of any portion of the Com unity or any Improvements located thereon. 29 DRAFT 10/15/01 11.6.2. Except as otherwise provided in this and the next sentence, no recreational vehicles, or disassembled or partially disassembled vehicles of any type, shall be parked, stored, maintained, or used on any Lot (unless such parking or storage will be within the fully enclosed garage of a Lot). However, recreational vehicles may be temporarily parked for a maximum of three (3) consecutive days in the driveway of a Lot. Recreation vehicles shall include, but not be limited to, motorhomes, pick-up trucks with camper shells, trailers, motorcycles, motorbikes, snowmobiles,jet skis, all-terrain vehicles, and other apparatus intended for use on land, water, or in the air, and the trailers used for their transportation. 11.6.3. Except as provided above, no abandoned or inoperable automobiles or vehicles of any kind shall be stored or parked in the Community. An "abandoned or inoperable vehicle" shall be defined as any automobile, truck, motorcycle, or other similar vehicle, which has not been driven under its own propulsion for a period of seventy-two (72) hours or longer, or which does not have an operable propulsion system installed therein, or which is not then currently registered and licensed; provided, however, that otherwise permitted vehicles parked by Owners while on vacation (for a maximum of two (2)weeks)or during a period of illness shall not be deemed to be abandoned. 11.6.4. In the event the Association shall determine that a vehicle is parked or stored in violation of subsections 10.6.1, 10.6.2 or 10.6.3 hereof, then a written notice describing said vehicle shall be personally delivered to the owner thereof(if such owner can be reasonably ascertained) or shall be conspicuously placed upon the vehicle (if the owner thereof cannot be reasonably ascertained), and if the vehicle is not removed within a reasonable time thereafter, as determined by the Association in its discretion from time to time, the Association shall have the right to remove the vehicle at the sole expense of the owner thereof. 11.6.5. No activity such as, but not limited to, maintenance, repair, rebuilding, dismantling, repainting or servicing of any kind of vehicles, trailers or boats, may be performed or conducted in the Community unless it is done within a completely enclosed structure which screens the sight and sound of the activity from the street and from adjoining property. The foregoing restriction shall not be deemed to prevent the washing and polishing of any motor vehicle,boat,trailer, motor cycle, or other vehicle, together with those activities normally incident and necessary to such washing and polishing on a Lot. Section 11.7. Nuisances. No nuisance shall be permitted which is visible within or otherwise affects the Community or any portion thereof;nor any use, activity or practice which interferes with the peaceful enjoyment or possession and proper use of the Community or any portion thereof. As used herein, the term "nuisance" shall include each violation of this Declaration, the Articles of Incorporation, Bylaws, rules, regulations, standards and/or guidelines of the Association or the Architectural Review Committee, but shall not include any activities of Declarant which are reasonably necessary to the development and construction of, and sales activities in, the Community; provided, however, that such activities of the Declarant shall not unreasonably interfere with any Owner's use and enjoyment of his Lot, or with any Owner's ingress and egress to or from his Lot and a public way. 30 DRAFT 10/15/01 No noxious or offensive activity shall be carried on upon any Lot nor shall anything be done or placed on any Lot which is or may become a nuisance or cause embarrassment, disturbance or annoyance to others. Further, no unlawful use shall be permitted or made of the Community or any portion thereof. All laws, ordinances and regulations of all governmental bodies having jurisdiction over the Community, or any portion thereof, shall be observed. Section 11.8. No Hazardous Activities;No Hazardous Materials or Chemicals. No activities shall be conducted on any Lot or within Improvements constructed on any Lot which are or might be unsafe or hazardous to any person or property. Without limiting the generality of the foregoing, no firearms shall be discharged upon any Lot and no open fires shall be permitted on any Lot except in a contained barbecue unit while attended and in use for cooking purposes or within an interior fireplace, or except such campfires or picnic fires on property which may be designated for such use by the Association. Further, no hazardous materials or chemicals shall at any time be located, kept or stored in, on or at any Lot except such as may be contained in household products normally kept at homes for use of the residents thereof and in such limited quantities so as to not constitute a hazard or danger to person or property. Section 11.9. No Annoying Lights, Sounds or Odors. No light shall be emitted from any Lot which is unreasonably bright or causes unreasonable glare; no sound shall be emitted from any Lot which is unreasonably loud or annoying; and no odor shall be permitted from any Lot which is noxious or offensive to others. Further,no annoying light, sound or odor shall be permitted in any portion of the Community that may be seen, heard or smelled from any adjoining portion of the Community. Section 11.10. Restrictions on Trash and Materials. No refuse, garbage, trash, lumber, grass, shrubs or tree clippings, plant waste, metal, bulk materials, scrap or debris of any kind shall be kept, stored, or allowed to accumulate except inside the residence on any Lot nor shall any such items be deposited on a street, unless placed in a suitable, tightly-covered container that is suitably located solely for the purpose of garbage pickup. Further, no trash or materials shall be permitted to accumulate in such a manner as to be visible from any other portion of the Community. All equipment for the storage or disposal of such materials shall be kept in a clean and sanitary condition. No garbage or trashcans or receptacles shall be maintained in an exposed or unsightly manner. Section 11.11. Lots to be Maintainer. Subject to Section 11.4 hereof, each Lot shall at all times be kept in a clean and sightly condition by the Owner(s) or tenants thereof Section 11.12. Leases. The term "lease," as used herein, shall include any agreement for the leasing or rental of a Lot, or any portion thereof, and shall specifically include, without limitation, month-to-month rentals and subleases. Any Owner shall have the right to lease his Lot, or any portion thereof, as long as all leases are in writing and provide that the terms of the lease and lessee's occupancy of the leased premises shall be subject in all respects to the provisions of this Declaration, and the Articles of Incorporation, Bylaws and rules and regulations of the Association; and that any failure by the 31 DRAFT 10/15/01 lessee to comply with any of the aforesaid documents, in any respect, shall be a default under the lease. Section 11.13. Landscaping of Lots. Within one (1) year after initial conveyance of each Lot by the Declarant, the non-Declarant Owner thereof(unless such time is extended in writing by the Architectural Review Committee) shall install landscaping (which shall include any landscaping deemed to be approved when constructed, erected, placed, located or installed in complete conformity with the provisions of any guidelines or standards adopted by the Architectural Review Committee) on all unlandscaped portions of his Lot which are not covered by a dwelling unit, and such Owner shall be responsible for maintaining such landscaping in a neat and attractive condition, including periodic and horticulturally correct pruning,removal of weeds, and replacement of landscaping. If any Owner of a Lot fails or refuses to install landscaping, as provided above, then the Association may, at the direction of the Board of Directors and after giving the notice provided for in Section 8.3 of this Declaration, enter upon such Owner's Lot and install the landscaping required by any guidelines or standards adopted by the Architectural Review Committee. The costs and expenses incurred by the Association as a result the Association installing such landscaping shall be the personal obligation of the Owner(s) of the Lot on which such work is performed, and shall be subject to all of the terms and provisions applicable to assessments as provided in Article 4 of this Declaration, including without limitation, interest, late charges, attorney's fees and lien rights. Additionally, in the event any Owner of Lot fails or refuses to maintain the landscaping on such Owner's Lot, as provided above, then the Association may, at the direction of the Board of Directors and after giving the notice provided for in Section 8.3 of this Declaration, enter upon such Owner's Lot in order to perform such maintenance activities. The costs and expenses incurred by the Association as a result the Association maintaining such landscaping shall be the personal obligation of the Owner(s) of the Lot on which such work is performed, and shall be subject to all of the terms and provisions applicable to assessments as provided in Article 4 of this Declaration, including without limitation, interest, late charges, attorney's fees and lien rights. ARTICLE 12. PROPERTY RIGHTS IN THE COMMON ELEMENTS Section 12.1. Owners'Easements of Enjoyment. Subject to this Article, every Owner shall have a non-exclusive right and easement for the purpose of access to such Owner's Lot and for use for all other purposes, in and to the Common Elements, and such easement shall be appurtenant to and shall pass with the title to every Lot. Section 12.2. Extent of Owners'Easements. Subject to the other provisions of this Article, the rights and easements of enjoyment created hereby are subject to the following: the Common Elements may not be used in any manner which violates the statutes, rules, or regulations of any governmental authority with jurisdiction over the Common Elements; and no Owner may place any structure on the Common Elements. In addition, such rights and easements are subject to the following rights of the Association: 12.2.1. The right of the Association to borrow money for the purpose of improving the Common Elements and to mortgage said property as security for any such 32 DRAFT 1 0/1 5/01 loan; provided, however, that the Association may not subject any portion of the Common Elements to a Security Interest except in accordance with CCIOA; and 12.2.2. The right of the Association to take such steps as are reasonably necessary to protect the Common Elements against foreclosure; and 12.2.3. The right of the Association to promulgate and publish rules and regulations, and of the Architectural Review Committee to promulgate standards, guidelines, rules and regulations, with which each Member shall strictly comply, including, but not limited to, the right to regulate and/or restrict vehicular parking and Improvements; and 12.2.4. The right of the Association to suspend the voting rights of a Member for any period during which any assessment against his Lot remains unpaid and, for a period not to exceed sixty (60) days, for any infraction of the Declaration or the Association's Bylaws or rules and regulations; and 12.2.5. The right of the Association to dedicate or transfer all or any part of the Common Elements owned by the Association to any public agency, authority, or utility for such purposes and subject to such conditions as may be agreed to by the Members,provided that no such dedication or transfer shall be effective unless the same is done in accordance with CCIOA. Notwithstanding the foregoing, the granting of permits, licenses and easements for public utilities, roads or for other purposes reasonably necessary or useful for the proper maintenance or operation of the Community shall not be deemed a transfer within the meaning of this subsection; and 12.2.6. The right of the Association, through its Board of Directors, to enter into, make, perform or enforce any contracts, leases, agreements, licenses, easements and rights-of-way, for the use of real property or Improvements by Owners, other Persons, their family members, guests and invitees, for any purpose(s)the Board of Directors may deem to be useful,beneficial or otherwise appropriate; and 12.2.7. The right of the Association to close or limit the use of the Common Elements while maintaining,repairing and making replacements in the Common Elements. Section 12.3. Use of Common Elements by Declarant. An easement is hereby granted to the Declarant on, over and through the Common Elements as may be reasonably necessary for the purpose of exercising or discharging any of Declarant's rights or obligations or exercising any Special Declarant Rights, and no Owner shall engage in any activity which will temporarily or permanently interfere with the Declarant's easements on,over and through the Common Elements. Section 12.4. Delegation of Use. Any Owner may delegate his right of enjoyment to the Common Elements and facilities to the members of his family,his tenants, or contract purchasers who reside on his Lot. 33 DRAFT 10/15/01 Section 12.5. Payment of Taxes or Insurance by Security Interest Holders. Security Interest Holders shall have the right,jointly or singly, to pay taxes or other charges or assessments which are in default and which may be or have become a lien against the Common Elements and may pay overdue premiums on hazard insurance policies or secure new hazard insurance coverage on the lapse of a policy for the Common Elements, and any Security Interest Holders making any such payments shall be owed immediate reimbursement therefor from the Association. Section 12.6. Conveyance or Encumbrance of Common Elements. Portions of the Common Elements may be conveyed or subjected to a Security Interest by the Association only in accordance with CCIOA and this Declaration. Section 12.7. Designation of Common Elements. Declarant in recording this Declaration has designated certain areas of land as Common Elements intended for the common use and enjoyment of Owners for recreation and other related activities, as provided in this Declaration and other applicable documents. The Common Elements owned by the Association are not dedicated hereby for use by the general public. Section 12.8. Duty to Accept Property and Facilities Transferred by Declarant The Association shall accept title to any Common Elements, including Improvements thereon, as well as personal property, equipment, and easements, transferred to the Association by the Declarant, together with responsibility to perform all duties and functions of the Association which are set forth in this Declaration or otherwise assumed by the Association. As of the date of recording of this Declaration, interests which are planned to be transferred by the Declarant to the Association are planned to consist only of fee simple title to Common Elements to be located in the property described on the attached Exhibit A and/or the Annexable Area, and/or easements. ARTICLE 13. GENERAL PROVISIONS Section 13.1. Enforcement. Enforcement of the covenants, conditions, restrictions, easements, reservations, rights-of- way, liens, charges and other provisions contained in this Declaration, the Articles of Incorporation, Bylaws, rules, regulations, standards and/or guidelines of the Association or the Architectural Review Committee, as supplemented and amended from time to time, may be by any proceeding at law or in equity against any Person(s) (including, without limitation, the Association) violating or attempting to violate any such provision. The Association and any aggrieved Owner shall have the right to institute, maintain and prosecute any such proceedings, and the Association shall further have the right to levy and collect fines for the violation of any provision of any of the aforesaid documents. Remedies for violation(s) of this Declaration, the Articles of Incorporation, Bylaws, rules, regulations, standards and/or guidelines of the Association or the Architectural Review Committee, shall be cumulative and no remedy shall be exclusive of other remedies that may be available. In any action instituted or maintained under this Section, the prevailing party shall be entitled to recover its costs and reasonable attorneys' fees incurred pursuant thereto, as well as any and all other sums awarded by the Court. Failure by the Association or any Owner to enforce any 34 DRAFT 10/15/01 covenant, restriction or other provision herein contained, or any other provision of any of the aforesaid documents, shall in no event be deemed a waiver of the right to do so thereafter. Section 13.2. Severability. All provisions of this Declaration, the Articles of Incorporation and Bylaws of the Association are severable. Invalidation of any of the provisions of any such documents, by judgment, court order or otherwise, shall in no way affect or limit any other provisions which shall remain in full force and effect. Section 13.3. Conflict of Provisions. In case of any conflict between this Declaration and the Articles of Incorporation or Bylaws of the Association, this Declaration shall control. In case of any conflict between the Articles of Incorporation and the Bylaws of the Association,the Articles of Incorporation shall control. Section 13.4. Conflict with CCIOA. In the event that any of the terms or provisions of this Declaration are in conflict or inconsistent with CCIOA, the terms or provisions of CCIOA shall control and govern. In case of any such conflict or inconsistency, the applicable terms and provisions contained in this Declaration shall, to the extent possible, be construed in accordance with CCIOA, and any conflict with or violation of CCIOA by any terms or provisions of this Declaration shall not affect, void, or render unenforceable any other term or provision of this Declaration(which shall be in full force and effect in accordance with their terms). Section 13.5. Annexation; Withdrawal 13.5.1. Additional property may be annexed to this Declaration with the consent, at the time such annexation is to be effective, of Members casting sixty-seven percent (67%) of the Association votes and with the consent, at the time such annexation is to be effective, of the owner of the property to be annexed. 13.5.2. Notwithstanding the foregoing, the Declarant may annex to this Declaration the Annexable Area or any portion(s) thereof, until termination of this right as provided below, without consent of any other Owners, Security Interest Holders, or any other Person; however, such annexation is subject to a determination by HUD or VA(if the Declarant desires to attempt to obtain HUD or VA approval of the property being annexed and if HUD or VA require such approval) that the annexation is in accord with the general plan approved by them and that the structures to be located thereon will be of comparable style, quality, size and cost to the existing Improvements. Each annexation shall be effected, if at all, by recording an Annexation of Additional Land in the Office of the Clerk and Recorder of the County in which the annexed property is located,which document: 13.5.2.1. shall provide for annexation to this Declaration of the property described in such Annexation of Additional Land; 13.5.2.2. shall identify the owner(s) of the Lots thereby created; 35 DRAFT 10/15/01 13.5.2.3. shall assign an identifying number to each new Lot; 13.5.2.4. shall describe any Common Elements within the property being annexed; 13.5.2.5. shall reallocate the Allocated Interests; and 13.5.2.6. may include such other provisions as the Declarant deems appropriate. Other provisions that may be included in an Annexation of Additional Land include, without limitation, covenants, conditions, restrictions, requirements and/or other provisions, in addition to or different from those contained elsewhere in this Declaration, that apply or will apply to some or all of the property that is thereby being annexed to this Declaration. Any of such other provisions referenced in this subsection may be amended with the consent of the Owners of sixty-seven percent (67%)of the Lots to which such other provisions apply. 13.5.3. The Declarant's right to annex the Annexable Area without approval, as provided in subsection 13.5.2 above, shall terminate automatically as provided in Section 1.22 of this Declaration. 13.5.4. Except as otherwise specifically stated in an Annexation of Additional Land, as provided in subsection 13.5.2.7 above, all provisions of this Declaration, including (as to Lots), but not limited to, those provisions regarding obligations to pay assessments to the Association and any right to cast votes as Members, shall apply to the annexed property immediately upon the effective date of the Annexation of Additional Land or other document of annexation (which shall constitute the date of recording of the Annexation of Additional Land or other annexation document, unless otherwise stated therein), unless and to the extent any provisions of this Declaration are, as to the annexed property or any portion thereof, changed or deleted by such Annexation of Additional Land. 13.5.5. Each Person who acquires any property within the Annexable Area after the date of recording hereof will have agreed, pursuant to applicable documents, that such property will be governed by this Declaration. The Declarant, therefore, reserves the right (but not the obligation), during the time period set forth in subsection 13.5.3 hereof, to annex such property to the Declaration without further authorization from the Person who has purchased such property, even if such annexation occurs subsequent to conveyance of such property by Declarant. 13.5.6. The property which is described on the attached Exhibit A and each portion of the Community which is annexed to this Declaration as provided in the preceding subsections, shall be subject to a right of withdrawal by the Declarant. Such withdrawal may be accomplished, if at all, in accordance with CCIOA. However, the Declarant's right to withdraw such property and each such portion of the Community shall expire and terminate as to such property and each such portion of the Community, upon the first conveyance of any Lot in such portion of the Community to any Person other than the Declarant, but in any event, no later than the automatic termination of the Special Declarant Rights as provided in Section 1.22 of this Declaration. 36 DRAFT 10/15101 Section 13.6. Minor Violations of Setback Restrictions. If upon the erection of any structure, it is disclosed by survey that a minor violation or infringement of setback lines has occurred, such violation or infringement shall be deemed waived by the Owners of each Lot immediately adjoining the structure which is in violation of the setback, and such waiver shall be binding upon all other Owners. However, nothing contained in this Section shall prevent the prosecution of a suit for any other violation of the restrictions, covenants, or other provisions contained in this Declaration. A "minor violation," for the purpose of this Section, is a violation of not more than four (4) feet beyond the required setback lines or Lot lines. This provision shall apply only to the original structures and shall not be applicable to any alterations or repairs to, or replacements of, any of such structures. Section 13.7. Subdivision or Replatting of Lots. The Declarant hereby reserves the right to subdivide or replat any Lot(s) owned by the Declarant, and each such subdivision or replatting may change the number of Lots in the Community. Without limiting the generality of the foregoing, the Declarant reserves the right to move any Lot lines(s) on Lot(s) owned by the Declarant, for the purpose of accommodating Improvements which are constructed or are to be constructed. The rights provided for in this Section shall terminate automatically upon termination of the Special Declarant Rights, as provided in Section 1.22 of this Declaration. Section 13.8. Declarant's Use. Notwithstanding anything to the contrary contained in this Declaration, it shall be expressly permissible and proper for the Declarant, its employees, agents, and contractors, to perform such reasonable activities, and to maintain upon portions of the Lots and the Common Elements such facilities as the Declarant deems appropriate, specifically including, without limiting the generality of the foregoing, maintaining signs, sales offices, management offices, model units and construction offices in such numbers, of such sizes, and at such locations as the Declarant determines in its reasonable discretion from time to time. Nothing contained in this Declaration shall limit the rights of the Declarant to conduct all construction, sales, and marketing activities as the Declarant deems necessary or desirable and to use the easements provided in this Declaration for those and other purposes. Further,nothing contained in this Declaration shall limit the rights of the Declarant or require the Declarant to obtain approvals: (a) to excavate, cut, fill or grade any property or to construct, alter, demolish or replace any Improvements; (b) to use any Improvements on any property as sales offices, management offices, model units and/or construction offices in connection with the development, construction or sale of any property; and/or (c) to require the Declarant to seek or obtain the approval of the Architectural Review Committee, the Board of Directors, or the Association for any such activity. Any real estate used as a sales office, management office, model unit, or for the location of a trailer used as a construction or sales office, shall be a Lot or Common Elements, as such property is designated in the document(s) annexing such property to this Declaration. As permitted by Section 216O) of CCIOA, the Declarant hereby reserves for itself and its guests an easement through the Common Elements for access to, from, and incidental to the use of, any property now or hereafter used as sales offices, management offices,model units, or for the location of trailers used as construction or sales offices. 37 DRAFT 10/15/01 Section 13.9. Duration, Revocation, and Amendment. 13.9.1. Each and every provision of this Declaration shall run with and bind the land for a term of twenty (20) years from the date of recording of this Declaration, after which time this Declaration shall be automatically extended for successive periods of ten (10) years each. Except as otherwise provided in this Declaration, this Declaration may be amended during the first twenty(20) year period, and during subsequent extensions thereof, by the affirmative vote or agreement of Members holding more than fifty percent (50%) of the Allocated Interests; provided, however, while Declarant owns any portion of the property described on the attached Exhibits A and D, no amendment may be made to this Declaration except with the affirmative vote or agreement of Members holding ninety percent(90%) of the Association votes. 13.9.2. Every amendment, if any, to the Declaration must be done in compliance with CCIOA. 13.9.3. Notwithstanding anything to the contrary contained in this Declaration, the Declaration may be amended in whole or in part, at any time from time to time, by the Declarant without the consent or approval of any other Owner, any Security Interest Holder, or any other Person, in order to comply with the requirements, standards, or guidelines of any of the Agencies or of recognized secondary mortgage markets. Such right of amendment shall terminate automatically as provided in Section 1.22 of this Declaration. 13.9.4. Notwithstanding anything to the contrary contained in this Declaration, this Declaration, or any map or plat, may be amended in whole or in part, at any time from time to time, by the Declarant without the consent or approval of any other Owner, any Security Interest Holder, or any other Person, in order to correct clerical, typographical, or technical errors. Such right of amendment shall terminate automatically as provided in Section 1.22 of this Declaration. 13.9.5. Except as to amendments which may be made by the Declarant, amendments to this Declaration may be prepared, executed, recorded, and certified by any officer of the Association designated for that purpose or, in the absence of designation, by the president of the Association. Such certification shall, in the case of an amendment requiring the approval of Owners, certify that the Association has received the requisite approvals. Amendments to this Declaration which may be made by the Declarant pursuant to this Declaration or as permitted by CCIOA, may be signed by the Declarant and shall require no other signatory. Section 13.10. Registration of Mailing Address. Each Owner and each Security Interest Holder, insurer or guarantor of a Security Interest, shall register his mailing address with the Association, and except for annual statements and other routine notices, all other notices or demands intended to be served upon an Owner, or upon a Security Interest Holder, insurer or guarantor of a Security Interest, shall be sent by either registered or certified mail, postage prepaid, addressed in the name of such Person at such registered mailing address. However, if any Owner fails to notify the Association of a registered address, then any notice or demand may be delivered or sent, as aforesaid, to such Owner at the address of such 38 DRAFT 10/15/01 Owner's Lot. All notices, demands, or other notices intended to be served upon the Board of Directors or the Association during the 75% Control Period shall be sent by registered or certified mail, postage prepaid, c/o KB Home Colorado Inc., 8401 East Belleview Avenue, Suite 200, Denver, Colorado 80237, unless such address is changed by the Association during the 75% Control Period; subsequent to expiration of the 75% Control Period, the Association shall notify the Owners of a different address for notices. Section 13.11. HUD or VA Approval. During the 75% Control Period, the following actions shall require the prior approval of HUD or VA if, at the time any such action is taken, HUD has insurance or VA has a guarantee(s) on one or more first Security Interests, and HUD or VA require such approval: annexation of additional real property(if the Declarant desires to obtain VA or HUD approval of the property that is being annexed and HUD or VA require such approval); amendment of this Declaration, except as provided in Sections 12.9.3 and 12.9.4 hereof; termination of this Community; or merger or consolidation of the Association, except as provided in Section 3.14 of this Declaration. Section 13.12. Termination of Community. The Community may be terminated only in accordance with CCIOA. Section 13.13. Transfer of Special Declarant Rights. A Special Declarant Right created or reserved under this Declaration may be transferred only by an instrument evidencing the transfer recorded in every county in which any portion of the Community is located, and in accordance with CCIOA. Section 13.14. Eminent Domain. • The taking by eminent domain of a Lot(s) or Common Element(s), or any portion thereof, shall be done in accordance with applicable law, including without limitation CCIOA. Section 13.15. Limitation on Liability. The Association, the Board of Directors, the Architectural Review Committee, the Declarant, and the officers, directors, members, partners, agents and employees of the same, shall not be liable to any Person for any action or for any failure to act unless the action or failure to act was not in good faith and was done or withheld with malice. Section 13.16. No Representations, Guaranties or Warranties. No representations, guaranties or warranties of any kind, express or implied, shall be deemed to have been given or made by Declarant, the Association, the Board of Directors, the Architectural Review Committee, or by any of their officers, directors, members,partners, agents or employees, in connection with any portion of the Community, or any Improvement, its or their physical condition, structural integrity, freedom from defects, zoning, compliance with applicable laws, fitness for intended use, or view, or in connection with the subdivision, sale, operation, maintenance, cost of maintenance, taxes or regulation thereof, unless and except as shall be specifically set forth in writing. 39 DRAFT 10/15/01 Section 13.17. Disclaimer Regarding Safety. DECLARANT, THE ASSOCIATION, THE BOARD OF DIRECTORS AND THE ARCHITECTURAL REVIEW COMMITTEE, AND THEIR OFFICERS, DIRECTORS, MEMBERS, PARTNERS, AGENTS AND EMPLOYEES, HEREBY DISCLAIM ANY OBLIGATION REGARDING THE SECURITY OF ANY PERSONS OR PROPERTY WITHIN THE COMMUNITY. BY ACCEPTING A DEED TO PROPERTY WITHIN THE COMMUNITY, EACH OWNER ACKNOWLEDGES THAT DECLARANT, THE ASSOCIATION, THE BOARD OF DIRECTORS AND THE ARCHITECTURAL REVIEW COMMITTEE, AND THEIR OFFICERS, DIRECTORS, MEMBERS, PARTNERS, AGENTS AND EMPLOYEES, ARE ONLY OBLIGATED TO DO THOSE ACTS SPECIFICALLY ENUMERATED HEREIN, OR IN THE ARTICLES OF INCORPORATION, BYLAWS AND RULES AND REGULATIONS OF THE ASSOCIATION, AND ARE NOT OBLIGATED TO DO ANY OTHER ACTS WITH RESPECT TO THE SAFETY OR PROTECTION OF PERSONS OR PROPERTY WITHIN THE COMMUNITY. Section 13.18. Headings. The Article, Section and subsection headings in this Declaration are inserted for convenience of reference only, do not constitute a part of this Declaration, and in no way define, describe or limit the scope or intent of this Declaration or any of the provisions hereof. Section 13.19. Gender. Unless the context requires a contrary construction, the singular shall include the plural and the plural the singular and the use of any gender shall be applicable to all genders. Section 13.20. Run with Land;Binding Upon Successors. The benefits, burdens and all other provisions contained in this Declaration shall be covenants running with and binding upon this Community and all real property and Improvements which are now or hereafter become a part thereof. The benefits, burdens and all other provisions contained in this Declaration shall be binding upon, and inure to the benefit of the Declarant, the Association and all Owners, and upon and to their respective hefts, personal representatives, successors and assigns. IN WITNESS WHEREOF, the undersigned has hereunto set its hand and seal this day of , 20 . DECLARANT: KB HOME COLORADO INC., a Colorado corporation By: Title: J.M. Pearson,Director of Land Development STATE OF COLORADO ) 40 DRAFT 10/15/01 ss. CITY AND COUNTY OF DENVER ) The foregoing instrument was acknowledged before me this day of , 20 by J. M. Pearson as the Director of Land Development for KB Home Colorado Inc., a Colorado corporation. Witness my hand and official seal. (S EA L) Notary Public My Commission Expires: 10-7-2001 41 DRAFT 10/15/01 EXHIBIT A TO DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS OF IDAHO CREEK (The Community) Lots through , inclusive, Block , all as shown on the plat of Idaho Creek, , recorded on , 20 at Reception No. , in the office of the Clerk and Recorder of Weld County, Colorado, as amended. A-1 DRAFT 10/15/01 EXHIBIT B TO DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS OF IDAHO CREEK (Common Elements) None at the time of recording of this Declaration. B-1 DRAFT 10/15/01 EXHIBIT C TO DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS OF IDAHO CREEK (Certain Title Exceptions) The following items which are recorded, are recorded in the office of the Clerk and Recorder of Weld County, Colorado: 1. TAXES AND ASSESSMENTS FOR THE YEAR OF RECORDING OF THIS MASTER DECLARATION AND FOR SUBSEQUENT YEARS,NOT YET DUE AND PAYABLE. 2. C-1 DRAFT 10/15/01 EXHIBIT D TO DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS OF IDAHO CREEK (Annexable Property) All of the property shown on the plat of Idaho Creek, , recorded on , 20 at Reception No. , in the office of the Clerk and Recorder of Weld County, Colorado, as amended; EXCEPTING AND EXCLUDING the property described on Exhibit A to this Declaration. D-1 DRAFT 10/15/01 DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS OF IDAHO CREEK TABLE OF CONTENTS ARTICLE 1. DEFINITIONS 1 Section 1.1. Agencies 1 Section 1.2. Allocated Interests 1 Section 1.3. Annexable Area 2 Section 1.4. Architectural Review Committee or Committee 2 Section 1.5. Association 2 Section 1.6. Board of Directors or Board 2 Section 1.7. CCIOA 2 Section 1.8. Common Elements 2 Section 1.9. Community 2 Section 1.10. Declarant. 2 Section 1.11. Declaration. 3 Section 1.12. Development Rights 3 Section 1.13. Improvements 3 Section 1.14. Lot 3 Section 1.15. Lots that May Be Included 4 Section 1.16. Member. 4 Section 1.17. Owner 4 Section 1.18. Person 4 Section 1.19. Security Interest 4 Section 1.20. Security Interest Holder. 5 Section 1.21. 75%Control Period 5 Section 1.22. Special Declarant Rights 5 Section 1.23. Unfinished Lot 5 ARTICLE 2. MEMBERSHIP AND VOTING RIGHTS 5 Section 2.1. Membership 5 Section 2.2. Voting Rights. 6 ARTICLE 3. ASSOCIATION 6 Section 3.1. Association 6 Section 3.2. Board of Directors 6 Section 3.3. Authority of Board of Directors 6 Section 3.4. Election of Part of the Board of Directors During the 75% Control Period 6 Section 3.5. Authority of Declarant During 75%Control Period. 6 Section 3.6. Termination of 75%Control Period. 7 Section 3.7. Delivery of Property by Declarant. 7 Section 3.8. Budget. 7 Section 3.9. Association Books and Records. 7 DRAFT 10/15/01 Section 3.10. Information Regarding Security Interests on Lots 7 Section 3.11. Rules and Regulations 8 Section 3.12. Cooperation with any Other Community Associations, and/or any Districts. 8 Section 3.13. Management Agreements and Other Contracts 8 Section 3.14. Merger. 9 ARTICLE 4. ASSESSMENTS 9 Section 4.1. Personal Obligation for Assessments. 9 Section 4.2. Purpose of Assessments 9 Section 4.3. Initial Annual Assessment. 9 Section 4.4. Rate of Annual and Special Assessments 9 Section 4.5. Date of Commencement of Annual Assessments. 10 Section 4.6. Special Assessments. 10 Section 4.7. Notice and Quorum for Any Special Assessments. 11 Section 4.8. Assessments/Charges for Services to Less Than All Lots. 11 Section 4.9. Lien for Assessments. 11 Section 4.10. Priority of Association Lien 12 Section 4.11. Certificate of Status of Assessments 12 Section 4.12. Effect of Non-Payment of Assessments; Remedies of the Association 13 Section 4.13. Surplus Funds 13 Section 4.14. Working Capital Fund 13 Section 4.15. Other Charges 13 Section 4.16. Assessments for Misconduct. 14 ARTICLE 5. ARCHITECTURAL REVIEW COMMITTEE 14 Section 5.1. Composition of Committee 14 Section 5.2. Review and Approval by Committee; Exemption of Declarant; Requirement for Approval by Governmental Entities. 14 Section 5.3. Design Guidelines and Standards. 15 Section 5.4. Procedures. 15 Section 5.5. Vote and Appeal 16 Section 5.6. Prosecution of Work After Approval. 16 Section 5.7. Notice of Completion 16 Section 5.8. Inspection of Work 16 Section 5.9. Notice of Noncompliance. 16 Section 5.10. Correction of Noncompliance 17 Section 5.11. Variance 17 Section 5.12. Waivers;No Precedent. 17 Section 5.13. Records 17 Section 5.14. Liability. 17 ARTICLE 6. INSURANCE 18 Section 6.1. Insurance 18 ii DRAFT 10/15/01 Section 6.2. Worker's Compensation Insurance. 18 Section 6.3. General Provisions of Insurance Policies. 18 Section 6.4. Deductibles 19 Section 6.5. Payment of Insurance Proceeds. 19 Section 6.6. Association Insurance as Primary Coverage. 19 Section 6.7. Acceptable Insurance Companies 19 Section 6.8. Insurance to be Maintained by Owners. 20 ARTICLE 7. DAMAGE OR DESTRUCTION 20 Section 7.1. Damage or Destruction. 20 Section 7.2. Lots 20 ARTICLE 8. EXTERIOR MAINTENANCE 21 Section 8.1. Worker's Compensation Insurance. 21 Section 8.2. General. 21 Section 8.3. Association's Right to Repair,Maintain and Replace 21 Section 8.4. Maintenance of and Non-Interference with Grade and Drainage; Irrigation Recommendations Around Foundations and Slabs. 22 Section 8.5. Owner's Acts or Omissions 22 ARTICLE 9. NON-POTABLE PRIVATE IRRIGATION SYSTEM 23 Section 9.1. Non-Potable Irrigation Water Service. 23 Section 9.2. Irrigation Charges 23 Section 9.3. Availability of Irrigation System and Winterization of Irrigation Systems 23 Section 9.4. Acceptable Specifications for Individual Irrigation System Connections 24 Section 9.5. Irrigation Easements 24 Section 9.6. Rules and Regulations with Respect to the Irrigation System. 24 Section 9.7. Owner's Acts or Omissions with Respect to the Irrigation System. 24 Section 9.8. Potable Water Service 25 ARTICLE 10. EASEMENTS 25 Section 10.1. Other Easements 25 Section 10.2. Access Easement 25 Section 10.3. Utilities Easement. 25 Section 10.4. Easement for Encroachments 26 Section 10.5. Drainage Easement 26 Section 10.6. Easement for Unannexed Property. 26 ARTICLE 11. RESTRICTIONS 27 Section 11.1. General Plan; Restrictions Imposed 27 Section 11.2. Residential Use; Professional or Home Occupation. 27 Section 11.3. Household Pets 27 Section 11.4. Temporary Structures;Unsightly Conditions 28 iii DRAFT 10/15/01 Section 11.5. Miscellaneous Improvements. 28 Section 11.6. Vehicular Parking, Storage and Repairs 29 Section 11.7. Nuisances. 30 Section 11.8. No Hazardous Activities;No Hazardous Materials or Chemicals 31 Section 11.9. No Annoying Lights, Sounds or Odors. 31 Section 11.10. Restrictions on Trash and Materials. 31 Section 11.11. Lots to be Maintained. 31 Section 11.12. Leases. 31 Section 11.13. Landscaping of Lots 32 ARTICLE 12. PROPERTY RIGHTS IN THE COMMON ELEMENTS 32 Section 12.1. Owners'Easements of Enjoyment. 32 Section 12.2. Extent of Owners'Easements. 32 Section 12.3. Use of Common Elements by Declarant. 33 Section 12.4. Delegation of Use 33 Section 12.5. Payment of Taxes or Insurance by Security Interest Holders 34 Section 12.6. Conveyance or Encumbrance of Common Elements 34 Section 12.7. Designation of Common Elements 34 Section 12.8. Duty to Accept Property and Facilities Transferred by Declarant. 34 ARTICLE 13. GENERAL PROVISIONS 34 Section 13.1. Enforcement. 34 Section 13.2. Severability 35 Section 13.3. Conflict of Provisions. 35 Section 13.4. Conflict with CCIOA 35 Section 13.5. Annexation; Withdrawal 35 Section 13.6. Minor Violations of Setback Restrictions. 37 Section 13.7. Subdivision or Replatting of Lots 37 Section 13.8. Declarant's Use 37 Section 13.9. Duration,Revocation, and Amendment. 38 Section 13.10. Registration of Mailing Address 38 Section 13.11. HUD or VA Approval 39 Section 13.12. Termination of Community. 39 Section 13.13. Transfer of Special Declarant Rights 39 Section 13.14. Eminent Domain. 39 Section 13.15. Limitation on Liability. 39 Section 13.16. No Representations, Guaranties or Warranties. 39 Section 13.17. Disclaimer Regarding Safety. 40 Section 13.18. Headings 40 Section 13.19. Gender. 40 Section 13.20. Run with Land; Binding Upon Successors 40 EXHIBIT A- The Community EXHIBIT B—Common Elements EXHIBIT C—Certain Title Exceptions iv DRAFT 10/15/01 EXHIBIT D—Aimexable Property V Hello