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Home My WebLink About06526Reception 1353558 10/10/2000 ORDINANCE NO. 6526 AN ORDINANCE APPROVING THE PLAT OF ENCLAVE AT WALKING STICK SUBDIVISION BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that: �F,CTInN 1 The final plat of Enclave at Walking Stick Subdivision, being a subdivision of land legally described as: A portion of the NW 1/4, SW 1/4 and SE 1/4 of Section 17, Township 20 South, Range 64 West of the 6th P.M., County of Pueblo, State of Colorado, being a portion of that Tract of land conveyed to the Trustees of State Colleges in Colorado by deed recorded in Book 1533 at Page 985 of the Pueblo County records and being more particularly described as follows: Considering the North line of said Section 17 to bear N 88 °45'07 "E., and all bearings contained herein being relative thereto. Commencing at the Northeast corner of said Section 17; thence S.64 °05'58" W., a distance of 3352.54 feet to the Easterly boundary line of Walking Stick Golf Course, as conveyed to the City of Pueblo by deeds recorded in Book 2430 at Page 651 and in Book 2630 at Page 446 of the said County records and the True Point of Beginning; thence S.47 °30'27 "E., a distance of 100.00 feet; thence Southwesterly, along the arc of a curve to the left whose center bears S.47 °30'27" E. and whose radius is 900.00 feet, a distance of 256.27 feet; thence S.26 °10'42" W., a distance of 1283.36 feet; thence S.19 °09'06 "E., a distance of 77.00 feet; thence Southeasterly, along the arc of a curve to the right whose center bears S.26 °40'11" W. and whose radius is 555.00 feet, a distance of 612.26 feet; thence S.89 °52'38" W., a distance of 5.00 feet; thence S.00 °07'22 "E., a distance of 192.77 feet; thence Southeasterly, along the arc of a curve to the left whose radius is 450.00 feet, a distance of 480.74 feet; thence S.61 °19'56 "E., a distance of 659.17 feet; thence S.24 °54'39" W., a distance of 190.24 feet to the Northerly right -of -way line of Colorado State Highway No.47, as conveyed to the State of Colorado, Department of Transportation by deed recorded in Book 2997 at Page 723 of the said County records; thence N.61 °35'29 "W. (S.61 °37' 18 "E., Hwy.), along said right -of -way line, a distance of 100.19 feet; thence N.24 °54'39 "E., a distance of 51.69 feet; thence Northwesterly, along the arc of a curve to the left whose center bears N.89 °41'27 "W. and whose radius is 68.00 feet, a distance of 73.16 feet; thence N.28 °40'04" E., a distance of 3.00 feet; thence N.61 ° 19' 56" W., a distance of 508.23 feet; thence Northwesterly, along the arc of a curve 11111 HE i 1353558 10/10/2000 02:55P ORD Chris C. Muno: 2 of 3 R 15.00 D 0.00 Pueblo C1.y Clerk & Rec to the right whose radius is 550.00 feet, a distance of 587.57 feet; thence N.00 07'22 "W., a distance of 192.77 feet; thence Northwesterly along the arc of a curve to the left whose radius is 450.00 feet, a distance of 500.29 feet; thence N.63° 49'18 "W., a distance of 8.95 feet; thence S.71 °12'31" W., a distance of 58.02 feet; thence S.26 °10'42" W., a distance of 399.42 feet to the said Northerly right -of -way line of Colorado State Highway No. 47, as conveyed to the State of Colorado, Department of Transportation by deed recorded in Book 2997 at Page 723 of the said County records; thence N.63 °49'45" W. (S.63 °48'58" E., Hwy.). along said right -of -way line, a distance of 100.00 feet; thence N.26 °10'42" E., a distance of 358.21 feet; thence N.18 °49'18" W., a distance of 112.04 feet; thence N.26'1 0'42"E., a distance of 93.00 feet; thence N.63'49'1 8"W., a distance of 128.04 feet; thence Westerly, along the arc of a curve to the left whose radius is 540.00 feet, a distance of 167.33 feet to the said Easterly boundary line of Walking Stick Golf Course; thence Northeasterly along said boundary line the following eight (8) courses: 1. N.17 0 18'22 "E., a distance of 435.74 feet; 2. N.38 0 08'01 "E., a distance of 235.55 feet; 3. N.07 °01' 13 "E., a distance of 466.71 feet; 4. N.07 0 35'02 "W., a distance of 237.05 feet; 5. N.29 °22'01 "E., a distance of 86.60 feet; 6. N.73 0 21'34 "E., a distance of 243.61 feet; 7. N.77 0 43'50 "E., a distance of 108.53 feet; S.69 °01'16" E., a distance of 448.86 feet to the Point of Beginning, containing 28.113 acres, is hereby approved, and all dedicated streets, utility and drainage easements, rights -of -way and land set aside for public sites, parks and open spaces shown and dedicated on said plat are hereby accepted for public use. SECTION 2. The acceptance of such dedicated streets, rights -of -way, utility and drainage easements, public sites, parks and open spaces by the City does not obligate the City to maintain or repair same until such streets, rights -of -way, utility and drainage easements, public sites, parks and open spaces have been constructed and installed in compliance and in accordance with the requirements and provisions of Chapter 4, Title XII of the 1971 Code of Ordinances, as amended and any agreement entered into pursuant thereto. RF.C'T10N 3 Neither the adoption of this ordinance and the requirements imposed hereby shall create any duty or obligation of any person, firm, corporation or other entity with regard to the enforce- ment or nonenforcement of this ordinance or the City's Subdivision Ordinances and regulations. 111111 IIIII IIIII 11111111111111111 IIIII III IIIII IIII IIII 1353538 10/10/2000 02:55P ORD Chris C. Munoz 3 of 3 R 15.00 D 0.00 Pueblo Cty Clerk & Roe No person, firm, corporation or other entity shall have any private right of action, claim or demand against the City or its officers, employees or agents, for any injury, damage or liability arising out of or in any way connected with the adoption, enforcement, or nonenforcement of this ordinance or the Subdivision Ordinance and Regulations of the City, or the engineering, surveying, drainage improvement or other work or improvements required thereby. Nothing in this ordinance or in the City's subdivision ordinances and regulations shall create or be construed to create any claim, demand or liability against the City or its officers, employees or agents, or to waive any of the immunities, limitations on liability, or other provisions of the Colorado Governmental Immunity Act, Section 24 -10 -101, et seq. Colorado Revised Statutes, or to waive any immunities or limitations on liability otherwise available to the City or its officers, employees or agents. SECTION 4. This ordinance shall be approved upon final passage but shall not become effective until (a) all information, documents, drawings, profiles, and plat required by Chapter 4 of Title XII of the 1971 Code of Ordinances meeting and complying with the subdivision require- ments of the City have been filed with and approved by the Director of Public Works, and (b) the final subdivision plat is recorded in the office of the Pueblo County Clerk and Recorder. If any such filings and approvals have been deferred pursuant to Section 12 -4 -5 (B) (2) of the 1971 Code of Ordinances, and are not for any reason filed and approved within one (1) year after final passage of this Ordinance, or within any extended period granted by Resolution of the City Council, this Ordinance shall automatically be rescinded and repealed thirty (30) days after written notice of such rescission and repeal is given to the Subdivider. No vested rights shall accrue to the subdivision or be acquired until this Ordinance or the final subdivision plat becomes effective. � o ATTEST: INTRODUCED March 27, 2000 C APPROV Patrick -Avalos President of the Council City Clerk 2/29/00 Reception 1353336 10/10/2000 ASSIGNMENT OF AGREEMENT This ASSIGNMENT OF AGREEMENT ( "Assignment ") is entered into by and between WS Land, LLP, whose address is 65 Proctor Avenue, Thornhill, Ontario L3T 1 M6, and Fekete Homes, Inc., whose address is 1315 Fortino Boulevard West, Pueblo, CO 81008. RECITALS 1. The Assignor, WS Land, LLP ( "WS Land ") is purchasing certain Walking Stick property from the Colorado State Board of Agriculture which is described in Exhibit "A ". 2. The Assignee, Fekete Homes, Inc. ( "Fekete ") is purchasing the property from WS Land and subdividing the property for residential development through the City of Pueblo, Colorado, which subdivision is known as the Enclave at Walking Stick. 3. As a part of the subdividing of the property by Fekete, the City of Pueblo has conditioned approval of the subdivision plan based upon a storm water detainage area that is to be located on property owned by the Colorado State Board of Agriculture. 4. As a part of the purchase of the property, WS Land and the Colorado State Board of Agriculture have signed a Declaration of Restrictive Covenant for Storm Water Detainage (the "Declaration "), a copy of which is attached as Exhibit "B" and incorporated by reference. 5. Pursuant to the Declaration, WS Land has agreed to perform certain obligations, which obligations are to be assumed and performed by Fekete Homes as a part of the Enclave at Walking Stick Subdivision to be constructed and completed by Fekete Homes. THEREFORE, in consideration of the foregoing Recitals and the mutual promises, and other good and valuable consideration, receipt and sufficiency of which the parties acknowledge, WS Land and Fekete agree as follows: 1. Assignment. WS Land assigns to Fekete all rights, obligations and liabilities under the Declaration which is attached as Exhibit "B" and incorporated by reference. 2. Acceptance of Assignment. Fekete assumes and agrees to perform all duties, obligations and liabilities of WS Land related to or in any way connected with Exhibit "B" to this Assignment, except for the payment of $25,000.00 by WS Land, LLP to the University for landscaping in Exhibit "B ". Fekete ratifies and confirms the Agreement, Exhibit "B ", as if Fekete was an original party to the Agreement. el I 111111111111111111111111111111111111111111111111111 1 10/10/2000 02.55P ASN Chris C. M 2 of 7 R 35.00 D 0.00 Pueblo Cty Clerk & Reo 3. Indemnification. Fekete shall indemnify, save and hold harmless WS Land, its officers, agents and employees against any and all claims, damages, liabilities, and court awards, including costs, expenses, and attorney fees incurred as a result of any act or omission to act by Fekete, its employees, agents, subcontractors, or assignees pursuant to this Assignment and the obligations and liabilities of Exhibit "A ". 4. Attorney Fees. If a party employs an attorney because of the default of another party regarding the terms and conditions of this Assignment, then the defaulting party shall pay the non- defaulting party reasonable attorney fees and expenses incurred in the enforcement of the terms and conditions of this Agreement. 5. Notices. Any notice required or permitted to be given by this Assignment shall be deemed given if personally delivered or mailed by registered mail, postage prepaid, and properly addressed to the respective party to whom such notice relates to the addresses set forth in this Assignment, or such different addresses as shall be specified by notice given in the manner as provided by this Assignment. 6. Survival. All covenants, promises and agreements, representations, and warranties shall survive the signing of this Assignment. 7. Severability. The invalidity or unenforceability of any term or condition of this Assignment shall not affect the validity or unenforceability of any other term or condition of this Assignment, and each other provision of this Assignment shall be severable and enforceable to the extent permitted by law. 8. Binding Effect. All terms and conditions of this Assignment shall be binding upon and inure to the benefit of the parties, their successors and assigns. 9. Modification. The terms and conditions of this Assignment may not be modified except by a written instrument signed by the parties to this Assignment. 10. Entire Agreement. This Assignment constitutes the entire Agreement between the parties and supersedes all prior agreements and understandings related to the subject matter of this Assignment. 11. Venue. This Assignment shall be construed, interpreted and enforced in accordance with the laws of the State of Colorado. Venue for any litigation shall be in the County of Pueblo, State of Colorado. 2 1 1111111111111111111111111111111111111111111111 11111111 53556 10/10/2000 02:55P ASN Chris C. Munoz 3 of 7 R 35.00 D 0.00 Pueblo Ct.y Clerk & Roe 12. Time is of the essence. It is specifically agreed that time is of the essence of this Assignment and the obligations of the Assignor. 13. Effective Date. This Assignment shall become effective on the date the Assignment is signed by WS Land and Fekete. Dated and signed in Pueblo, Colorado this � %� -Y" day of July, 2000. WS LAND, LLP Y Jean Pierre Scheidegger President of TMC (Heritage) Corp., The sole general partner of WS Land, LLP Dated and signed in Pueblo, Colorado this ? - 4 day of July, 2000. FEKETE HOME INC. By Thomas A. Black, President c:\corel\tuck\wsland\assignmentofagreement 3 1333536 10/10/2000 02:55P ASN Chris C. Munos 4 of 7 R 35.00 D 0.00 Pueblo Cty Clerk & Ree LAND DESCRIPTION OF PLATTED LOT AREA OF ENCLAVE AT WALKING STICK A portion of the NW1 /4 and SW1 /4 of Section 17, Township 20 South, Range 64 West of the 6` P.I., County of Pueblo, State of Colorado, being a portion of that Tract of Land conveyed to the Trustees of State Colleges in Colorado by deed recorded in Book 1533 at Page 985 of the Pueblo County records and being more particularly described as follows: Considering the North line of said Section 17 to bear N.88 °45'07 "E. and all bearings contained herein being relative thereto. Commencing at the Northeast comer of said Section 17; thence S.64 °05'58 "W., a distance of 3352.54 feet to the Easterly boundary line of Walking Stick Golf Course, as conveyed to the City of Pueblo by deeds recorded in Book 2430 at Page 651 and in Book 2630 at Page 446 of the said County records and the True Point of Beginning; thence Southwesterly, along the arc of a curve to the left whose center bears S.47 °30'27 "E. and whose radius 1s1000.00 feet, a distance of 284.74 feet; thence S.26° 10'42 "W., a distance of 930.35 feet; thence S.31 °07'54 "W., a distance of 150.56 feet; thence S.26° 10'42 "W., a distance of 229.13 feet; thence S.71 ° 10'42 "W., a distance of 60.81 feet; thence N.63 °49'18 "W., a distance of 151.27 feet; thence Westerly, along the arc of a curve to the left whose radius is 540.00 feet, a distance of 167.33 feet to the said Easterly boundary line of Walking Stick Golf Course; thence Northeasterly, along said boundary line the following eight (8) courses: 1. -N.17 °18'22 "E., a distance of 435.74 feet; 2. I7:38 0 08'01 "E., a distance of 235.55 feet; 3. N.07'01' 13"E., a distance of 466.71 feet; 4. N.07 °35'02 "W., a distance of 237.05 feet; 5. N.29 °22'01 "E., a distance of 86.60 feet; 6. N.73 °21'34 "E., a distance of 243.61 feet; 7. N.77 °43'50 "E., a distance of 108.53 feet; 8. S.69 °01' 16 "E., a distance of 448.86 feet to the Point of Beginning. Containing 17.87 acres. Prepared by: NORTHSTAR ENGINEERING AND SURVEYING, INC. 111 E. 5` Street Pueblo, CO 81003 November 6, 1997 JN 97 100 00 EXHIBIT "A" 9710000.1006 111111111111111111111111111111111111111111111111111 1363556 10/10/2000 02:55P ASN Chris C. IN Munoz 5 of 7 R 36.00 D 0.00 Pueblo Cty Clerk & Rec EXHIBIT B LAND DESCRIPTION OF DETENTION PARCEL: A portion of the SE 1 /4 of the NW 1 /4 and the NE 1 /4 of the SW1 /4 of Section 17, Township 20 South, Range 64 West of the 6 th P.M., County of Pueblo, State of Colorado, being a portion of that Tract of Land conveyed to the Trustees of State Colleges in Colorado by deed recorded in Book 1533 at Page 985 of the Pueblo County records and being more particularly described as follows: Considering the North line of said Section 17 to bear N. 88 0 45'07" E. and all bearings contained herein being relative thereto. Beginning at the Easternmost corner of Walking Stick Blvd., as platted in Enclave at Walking Stick, according to the recorded plat thereof; thence Northeasterly, along the arc of a curve to the right whose center bears S. 47 0 30'27" E. and whose radius is 900 feet, a distance of 123.65 feet; thence S. 48 0 46'54" E., a distance of 113.10 feet; thence S. 41 0 3231" W., a distance of 219.38 feet to the North right -of -way line of a private road; thence N. 57 0 19'54" W., along said North right -of -way line, a distance of 119.70 feet to the East right -of -way line of said Walking Stick Blvd.; thence Northeasterly, along said East right -of -way line, along the arc of a curve to the right whose center bears S. 54 °47'04" E. and whose radius is 900 feet, a distance of 114.31 feet to the Point of Beginning (containing 0.634 acres). AND Commencing at the Easternmost corner of Walking Stick Blvd., as platted in Enclave at Walking Stick, according to the recorded plat thereof; thence Southwesterly, along the East right -of -way line of said Walking Stick Blvd. and along the arc of a curve to the left whose center bears S. 47 0 30'27" E. and whose radius is 900 feet, a distance of 194.33 feet to the South right -of -way line of a private road and the True Point of Beginning of the parcel of land herein described; thence S. 57 0 19'54" E., along said South right -of- way line, a distance of 71.41 feet; thence S. 00 0 34'23" W., a distance of 250.09 feet; thence S. 26 0 10'42" W., a distance of 555.74 feet; thence S. 65 0 03'20" W., a distance of 101.43 feet to the North right -of -way line of a second private road; thence Northwesterly, along said North right -of -way line, the following two (2) courses: 1. along the arc of a curve to the left whose center bears S. 30 0 35'28" W. and whose radius is 360 feet, a distance of 27.73 feet; 2. N. 63 0 49'18" W., a distance of 89.81 feet to the said East right - of -way line of Walking Stick Blvd.; thence Northeasterly, along said East right -of -way line, the following two (2) courses: 1353556 10/10/2000 02:55P ASN Chris C. Munoz 6 of 7 R 35.00 D 0.00 Pueblo Cty Clerk & Ree 1. N. 26 0 10'42" E., a distance of 805.35 feet; 2. along the arc of a curve to the right whose radius is 900 feet, a distance of 61.93 feet to the Point of Beginning (containing 3.243 acres). AND Commencing at the Easternmost corner of Walking Stick Blvd., as platted in Enclave at Walking Stick, according to the recorded plat thereof; thence Southwesterly, along the East right -of -way line of said Walking Stick Blvd., the following two (2) courses: 1. along the arc of a curve to the left whose center bears S. 47 30 E. and whose radius is 900 feet, a distance of 256.26 feet; 2. S. 26 0 10'42" W., a distance of 885.35 feet to the South right -of- way line of a private road and the True Point of Beginning of the parcel of land herein described; thence Southeasterly, along said South right -of -way line, the following three (3) courses: 1. S. 63 049'18" E., a distance of 89.81 feet; 2. along the arc of a curve to the right whose radius is 280 feet, a distance of 58.71 feet; 3. S. 51 0 4832" E., a distance of 57.78 feet; thence S. 26 0 18'22" W., a distance of 81.28 feet; thence N. 76 0 25'23" W., a distance of 92.68 feet; thence S. 26 0 10'42" W., a distance of 238.13 feet; thence N. 63 0 49'18" W., a distance of 113.97 feet to the said East right -of -way line of Walking Stick Blvd.; thence N. 26 0 10'42" E., along said East right -of -way line, a distance of 357.79 feet to the Point of Beginning (containing 1.145 acres). Containing 5.022 acres, total. Prepared by: NORTHSTAR ENGINEERING AND SURVEYING, INC. 111 E. 5 th Street Pueblo, Colorado 81003 July 24, 2000 JN 97 100 00 1353556 10/10/2000 02:55P ASN Chris C. Munoz 7 of 7 R 35.00 D 0.00 Pueblo Cty Clerk & Rec FXHIBI T " 8" Reception 1353557 10/10/2000 WARRANTYDEED By this Warranty Deed, WS Land, LLP, a Colorado Limited Liability Partnership, organized and existing under the laws of the State of Colorado, Grantor, for consideration of the sum of Ten Dollars and other valuable consideration, receipt and sufficiency of which acknowledged, DOES SELL AND CONVEY TO: Fekete Homes, Inc., a Colorado Corporation Grantee, whose legal address is 1315 Fortino Boulevard West, Pueblo, CO 81008, the following real property situated in the County of Pueblo, State of Colorado: See Exhibits "A ", "B ", "C" and "D" attached and incorporated by reference together with all appurtenances, and warrant title to the same subject to all taxes and other assessments, reservations in patents and all agreements, easements, rights of way, covenants, conditions, and restrictions as may appear of record or as may be recorded as a part of the transaction for the purchase of the property by WS Land, LLP. Signed and delivered this �q day of July, 2000. WS LAND, LLP By Jedn Pierre Scheidegger President of TMC (Heritage) Corp., The sole general partner of WS Land, LLP STATE OF COLORADO COUNTY OF PUEBLO STATE DOCU� Ei" - 47 - ?Y FEE SS. PUEBLO COUNTY Woo The foregoing instrument was acknowledged before me this 24th day of July, 2000 by Jean Pierre Scheidegger, as President of TMC (Heritage) Corp., the sole general partner of WS Land, LLP for WS Land, LLP. My commission expires: O co 08/11/2001 r Notary Pul 1111111111111111111111111111111111111111111111111111111111 Iff 1353557 10/10/2000 02:55P WD Chris C. Munoz 2 of 5 R 25.00 D 41.00 Pueblo Cty Clerk & Ree LAND DESCRIPTION OF PLATTED LOT AREA OF ENCLAVE AT WALKING STICK A portion of the NW1 /4 and SW1 /4 of Section 17, Township 20 South, Range 64 West of the 6` P.M., County of Pueblo, State of Colorado, being a portion of that Tract of Land conveyed to the Trustees of State Colleges in Colorado by deed recorded in Book 1533 at Page 985 of the Pueblo County records and being more particularly described as follows: Considering the North line of said Section 17 to bear N.88 °45'07 "E. and all bearings contained herein being relative thereto. Commencing at the Northeast comer of said Section 17; thence S.64 °05'58 "W., a distance of 3352.54 feet to the Easterly boundary line of Walking Stick Golf Course, as conveyed to the City of Pueblo by deeds recorded in Book 2430 at Page 651 and in Book 2630 at Page 446 of the said County records and the True Point of Beginning; thence Southwesterly, along the arc of a curve to the left whose center bears S.47 °30'27 "E. and whose radius is 1000.00 feet, a distance of 284.74 feet; thence S.26 °1 0'42 "W., a distance of 930.35 feet; thence S.3 1'07'54"W., a distance of 150.56 feet; thence S.26 °10'42 "W., a distance of 229.13 feet; thence S.71 °10'42 "W., a distance of 60.81 feet; thence N.63 °49' 18 "W., a distance of 151.27 feet; thence Westerly, along the arc of a curve to the left whose radius is 540.00 feet, a distance of 167.33 feet to the said Easterly boundary line of Walking Stick Golf Course; thence Northeasterly, along said boundary line the following eight (8) courses: 1. N. 17° 18'22 "E., a distance of 435.74 feet; 2. 1T38 0 08'01 "E., a distance of 235.55 feet; 3. N.07 0 01'13 "E., a distance of 466.71 feet; 4. N.07 °35'02 "W., a distance of 237.05 feet; 5. N.29 °22'01 "E., a distance of 86.60 feet; 6. N.73 1'34"E., a distance of 243.61 feet; 7. N.77 °43'50 "E., a distance of 108.53 feet; 8. S.69 16"E., a distance of 448.86 feet to the Point of Beginning. Containing 17.87 acres. Prepared by: NORTHSTAR ENGINEERING AND SURVEYING, INC. 111 E. 5` Street Pueblo, CO 81003 November 6, 1997 JN 97 100 00 ffiIBIT "A" 9710000.1006 11111111 1111111111111111111111111111111111111111111 IN 1353557 10/10/2000 02:55P WD Chris C. Munoz 3 of 5 R 25.00 D 41.00 Pueblo Cty Clerk & Rec LAND DESCRIPTION OF WALKING STICK BLVD. FROM DESERTFLOWER BLVD. TO NORTH SUBDIVISON LINE OF ENCLAVE AT WALKING STICK A portion of the NW1 /4 and SW1 /4 of Section 17, Township 20 South, Range 64 West of the 6` P.M., County of Pueblo, State of Colorado, being a portion of that Tract of Land conveyed to the Trustees of State Colleges in Colorado by deed recorded in Book 1533 at Page 985 of the Pueblo County records and being more particularly described as follows: Considering the North line of said Section 17 to bear N.88 °45'07 "E. and all bearings contained herein being relative thereto. Commencing at the Northeast comer of said Section 17; thence S.64 0 05'58 "W., a distance of 3352.54 feet to the Easterly boundary line of Walking Stick Golf Course, as conveyed to the City of Pueblo by deeds recorded in Book 2430 at Page 651 and in Book 2630 at Page 446 of the said County records and the True Point of Beginning; thence S.47 °30'27 "E., a distance of 100.00 feet; thence Southwesterly, along the arc of a curve to the left whose center bears S.47 °30'27 "E. and whose radius is 900.00 feet, a distance of 256.27 feet; thence S.26 °10'42 "W., a distance of 1283.36 feet; thence N.63 °49'18 "W., a distance of 113.00 feet; thence N.26 °10'42 "E., a distance of 203.02 feet; thence N.31 °07'54 "E., a distance of 150.56 feet; thence N.26 °10'42 "E., a distance of 930.35 feet; thence Northeasterly, along the arc of a curve to the right whose radius is 1000.00 feet, a distance of 284.74 feet to the Point of Beginning. Containing 3.65 acres. Prepared by: NORTHSTAR ENGINEERING AND SURVEYING, INC. 111 E. 5` Street Pueblo, CO 81003 November 6, 1997 JN 97 100 00 9710000.1007 EXHIBIT "B" 1111111111111111111111111111111111111111111111111111111 1353557 10/10/2000 02:55P WD Chris C. Munoz 4 of 5 R 25.00 D 41.00 Pueblo Cty Clerk & Ree LAND DESCRIPTION OF DESERTFLOWER BLVD. ) ROM BONFORTE BLVD. TO WEST SUBDIVISION LINE OF ENCLAVE AT WALKING STICK A portion of the SW1 /4 of Section 17, Township 20 South, Range 64 West of the 6` P.M., County of Pueblo, State of Colorado, being a portion of that Tract of Land conveyed to the Trustees of State Colleges in Colorado by deed recorded in Book 1533 at Page 985 of the Pueblo County records and being more particularly described as follows: Considering the North line of said Section 17 to bear N.88 0 45'07 "E. and all bearings contained herein being relative thereto. Commencing at the Northeast comer of said Section 17; thence S. 52 °41'03 "W., a distance of 4884.47 feet to the True Point of Beginning; thence N.26 °10'42 "E., a distance of 93.00 feet; thence S.63 °49'18 "E., a distance of 23.23 feet; thence N.71 ° 10'42 "E., a distance of 60.81 feet; thence N.26° 10'42 "E., a distance of 26.11 feet; thence S.63 °49' 18 "E., a distance of 113.00 feet; thence S.19 °09'06 "E., a distance of 77.00 feet; thence Southeasterly, along the arc of a curve to the right whose center bears S.26'40'1 l"W. and whose radius is 555.00 feet, a distance of 612.26 feet; thence S.89 °52'38 "W., a distance of 5.00 feet; thence S.00 °07'22 "E., a distance of 192.77 feet; thence Southeasterly, along the arc of a curve to the left whose radius is 450.00 feet, a distance of 480.74 feet; thence S.61 °19'56 "E., a distance of 659.17 feet; thence S.24 °54'39 "W., a distance of 190.24 feet to the Northerly right -of -way line of Colorado State Highway No. 47, as conveyed to the State of Colorado, Department of Transportation by deed recorded in Book 2997 at Page 723 of the said County records; thence N.61 ° 35'29' W. (S.61 °37' 18 "E., Hwy.), along said right -of- way line, a distance of 100.19 feet; thence N.24 °54'39 "E., a distance of 51.69 feet; thence Northwesterly, along the arc &f f curve to the left whose center bears N.89'4 1'27"W. and whose radius is 68.00 feet, a distance of 73.16 feet; thence N.28 °40'04 "E., a distance of 3.00 feet; thence N.61 °19'56 "W., a distance of 508.23 feet; thence Northwesterly, along the arc of a curve to the right whose radius is 550.00 feet, a distance of 587.57 feet; thence N.00 °07'22 "W., a distance of 192.77 feet; thence Northwesterly along the arc of a curve to the left whose radius is 450.00 feet, a distance of 500.29 feet; thence N.63 °49'18 "W., a distance of 8.95 feet; thence N.64 °36'07 "W., a distance of 220.30 feet to the Point of Beginning. Containing 5.49 acres. Prepared by: NORTHSTAR ENGINEERING AND SURVEYING, INC. 111. E. 5` Street Pueblo, Colorado 81003 November 6, 1997 JN 97 100 00 9710000.1008 ffiIBIT "C" 1 11 111111111111111111111111111 11111111111111 5 5 557 10/ 10/2000 02: 55P Mun 5 R 25.00 0 41.00 Pueblo Ctls ClMunoz y lerk & Rec PARCEL 4 LAND DESCRIPTION OF WALKING STICK BLVD. FROM COLORADO STATE HIGHWAY NO. 47 TO DESERTFLOWER BLVD. A portion of the SW 1/4 of Section 17, Township 20 South, Range 64 West of the 6` P.M., County of Pueblo, State of Colorado, being a portion of that Tract of Land conveyed to the Trustees of State Colleges in Colorado by deed recorded in Book 1533 at Page 985 of the Pueblo County records and being more particularly described as follows: Considering the North line of said Section 17 to bear N.88 °45'07 "E. and all bearings contained herein being relative thereto. 52 Commencing at the Northeast corner of said Section 17; thence S.3Z41'03 "W., a distance of 4884.47 feet; to the True Point of Beginning thence S.64 °36'07 "E., a distance of 220.30 feet; thence 5.71 °12'31 "W., a distance of 58.02 feet; thence S.26° 10'42 "W., a distance of 399.42 feet to the Northerly right -of -way line of Colorado State Highway No. 47, as conveyed to the .State of Colorado, Department of Transportation by deed recorded in Book 2997 at Page 723 of the said County�ence N.63 ° 49'45 "W., (S.63 ° 48'58 "E., Hwy.), along said right -of -way line, a distance of 100.00 feet; thence N.46'10'42" E., a distance of 358.21 feet; thence N.18 ° 49' 18 "W., a distance of 112.04 feet to the Point of Beginning. Containing 1.10 acres. Prepared by: NORTHSTAR ENGINEERING AND SURVEYING, INC. 111 E. 5 Street Pueblo, Colorado 81003 November 6, 1997 JN 97 100 00 9710000.1009 EXHIBIT "D" Reception 1353560 10/10/2000 SUBDIVISION IMPROVEMENTS AGREEMENT THIS AGREEMENT is made on (,/, ��-� ? between the CITY OF PUEBLO, a Municipal Corporation ( "City "), and FEKETE HOMES, INC., a Colorado Corporation ( "Subdivider ") RECITALS WHEREAS, Subdivider has subdivided or is about to subdivide a certain tract of land located in the City and legally described in attached Exhibit "A "; and WHEREAS, the Subdivider, as a condition of approval of the final plat of ENCLAVE AT WALKING STICK ( "Subdivision "), wishes to enter into this Subdivision Improvements Agreement as authorized by Chapter 4, Title XII of the 1971 Code of Ordinances; and WHEREAS, Subdivider is required by Section 12 -4 -7 (J) of the 1971 Code of Ordinances of the City to construct and install certain public improvements generally described in attached Exhibit "B" and shown on approved construction plans and documents on file at the office of the City's Director of Public Works ( "Required Public Improvements "); and WHEREAS, by Chapter 4, Title XII of the 1971 Code of Ordinances, Subdivider is obligated to provide security or collateral sufficient in the judgement of the City Council to make reasonable provisions to construct and complete the Required Public Improvements. NOW, THEREFORE, in consideration of the following mutual covenants and agreements, the City and Subdivider agree as follows: 1. Subdivider agrees within one hundred and eighty (180) days after applying for a building permit to construct any building or structure on any building site within the Subdivision, or upon the issuance of a certificate of occupancy for any such building or structure, whichever occurs first, to construct and install at its sole cost all of the Required Public Improvements. 2. In lieu of installing the Required Public Improvements within the time period prescribed in Paragraph 1, Subdivider or any subsequent owner of the land or any portion thereof shall deposit cash or other collateral with the City Director of Finance, or with any bank or trust company licensed in the State of Colorado, subject to an escrow agreement approved by the City Attorney. The holder of such cash or DPW 101 10/21/98 111111111111111111111111 1333560 MIN 11111 HE i 10/10/2000 02:55P SUBD AG Chris C. IN Munoz 2 of 15 R 75.00 D 0.00 Pueblo Cty Clerk & Ree collateral shall pay all or any portion thereof to the City upon demand after the time to complete all Required Public Improvements by Subdivider or subsequent owner expires. Such deposit or escrow agreement shall be referred to as the "deposit ". 3. The amount of the deposit shall be computed by the City's Director of Public Works by estimating the total cost of all uncompleted Required Public Improvements within the block at the time application for building permit is made. The amount of the deposit required by this alternative shall not be less than 25% of such estimate plus the costs of extending all required sewer and water lines from nearest existing sewer and water lines to the proposed building site for which a building permit is sought, plus the costs of extending curb, gutter, sidewalk and paving from the edge of the Subdivision or existing improvements of a like nature, whichever is closer, to the proposed building site. In any case where the block, as later defined, exceeds one thousand (1000') feet in length between intersecting streets, the estimate of the City Director of Public Works under this paragraph may be reduced to the total costs of all uncompleted Required Public Improvements in at least one half ( of such block, and the required deposit shall be based upon such decreased estimate. The Subdivider, however, shall provide a turnaround of at least sixty (60') feet in diameter at the mid -block point and barricade such street so that no through traffic shall be permitted beyond the point to which the estimate of Director of Public Works is based. 4. Within one hundred eighty (180) days after subsequent application for a building permit to construct any building or structure upon any building site within the block, or upon the issuance of a certificate of occupancy for any such building or structure, whichever occurs first, Subdivider shall also deposit an amount not less than the estimate of the Director of Public Works for all Required Public Improvements from existing improvements to the proposed building site, less any previous deposits made under this agreement upon building sites lying between the most recently proposed site and existing improvements. 5. In the event the Subdivider or any subsequent owner of the land fails to complete the Required Public Improvements or to make such deposit within the required time, no additional building permits shall be issued to the Subdivider or the subsequent owner or to any other person to build or construct any building or structure in the Subdivision until such default is remedied. In addition, the City may treat the amount of such deposit as a debt due the City from the Subdivider or subsequent owner, which debt shall be a lien upon all the land in the Subdivision and notice of lien may be filed for record in the office of the County Clerk and Recorder at any time after such default. Action upon such debt may be instituted by the City within six (6) years from the date of filing such lien for record. All remedies provided for in this agreement are cumulative and the use of one shall not prohibit the use of another. DPW 101 2 10/21/98 11 IN 1353560 10/10/2000 02:55P SUBD AG Chris C. Munoz 3 of 15 R 75.00 D 0.00 Pueblo Cty Clerk & Ree 6. Upon paying such deposit, the City Director of Public Works shall release the proposed building site from the terms of the Agreement except the terms of Paragraph 7 below. 7. As a condition of approval of this Subdivision, and to meet the requirements of Section 12 -4 -7 (J) of the 1971 Code of Ordinances, Subdivider specifically agrees that no certificate of occupancy shall be issued by the Pueblo Regional Building Department until the Required Public Improvements, or those improvements necessary as determined by the City Director of Public Works, to totally serve specific lot(s) or block(s) for which certificates of occupancy are sought have been properly designed, engineered, constructed and accepted as meeting the specifications and standards of the City. The restrictions on issuing certificates of occupancy contained in this Paragraph 7 and the restriction on the issuance of building permits contained in Paragraph 5 shall run with the land and shall extend to and be binding upon the heirs, legal representatives, successors and assigns of Subdivider and may be specifically enforced by the City. 8. Acceptance of this Subdivision by the City does not constitute an acceptance of the roads, parks and other public improvements for maintenance by the City. Until such roads, parks and other public improvements have been installed and meet the requirements, standards, and specifications of the City, its Subdivision ordinances, and any applicable Parks Department specifications, and such are specifically approved and accepted in writing by the City Director of Public Works, and, if appropriate, the City Director of Parks and Recreation, the maintenance, construction, and all other matters pertaining to or affecting said roads, parks and other public improvements and rights -of -way are the sole responsibility of the Subdivider or any subsequent owner(s) of the land within the Subdivision. 9. The required time to complete all Required Public Improvements by Subdivider within such block shall be one (1) year from the date of application for the first building permit issued within such block. Upon completion and written approval and acceptance of the Required Public Improvements within the required time and the payment of all inspection costs by Subdivider, the Director of Public Works shall cause all obligations of the Subdivider relating to the Required Public Improvements within such block to be released. If such Required Public Improvements are not completed within the required time, the City Director of Public Works may cause the proceeds of all deposits or other collateral or monies in escrow to be used to complete the same. If insufficient monies are available at the end of the required time to complete all Required Public Improvements for the entire length of such block, the Director of Public Works shall cause all collateral or monies in escrow to DPW 101 3 10/21/98 1111111 HIM 1353560 11111111111111111 HIM 11111111111111111 10/10/2000 02:55P SUED AG Chris C. IN Munoz 4 of 15 R 75.00 D 0.00 Pueblo C!y Clerk & Ree be reduced to cash and shall deposit the same with the Director of Finance. Such cash shall be used to complete that portion of the Required Public Improvements as the Director of Public Works, in the Director's sole discretion, shall determine. Until all the Required Public Improvements are completed and approved by the Director of Public Works, Subdivider and the Subdivided land shall remain liable and responsible for all the Required Public Improvements. 10. For purposes of the Agreement, the "block" shall mean both tiers of lots fronting or abutting upon the street which the proposed building or structure shall front, to the rear property line of such lots, or the center line of the alley, if there is an alley, enclosed at either end by a street which intersects both tiers of lots, and shall include the full width of all streets upon which such lots abut. 11. If the Required Public Improvements are for a commercial subdivision and include stormwater drainage facilities, stormwater detention facilities, or maintenance and restoration of adjacent drainage channels, and/or associated improvements and revegetation (the "facilities "), located either within or outside of the Subdivision, Subdivider shall install the facilities in accordance with plans and specifications therefor approved by, and on file with the City, and thereafter, the facilities shall be repaired, replaced and maintained in good working order and condition by the owners of the land within the Subdivision. The City is granted the right (but not the obligation) to inspect, control, repair, replace and maintain the facilities and to recover all costs and expenses therefor including an administrative charge of 15% from the owners of the land within the Subdivision. All such City's costs and administrative charge shall become a perpetual lien on all the land within the Subdivision upon recording in the office of the Pueblo County Clerk and Recorder a statement of lien setting forth the City's costs and describing the land signed by the City's Director of Public Works. Failure of the City to inspect, control, repair, maintain or replace the facilities shall not subject the City to any liability for such failure. 12. Subdivider agrees to provide the City with a current title insurance commitment at the time of final platting evidencing that fee simple title of all lands in the Subdivision is totally vested with the Subdivider free and clear of all liens and encumbrances. If such land is not free and clear, the holder of such indebtedness shall subordinate its interest or encumbrance to this Agreement and all is terms, conditions and restrictions. 13. The City or the purchaser of any lot(s) within this Subdivision shall have the authority to bring an action in any Court of competent jurisdiction to compel the enforcement of this agreement or any amendment hereto. Such authority shall include the right to compel rescission of any sale, conveyance or transfer of any DPW 101 4 10/21/98 1111111 1111111111 1353560 113 10/10/2000 111111111111111111111111111111111111111 02:55P SUBD AG Chris IN C. Munoz 5 of 15 R 75.00 D 0.00 Pueblo C1.y Clerk & Ree lot(s) or tract(s) contrary to the provisions of the Ordinances of the City or this Agreement. In the event of any litigation concerning this Agreement, the Court shall award the prevailing party it costs and expenses, including reasonable expert witness and attorneys' fees. 14. The parties agree this Agreement may be periodically amended by mutual consent provided such amendment is in writing and be signed by all parties. 15. This Agreement shall extend to and be binding upon the successors and assigns of the City and upon the heirs, successors, assigns and legal representatives of Subdivider, and shall be recorded in the office of the County Clerk and Recorder of Pueblo County, Colorado, and shall constitute an agreement running with the land until released as described above. The parties have caused this Agreement to be executed and attested by its duly authorized and acting officer. FEKETE HOMES, INC., a Colorado Corporation Subdivi (SEAL) By: Thomas A. Black, President By: STATE OF COLORADO ) ss. COUNTY OF PUEBLO ) DPW 101 10/21/98 1 111111111111111111111111111111111111111111111111111111 1353560 10/10/2000 02:55P SUBD AG Chris C. I111 Munoz 6 of 15 R 75.00 D 0.00 Pueblo Cty Clerk & Ree The foregoing instrument was acknowledged before me on 06 • 1 5 U 00 by Thomas A. Black, President of Fekete Homes, Inc., a Colorado Corporation Subdivider. commission expires: 'JI ` ► o�'2c�� M. s � � w�bcz� ►� � � .h' ,�� l7� � L..v Z. (o � g 10 t� 1 0OTAR No ary Public �., (S V"" 0 7� PUBLIC- � C qF PUE , a Municipal Corporation OF COQ. My Comm. Expires 01/10/2002 By u yi $ of the Council Crty Jerk '� c STATE OF COLORADO COUNTY OF PUEBLO d MOCJpi I/rC >lAOA ss. �o The foregoing instrument was acknowledge before me on October 10 , 2000 by Corinne Koehler , as President of City Council, and Gina Dutcher , as City Clerk of the City of Pueblo, Colorado. My commission expires: 8-21 -2003 (SEAL) APPROVED AS TO FORM: / J City Att Public 1 <� 0 A 7 My Commission Expires 08/21/2003 DPW 101 6 10/21/98 1111111111111111111111 1353360 MIN 11111111111111111111111111 10/10/2000 02:55P SUED AG Chris C. Munoz 7 of 15 R 75.00 D 0.00 Pueblo C1.y Clerk & Ree SUBDIVISION IMPROVEMENTS AGREEMENT EXHIBIT A A portion of the NW1 /4, SW1 /4 and SE1 /4 of Section 17, Township 20 South, Range 64 West of the 6 th P.M., County of Pueblo, State of Colorado, being a portion of that Tract of Land conveyed to the Trustees of State Colleges in Colorado by deed recorded in Book 1533 at Page 985 of the Pueblo County records and being more particularly described as follows: Considering the North line of said Section 17 to bear N.88 0 45'07 "E. and all bearings contained herein being relative thereto. Commencing at the Northeast corner of said Section 17; thence S.64 . a distance of 3352.54 feet to the Easterly boundary line of Walking Stick Golf Course, as conveyed to the City of Pueblo by deeds recorded in Book 2430 at Page 651 and in Book 2630 at Page 446 of the said County records and the True Point of Beginning; thence S.47 0 30'27 "E., a distance of 100.00 feet; thence Southwesterly, along the arc of a curve to the left whose center bears S.47 0 30'27 "E. and whose radius is 900.00 feet, a distance of 256.26 feet; thence S.26 a distance of 1283.36 feet; thence S.19 0 09'06 "E., a distance of 77.00 feet; thence Southeasterly, along the arc of a curve to the right whose center bears S.26 and whose radius is 555.00 feet, a distance of 612.26 feet; thence S.89 a distance of 5.00 feet; .thence S.00 0 07'22 "E., a distance of 192.77 feet; thence Southeasterly, along the arc of a curve to the left whose radius is 450.00 feet, a distance of 480.74 feet; thence S.61 0 19'56 "E., a distance of 659.17 feet; thence S.24 a distance of 190.24 feet to the Northerly right -of -way line of Colorado State Highway No. 47, as conveyed to the State of Colorado, Department of Transportation by deed recorded in Book 2997 at Page 723 of the said County records; thence N.61 (S.61 0 37'18 "E., Hwy.), along said right -of -way line, a distance of 100.19 feet; thence N.24 0 54'39 "E., a distance of 51.69 feet thence Northwesterly, along the arc of a curve to the left whose center bears N.86 "VV. and whose radius is 68.00 feet, a distance of 73.16 feet; thence N.28 0 40'04 "E., a distance of 3.00 feet; thence N.61 0 19'56 "W., a distance of 508.23 feet; thence Northwesterly, along the arc of a curve to the right whose radius is 550.00 feet, a distance of 587.57 feet; thence N.00 a distance of 192.77 feet; thence Northwesterly, along the arc of a curve to the left whose radius is 450.00 feet, a distance of 500.29 feet; thence N.63 0 49'18 "W., a distance of 8.95 feet; thence S.71 0 12'31 "W., a distance of 58.02 feet; thence S.26 a distance of 399.42 feet to the said Northerly right -of -way line of Colorado State Highway No. 47, as conveyed to the State of Colorado, Department of Transportation by deed recorded in Book 2997 at Page 723 of the said County records; thence N. 63 °49'45 "W. SUBDIVISION IMPROVEMENTS AGREEMENT EXHIBIT A 1111111111111111111111111111111111111111111111111111111 IN 1353360 10/10/2000 02:55P SUBD AG Chris C. Munoz 8 of 15 R 75.00 D 0.00 Pueblo Cty Clerk & Ree (S.63 ° 48'58 "E., Hwy.), along said right -of -way line, a distance of 100.00 feet; thence N.26 0 10'42 "E., a distance of 358.21 feet; thence N.18 0 49'18 "W., a distance of 112.04 feet; thence N.26 0 10'42 "E., a distance of 93.00 feet; thence N.63 0 49'18 "W., a distance of 128.04 feet thence Westerly, along the arc of a curve to the left whose radius :is 540.00 feet, a distance of 167.33 feet to the said Easterly boundary line of Walking Stick Golf Course; thence Northeasterly, along said boundary line the following eight (8) courses: 1. N.17 0 18'22 "E., a distance of 435.74 feet; 2. N.38 ° 08'01 "E., a distance of 235.55 feet; 3. N.07 0 01'13 "E., a distance of 466.71 feet; 4. N.07 0 35'02 "W., a distance of 237.05 feet; 5. N.29 0 22'01 "E., a distance of 86.60 feet; 6. N.73 ° 21'34 "E., a distance of 243.61 feet; 7. N.77 ° 43'50 "E., a distance of 108.53 feet; 8. S.69 0 01'16 "E., a distance of 448.85 feet to the Point of Beginning. Containing 28.113 acres. 11 IN 1353560 10/10/2000 02:55P SUED AG Chris C. Munoz 9 of 15 R 75.00 D 0.00 Pueblo Cty Clerk & Ree SUBDIVISION IMPROVEMENTS AGREEMENT EXHIBIT "B" SUBDIVISION NAME: ENCLAVE AT WALKING STICK DEVELOPER: FEKETE HOMES, INC. ENGINEER: NORTHSTAR ENGINEERING AND SURVEYING, INC. STREETS (WALKING STICK BOULEVARD) @ $48.00 /LF = $5,664 Asphalt (10" Full Depth) 7,302 SY @ $24.50 /SY = $178,899 Curb and Gutter 2,194 LF @ $10.00 /LF = $21,940 Handicap Ramps 710 SF @ $3.50 /SF = $2,485 WATER 2 EA @ $2,000.00 /EA = $4,000 PVC Water Main 1,531 LF @ $35.00 /LF = $53,585 SANITARY SEWER: 2 EA @ $575.00 /EA = $1,150 8" PVC Sewer Main 161 LF @ $29.00 /LF = $4,669 STORM SEWER 24" HDPE Pipe 118 LF @ $48.00 /LF = $5,664 18" HDPE Pipe 253 LF @ $36.00 /LF = $9,108 Type "S" Inlet L =6' 1 EA @ $2,800.00 /EA = $2,800 Type "S" Inlet L =8' 1 EA @ $3,400.00 /EA = $3,400 Type I- B Manhole 2 EA @ $2,000.00 /EA = $4,000 STREET LIGHTS 3 EA @ $1,300.00 /EA = $3,900 MONUMENT BOX 2 EA @ $575.00 /EA = $1,150 STREET NAME SIGNS 1 EA @ $300.00 /EA = $300 AND STOP SIGNS(4 -wa WALKING STICK BLVD $291,900 w 1353560 10/10/2000 02:55P SUBD AG Chris C. Munoz 10 of 15 R 75.00 D 0.00 Pueblo C!y Clerk & Ree SUBDMSION IMPROVEMENTS AGREEMENT EXHIBIT "B" SUBDIVISION NAME: ENCLAVE AT WALKING STICK DEVELOPER: FEKETE HOMES, INC. ENGINEER: NORTHSTAR ENGINEERING AND SURVEYING, INC. STREETS (AUGUSTA LANE) 6 LF @ $60.00 /LF = $360 Asphalt (3" on 6 ") South of Doral Dr. 1,700 SY @ $16.00 /SY = $27,200 Asphalt (3" on 10 ") North of Doral Dr. 4,994 SY @ $20.00 /SY = $99,880 Curb and Gutter 3,309 LF @ $10.00 /LF = $33,090 Handicap Ramps 589 SF @ $3.50 /SF = $2,062 WATER 1 EA @ $2,800.00 /EA = $2,800 PVC Water Main 1,922 LF @ $35.00 /LF = $67,270 Fire Hydrant Ass'y. 4 EA @ $2,500.00 /EA = $10,000 Services 32 EA @ $500.00 /EA = $16,000 SANITARY SEWER: 6 EA @ $1,300.00 /EA = $7,800 48" Manholes 1 EA @ $2,170.00 /EA = $2,170 Adjust existing manhole rims 8 EA @ $500.00 /EA = $4,000 Services 31 EA @ $775.00 /EA = $24,025 STORM SEWER: 30" HDPE Pipe 6 LF @ $60.00 /LF = $360 24" HDPE Pipe 445 LF @ $48.00 /LF = $21,360 18" HDPE Pipe 522 LF @ $36.00 /LF = $18,792 15" HDPE Pipe 164 LF @ $30.00 /LF = $4,920 Type 1 -B Manhole 7 EA @ $2,000.00 /EA = $14,000 Type "S" Inlet L =6' 1 EA @ $2,800.00 /EA = $2,800 Type "S" Inlet L =8' 2 EA @ $3,400.00 /EA = $6,800 Type "S" Inlet L =10' 3 EA @ $4,000.00 /EA = $12,000 Type "S" Inlet L =12' 2 EA @ $4,600.00 /EA = $9,200 STREET LIGHTS 6 EA @ $1,300.00 /EA = $7,800 MONUMENT BOX 11 EA @ $575.00 /EA = $6,325 STREET NAME SIGNS 4 EA @ $200.00 /EA = $800 AND STOP SIGNS(T -int.) AUGUSTA LANE $390,854 10 t 1 IN 1353360 10/10/2000 02.55P SUBD AG Chris o= it of 15 R 75.00 D 0.00 Pueblo Cty Clerk & Rec SUBDIVISION IMPROVEMENTS AGREEMENT EXHIBIT "B" SUBDIVISION NAME: ENCLAVE AT WALKING STICK DEVELOPER: FEKETE HOMES, INC. ENGINEER: NORTHSTAR ENGINEERING AND SURVEYING, INC. STREETS ( DORAL DRIVE) Asphalt (3" on 10 ") 1,014 SY @ $20.00 /SY = $20,280 Curb and Gutter 557 LF @ $10.00 /LF = $5,570 WATER PVC Water Main 254 LF @ $35.00 /LF = $8,890 Fire Hydrant Ass'y. 1 EA @ $2,500.00 /EA = $2,500 Services 7 EA @ $500.00 /EA = $3,500 SANITARY SEWER: 8" PVC Sewer Main 183 LF @ $29.00 /LF = $5,307 48" Manholes 1 EA @ $2,170.00 /EA = $2,170 Services 6 EA @ $775.00 /EA = $4,650 MONUMENT BOX 2 EA @ $575.00 /EA = $1,150 DORAL DRIVE $54,017 11 1353560 10/10/2000 02:55P SUED AG Chris C Munoz 12 of 13 R 75.00 D 0.00 Pueblo C!y Clerk & Ree SUBDIVISION IMPROVEMENTS AGREEMENT EXHIBIT "B" SUBDIVISION NAME: ENCLAVE AT WALKING STICK DEVELOPER: FEKETE HOMES, INC. ENGINEER: NORTHSTAR ENGINEERING AND SURVEYING, INC. STREETS (AUGUSTA PLACE) Asphalt (3" on 6 ") 751 SY @ $16.00 /SY = $12,016 Curb and Gutter 359 LF @ $10.00 /LF = $3,590 Square Pan Radius 170 SF @ $4.25 /SF = $723 7" Conc. Pan 269 SF @ $3.80 /SF = $1,022 WATER PVC Water Main 128 LF @ $35.00 /LF = $4,480 Services 6 EA @ $500.00 /EA = $3,000 SANITARY SEWER: 8" PVC Sewer Main 131 LF @ $29.00 /LF = $3,799 48" Manholes 1 EA @ $2,170.00 /EA = $2,170 Services 6 EA @ $775.00 /EA = $4,650 STORM SEWER: 18" HDPE Pipe 343 LF @ $36.00 /LF = $12,348 STREET LIGHTS 1 EA @ $1,300.00 /EA = $1,300 MONUMENT BOX 1 EA @ $575.00 /EA = $575 AUGUSTA PLACE $49,673 12 1333560 10/10/2000 02:55P SUBD AG Chris C. Munoz 13 of 15 R 75.00 D 0.00 Pueblo Cty Clerk & Ree SUBDIVISION IMPROVEMENTS AGREEMENT EXHIBIT "B" SUBDMSION NAME: ENCLAVE AT WALKING STICK DEVELOPER: FEKETE HOMES, INC. ENGINEER: NORTHSTAR ENGINEERING AND SURVEYING, INC. STREETS (AUGUSTA COURT) 246 LF @ $35.00 /LF = Asphalt (3" on 6 ") 1,183 SY @ $16.00 /SY = $18,928 Curb and Gutter 589 LF @ $10.00 /LF = $5,890 Square Pan Radius 170 SF @ $4.25 /SF = $723 7" Conc. Pan 269 SF @ $3.80 /SF = $1,022 WATER PVC Water Main 246 LF @ $35.00 /LF = $8,610 Services 8 EA @ $500.00 /EA = $4,000 SANITARY SEWER: 8" PVC Sewer Main 243 LF @ $29.00 /LF = $7,047 48" Manholes 1 EA @ $2,170.00 /EA = $2,170 Services 8 EA @ $775.00 /EA = $6,200 STREET LIGHTS 1 EA @ $1,300.00 /EA = $1,300 MONUMENT BOX 3 EA @ $575.00 /EA = $1,725 AUGUSTA COURT $57,615 13 1 1353560 10/10/2000 02:55P SUBD AG Chris C. Munoz 14 of 15 R 75.00 D 0.00 Pueblo C!y Clerk & Rec SUBDIVISION IMPROVEMENTS AGREEMENT EXHIBIT "B" SUBDIVISION NAME: ENCLAVE AT WALKING STICK DEVELOPER: FEKETE HOMES, INC. ENGINEER: NORTHSTAR ENGINEERING AND SURVEYING, INC. MISCELLANEOUS IMPROVEMENTS DETENTION POND 2 4" Thick -3' Wide Conc. Trickle Pan 540 SF @ $2.50 /SF = $1,350 Outlet Structure 1 EA @ $3,000.00 /EA = $3,000 24" HDPE Pipe 815 LF @ $48.00 /LF = $39,120 Drop Structure 1 EA @ $1,600.00 /EA = $1,600 Type "L" Rip Rap 138 CY @ $50.00 /CY = $6,900 Type 1 -B Manhole 1 EA @ $2,000.00 /EA = $2,000 Overflow Spillway 1 EA @ $4,000.00 /EA = $4,000 DETENTION POND 3 4" Thick -3' Wide Conc. Trickle Pan 2,076 SF @ $2.50 /SF = $5,190 Outlet Structure 1 EA @ $3,000.00 /EA = $3,000 Drop Structure 1 EA @ $2,200.00 /EA = $2,200 Type "L" Rip Rap 183 CY @ $50.00 /CY = $9,150 DETENTION POND 4 4" Thick -3' Wide Conc. Trickle Pan 1,338 SF @ $2.50 /SF = $3,345 Outlet Structure 1 EA @ $3,000.00 /EA = $3,000 24" HDPE Pipe 48 LF @ $48.00 /LF = $2,304 Type 1 -B Manhole 2 EA @ $2,000.00 /EA = $4,000 Drop Structure 1 EA @ $1,800.00 /EA = $1,800 Type "L" Rip Rap 105 CY @ $50.00 /CY = $5,250 Overflow Spillway 1 EA @ $4,000.00 /EA = $4,000 14 1333560 10/10/2000 02:55P SUBD AG Chris C. Munoz 15 of 15 R 75.00 D 0.00 Pueblo Cty Clerk & Ree DETAIL "P" CONCRETE OVERFLOW CHANNEL 30" HDPE Pipe 148 LF @ $60.00 /LF = $8,880 6" Thick -10' Wide Overflow Pan 1,490 SF @ $5.00 /SF = $7,450 Type "M" Rip Rap 56 CY @ $50.00 /CY = $2,800 DETAIL 'T" CONCRETE OVERFLOW CHANNEL 4" Thick -4' Wide Concrete Pan 738 SF @ $2.50 /SF = $1,845 6" Thick -10' Wide Concrete Pan 420 SF @ $5.00 /SF = $2,100 EARTHWORK Earthwork 40,000 CY @ $2.00 /CY = $80,000 FENCE Fence (Golf Course Lots Only) 2,263 LF @ $30.00 /LF = $67,890 (Fence to be constructed in its entirety within 180 days after the first building permit is issued) SANITARY SEWER SEWER OUTFALL 1 LS @ $100,000.00 /LS = $100,000 WALKING STICK BLVD. ASPHALT PATCH Asphalt (10" full depth) 564 SY @ $24.50 /SY $13,818 MISC. IMPROVEMENTS $385,992 TOTAL $1,230,050 This is an estimate only. Actual construction costs may vary. This estimate may not include all construction costs. PREPARED BY: AH /PWT FIRM: NOR ENGINEERING AND SURVEYING, INC. REVIEWED BY: 04L — CITY OF PUEBLO 15 Reception 1353361 10/10/2000 AGREEMENT This Agreement is entered into this 31`' r day of u.i- L4 2000, between the City of Pueblo, a Municipal Corporation, and Fekete Homes, Inc., a Colorado Corporation RECITALS A. The Improvement Plans for the subdivision entitled Enclave at Walking Stick include a private Perimeter Underdrain System. B. The private Perimeter Underdrain System, including the Underdrain Main and Service Lines (the "'System") shall be located within certain drainage easements and the public street rights -of -way as dedicated to the public on the Subdivision Plat of Enclave at Walking Stick. THEREFORE, FOR VALUABLE CONSIDERATION, RECEIPT OF WHICH IS ACKNOWLEDGED, THE CITY OF PUEBLO AND FEKETE HOMES, INC. MUTUALLY AGREE AS FOLLOWS: 1. Responsibility. Fekete Homes, Inc., its successors and assigns, shall be responsible for the installation, maintenance, replacement and repair of the System, and as a consequence, Fekete Homes, Inc. will require access to the System from time to time for the purpose of installation, maintenance, replacement and repair. 2. Repairs. Fekete Homes, Inc. or its successors and assigns, shall repair all damage caused by the System or resulting from the installation, maintenance, replacement or repair of the System. 3. Access. The City of Pueblo grants, subject to all applicable City Ordinances and as long as the System is located in the street rights -of -way, to Fekete Homes, Inc., its successors and assigns, a continuous right to access the System from time to time as needed for the installation, maintenance, repair and replacement of the System. If the sanitary sewer or storm sewer lines are repaired, removed or relocated from their location in the public street rights -of -way and such repair, removal or relocation causes or results in any modification, change, removal or relocation of the system, such modification, change, removal or relocation will be performed at the sole cost and expense of Fekete Homes, Inc., its successors and assigns. Prior to excavation in the public right -of -way for purposes of installation, maintenance, repairs or replacement of the System, Fekete Homes, Inc. shall obtain all necessary permits from the City and its consent for such excavation, which consent will not be unreasonably delayed or withheld. 4. Amendment. This Agreement shall not amend, modify or change the drainage easements or street rights -of -way established by the Subdivision Plat as recorded. 5. Binding Agreement. The terms and conditions of this Agreement shall be binding upon and inure to the benefit of the parties, their successors and assigns. Page 1 of 2 1353361 10/10/2000 02:55P AGREE Chris C. Munoz 2 of 2 R 10.00 D 0.00 Pueblo Cty Clerk & Ree 6. Governing Law. This Agreement shall be construed, interpreted and enforced in accordance with the laws of the State of Colorado. CITY OF PUEBLO, a home rule municipality duly organized and existing under the law of the State of Colorad By dj l4 1� /1 ��_. Date Corinne Koehler President of City Council FEKETE HOMES, INC., a Colorado Corporation Y ?)7u Thomas A. Black, President of Fekete Homes, Inc., a Colorado Corporation STATE OF COLORADO) ) ss COUNTY OF PUEBLO ) a c� r Date 7 - / - 60 The foregoing instrument was acknowledged before me this 31 -5 ,r day of -) u L. ti , 20 by Thomas A. Black, President of Fekete Homes, Inc., a Colorado Corporation. Witness my hand and official seal. My commission expires: 1110k- q-1 �C - V a*. (, Q M me. "a"'p �tt j Tkr- 5L �o i oo Notary Public C . S TA RY —�-- 0 PUBLJC CF C0 Page 2 of 2 My Comm. Expires 07/10/2002 Reception 1353562 10/10/2000 SECOND SUPPLEMENTAL DECLARATION OF ANNEXATION OF THE ENCLAVE AT WALKING STICK THIS SECOND SUPPLEMENTAL DECLARATION OF ANNEXATION FOR THE ENCLAVE AT WALKING STICK (the "Second Supplemental Declaration ") is made this 24" day of July, 2000, by Fekete Homes, Inc., a Colorado Corporation ( "Declarants'). All undefined capitalized terms in this Second Supplemental Declaration will have the same meanings as set forth in the Original Declaration defined below. RECITALS A. Original Declaration of Walking Stick. On April 29, 1994, the Declaration of Covenants, Conditions, Restrictions, and Easements for Walking Stick was recorded in Book 2729 at Page 770 -830, Reception No. 1042954 in the records of the Clerk and Recorder for the County of Pueblo, Colorado (the "Original Declaration ") to submit certain land described in the Original Declaration together with all improvements, appurtenances, and facilities located on that land (collectively the "Property ") to the covenants, conditions, restrictions, and easements set forth in the Original Declaration. B. Reservation of Right to Expand. The right to expand the effect of the Original Declaration to include all or a part of the Expansion Property was reserved under the conditions and in the manner described in Article XV of the Original Declaration. Any expansion is to be accomplished by recording a supplemental declaration of annexation and a supplemental plat describing the Property to be included in the project in the records of the Clerk and Recorder for the County of Pueblo, Colorado. C. Recording of Supplemental Plat. Declarant has recorded a supplemental plat for a portion of the Expansion Property on C)Cj b �r r /Cs , 2000 a} �Rece17V *torn NO- 8 5 3S59 . in the records of the Clerk and Recorder for the County of Pueblo, Colorado, pursuant to this Second Supplemental Declaration, and such land is more fully described in Exhibit A attached and incorporated by referenced (the "Exhibit A Property "). D. Intention of Declarant. Declarant intends to expand the Project to include the Exhibit A Property and to impose upon the Exhibit A Property the covenants, conditions, restrictions, easements, and other provisions contained in the Original Declaration for the purposes of (i) protecting the value of the Property, as expanded, (ii) furthering a plan for improvement of the Property, as expanded, and the sale of Lots within the Property, as expanded, and (iii) promoting the comfort, safety, and welfare of the Declarant and the other Owners of Lots within the Property, as expanded. 1353562 10/10/2000 02:55P DEC ANX Chris C. Munoz 2 of 6 R 30.00 D 0.00 Pueblo Cty Clerk & Ree ANNEXATION NOW, THEREFORE, in consideration of these premises, the provisions set forth below, and other good and valuable consideration, the receipt and sufficiency of which are acknowledged, Declarant makes and establishes the following grants, submissions, and declarations. 1. Submission Exhibit A Property. Declarant hereby submits the Exhibit A Property to the covenants, conditions, restrictions, easements, and provisions contained in the Original Declaration, which Original Declaration is incorporated by reference and made a part of this Second Supplemental Declaration, Declarant further declares from and after this date the Exhibit A Property shall be held, sold, conveyed, encumbered, leased, rented, occupied, and improved subject to the provisions of the Original Declaration. 2. Expansion of Definitions. The definition used in the Original Declaration shall be automatically expanded to encompass and refer to the Exhibit A Property. For example, reference to the Declaration shall mean the Original Declaration and this Second Supplemental Declaration, and all references to the Property will mean the Property as expanded by the Exhibit A Property. 3. Allocated Interests. Each Lot in Exhibit A Property shall be allocated one vote in accordance with Section 4.5 of the Original Declaration, and each Lot in Exhibit A Property will have liability for the Common Expenses and Assessments equal to the liability allocated to each of the other Lots under the Original Declaration, as provided in Article VIII and the other articles of the Original Declaration. 4. Recorded Easements and Licenses. The recording date for the recorded easements and licenses appurtenant to or included in the Exhibit A Property is set forth in Exhibit B, as attached and incorporated by reference. 5. Special Declarant Rights and Additional Reserved Rights. The Exhibit A Property shall be subject to the same Special Declarant Rights and additional reserved rights as affecting the Property and as set forth in Article XI of the Original Declaration. 6. Binding Effect. These covenants shall run with the land and shall be binding upon all persons or entities having any right, title, or interest in all or any part of the Property, including Declarant and their heirs, successors, and assigns, and their tenants, employees, guests. and invitees. The covenants shall inure to the benefit of the owner of each Lot in the Exhibit A Property. 7 11111111111111111111111111111 1111111111111111111111 IN 1353362 10/10/2000 02:55P DEC ANX Chris C. Munoz 3 of 6 R 30.00 D 0.00 Pueblo Ct.y Clerk & Ree DECLARANT:' FEKETE HOMES, INC. . B Y Its: President STATE.OF COLORADO ) .. T Y. ,0� PUEBLO ) s -n: " • -d c ! TI instrument was acknowledged before me this?4�ay of ,��09••� ,; :; -C a t � p �, , 2000 by Thomas A. Black as President of Fekete Homes, Inc. 4 • . ••• .: o Witness my hand and official seal. My Commission Expires: Notary Public EXHIBIT A TO SECOND SUPPLEMENTAL DECLARATION OF ANNEXATION OF THE ENCLAVE AT WALKING STICK 11111111111111111111111111111111111111111 IN 1353562 10/10/2000 02:55P DEC ANX Chris C. 4 of 6 R 30.00 D 0.00 Pueblo Cty Clerk & Ree All of Lots 1 through 29, both inclusive, Block 1 and all of Lots 1 through 21, both inclusive, Block 2 and all of Parcels A, B, C and D in Enclave at Walking Stick, according to the recorded plat thereof. County of Pueblo, State of Colorado. 1 1353562 10/10/2000 02:55P DEC ANX Chris C. Munoz 5 of 6 R 30.00 D 0.00 Pueblo Cl.y Clerk & Ree EXHIBIT B TO SECOND SUPPLEMENTAL DECLARATION OF ANNEXATION OF THE ENCLAVE AT WALKING STICK Reservation of right of proprietor of any penetrating vein or lode to extract his ore. in U.S. Patent recorded in Book 10 at Page 80. 2. Reservations of (1) right of proprietor of any penetrating vein or lode to extract his ore; and (2) right of way for any ditches or canals constructed by authority of United States, in U.S. Patent recorded June 1, 1891 in Book 123 at Page 137 and August 18, 1891 in Book 123 at Paoe 401. 3. Right to deny or restrict each and every right of access to and from the land insured hereby, directly onto abutting street or highway designated as a portion of State Highway No. 47, along or across a line described as follows: U - 047 -1(1) 11 Rev. 2 Northerly Project Number Parcel Number Location of Line Begimling at a point on the South line of Section 17, Township 20 South, Range 64 West of the 6` P.M. in Pueblo County, Colorado, from which the SE corner of Section 17 bears North 88 deg. 38 min. East, a distance of 1,488.0 feet; 1. thence North 61 deg. 08 min. West, a distance of 232.9 feet; 2. thence North 54 deg. 28 min. 30 sec. West, a distance of 302.0 feet;, 3. thence North 61 deg. 08 min. West, a distance of 1,600.0 feet; 4. thence North 67 deg. 58 min. 30 sec. West, a distance of 503.6 feet; 5. thence North 61 deg. 08 min. West, a distance of 1,448.9 feet to the Southwesterly property line as recorded in Book 1522 at Page 133; Project No. U 047 -1(1) Colle Road - Pueblo Parcel No. 11 -Rev. 2 ALSO Beginning at a point on the North line of Section 20, Township 20 South, Ran;-ue 64 West of the 6"' P.M. in Pueblo County, Colorado, from which the NE corner of said Section 20 bears North 88 deg. 38 min. East, a distance of 1,488.0 feet; 1. thence South 61 de 08 min. East, a distance of 61.7 feet to the Southeasterly property line as recorded in Book 1522 at Page 133. 11111111111111111111111111111111111111111111111111111 ALSO 1353562 10/10/2000 02:55P DEC ANX Chris C. Munoz 6 of 6 R 30.00 D 0.00 Pueblo Cty Clerk & Ree Southerly Location of Line Beginning at a point on the Southwesterly property line as recorded in Book 1522 at Page 133, from which the SW corner of the NWl /4 of the SW1 /4 of Section 17, Township 20 South, Range 64 West of the 6th P.M. in Pueblo County, Colorado, bears South 75 deg. 37 min. West, a distance of 819.9 feet; thence along said Southwesterly property line along the arc of a curve to the left with a radius of 1,200.0 feet, a distance of 94.4 feet (the chord of this arc bears South 61 deg. 08 min. East, a distance of 94.3 feet), by reason of grant of relinquishment of said access right(s) by deed from Trustees of the State Colleges in Colorado on behalf of Southern Colorado State College to the Department of Highways, State of Colorado, recorded March 4, 1968 in Book 1630 at Page 593. 4. Terms, agreements, provisions, conditions and obligations as contained in Memorandum of Agreement by and between The State Board of Agriculture of The State of Colorado and Holystone Corporation, a Colorado Corporation recorded September 22, 1992 in Book 2615 at Page 211. 5. Terms, agreements, provisions, conditions and obligations as contained in Contract by and between Pueblo, a Municipal Corporation, and Holystone Corporation, a Colorado Corporation recorded April 29, 1994 in Book 2729 at Page 740. 6. Terms, agreements, provisions, conditions and obligations as contained in that certain Annexation Agreement recorded August 7, 1990 in Book 2510 at Page 564. Easement, whether in fee or easements only, and the terms and conditions contained therein, granted to The City of Pueblo, in instrument recorded December 14, 1992 in Book 2630 at Page 455. Right to deny or restrict each and every right of access to and from the land insured hereby, directly on to abutting street or highway designated as State Highway 47, along or across lines described in Deed recorded May 16, 1997 in Book 2997 at Page 723 by reason of grant or relinquishment of said access rights in said deed to the Department of Transportation, State of Colorado. Reception 1353583 10/10/2000 DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS, AND EASEMENTS FOR THE ENCLAVE AT WALKING STICK INDEX Page ARTICLE I STATEMENT AND PURPOSE AND IMPOSITION OF COVENANTS ... 1 Section 1.1 Owner ................ ............................... 1 Section 1.2. Purpose ............... ............................... 1 Section 1.3. Walking Stick .......... ............................... 1 Section 1.4. Development and Use ...... ............................... 1 Section 1.5. Imposition of Covenants ..... ............................... 1 ARTICLE II DEFINITIONS ......... ............................... 2 ARTICLE III THE PROJECT PLANNED COMMUNITY ..................... 6 Section 3.1. Establishment of Planned Community .......................... 6 Section 3.2. Declaration of Lot Boundaries ............................... 6 Section 3.3. Plat ................... ............................... 6 Section 3.4. Recorded Easements and licenses .............................. 6 ARTICLE IV ASSOCIATION MEMBERSHIP AND VOTING RIGHTS ........... 7 Section 4.1. Membership ............ ............................... 7 Section 4.2. Transfer of Membership .... ............................... 7 Section 4.3. Classes of Membership ..... ............................... 7 Section 4.4. Voting Rights ........... ............................... 7 Section 4.5 Appointment of Officers and Directors by Declarant ................. 7 Section 4.6. Notice of Membership ..... ............................... 8 Section 4.7. Owner's and Association's Addresses for Notices ................... 8 Section 4.8. Compliance with Association Documents and Walking Stick Documents .... 9 ARTICLE V POWERS AND DUTIES OF ASSOCIATION .................... 9 Section 5.1. Association Management Duties .............................. 9 Section 5.2. Common Area .......... ............................... 9 Section 5.3. Provisions Generally Applicable to Common Area .................. 9 Section 5.4. Rules and Regulations ..... ............................... 10 Section 5.5. Cooperation with Master Association .......................... 11 Section 5.6. Delegation by Association .. ............................... 11 Section 5.7. Ownership of Personal Property and Real Property ................. 11 Section 5.8. Roads and Streets ........ ............................... 12 Section 5.9. Books and Records ........ ............................... 12 Section 5.10. Reserve Account ........ ............................... 12 Section 5.11. Working Capital Account ................................... 12 Section 5.12. Implied Rights and Obligations .............................. 12 111111111111111111111111111111111111111111111111111 IN 1353563 10/10/2000 02:55P DEC C Chris C. Munos 2 of 48 R 240.00 D 0.00 Pueblo Cty Clerk & Rec ARTICLE VI CONSTRUCTION AND ALTERATION OF IMPROVEMENTS ....... 13 Section 6.1. General ............... ............................... 13 Section 6.2. Approval Required ......... ............................... 14 Section 6.3. Construction Methods ...... ............................... 14 Section 6.4. The Enclave Design Review Committee ......................... 14 Section 6.5. Enforcement ............ ............................... 16 ARTICLE VII PROPERTY USE RESTRICTIONS .......................... 18 Section 7.1. General Restriction ....... ............................... 18 Section 7.2. Residential Use of Lots ..... ............................... 18 ARTICLE VIII OWNERS' OBLIGATIONS FOR MAINTENANCE .............. 18 Section 8.1. Owner's Responsibility for Lot ............................... 18 Section 8.2. Owner's Negligence ....... ............................... 18 ARTICLE IX ASSESSMENTS ........ ............................... 19 Section 9.1. Creation of Lien and Personal Obligation for Assessments ...........: 19 Section 9.2. Purpose of Assessments .... ............................... 19 Section 9.3. Annual Assessments ...... ............................... 19 Section 9.4. Capitalization of the Association ........................ .... 20 Section 9.5. Special Assessments ...... ............................... 20 Section 9.6. Default Assessments ...... ............................... 21 Section 9.7. General Remedies of Association for Nonpayment of Assessment ........ 21 Section 9.8. Assessment Lien ......... ............................... 22 Section 9.9. Successor's Liability for Assessment ........................... 22 Section 9.10. Waiver of Homestead Exemption; Subordination of the Lien ........... 22 Section 9.11. Reallocation of Assessments Secured by Extinguished Liens ........... 23 Section 9.12. Exempt Property ........ ............................... 23 Section 9.13. Statement of Status of Assessments ........................... 23 Section 9.14. Failure to Assess ........ ............................... 23 ARTICLE X PROPERTY RIGHTS OF OWNERS ........................... 24 Section 10.1. Owners' Easements of Access and Enjoyment ..................... 24 Section 10.2. Delegation of Use ....... ............................... 24 Section 10.3. Easements of Record and of Use ............................. 24 Section 10.4. Emergency Access Easement . ............................... 24 Section 10.5. Partition or Combination of Lots ............................. 24 Section 10.6. No Partition or Common Area ............................... 24 i II�III �'I'I II�II I'II' I�IIIII ��Ilt II"I III "I" IIII I"I 1353563 10/10/2000 02:55P DEC C Chris C. Munoz 3 of 48 R 240.00 D 0.00 Pueblo Cty Clerk & Ree .. ARTICLE XI SPECIAL DECLARANT RIGHTS AND ADDITIONAL RESERVED RIGHTS ............. .............................25 Section 11.1 General Provisions ........ ............................... 25 Section 11.2. Order of Exercise of Declarant' s Rights ........................ 25 Section 11.3. Supplemental Provisions Regarding Declarant's Rights .............. 26 Section 11.4. Reservation for Expansion and Construction ..................... 26 Section 11.5. Reservation of Easements, Exceptions, and Exclusion6 For Utilities, Infrastructure, and Access ....................... 26 Section 11.6. Declarant's Rights Incident to Construction ...................... 26 Section 11.7. Easements Deemed Created . ............................... 26 ARTICLE XII INSURANCE AND FIDELITY BONDS ...................... 27 Section 12.1. Authority to Purchase .... ............................... 27 Section 12.2. General Insurance Provisions ............................... 27 Section 12.3. Physical Damage Insurance on Common Area .................... 27 Section 12.4. Provisions Common to Physical Damage Insurance ................. 28 Section 12.5. Liability Insurance ....... ............................... 28 Section 12.6. Fidelity Insurance ....... ............................... 29 Section 12.7. Flood Insurance ........ ............................... 29 Section 12.8. Provisions Common to Physical Damage Insurance, Liability Insurance, Fidelity Insurance and Flood Insurance ......... 29 Section 12.9. Personal liability Insurance of Officers and Directors ............... 31 Section 12.10. Workmen's Compensation Insurance ......................... 31 Section 12.11. Other Insurance ......... ............................... 31 Section 12.12. Insurance Obtained by Owners .............................. 31 ARTICLE XIII ASSOCIATION AS ATTORNEY -IN -FACT ................... 31 ARTICLE XIV DAMAGE OR DESTRUCTION ........................... 32 Section 14.1. Damage or Destruction of Common Area ....................... 32 Section 14.2. Damage or Destruction Affecting Lots ......................... 33 ARTICLE XV CONDEMNATION ..... ............................... 33 Section 15.1. Rights of Owners ........ ............................... 33 Section 15.2. Partial Condemnation; Distribution of Award; Reconstruction .......... 33 Section 15.3. Complete Condemnation .... ............................... 34 ARTICLE XVI EXPANSION AND WITHDRAWAL ........................ 34 Section 16.1. Incorporation of Additional Expansion Property ................... 34 Section 16.2. Declaration of Annexation .. ............................... 34 Section 16.3. Withdrawal of Property ............... I ................... 34 IIIIII111111111111111 1111111 11111 111111111111111111111 1353563 10/10/2000 02:55P DEC C Chris C. MI 4 of 48 R 240.00 D 0.00 Pueblo Cty Clerk & Rec ARTICLE XVII MORTGAGEE PROTECTIONS ........................... 35 Section 17.1. Introduction ........... ............................... 35 Section 17.2. Percentage of Eligible Mortgage Holders ....................... 35 Section 17.3. Notice of Actions ........ ............................... 35 Section 17.4. Consent Required ........ ............................... 35 Section 17.5. Notice of Objection ...... ............................... 37 Section 17.6. First Mortgagees' Rights ... ............................... 37 Section 17.7. Title Taken by First Mortgagee ................... I .......... 37 ARTICLE XVIII ENFORCEMENT OF COVENANTS ....................... 37 Section 18.1. Violations Deemed a Nuisance .............................. 37 Section 18.2. Compliance ............ ............................... 38 Section 18.3. Failure to Comply ....... ............................... 38 Section 18.4. Who May Enforce ....... ............................... 38 Section 18.5. Remedies ............. ............................... 38 Section 18.6. Nonexclusive Remedies .... ............................... 38 Section 18.7. No Waiver ............ ............................... 38 Section 18.8. No Liability ........... ............................... 38 Section 18.9. Recovery of Costs ........ ............................... 38 ARTICLE XIX RESOLUTION OF DISPUTES ............................ 39 ARTICLE XX DURATION OF THESE COVENANTS AND AMENDMENT ....... 39 Section 20.1. Term ................ ............................... 39 Section 20.2. Amendment ........... ............................... 39 Section 20.3. Declarant's Approval ...... ............................... 39 Section 20.4. Notice of Amendment ..... ............................... 39 Section 20.5. Effective on Recording .... ............................... 40 ARTICLE XXI MISCELLANEOUS PROVISIONS ......................... 40 Section 21.1. Severability ............ ............................... 40 Section 21.2. Construction ........... ............................... 40 Section 21.3. Headings ............. ............................... 40 Section 21.4. Waiver ............... ............................... 40 Section 21.5. Limitation of Liability ..... ............................... 40 Section 21.6. Conflicts Between Documents ............................... 40 .Section 21.7. Assignment ............ ............................... 41 1353 �iii ii ii 1353563 10/10/200 02:55P DEC C Chris C. Mu 5 of 48 R 240.00 D 0.00 Pueblo Ct.y Clerk & Ree iv DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS AND EASEMENTS FOR THE ENCLAVE AT WALKING STICK This Declaration of Covenants, Conditions, Restrictions, and Easements for The Enclave at Walking Stick ( "Declaration ") is made this e day of July, 2000, by Fekete Homes, Inc., a Colorado Corporation ( "Declarant "). ARTICLE I STATEMENT AND PURPOSE AND IMPOSITION OF COVENANTS Section 1.1. Owner Declarant is the owner of or has the right to acquire the property in Pueblo County, Colorado, described on the attached Exhibit A (the "Property "). Section 1.2. Purpose The purpose of the Declarant in making this Declaration is to create a planned community known as The Enclave at Walking Stick (the "Project ") within the larger master planned community of single family lots, townhome units, and other properties which will be known (and referred to in this Declaration) as "Walking Stick" all in accordance with the Colorado Common Interest Ownership Act, C.R.S § 38- 33.3 -101 through § 38- 33.3 -319, as amended and supplemented from time to time. Declarant further intends to ensure the attractiveness of the Property, including the residences and other improvements constructed on it, to prevent any future impairment of the Property and to guard against the construction on the Property with improvements with improper or unsuitable materials or with improper quality or methods of construction; to protect and enhance the values and amenities of the Property; to provide for the operation, administration, use and maintenance of any common areas within the Property, to preserve, protect and enhance the values and amenities of the Property, and to promote the health, safety and welfare of the owners of the Property. Section 1.3. Walking Stick tick The larger master planned community of Walking Stick, of which the Project is a part, is subject to the Declaration of Covenants, Conditions, Restrictions and Easements for Walking Stick, recorded on April 29, 1994, in Book 2729, Page 770, Reception No. 1042954 in the office of the Clerk and Recorder of Pueblo County, Colorado (as defined more fully below, the "Master Declaration "). Reference is made to the Master Declaration for additional covenants governing the Project, and to the Design Guidelines issued pursuant to the Master Declaration, establishing the overall design theme and the architectural, construction and landscaping standards Walking Stick. The Enclave at Walking Stick constitutes a "Project" as defined in the Master Declaration. Section 1.4. Development and Use Upon completion, the Project will consist of a maximum of 50 lots, each of which may be developed by the construction of a single- family residential dwelling. No lots or residences in excess of that number may be established on the Property by the subdivision of existing lots or residential units, or by time shares, or any other method. Section 1.5. Imposition of Covenants To accomplish the purposes indicated above, the Declarant hereby declares that from the date of ^. .... _.a r,,_ 1111111111111111111111111 fill 1111 1353563 10/10/2000 02:55P DEC C Chris C. Munoz 6 of 48 R 240.00 D 0.00 Pueblo Ctv Clerk & Rae Property will constitute a planned community known as The Enclave at Walking Stick under the Colorado Common Interest Ownership Act, and will be held, sold and conveyed subject to the following covenants, conditions, restrictions and easements (collectively, these "Covenants. ") These Covenants will run with the land and will be binding upon all persons or entities having any right, title or interest in all or any part of the Property, including the Declarant, and their heirs, successors and assigns, and their tenants, employees, guests and invitees. These Covenants will inure to the benefit of each owner of the Property. ARTICLE II DEFINITIONS The following terms, as used in this Declaration, are defined as follows: Section 2.1. "Act" means the Colorado Common Interest Ownership Act C.R.S. § 38- 33.3 -101 through § 38- 33.3 -319, as amended and supplemented from time to time, or any successor legislation to these statutes. Section 2.2. "Annual Assessment" means the Assessment levied annually pursuant to Section 9.3. Section 2.3. "Articles" or "Articles of Incorporation" means the articles of incorporation of the Association, which have been filed with the Secretary of State of Colorado to create The Enclave at Walking Stick Association, Inc. as such articles may be amended from time to time. Section 2.4. "Assessments" means the Annual, Special and Default Assessments levied pursuant to Article IX to meet the estimated cash requirements of the Association. Section 2.5. "Association" or "Enclave Associati means The Enclave at Walking Stick Association, Inc., a Colorado nonprofit membership corporation, and any successor of that entity by whatever name charged with the duties and obligations of administering the Project. Section 2.6. "Association Documents" mean the basic documents creating and governing the Project including, but not limited to, the Master Declaration, this Declaration, the Articles of Incorporation and Bylaws, and any procedures, rules, regulations or policies adopted under such documents by the Association or the Board of Directors and its authorized committees, and the Plat. Section 2.7. "Board of Directors" or 'Board" or "Enclave Board means the Board of Directors of the Association, which is the executive board, as defined in the Act, designated in this Declaration to act on behalf of the Association. Section 2.8. "Bylaws" means the bylaws of the Association, which establish the methods and procedures of its operation, as such bylaws may be amended from time to time. Section 2.9. "Common Area" means the real property and Improvements thereon in which the Association owns an interest for the common use, benefit and enjoyment of some or all of the 111111111111111111111111111111111111 1353563 10/10/2000 02:55P DEC C Chris C. 7 of 48 R 240.00 0 0.00 Pueblo Cty Clerk & Rec Owners and such other persons as may be permitted to use the Common Area under the terms of this Declaration or any contract with the Association. Such interest owned by the Association may include, without limitation, estates in fee, estates for terms of years, or easements. Section 2.10. "Common Expenses" means (i) premiums for the insurance carried by the Association under Article XII; (ii) all other expenses incurred by the Association in administering, servicing, conserving, managing, maintaining, repairing or replacing the Common Area and any Improvements located on it; (iii) all expenses expressly declared to be Common Expenses by the Association Documents; (iv) all expenses lawfully determined to be Common Expenses by the Board of Directors; (v) all expenses to be allocated among the Owners as provided in Article VI and (vi) all expenses for maintenance obligations as shown on the Plat. Section 2.11. "Declarant" means Fekete Homes, Inc., a Colorado corporation, or its successors or assigns, including any Successor Declarant to the extent the rights of Declarant are assigned to the Successor Declarant, as provided in this Declaration below. Section 2.12. "Declaration of Annexation" means a declaration prepared and recorded in accordance with the provisions of Article XVI to incorporate Expansion Property within the Property governed by this Declaration. Section 2.13. "Default Assessment" means the Assessments levied by the Association pursuant to Section 9.6. Section 2.14. "Default Rate" means an annual rate of interest that is the lesser of (i) five points above the prime rate charged by the Association's bank or such other rate as shall have been established by the Board of Directors, and (ii) the maximum rate permitted by the Act or other applicable law. Section 2.15. "Design Review Committee" or "Committee" or "DRC" means the committee formed pursuant to the Master Declaration to maintain the quality and architectural harmony of Improvements in Walking Stick, including the Project. Section 2.16. "The Enclave Design Guidelines" means the guidelines and rules published and approved by the Design Review Committee for The Enclave at Walking Stick. Section 2.17. "The Enclave Design Review Committee" or "EDRC" means the committee approved by the Design Review Committee, Committee or DRC and created and assigned the duties as set forth in Section 6.4 and The Enclave Design Guidelines. Section 2.18. "Development Rights" is defined in Section 11. 1.2 Section 2.19. "Director" means a member of the Board. Section 2.20. "Eligible Mortgage Holder means a First Mortgagee or any insurer or guarantor of a First Mortgage which has notified the Association in writing of its name and address and status as a holder, insurer or guarantor of a First Mortgage. Such notice will be 111111111111111111111111111111111111111111111 1353563 1011012000 02:55P DEC C Chris r k & Rec C. M !y Cler 8 of 48 R 240,00 D 0.00 Pueblo C deemed to include a request that the Eligible Mortgage Holder be given the notices and other rights described in Article XVII. Section 2.21. "The Enclave at Walking Stick" means the community created by this Declaration, consisting of the Property and all of the Improvements located on the Property. Section 2.22. "First Mortgage" means any Mortgage which is not subject to any lien or encumbrance except liens for taxes or other liens which are given priority by statute. Section 2.23. "First Mortgagee" means the holder of record of a First Mortgage. Section 2.24. "Improvement(s)" means all buildings, parking areas, loading areas, fences, walls, hedges, plantings, lighting, poles, driveways, roads, ponds, lakes, trails, gates, signs, changes in any exterior color or shape, excavation and all other site work, including without limitation grading, road construction, utility improvements, removal of trees or plantings, and any new exterior construction or exterior improvement which may not be included in the foregoing. "Improvement(s)" does not include turf, shrub, or tree repair or replacement of a magnitude which does not change exterior colors or exterior appearances. "Improvement(s)" does include both original improvements and all later changes and improvements. Section 2.25. "Lot" or "Enclave Lot" means a'parcel of land designated as a lot on any Plat and reserved for development and occupancy of a single family residential dwelling, together with all appurtenances and Improvements now or in the future on the lot. (A Lot is a "unit" as defined in the Act.) Section 2.26. "Mana -ger" means such person or entity retained by the Board of Directors to perform certain functions of the Board pursuant to this Declaration or the Bylaws. Section 2.27 "Master Association" means the Walking Stick Master Association, a nonprofit membership corporation, or any successor to that corporation. Section 2.28. "Master Declaration" means the Declaration of Covenants, Conditions, Restrictions and Easements for Walking Stick, as amended and supplemented from time to time and recorded in the real property records of Pueblo County, Colorado, to provide a unified development scheme for the residential areas in the master planned community of Walking Stick. Section 2.29. "Member" means any person holding membership in the Association. Section 2.30. "Mortgage" means any mortgage, deed of trust or other document which is recorded in the office of the Clerk and Recorder of Pueblo County, Colorado, and which encumbers any portion of the Property or interest therein as security for the payment of a debt or obligation. Section 2.31. "Mortaaizee" means any person named as a beneficiary or mortgagee under a Mortgage, or any successor to the interest of any such person under such Mortgage. I IIIIIIIIII IN III 1 IIII IIII 1353563 10/10/2000 02:55P DEC C Chris C. Munoz 9 of 48 R 240.00 D 0.00 Pueblo Cty Clerk & Rec Section 2.32. "Owner" or "Enclave Owner" means the owner of record, including Declarant, and including a contract seller, but excluding a contract purchaser, whether one or more persons, of fee simple title to any Lot, but does not mean or refer to any person who holds such interest merely as security for the performance of a debt or other obligation including a Mortgage, unless and until such person has acquired fee simple title pursuant to foreclosure or other proceedings. Section 2.33. "Period of Declarant Control" means the period during which Declarant, or a Successor Declarant may appoint and remove the Directors and Officers of the Association as permitted under the Act. The Period of Declarant Control will begin on the date this Declaration is first recorded in the office of the Clerk and Recorder of Pueblo County, Colorado, and will end no later than (i) 60 days after conveyance of 75 % of the Lots that may be created within the Property to Owners other than Declarant or any Successor Declarant, (ii) two years after the last conveyance of a Lot by Declarant in the ordinary course of business, (iii) the date on which Declarant, or any Successor Declarant, voluntarily terminates the Period of Declarant Control by recording a notice to that effect in the office of the Clerk and Recorder of Pueblo County, Colorado, whichever of the foregoing dates or events occurs first. Notwithstanding the foregoing, the Period of Declarant Control will be extended at the option of Declarant if the Act is amended to allow for the extension of the Period of Declarant Control beyond the limiting dates outlined in this Section above, or if the Period of Declarant Control is reinstated or extended by agreement between Declarant and the Association. After the termination of the Period of Declarant Control, Declarant, if still an Owner, will have all the rights and duties ordinarily given to Members under this Declaration. Section 2.34. "Person" whether or not in capitalized form, means a natural person, a corporation, a partnership, a limited liability company, an association, a trust or any other entity or combination of the foregoing. Section 2.35. "Plat" means the "special area plan" or any engineering survey or surveys of all or part of the Property, together with such other diagrammatic plans and information regarding the Property as may be required by the Act or other applicable law, or as may be included in the discretion of Declarant, as each such survey may be amended and supplemented from time to time, and all as recorded in the office of the Clerk and Recorder of Pueblo County, Colorado. Section 2.36. " Project" means the planned community of The Enclave at Walking Stick established by this Declaration. Section 2.37. "Property" means and includes the property described on Exhibit A and initially subjected to this Declaration, and also refers to any additional real property that has been incorporated in the Project from time to time and made subject to these Covenants pursuant to the provisions of this Declaration. Section 2.38. "Special Assessment" means an Assessment levied pursuant to Section 9.5 below on an irregular basis. I 111111111111111111111 IN 1353563 10/10/2000 02:55P DEC C Chris C. Munoz 10 of 48 R 240.00 D 0.00 Pueblo Cty Clerk & Roo Section 2.39. "Special Declarant Rights" is defined as set forth in Section 11.1 below. Section 2.40. "Special Declarant Rights Period" means the period beginning the date this Declaration is first recorded in the office of the Clerk and Recorder of Pueblo County, Colorado, and ending the date on which Declarant shall have conveyed to parties, other than a Successor Declarant, all units, as defined in the Act, originally owned by Declarant in the master planned community of Walking Stick. Section 2.41. "Successor Declarant" means any person to whom Declarant assigns any or all of its rights, obligations or interest as Declarant, as permitted by Section 21.7 and evidenced by an assignment or deed of record in the office of the Clerk and Recorder of Pueblo County, Colorado, designating such party as a Successor Declarant, signed by the transferor and the transferee, and otherwise complying with the requirements of the Act. Upon such recording, Declarant's rights and obligations, under the Declaration will cease and terminate to the extent provided in such document. Section 2.42. "Walking Stick Documents" means the basic documents governing Walking Stick, including but not limited to the Master Declaration, the Articles of Incorporation and Bylaws for the Master Association, the Design Guidelines and any other procedures, rules, regulations or policies adopted under such documents by the Master Association. ARTICLE III THE PROJECT PLANNED COMMUNITY Section 3.1. Establishment of Planned Community By this Declaration, the Project is established as a planned community under the Act, consisting of 50 Lots. Declarant reserves the Development Right to incorporate a total of up to 50 Lots within the Project in accordance with Article XVI below. Section 3.2. Declaration of Lot Boundaries The boundaries of each Lot are delineated on the Plat, and each Lot is identified by the number or address noted on the Plat. Section 3.3. Plat. The Plat will conform to the requirements of the Act and will be filed for record in the office of the Clerk and Recorder of Pueblo County, Colorado. The Plat may be filed as a whole or as a series of Plats from time to time. Any Plat filed subsequent to the first Plat will be termed a supplement to the Plat, and the numerical sequence of each supplement will be shown on it. Section 3.4. Recorded Easements and Licenses The recording data for recorded easements and licenses appurtenant to or included in the property constituting the Project is set forth on the attached Exhibit B. 1 HE I IN 1353563 10/10/2000 02:55P DEC C Chris C. Munoz 11 of 48 R 240.00 D 0.00 Pueblo Ct,y Clerk & Ree D ARTICLE IV ASSOCIATION MEMBERSHIP AND VOTING RIGHTS Section 4.1. Membership Every Owner, by virtue of being an Owner and for so long as he is an Owner, will be a Member of the Association. Membership will be appurtenant to and may not be separated from ownership of any Lot. No Owner, whether one or more persons, will have more than one membership per Lot owned, but all of the persons owning each Lot will be entitled to ri of membership and of use and enjoyment appurtenant to such ownership. Section 4.2. Transfer of Membership An Owner shall not transfer, pledge or alienate his membership in the Association in any way except upon the sale or encumbrance of his Lot, and then only to the purchaser or Mortgagee of his Lot. Section 4.3. Classes of Membership Initially, the Association will have one class of voting membership, composed of all Owners, including Declarant. The Bylaws may set forth additional classifications of membership from time to time. Section 4.4. Votiniz Ri.hts All Members will be entitled to vote on Association matters on the basis of one vote for each Lot owned, as each Lot is platted by Declarant. The number of votes will be determined by reference to the Plat as recorded by Declarant. When more than one person holds an interest in any Lot, all such persons will be Members. The vote for such Lot may be exercised by one person or alternative persons as the Owners among themselves determine. If more than one of the multiple Owners are present at a meeting in person or by proxy, the vote allocated to their Lot may be cast only in accordance with the agreement of a majority in interest of the Owners. There is majority agreement if any one of the multiple Owners casts the vote allocated to his Lot without protest being made promptly to the person presiding over the meeting by any of the other Owners of the Lot. Any Owner of a Lot that is leased may assign his voting right to the tenant, provided that a copy of the instrument of assignment is furnished to the Secretary of the Association prior to any meeting in which the tenant exercises the voting right. Section 4.5. Appointment of Officers and Directors by Declarant Until the expiration of the Period of Declarant Control and subject to the limitations of the Act, Declarant will retain the exclusive powers to appoint and remove Directors and officers of the Association. Notwithstanding the foregoing, Declarant may voluntarily surrender the right to appoint and 'remove Directors and officers of the Association before the end of the Period of Declarant Control by providing a notice to that effect to the Association and otherwise complying with the procedures for termination of this Special Declarant Right, as set forth in the Bylaws. However, upon voluntarily terminating this Special Declarant Right in advance of the expiration of the Period of Declarant Control, Declarant may require that specified actions of the Association or the Board, as described in an instrument executed and recorded by Declarant in the office of the 1 111111 11111 1111111111 111111111111 11111 1111111 111 1111 1353563 10/10/2000 02:55P DEC C Chris C. Munoz 12 of 48 R 240.00 D 0.00 Pueblo Cty Clerk 8 Rec Clerk and Recorder of Pueblo County, Colorado, be approved by Declarant before those actions become effective. Section 4.6. Notice of Membership Any person, on becoming a Member, will furnish the Secretary of the Association with a photocopy or certified copy of the recorded instrument or such other evidence as may be specified by the Board under the Bylaws or the Association rules, vesting the person with the interest required to make him a Member. At the same time, the Member will provide the Association with the single name and address to which the Association will send any notices given pursuant to the Association Documents. The Member will state in such notice the voting interest in the Association to which the Member believes he is entitled and the basis for that determination. In the event of any change in the facts reported in the original written notice including any change of ownership, the Member will give a new written notice to the Association containing all of the information required to be covered in the original notice. The Association will keep and preserve the most recent written notice received by the Association with respect to each Member. Section 4.7. Owner's and Association's Addresses for Notices All Owners of each Lot will have one and the same registered mailing address to be used by the Association or other Owners for notices, demands and all other communications regarding Association matters. The Owner or Owners of a Lot will furnish the registered address to the Secretary of the Association within five days after receiving title to the Lot. The registration will be in written form and signed by all of the Owners of the Lot or by such persons as are authorized by law to represent the interests of all Owners of the Lot. If no address is registered or if all of the Owners cannot agree, then the address of the Lot will be deemed the registered address until another registered address is furnished as required under this Section. If the address of the Lot is the registered address of the Owners, then any notice will be deemed duly given if delivered to any person occupying the Lot or sent to the Lot by any other means specified for a particular notice in any of the Association Documents, or if the Lot is unoccupied, if the notice is held and available for the Owners at the principal office of the Association. All notices and demands intended to be served upon the Board of Directors will be sent to the address of the Association or such other address as the Board may designate from time to time by a notice delivered to all Owners in accordance with this Section. Unless a section in this Declaration or in the Act expressly provides otherwise, all notices given under this Declaration will be sent by personal delivery, which will be effective upon receipt; by overnight courier service, which will be effective one business day following timely deposit with a courier service; or regular mail, postage prepaid, which will be effective three days after deposit in the U.S. mail. 1111 11111111 11111 11111 1111111 11111 11111 111111111 III 1111 1353563 10/10/2000 02:55P DEC C Chris C. 13 of 48 R 240.00 D 0.00 Pueblo Ct.y Clerk & Rec 8 Section 4.8. Compliance with Association Documents and Walking Stick Documents Each Owner will abide by and benefit from the provisions, covenants, conditions and restrictions contained in the Association Documents and the Walking Stick Documents. ARTICLE V POWERS AND DUTIES OF ASSOCIATION Section 5.1. Association Management Duties Subject to the rights and obligations of Declarant as set forth in the Act and in this Declaration and to the rights and obligations of the other Owners, the Association will be responsible for the administration and operation of the Project. The Board of Directors will exercise for the Association all powers, duties and authority vested in or obligated to be taken by the Association and not reserved to Declarant or the other Members by this Declaration, the other Association Documents, the Act or other applicable law. Section 5.2. Common Area 5.2.1. Covenant by Declarant From time to time before the expiration of the Period of Declarant Control, Declarant may, but will not be obligated to, convey to the Association, by written instrument recorded with the Clerk and Recorder of Pueblo County, Colorado, selected parcels of the Property, together with any Improvements located on and any rights and easements appurtenant to such property, as Common Area. Section 5.3. Provisions Generally Applicable to Common Area 5.3.1. Use of Common Area Any Common Area generally is designated by this Declaration for the common use, benefit and enjoyment of the Owners and their families, tenants, employees, guests and invitees, and such other persons as may be permitted to use the Common Area by the terms of this Declaration, by agreement established under this Article below, or otherwise. 5.3.2. No Dedication to the Public Nothing in this Declaration or the other Association Documents will be construed as a dedication to public use, or a grant to any public municipal or quasi- municipal authority or utility, or an assumption of responsibility for the maintenance of any Common Area by such authority or utility, absent an express written agreement to that effect. 5.3.3. Association's Responsibility for Common Area The Association, subject to the rights and obligations of the Owners set forth in this Declaration and subject to the provisions of Section 5.4 below, will be responsible for the management and control of any Common Area and all Improvements on the Common Area, including furnishings and equipment related thereto, and will keep it in good, clean, and attractive condition and repair consistent with the standards of Walking Stick. 1 1353563 10/10/2000 02:55P DEC C Chris C. Munoz 14 of 48 R 240.00 D 0.00 Pueblo Cty Clerk & Rao 0& 5.3.4. Declarant's Right to Perform for the Account of the Association In the event the Association does not repair or maintain the Common Area, Declarant shall have the right, but not the obligation, to perform such duties for the Association. In that event, Declarant will be entitled to reimbursement from the Association of all costs incurred by Declarant, such reimbursement being due within 30 days after the receipt by the Association of an invoice from Declarant, itemizing the costs incurred. After expiration of the 30 day period allowed for payment, Declarant may collect interest on the amount due at the Default Rate. 5.3.5. Association's Agreements Regarding Conunon Area The Association, acting through the Board of Directors, may grant easements, rights -of -way, leases, licenses and concessions through or over the Common Area without the independent approval of the Owners subject, however, to the rights of Declarant and the Owners to use the Common Area as provided in this Declaration. Without limiting the .generality of the foregoing, the Association may grant such rights to suppliers of utilities serving the Project or property adjacent to the Project, and to developers or owners of property adjacent to the Project for the purpose of accommodating minor encroachments onto the Common Area or other purposes that do not unreasonably interfere with the use and enjoyment of the Common Area by the Owners. 5.3.6. Declarant's Agreements Re a� rding Common Area Upon the transfer by Declarant to the Association of any Common Area as provided in this Declaration, Declarant may agree under the terms of the transfer, and subject to the limitations of the Act, that the Association may be required to contract with other organizations operating within or in the vicinity of Walking Stick, to allow use of all or part of the Common Area under such terms and for such charges as may be acceptable to Declarant and such association or other organizations. Any use of the Common Area by Owners and their families, tenants and guests, and such other persons permitted access to the Common Area shall be subject to any applicable Association rules governing the Common Area, as provided in Section 5.5. Section 5.4. Rules and Regulations 5.4.1. Board's Power From time to time and subject to provisions of the Association Documents, the Board of Directors may adopt, amend and repeal rules and regulations governing, among other things and without limitation, the use of the Lots and the use of the Common Area. A copy of the Association rules in effect will be distributed to each Member, and any change in the Association rules also will be distributed within a reasonable time following the effective date of the change. 5.4.2. Enforcement The Board of Directors shall provide for enforcement of the Association rules as set forth in the Bylaws. Without limiting the generality of the foregoing, the Board may suspend the voting rights of a Member after notice and hearing as provided in the Bylaws for an infraction of the Association rules. 111111111111 Hill 1111111111111111111111111111111111111111111111111111 HIM III 111111111 1353563 10/10/2000 02:55P DEC C Chris C. Munoz 15 of 48 R 240.00 D 0.00 Pueblo Cty Clerk & Ree Section 5.5. Cooperation with Master Association and Project Associations The Enclave Board will assist the Master Association in the performance of its duties and obligations under its governing documents, and the Enclave Association will cooperate with the Master Association so that each of those entities may most efficiently and economically provide , its respective services to Enclave Owners. It is further contemplated that, from time to time each of the Enclave Association and the Master Association or the association of another project in Walking Stick may use the services of the other in the furtherance of its respective obligations, and each may contract with the other to better provide for such cooperation. In the case of any such agreement between the Enclave Association and the Master Association, the payment for such contract services or a variance in services provided may be reflected in an item in the Enclave Association's budget which will be collected through Assessments by the Enclave Association and remitted to the Master Association. Section 5.6. Delegation by Association Board 5.6.1. Delegation to Master Association Board Without limiting the generality of the provisions in Section 5.1, the Board of Directors may delegate certain of its powers to the board.of directors of the Master Association as the Directors may specify by resolution and as the board of directors of the Master Association may accept from time to time. After the Period of Declarant Control, the board of directors of the Master Association will be elected in accordance with the requirements of C.R.S. 38 -33 -3 -220. 5.6.2. Delegation to Manager The Association, acting through the Board, may employ or contract for the services of a Manager to act for the Association and the Board and the officers according to the powers and duties delegated to the Manager pursuant to the Bylaws or resolution of the Board. Neither the Board nor any officer of the Association shall be liable for any omission or improper exercise by a Manager of any such duty, power or function so delegated by written instrument executed by or on behalf of the Board. 5.6.3. Committees The Association, acting through the Board, is authorized to delegate any of its rights, duties or responsibilities to any committee or other entity that the Board may choose to form. 5.6.4. Limitation Any delegation by the Board under this Article V is subject to compliance with the Act and the Bylaws and the requirement that the Board, when so delegating, will not be relieved of its responsibilities under the Association Documents and the Act. Section 5.7. Ownership of Personal Property and Real Property . The Association, through action of the Board, may acquire, hold and dispose of personal property and real property, including without limitation, any fee, leasehold or other property interests within the Project conveyed to the Association by Declarant. The beneficial interest in any such Property will be deemed to be owned by the Owners in individual shares allocated equally among the Lots subject to this Declaration from time to time. Such interests will not be transferable 111111111111111111111111111111111111111111111111 1111 1353563 10/10/2000 02:55P DEC C Chris C. M 16 of 48 R 240.00 0 0.00 Pueblo C4.y Clerk & Rec except with the transfer of a Lot. The conveyance of a Lot will transfer ownership of the transferor's beneficial interest in such personal property without any reference to it. Each Owner may use all such property in accordance with the purposes for which it is intended, without hindering or encroaching on the rights of others. The transfer of title to a Lot under foreclosure will entitle the purchaser to enjoy the interest in such property associated with the foreclosed Lot. Section 5.8. Roads and Streets If Declarant elects to include roads or streets in the Common Area from time to time, the Association will be responsible for them subject to any shared use agreements or other arrangements that may be established between the Association and the Master Association, other associations operating in Walking Stick, or other third parties permitted to use the Common Area, as provided in this Declaration. In any case, such maintenance will include periodic maintenance of the surface and regular snow, ice, and trash removal from all drive areas except private driveways located within Lots. The Board will cooperate with traffic and fire control officials as appropriate to post public and private drives, roads and streets with traffic control, fire lane and parking regulation signs. Section 5.9. Books and Records The Association will make available for inspection by Owners and Mortgagees, upon request, during normal business hours or under other reasonable circumstance current copies of the Association Documents, and the books, records and financial statements of the Association prepared pursuant to the Bylaws. Any Owner or Mortgagee may make a written request to the Association for a copy of the audited financial statements for the preceding year. The Association may charge a reasonable fee for copying such materials. Section 5.10. Reserve Account The Association will establish and maintain an adequate reserve fund from Annual Assessments levied pursuant to Section 9.3 below for maintenance, repair or replacement of the Common Area and Improvements located within the Common Area that must be replaced on a periodic basis and for any other facilities made available to the Association that must be replaced on a periodic basis with contribution from the Association. Section 5.11. Working Capital Account The Association will also administer a working capital account funded as provided in Section 9.4. Section 5.12. Implied Rights and Obligations The Association will perform all of the duties and obligations imposed on it expressly by the Association Documents, together with every other duty or obligation reasonably to be implied from the express previsions of the Association Documents or reasonably necessary to satisfy any such duty or obligation. The Association may exercise any other right or privilege (i) given to it expressly by the Association Documents, (ii) reasonably implied from the existence of another right or privilege given expressly by the Association Documents, or (iii) reasonably necessary to effectuate any such right or privilege. 111111 11111 1111111111 1111111 111111111111111 IN 1353563 10/10/2000 02:55P DEC C Chris C. Munoz 17 of 48 R 240.00 D 0.00 Pueblo Ct.y Clerk & Rec 12 ARTICLE VI CONSTRUCTION AND ALTERATION OF IMPROVEMENTS Section 6.1. General This provision serves as notice that The Enclave Design Guidelines and the other Walking Stick Documents govern all aspects of the design and plan of the Project, including, among other things, the right of an Owner or other party to construct, reconstruct, refinish, alter or maintain a residence or other Improvement upon, under or above any of the Property, to make or create any excavation or fill on the Property, to make any change in the natural or existing surface contour or drainage, to install any utility line or conduit on or over the Property, and to park or store any vehicles and other equipment on the Property. The Enclave Design Guidelines may include, without limitation, the following: 6.1.1. Standards establishing and dictating an architectural theme and requirements pertaining to building style and design, construction materials and site planning. 6.1.2. Procedures for making application to The Enclave Design Review Committee including the documents to be submitted and the time limits in which The Enclave Design Review Committee must act to approve or disapprove any submission. 6.1.3. Time limitations for the completion within specified periods after approval of the Improvements for which approval is required under The Enclave Design Guidelines. 6.1.4. Designation of a building site on a Lot, establishing the maximum .developable area of a Lot and set -back or view corridor requirements. 6.1.5. Minimum and maximum square foot areas of living space that may be developed on any Lot. 6.1.6. Limitations on the height of any building or other Improvement. 6.1.7. Specifications for the location, dimensions and appearance or screening of any fences, mailboxes, accessory structures, antennae or other such Improvements. 6.1.8 Regulations for parking vehicles off of the street, within an enclosed garage or a designated area on a Lot. 6.1.9 Landscaping regulations, including requirements for installing and maintaining landscaping on the entire Lot and on parkways abutting the Lot and the street or road providing access to the Lot; time limitations within which all landscaping must be completed, limitations and restrictions prohibiting the removal or requiring the replacement of existing trees, and guidelines encouraging the use of plants indigenous 1 1333663 10/10/2000 02:55P DEC C Chris C. Munoz 18 of 48 R 240.00 D 0.00 Pueblo Cty Clerk 8 Ree to the locale and compatible with the design theme of the Project; and other practices protecting the environment, aesthetics and architectural harmony of Walking Stick Section 6.2. Approval Required Any construction or reconstruction, or the refinishing or alteration of any part of the exterior of any residence or other Improvement on the Property is absolutely prohibited until the Owner first obtains written approval from The Enclave Design Review Committee and otherwise complies with the provisions of this Declaration and the Walking Stick Documents. Section 6.3. Construction Methods Specific rules regarding construction methods, including but not limited to excavation, drainage, utility lines, loading areas, waste storage, trash removal, materials storage, and transformers and meters, may also be set forth in The Enclave Design Review Guidelines and the Master Declaration, and all Owners will comply with those rules. Section 6.4. The Enclave Design Review Committee Section 6.4.1. Committee and Guidelines There is hereby established The Enclave Design Review Committee ( "EDRC ") The Design Review Committee for Walking Stick approved the EDRC Guidelines and assigned the responsibility for administering The Enclave Design Guidelines to the EDRC. The Enclave Design Guidelines may be amended, from time to time, upon written approval from the Design Review Committee for Walking Stick. The Enclave Design Guidelines shall be binding on all Owners and other persons governed by this Declaration. A copy of The Enclave Design Guidelines may be obtained from Declarant, and it is the responsibility of each Owner or other person to obtain and review the most recently revised guidelines. Section 6.4.2. EDRC Membership and Organization The EDRC shall initially be comprised of one representative of the Declarant. As The Enclave develops, two other members may be added at the sole discretion of the Declarant. All members of the EDRC shall be appointed, removed or replaced by the Declarant, in its sole discretion. Section 6.4.3. Purpose and General Authority The EDRC shall review, study and either approve or reject all proposed Improvements on the Property, all in compliance with this Declaration and as further set forth in The Enclave Design Guidelines and such rules and regulations as the EDRC may establish from time to time to govern its proceedings. No Improvements shall be erected, placed, reconstructed, replaced, repaired or otherwise altered, nor shall any construction, repair or reconstruction be commenced until plans for the Improvements shall have been approved by the EDRC; provided, however, that Improvements that are completely within a building may be undertaken without such approval. All Improvements shall be constructed in accordance with approved plans. Section 6.4.4. EDRC Discretion The EDRC shall exercise its best judgment to see that all Improvements conform and harmonize with any existing structures as to 11 1111111111111111111111111111111111111111111111 1353563 10/10/2000 02:55P DEC C Chris C. ft 19 of 48 R 240.00 D 0.00 Pueblo C!y Clerk & Ree external design, quality, and type of constructions, seals, materials, color, location on the Lot, height, grade and finished ground elevation, and the schemes and aesthetic considerations set forth in The Enclave Design Guidelines, the Association Documents and the other Walking Stick Documents. The EDRC, in its sole discretion based on concerns for good planning and design, the aesthetic, architectural and environmental interest of Walking Stick, or other factors as necessary or desirable to fulfill the intent of The Enclave "Design Guidelines, may excuse compliance with such requirements in specific situations and may permit compliance with different or alternative requirements. Section 6.4.5. Binding Effect The actions of the EDRC in the exercise of its discretion by its approval or disapproval of plans and other information submitted to it, or with respect to any other matter before it, shall be conclusive and binding on all interested parties. Section 6.4.6. Expert Consultation The EDRC may avail itself of other technical and professional advice and consultants as it deems appropriate, and the EDRC may delegate its plan review responsibilities, except final review and approval, to one or more of its members or to consultants retained by the EDRC. Upon that delegation, the approval or disapproval of plans and specifications by such member or consultant shall be equivalent to approval or disapproval by the entire EDRC. Section 6.4.7. Expenses Except as provided in this Section below, all expenses of the EDRC shall constitute a Common Expense. The EDRC shall have the right to charge a fee for each application submitted to it for review, in an amount which may be established by the EDRC from time to time, and such fees shall be collected by the EDRC and remitted to help defray the expenses of the EDRC's operation. Section 6.4.8. Other Requirements Compliance with The Enclave design review process is not a substitute for compliance with the City of Pueblo building, zoning and subdivision regulations, and each Owner is responsible for obtaining all approvals, licenses, and permits as may be required prior to commencing construction of Improvements. Further, the establishment of the EDRC and procedures for architectural review shall not be construed as changing any rights and restrictions upon Owners to maintain and repair their Lots and Improvements as otherwise required under Association Documents. Section 6.4.9. Limitation of Liability The EDRC shall use reasonable judgment in accepting or disapproving all plans and specifications submitted to it. Neither the EDRC nor any individual EDRC member shall be liable to any person for any official act of the EDRC in connection with submitted plans and specifications, except to the extent the EDRC or any individual EDRC member acted with malice or wrongful intent. Approval by the EDRC does not necessarily assure approval by the appropriate governmental board or commission for the City of Pueblo. 111111111111111111111111111111111111111111111111111111) 1353563 10/10/2000 02:55P DEC C Chris C. Munoz 20 of 48 R 240.00 D 0.00 Pueblo Cty Clerk & Rec Notwithstanding that the EDRC has approved plans and specifications, neither the EDRC nor any of its members shall be responsible or liable to any Owner, developer or contractor with respect to any loss, liability, claim or expense which may arise by reason of such approval of the construction of the Improvements. Neither the Board, the EDRC, nor any agent thereof, nor Declarant, nor any of its partners, employees, agents or consultants shall be responsible in any way for any defects in any plans or specifications submitted, revised or approved in accordance with the provisions of the Walking Stick Documents and the Association Documents, nor for any structural or other defects in any work done according to such plans and specifications. In all events, the EDRC shall be defended and indemnified by the Association in any such suit or proceeding which may arise by reason of the EDRC's decision. The Association, however, shall not be obligated to indemnify each member of the EDRC to the extent any such member of the EDRC is adjudged to be liable for negligence or misconduct in the performance of his duty as a member of the EDRC, unless and then only to the extent that the court in which such action or suit may be brought determines upon application that, despite the adjudication of liability but in view of all circumstances of the case, such person is fairly and reasonably entitled to indemnification for such expense as such court shall deem proper. Additionally, in the event any Owner commences legal proceedings to challenge the discretion of the EDRC's decisions or interpretation of The Enclave Design Guidelines, the EDRC, and the Declarant shall be entitled to recover from the Owner challenging such authority, reasonable attorneys' fees and costs for its defense. Section 6.5. Enforcement Section 6.5.1. Inspection Any member or authorized consultant of the EDRC, or any authorized officer, Director, employee or agent of the Association may enter upon any Lot at any reasonable time after notice to the Owner, without being deemed guilty of trespass, in order to inspect Improvements constructed or under construction on the Lot to determine whether the Improvements have been or are being built in compliance with the Association Documents and the plans and specifications approved by the EDRC. Section 6.5.2. Completion of Construction Before any Improvements on a Lot may be occupied, the Owner of the Lot shall be required to obtain a temporary certificate of compliance issued by the EDRC indicating substantial completion of the Improvements in accordance with the plans and specifications approved by the EDRC, and imposing such conditions for issuance of a final certificate of compliance as the EDRC may determine appropriate in its reasonable discretion. Without limiting the generality of the proceeding sentence, the EDRC may require, as a condition to the issuance of the temporary certificate of compliance, that the Owner deposit with the EDRC such sums as may be necessary to complete the landscaping on the Lot by a specified date. If the landscaping is not completed as scheduled, the EDRC may apply the deposit to cover the cost of completing the work and enforce such other remedies as are available to the Association for the failure of the Owner to comply with these covenants, including without limitation the remedies set forth in Section 6.5.5. 11111111111111111111111111111111111111111111111111 Jill 1333563 10/10/2000 02:55P DEC C Chris C. M, 21 of 48 R 240.00 D 0.00 Pueblo Cty Clerk & Rec Section 6.5.3. Certificate of Compliance Upon payment of a reasonable fee established from time to time by the EDRC, and upon written request of any Owner or his agent, an existing or prospective Mortgagee, or a prospective grantee, the EDRC may issue an acknowledged certificate, in recordable form, setting forth generally whether, to the best of the EDRC's knowledge, the Improvements on a particular Lot are in compliance with the terms and conditions of The Enclave Design Guidelines. Section 6.5.4. Deemed Nuisances Every violation of these Covenants is hereby declared to be and to constitute a nuisance and every public or private remedy allowed for such violation by law or equity against a Member shall be applicable. Without limiting the generality of the foregoing, these Covenants may be enforced as provided below. (a) Fines for Violations The EDRC may adopt a schedule of fines for failure to abide by the EDRC rules and The Enclave Design Guideline, including fines for failure to obtain any required approval from the EDRC. (b) Removal of Nonconforming_ Improvements The Association, upon request of the EDRC and after reasonable notice to the offender and, if different, to the Owner, may enter upon any Lot at any reasonable time after notice to the Owner, without being deemed guilty of trespass, and remove any Improvements constructed, reconstructed, refinished, altered, or maintained in violation of these Covenants. The Owner of the Improvements shall immediately reimburse the Association for all expenses incurred in connection with such removal. If the Owner fails to reimburse the Association within 30 days after the Association gives the Owner notice of the expenses, the sum owed to the Association shall bear interest at the Default Rate from the date of the advance by the Association through the date or reimbursement in full, and all such sums and interest shall be a Default Assessment enforceable as provided in Article IX. Section 6.5.5. Continuity of Construction All Improvements commenced on the Property shall be prosecuted diligently to completion and shall be completed within 12 months after commencement, unless an exception is granted in writing by the EDRC. If an Improvement is commenced and construction is then abandoned for more than 90 days, or if construction is not completed within the required 12 -month period, then after notice and opportunity for hearing as provided in the Bylaws, the Association may impose a fine of not less than $1,000 per day (or such other reasonable amount as the Association may set) to be charged against the Owner of the Lot until construction is resumed, or the Improvement is completed, as applicable, unless the Owner can prove to the satisfaction of the Board of Directors that such abandonment is for circumstances beyond the Owner's control. Such charges shall be a Default Assessment and lien as provided in Article IX. 1 1 I"I 1333563 10/10/2000 02:55P DEC C Chris C. Munoz 22 of 48 R 240.00 D 0.00 Pueblo Cty Clerk & Ree 17 ARTICLE VII PROPERTY USE RESTRICTIONS Section 7.1. General Restriction The Property shall only be used for the purposes set forth in these Covenants and the other Association Documents, in compliance with the applicable ordinances of the City of Pueblo, and the laws of the State of Colorado and the United States, and with the Walking Stick Documents and other recorded covenants affecting all or any part of the Property. Section 7.2. Residential Use of Lots Each Lot shall only be used for residential purposes and developed by the construction of a single - family dwelling unit. No business or commercial Improvement may be erected on any Lot. Any business or commercial enterprise or other non - residential use must be approved in writing by Declarant. ARTICLE VIII OWNERS' OBLIGATIONS FOR MAINTENANCE Section 8.1. Owner's Responsibility for Lot Except as provided in the Walking Stick Documents or by written agreement with the Master Association or the Association, all maintenance of a Lot and the Improvements located on it will be the sole responsibility of the Owner of the Lot. The Association may, in the discretion of the Board, assume the maintenance responsibilities of such Owner if, in the opinion of the Board, the level and quality of maintenance being provided by such Owner does not satisfy the community wide standard of Walking Stick. Before assuming the maintenance responsibilities, the Board will notify the Owner in writing of its intention to do so, and if the Owner has not commenced and diligently pursued remedial action within 30 days after the mailing of such written notice, then the Association will proceed. In those circumstances, the Owner will reimburse the Association for the expenses of the maintenance by the Board within 30 days after the Association notifies the Owner of the amount due, and any sum not reimbursed within that 30 day period will bear interest at the Default Rate from the date of the expenditure until payment in full. Such charges will constitute a Default Assessment enforceable as provided in Article IX. Section 8.2. Owner's Negligence If the need for maintenance, repair or replacement of any portion of the Common Area arises because of the negligent or willful act or omission of an Owner or his family member, guest, invitee, licensee or tenant, then the expenses incurred by the Association for the maintenance, repair or replacement will be a personal obligation of that Owner. If the Owner fails to repay the expenses incurred by the Association within 30 days after the notice to the Owner of the amount owed, then those expenses will bear interest at the Default Rate from the date of the advance by the Association until payment by the responsible Owner in full, and all such expenses and interest will constitute a Default Assessment enforceable as provided in Article IX. 11111111111111111111111111111111111111111111111f111 IIII 1353563 10/10/2000 02:55P DEC C Chris C. Mi 23 of 48 R 240.00 D 0.00 Pueblo Cty Clerk & Rec 18 ARTICLE IX ASSESSMENTS Section 9.1. Creation of Lien and Personal Obligation for Assessments Declarant, for each Lot owned within the Property, hereby covenants, and each Owner of any Lot by accepting a deed for a Lot is deemed to covenant to pay to the Association (1) Annual Assessments imposed by the Board of Directors as necessary to meet the Common Expenses of maintenance, operation and management of the Common Area, to fund the reserve account contemplated under Section 9.3, and to generally carry out the functions of the Association; (2) Special Assessments for capital improvements and other purposes as stated in this Declaration; and (3) Default Assessments which may be assessed against a Lot pursuant to the Association Documents for the Owner's failure to perform an obligation under the Association Documents or because the Association has incurred an expense on behalf of the Owner under the, Association Documents. All Assessments, together with fines, interest, costs, reasonable attorneys' fees, and legal assistants' fees and other charges allowed under the Act, will be a charge on the land and will be a continuing lien upon the Lot against which each such Assessment is made until paid in full. Each such Assessment, together with fines, interest, costs, reasonable attorneys' fees and legal assistants' fees, and other charges allowed under the Act, also will be the personal and individual obligation of the Owner of such Lot as of the time the Assessment becomes due. Two or more Owners of a Lot will be jointly and severally liable for such obligations. No Owner may exempt himself from liability for any Assessments by abandonment of his Lot or by waiver of the use or enjoyment of the Common Area. Suit to recover a money judgement for unpaid Assessments and related charges as listed above may be maintained without foreclosing or waiving the Assessment lien provided in this Declaration. Section 9.2. Purpose of Assessments The Assessments levied by the Association will be used exclusively to promote the recreation, health, safety, and welfare of the Owners and occupants of the project without limiting the foregoing, the Assessments may be used for the specific purposes listed in Section 9.3.1 below. Section 9.3. Annual Assessments 9.3.1. Calculation of Annual Assessments The Board of Directors will prepare a budget before the close of each fiscal year of the Association and submit the budget to the Association as required by the Act. Annual Assessments for Common Expenses will be based upon the estimated net cash flow requirements of the Association to cover items including, without limitation, the cost of routine maintenance, repair and operation of the Common Area; expenses of management; premiums for insurance coverage as deemed desirable or necessary by the Association; snow removal, landscaping, care of grounds and common fighting within the Common Area; routine renovations within the Common Area; wages; common water and utility charges for the Cominon Area; legal and accounting fees and costs; management fees; expenses and liabilities incurred by the Association under or by reason of this Declaration; payment of any deficit remaining from a previous Assessment period; and the supplementing of the reserve fund for general, routine 1 MIN 1111111111111111111111111) 1353563 10/10/2000 02:55P DEC C Chris C. Muno= 24 of 48 R 240.00 D 0.00 Pueblo Cty Clerk 8 Ree maintenance, repairs and replacement of Improvements within the Conunon Area on a periodic basis, as needed. 9.3.2. Apportionment of Annual Assessments Each Owner will be responsible for that Owner's share of the Common Expenses which will be divided equally among the Lots included in the Project under this Declaration from time to time. Accordingly, at any given time, an Owner's share of Common Expenses will be determined as a fraction, the numerator of which is the number of Lots owned by the Owner, and the denominator of which is the number of Lots then platted and incorporated in the Project. The foregoing is subject to the qualifications of Section 8.2 and the following: First, any Common Expenses or portion thereof benefitting fewer than all of the Lots will be assessed exclusively against the Lots benefitted, and second, the costs of insurance may be assessed in proportion to risk, and the costs of utilities may be assessed in proportion to usage. 93.3. Collection Annual Assessments will be collected in periodic installments as the Board may determine from time to time, but until the Board directs otherwise, they will be payable monthly in advance on the first day of each calendar month. The Association will have the right, but not the obligation, to make pro rata refunds of any Annual Assessments in excess of the actual expenses incurred in any fiscal year. Any such excess funds not refunded will be applied to the next installment(s) of Annual Assessments due. 9.3.4. Date of Commencement of Annual Assessments The Annual Assessments will commence as to all Lots in the first phase of the Project no later than 60 days after the date of the first conveyance by Declarant of a Lot to an Owner. The first Annual Assessment will be prorated according to the number of months remaining in the calendar year. Section 9.4. Capitalization of the Association Upon acquisition of record title to a Lot from Declarant or any seller after Declarant, each Owner will contribute to the working capital and reserves of the Association an amount equal to two months' installments of the Annual Assessment at the rate in effect at the time of the sale. The Association will maintain the working capital funds in segregated accounts to meet unforeseen expenditures or to acquire additional equipment or services for the benefit of the Members. Such payments to this fund will not be considered advance payments of Annual Assessments. Section 9.5. Special Assessments 9.5.1. Determination by Board Subject to the budget procedures required by the Act, the Board of Directors may levy in any fiscal year one or more Special Assessments, applicable to that year only, for the purpose of defraying, in whole or in part, the cost of any construction or reconstruction, repair or replacement of a described capital improvement upon the Common Area, including the necessary fixtures and personal property related to it to make up any shortfall in the current year's budget. 1111111111111111111111111111111111111111111111111111111 1353563 10/10/2000 02:55P DEC C Chris C. Munoz 25 of 48 R 240.00 D 0.00 Pueblo Cty Clerk & Rae 20 9.5.2. Apportionment and Collection of Special Assessments The Board will apportion Special Assessments among the Lots and collect payment according to the same guidelines as set forth for Annual Assessments in Section 9.3.2. 9.5.3. Notice Notice of the amount and due dates for such Special Assessments must be sent to each Owner at least 30 days prior to the due date. 9.5.4. Member Approval If any of the Special Assessments levied pursuant to this Section are to be used for the construction of new facilities as opposed to repair and reconstruction of existing facilities in the Project, and if the total amount of the Special Assessments levied for such construction exceeds 10% of the gross annual budget for the Association for that year, then the use of Special Assessments for that construction will require the approval of Owners representing at least 67% of the votes in the Association. The use of Special Assessments pursuant to this Section for constructing any Common Area will not apply to the construction of any Common Area to be completed by Declarant in development of the Project. Section 9.6. Default Assessments All monetary fines, penalties, interest or other charges or fees excluding Annual and Special Assessments levied against an Owner pursuant to the Association Documents, or any expense of the Association which is the obligation of an Owner or which is incurred by the Association on behalf of the Owner pursuant to the Association Documents, and any expense including without limitation attorneys' fees and legal assistants' fees incurred by the Association as a result of the failure of an Owner to abide by the Association Documents, constitutes a Default Assessment, enforceable as provided in this Declaration below and in accordance with the Act. Section 9.7. General Remedies of Association for Nonpayment of Assessment Any installment of an Annual Assessment or a Special Assessment which is not paid within 30 days after its due date will be delinquent. In the event that an installment of an Annual or Special Assessment becomes delinquent, or in the event any Default Assessment is established under this Declaration, the Association, in its sole discretion, may take any or all of the following actions: 9.7.1. Assess a late charge for each delinquency at uniform rates set by the Board of Directors from time to time; 9.7.2. Charge interest from the date of delinquency at the Default Rate; 9.7.3. Suspend the voting rights of the Owner during any period of delinquency: 9.7.4. Accelerate all remaining Assessment installments for the fiscal year in question so that unpaid Assessments for the remainder of the fiscal year will be due and payable at once; 9.7.5. Bring an action at law against any Owner personally obligated to pay the delinquent Assessment charges; IIIIIIIIII Hill 1111111111111111111111111111111111111111111111111 IN 1353563 10/10/2000 02:55P DEC C Chris C. Munoz 26 of 48 R 240.00 D 0.00 Pueblo Cty Clerk & Rec 9.7.6. File a statement of lien with respect of the Lot and foreclose as set forth in more detail below. The remedies provided under this Declaration will not be exclusive, and the Association may enforce any other remedies to collect delinquent Assessments as may be provided by law. Section 9.8. Assessment Lien Any Assessment chargeable to a Lot will constitute a lien on the Lot, effective the due date of the Assessment. To evidence the lien, the Association may, but will not be obligated to, prepare a written lien statement with respect to the Lot setting forth the name of the Owner, the legal description of the Lot, the name of the Association, and the delinquent Assessment amounts then owing. Any such statement will be duly signed and acknowledged by the President or a Vice - President of the Association or by the Manager, and will be served upon the Owner of the Lot by mail to the address of the Lot or at such other address as the Association may have in its records for the Owner. At least ten days after the Association mails the statement to the Owner, the Association may record the statement in the office of the Clerk and Recorder of Pueblo County, Colorado. Thirty days following the mailing of such notice to the Owner, the Association may proceed to foreclose the statement of lien in the same manner as provided for the foreclosure of mortgages under the statutes of the State of Colorado. The Association will have the power to bid on a Lot at foreclosure sale and to acquire, hold, lease, mortgage and convey the Lot. Section 9.9. Successor's Liability for Assessment All successors to the fee simple title of a Lot, except as provided in Section 9. 10, will be jointly and severally liable with the prior Owner or Owners thereof for any and all unpaid Assessments, interest, late charges, costs, expenses, and attorneys' fees and legal assistants' fees against such Lot without prejudice to any such successor's right to recover from any prior Owner any amounts paid by such successor. 'Phis liability of a successor will not be personal and will terminate upon termination of such successor's fee simple interest in the Lot. In addition, such successor will be entitled to rely on the statement of status of Assessments given by or on behalf of the Association under Section 9.13. Section 9.10. Waiver of Homestead Exemption; Subordination of the Lien The lien of the Assessments will be superior to and prior to any homestead exemption provided now or in the future by any federal law or the laws of the State of Colorado, and to all other liens and encumbrances except the following: 9.10.1. Liens and encumbrances recorded before the date of the recording of this Declaration; 9.10.2. Liens for real estate taxes and other governmental assessments or charges duly imposed against the Lot by a Colorado governmental or political subdivision or special taxing district, or any other liens made superior by statute; and 9.10.3. The lien for all sums unpaid on a First Mortgage recorded before the date on which the Assessment sought to be enforced became delinquent, including any and all advances made by the First Mortgage, even though some or all of such advances may have 11111111111111111111111111111111111111111111111111111111111 1353563 10/10/2000 02:55P DEC C Chris C. Munoz 27 of 48 R 240.00 D 0.00 Pueblo Cty Clerk & Roe been made subsequent to the date of attachment of the Association's lien; all subject, however, to the limitations of the Act. With respect to Section 9.10.3, any First Mortgagee who acquires title to a Lot by virtue of foreclosing the First Mortgage or by virtue of a deed or assignment in lieu of such a foreclosure, or any purchaser at a foreclosure sale of the First Mortgage, will take the Lot free of any claims for unpaid Assessments, interest, late charges, costs, expenses, and attorneys' fees and legal assistants' fees against the Lot which accrue prior to the time such First Mortgagee or purchaser acquires title to the Lot except as provided in the Act. All other persons who hold a lien or encumbrance of any type not described in Sections 9.10.1 through 9.10.3 will be deemed to consent that the lien or encumbrance will be subordinate to the Association's future liens for Assessments, interest, late charges, costs, expenses and attorneys' fees and legal assistants' fees, as provided in this Article, whether or not such consent is specifically set forth in the instrument creating any such lien or encumbrance. Section 9.11. Reallocation of Assessments Secured by Extinguished Liens The sale or transfer of any Lot to enforce any of the liens to which the lien for Assessments is subordinate will extinguish the lien of such Assessments as to installments which became due prior to such sale or transfer to the extent provided in the Act. The amount of such extinguished lien may be reallocated and assessed to all Lots as a Common Expense at the direction of the Board of Directors. However, no such sale or transfer will relieve the purchaser or transferee of a Lot from liability for, or the Lot from the lien of any Assessments made after the sale or transfer. Section 9.12. Exempt Property The following portions of the Property will be exempt from the Assessments, charges, and liens created under this Declaration: 9.12.1 Any easement or other interest in the Property dedicated and accepted by the City of Pueblo and devoted to public use; 9.12.2. All utility lines and easements; and 9.12.3. Common Area. Section 9.13. Statement of Status of Assessments The Association will furnish to an Owner or his designee or to any Mortgagee a statement setting forth the amount of unpaid Assessments then levied against the Lot in which the Owner, designee or Mortgagee has an interest. The Association will deliver the statement as required by the Act to the inquiring party within 14 calendar days after the registered agent of the Association receives a written request for such statement. The information contained in such statement, when signed by the Treasurer of the Association or the Manager, will be conclusive upon the Association, the Board and every Owner as to the person or persons to whom such statement is issued and who rely on it in good faith. Section 9.14. Failure to Assess The omission or failure of the Board to fix the Assessment amounts or rates or to deliver or mail to each Owner an Assessment notice will not be deemed a 1111111111111111111111111111111111111111111111111111111 1333563 10/10/2000 02:55P DEC C Chris C. Munoz 28 of 48 R 240.00 0 0.00 Pueblo Cty Clerk & Ree any such action will be liable to the Association, and hereby agrees to reimburse the Association for its costs, expenses and reasonable attorneys' fees and legal assistants' fees in defending such action. ARTICLE XI SPECIAL DECLARANT RIGHTS AND ADDITIONAL RESERVED RIGHTS Section 11.1. General Provisions Throughout the Special Declarant Rights Period, Declarant will have the following Special Declarant Rights with respect to all of the Property: 11.1.1. Completion of Improvements The right to complete Improvements as indicated on any Plat filed with respect to the Property; 11.1.2. Development Rights The right to exercise all "development rights," as defined from time to time in the Act and so referred to here as "Development Rights," including without limitation the right or combination of rights hereby reserved by Declarant, as follows: (a) The right to create Lots and Common Area on the Property, including the Expansion Property, subject to the limitations of Section (b) The right to subdivide Lots and convert Lots into Common Area on any part of the Property, subject to the limitations of Section 1.5. (c) The right to withdraw real estate, contained within the Property from the Project, as provided in Article XVI. 11.1.3. Sales Activities The right to maintain one sales office, one management office, up to 15 signs advertising the Project and up to 15 model residences on the Common Area and on Lots owned by Declarant, whether contained within the Property subject to this Declaration. The offices, model residences and signs will be of sizes and styles governed by The Enclave Design Guidelines, and may be relocated by Declarant from time to time. At all times, the offices, model residences and signs will remain the property of Declarant and may be removed from the Project by Declarant at any time during or promptly after the expiration of the Special Declarant Rights Period. 11.1.4. Easements The right to use easements through the Conunon Area on the Property for the purpose of making Improvements on the Property. 11.1.5. Association Directors and Office The right to appoint any officer or Director of the Association, as provided in this Declaration or the Bylaws, but subject to the limitations of the Act. Section 11.2. Order of Exercise of Declarant's Rights The fact that Declarant may exercise one or more of Declarant's Development Rights or other Special Declarant Rights on one 111111111111 11111 11111 1111111 11111111 1111111111111111 1353563 10/10/2000 02:55P DEC C Chris C. Munoz 29 of 48 R 240.00 D 0.00 Pueblo Cty Clerk & Rec portion of the Property will not operate to require Declarant to exercise a Development Right or other Special Declarant Right with respect to any other portion of the Property. Section 11.3. Supplemental Provisions Regarding Declarant's Rights Without limiting the generality of the foregoing, certain of these Special Declarant Rights are explained more fully in this Article below. Further, Declarant reserves the right to amend Section 11.4. Reservation for Expansion and Construction Declarant hereby reserves for itself and its successors and assigns and for Owners in all future phases of the Project a perpetual easement and right -of -way for access over, upon and across the Property, for construction, utilities, drainage, ingress and egress, and for use of any Common Area. The location of these easements and rights -of -way may be made certain by Declarant or the Association by instruments recorded in Pueblo County, Colorado. Declarant further reserves the right to establish from time to time, by dedication or otherwise, utility and other easements, and to create other reservations, exceptions and exclusions convenient or necessary for the development use and operation of any other property of Declarant, as long as such action does not hamper the enjoyment of the Project, as built or expanded, by the Owners. Section 11.5. Reservation of Easements, Exceptions, and Exclusions for Utilities. Infrastructure, and Access Declarant reserves for itself and its successors and assigns and hereby grants to the Association, acting through the Board of Directors, the concurrent right to establish from time to time, by declaration or otherwise, utility and other easements, permits or licenses over any Common Area, for purposes including but not limited to streets, paths, walkways, drainage, recreation areas and parking areas, and to create other reservations, exceptions, and exclusions in the interest of the Owners and the Association, in order to serve the Owners within the Project as initially built and expanded. Section 11.6. Declarant's Rights Incident to Construction Declarant, for itself and its successors and assigns, hereby retains a right and easement of ingress and egress over, in, upon, under and across any Common Area and the right to store materials thereon and to make such other use thereof as may be reasonably necessary or incident to the construction of the Improvements on the Property or other real property owned by Declarant; provided, however, that no such rights will be exercised by Declarant in such a way as to unreasonably interfere with the occupancy, use, enjoyment or access to an Owner's Lot by that Owner or his family, tenants, employees, guests or invitees. Section 11.7. Easements Deemed Created All conveyances of Lots hereafter made, whether by Declarant or otherwise, will be construed to grant and reserve the easements contained in this Article, even though no specific reference to such easements or to this Article appears in the instrument for such conveyance. 1111111111111111111111111111111111111111 IIII 1353563 10/10/2000 02:55P DEC C Chris C. Munoz 30 of 48 R 240.00 D 0.00 Pueblo Ct.y Clerk & Ree 26 ARTICLE XII INSURANCE AND FIDELITY BONDS Section 12.1. Authority to Purchase All insurance policies relating to the Common Area will be purchased by the Board of Directors or its duly authorized agent. The Board of Directors, the Manager and Declarant will not be liable for failure to obtain any coverage required by this Article or for any loss or damage resulting from such failure if such failure is due to the unavailability of such coverage from reputable insurance companies, or if such coverage is available only at demonstrably unreasonable costs. Notwithstanding the foregoing, if the insurance described in Sections 12.3 and 12.4 below is not reasonably available, or if any policy of such insurance is canceled or not renewed without a replacement policy having been obtained, the Association promptly will cause notice of that fact to be hand delivered or otherwise delivered to all Owners by such methods as required by the Act. Section 12.2. General Insurance Provisions All such insurance coverage obtained by the Board of Directors will conform to any minimum requirements of the Act, and, to the extent not inconsistent with the Act, the following provisions: 12.2.1. As long as Declarant owns any Lot, Declarant will be protected by all such policies in the same manner as any other Owner. The coverage provided to Declarant under the insurance policies obtained in compliance with this Article will not be deemed to protect or be for the benefit of any general contractor engaged by Declarant, nor will such coverage be deemed to protect Declarant for or waive any rights with respect to warranty claims against Declarant as the developer of the Project. 12.2.2. The deductible, if any, on any insurance policy purchased by the Board of Directors may be treated as a Common Expense payable from Annual Assessments or Special Assessments allocable to all of the Lots or to only some of the Lots, if the claims for damages arise from the negligence of particular Owners, or if the repairs benefit only particular Owners, or as an item to be paid from working capital reserves established by the Board of Director. The Association may enforce payment of any amount due from an individual Owner toward the deductible in accordance with the provisions of this Declaration on Default Assessments. Except as otherwise set forth in this Article, the maximum deductible amount will be the lesser of $10,000 or one percent of the policy face amount. Section 12.3. Physical Damage Insurance on Common Area The Association will obtain insurance for all insurable Improvements on any Common Area in an amount equal to the full replacement value (i.e., 100% of the current "replacement cost" exclusive of land, foundation, excavation, depreciation on personal property, and other items normally excluded from coverage), which will include all building service equipment and the like, common personal property and supplies, and any fixtures or equipment within the Common Area. In addition, such policy will afford protection against at least the following: 1111111111111111111111111111111 1353563 10/10/2000 02:55P DEC C Chris C. M 31 of 48 R 240.00 D 0.00 Pueblo Ct.y Clerk & Ree 12.3. 1. Loss or damage by fire and other hazards covered by the standard extended coverage endorsement with the standard "all- risk" endorsement covering sprinkler leakage, debris removal, and cost of demolition, vandalism, and malicious mischief, windstorm and water damage. 12.3.2. In the event the Common Area containing a steam boiler, a broad form policy of repair and replacement boiler and machinery insurance in the lesser of (i) the amount of the insurable value of the building housing the boiler, or (ii) $2,000,000 (or such other amount as the Board deems advisable). 12.3.3. Such other risks as will customarily be covered with respect to projects similar in construction, location and use to the Project. Section 12.4. Provisions Common to Physical Damage Insurance In contracting for the insurance coverage obtained pursuant to this Section above, the Board of Directors will be required to make reasonable efforts to secure coverage which provides the following: 12.4.1. A waiver of any right of the insurer to repair, rebuild or replace any damage or destruction, if a decision is made pursuant to this Declaration not to do so. 12.4.2. The following endorsements (or equivalent): (a) "cost of demolition;" (b) "contingent liability from operation of budding laws or codes;" (c) "increased cost of construction;" and (d) "agreed amount" or elimination of co- insurance clause, and (e) "inflation guard" (if available). Prior to obtaining any policy of physical damage insurance or any renewal thereof, and at such other intervals as the Board of Directors may deem advisable, the Board of Directors will obtain an appraisal from a general contractor or such other source as the Board may determine of the then current replacement cost of the Property, exclusive of the land, excavations, foundations and other items normally excluded from such coverage, subject to insurance carried by the Association, without deduction for depreciation, for the purpose of determining the amount of physical damage insurance to be secured pursuant to this Article. Section 12.5. Liability Insurance The Association will obtain a comprehensive policy of commercial general Liability insurance including bodily injury, libel, slander, false arrest and invasion of privacy coverage, and property damage insurance with such limits as the Board of Directors may from time to time determine, insuring each member of the Board of Directors, the Association, the Manager, and the respective employees, agents and all persons acting as agents against any liability to the public or the Owners, and their guests, invitees, tenants, agents and employees, arising in connection with the ownership, operation, maintenance or use of any Common Area and streets and roads within the Project and any other areas under the control of the Association. Declarant will be included in the coverage as an additional insured in Declarant's capacity as an Owner or Director. The Owners will be included as additional insureds, but only for claims and liabilities arising in connection with the ownership, existence, use or management of any Common Area. l 11111111111 IIIII 111111111111 IIIII 11111 III IIIII Illl 1353563 10/10/2000 02:55P DEC C Chris C. Munoz 32 of 48 R 240.00 D 0.00 Pueblo Cty Clerk & Rec Such comprehensive policy of public liability insurance will include the following: 12.5.1. Coverage for contractual liability, liability for non -owned and hired automobiles, and, if applicable, host liquor liability employer's liability, and such other risks as will customarily be covered with respect to developments similar to the Project in construction, location and use. 12.5.2. A cross liability endorsement under which the rights of a named insured under the policy will not be prejudiced with respect to an action against another insured. 12.5.3. A "severability of interest" endorsement which will preclude the insurer from denying liability coverage to an Owner because of the negligent acts of the Association or another Owner. The Board of Directors will review the coverage limits at least once every two years, but, generally, the Board will carry such amounts of insurance usually required by private institutional mortgage lenders on projects similar to the Project, and in no event will such coverage be less than $1,000,000 for all claims for bodily injury or property damage arising out of one occurrence. Reasonable amounts of "umbrella" liability insurance in excess of the primary limits also will be obtained in an amount not less than S2,000,000. Section 12.6. Fidelity Insurance Fidelity bonds will be maintained by the Association to protect against dishonest acts on the part of its officers, Directors, trustees and employees, and on the part of all others who handle or are responsible for handling the funds of or administered by the Association. In addition, if responsibility for handling funds is delegated to a Manager, such bonds will be required for the Manager and its officers, employees, and agents, as applicable. Such fidelity coverage will name the Association as an obligee and will be written in such amount as the Board may determine appropriate, and in any event in the minimum amount, if any, prescribed by the Act. Such bonds will contain waivers by the issuers of all defenses based upon the exclusion of persons serving without compensation from the definition of "employees," or similar terms or expressions. Such bonds shall cover the maximum funds that will be in the custody of the Association or any Manager at anytime when the bond is in force. Section 12.7. Flood Insurance If any part of the Improvements on the Common Area are located in a Special Flood Hazard Area which is designated A, AE, AI A0, Al -30, A99, V, VE or V1 -30 on a Flood Insurance Rate Map, the Association will obtain a policy of flood insurance in an amount equal to 100% of the insurable value of the Improvements on the Common Area or the maximum coverage available under the appropriate National Flood Insurance Administration program. The maximum deductible amount will be the lesser of $5,000 or one percent of the policy face amount. Section 12.8. Provisions Common to Physical Damage Insurance, Liability Insurance. Fidelity Insurance and Flood Insurance Any insurance coverage obtained by the Association 111111111111311111111111111111111111111111111111 IN 2 1353563 10/10/2000 02:55P DEC C Chris C. Munoz 33 of 48 R 240.00 D 0.00 Pueblo Cty Clerk & Rae under the provisions of this Article above will be subject to the following provisions and limitations: 12.8.1. The named insured under any such policies will include Declarant, until all of the Lots in the Project have been conveyed, and the Association, as attorney -in -fact for the use and benefit of the Owners, or the authorized representative of the Association including any trustee with whom the Association may enter into any insurance trust agreement, or any successor trustee, each of which is sometimes referred to in this Declaration as the "Insurance Trustee," who will have exclusive authority to negotiate losses under such policies. 12.8.2. Each Owner will be an insured person with respect to liability arising out of the Owner's interest in the Common Area or membership in the Association. 12.8.3. In no event will the insurance coverage obtained and maintained pursuant to this Article be brought into contribution with insurance purchased by the Owners or their Mortgagees. 12.8.4. The policies will provide that coverage will not be prejudiced by (i) any act or neglect of any Owner, including an Owner's family, tenants, servants, agents, invitees and guests, when such act or neglect is not within the control of the Association; or (ii) any act or neglect or failure of the Association to comply with any warranty or condition with regard to any portion of the Property over which the association has no control; or (iii) conduct of any kind on the part of an Owner, including the Owner's family, tenants, servants, agents, invitees and guests, or any Director, officer, employee or Manager of the Association, without prior demand to the Association and a reasonable opportunity to cure. 12.8.5. The policies will contain the standard mortgagee clause commonly accepted by private institutional mortgage investors in the area in which the Property is located, and provide that coverage may not be canceled in the middle or at the end of any policy year or other period of coverage or substantially modified or reduced, including cancellation for nonpayment of premiums, without at least 30 days' prior written notice mailed to the Association and to each Owner and Mortgagee to whom a certificate or memorandum of insurance has been issued, at their respective last known addresses. 12.8.6. The policies will contain a waiver by the insurer of any right to claim by way of subrogation against Declarant, the Board of Directors, the Association, the Manager, and any Owner and their respective agents, employees or tenants, and in the case of Owners, members of their households, and of any defenses based upon any co- insurance. 12.8.7. The policies described in Sections 12.3 and 12.4 above will provide that any "no other insurance" clause will expressly exclude individual Owners' policies from its operation so that the physical damage policy or policies purchased by the 1 1 Iff 1353363 10/10/2000 02:55P DEC C Chris C. Munoz 34 of 48 R 240.00 D 0.00 Pueblo Cty Clerk & Ree Board will be deemed primary coverage, and any individual Owners' policies will be deemed excess coverage. Section 12.9. Personal Liability Insurance of Officers and Directors To the extent obtainable at reasonable cost appropriate officers' and directors' personal liability insurance will be obtained by the Association to protect the officers and Directors from personal liability in relation to their duties and responsibilities in acting as such officers and Directors on behalf of the Association. Section 12.10. Workmen's Compensation Insurance The Association will obtain workmen's compensation or similar insurance with respect to its employees, if any, in the amounts and forms as may now or hereafter be required by law. Section 12.11. Other Insurance The Association may obtain insurance against such other risks, of a similar or dissimilar nature, as it deems appropriate with respect to the Assoc'iation's responsibilities and duties Section 12.12. Insurance Obtained by Owners Each Owner will have the right to obtain insurance for such Owner's benefit, at such Owner's expense, covering the Owner's Lot and Improvements, personal property and personal liability. However, no insurance coverage obtained by an Owner will operate to decrease the amount which the Board of Directors, on behalf of all Owners, may realize under any policy maintained by the Board or otherwise affect any insurance coverage obtained by the Association or cause the diminution or termination of that coverage. Any such insurance obtained by an Owner will include a waiver of the particular insurance company's right of subrogation against the Association and other Owners'. ARTICLE XIII ASSOCIATION AS ATTORNEY -IN -FACT Each and every Owner hereby irrevocably constitutes and appoints the Association as such Owner's true and lawful attorney -in -fact in such Owner's name, place and stead for the purpose of dealing with the Improvements on any Common Area upon damage or destruction as provided in Article XIV or a complete or partial taking as provided in Article XV below. Acceptance by any grantee of a deed or other instrument of conveyance from Declarant or from any Owner will constitute appointment of the Association as attorney -in -fact as provided in this Article. As attorney -in -fact, the Association will have full and complete authorization, right and power to make, execute and deliver any contract, assignment, deed, waiver or other instrument with respect to the interest of any Owner that may be necessary or appropriate to exercise the powers granted to the Association as attorney -in -fact. 111111111111111111111111111111111111111111 1353363 10/10/2000 02:55P DEC C Chris C. Mu 35 of 48 R 240.00 D 0.00 Pueblo Cty Clerk & Ree 31 ARTICLE XIV DAMAGE OR DESTRUCTION Section 14.1. Damage or Destruction of Common Area 14.1.1. Estimate of Damages or Destruction As soon as practical after an event causing damage to or destruction of any part of the Common Area, unless such damage or destruction is minor, the Association will obtain an estimate or estimates that it deems reliable and complete of the costs of repair and reconstruction of that part of the Common Area so damaged or destroyed. "Repair and reconstruction" as used in this Article will mean restoring the damaged or destroyed Improvements to substantially the same condition in which they existed prior to the damage or destruction. 14.1.2. Repair and Reconstruction As soon as practical after obtaining estimates, the Association will diligently pursue to completion the repair and reconstruction of the damaged or destroyed Improvements. As attorney -in -fact for the Owners, the Association may take any and all necessary or appropriate action to effect repair and reconstruction, and no consent or other action by any Owner will be necessary. Assessments of the Association will not be abated during the period of insurance adjustments and repair and reconstruction. 14.1.3. Funds for Repair and Reconstruction The proceeds received by the Association from any hazard insurance will be used for the purpose of repair, replacement and reconstruction. If the proceeds of the insurance are insufficient to pay the estimated or actual cost of such repair and reconstruction, the Association may, pursuant to Section 9.5, levy, assess and collect in advance from all Owners, a Special Assessment sufficient to provide funds to pay such estimated or actual costs of repair and reconstruction. Further levies may be made in like manner if the amounts collected prove insufficient to complete the repair and reconstruction. 14.1.4. Disbursement of Funds for Repair and Reconstruction The insurance proceeds held by the Association and the amounts received from the Special Assessments provided for in Section 9.5 constitute a fund for the payment of the costs of repair and reconstruction after casualty. It will be deemed that the first money disbursed in payment for the costs of repair and reconstruction will be made from insurance proceeds, and the balance from the Special Assessments. If there is a balance remaining after payment of all costs of such repair and reconstruction, such balance will be distributed to the Owners in proportion ,to the contributions each Owner made as a Special Assessment to the Association under Section 9.5, or, if no Special Assessments were made, then on the basis of the allocation to the Owners of Common Expenses under Section 9.3.2, first to the Mortgagees and then to the Owners, as their interests appear. 14.1.5. Decision Not to Rebuild If Owners representing at least 80% of the votes in the Association, including the vote of every Owner of Improvements that will not be rebuilt and including, during the Special Declarant Rights Period, the vote of 1111111111111111111111111111111111111111111111111111111 IN 1111 1353563 10/10/2000 02.55P DEC C Chris C. M 36 of 48 R 240.00 D 0.00 Pueblo Cl.y Clerk & Rte O Declarant, and any other votes required by the Act, agree in writing not to repair and reconstruct damage to the Common Area and no alternative Improvements are authorized, then and in that event the Property will be restored to its natural state and maintained as an undeveloped portion of the Common Area by the Association in a neat and attractive condition. Any remaining insurance proceeds will be distributed on the basis of the allocation to the Owners of the Common Expenses under Section 9.1.2 first to the Mortgagees and then to the Owners, as their interests appear. Section 14.2. Damaize or Destruction Affecting_ Lots In the event of damage or destruction to the Improvements located on any Lot, the Owner thereof will promptly repair and restore the damaged Improvements to their condition prior to such damage or destruction. If such repair or restoration is not commenced within 180 days from the date of such damage or destruction, or if repair and reconstruction is commenced but then abandoned for a period of more than 90 days, then the Association may, after notice and hearing as provided in the Bylaws, impose a fine accruing at the rate of $1,000 per day or such other rate imposed by the Board in compliance with the Act, charged against the Owner of the Lot until repair and reconstruction is commenced, unless the Owner can prove to the satisfaction of the Association that such failure is due to circumstances beyond the Owner's control. Such fine will be a Default Assessment and lien against the Lot as provided in Section 9.6 above. ARTICLE XV CONDEMNATION Section 15.1. Rights of Owners Whenever all or any part of the Common Area is taken or conveyed in lieu of and under threat of condemnation by any authority having the power of condemnation or eminent domain, each Owner will be entitled to notice of the taking, but the Association will act as attorney -in -fact for all Owners in the proceedings incident to the condemnation proceeding, unless otherwise prohibited by law. Section 15.2. Partial Condemnation: Distribution of Award: Reconstruction The award made for such taking will be payable to the Association as trustee for the Owners for whom use of the Common Area was conveyed, and the award shall be disbursed as follows: If the taking involves a portion of the Common Area on which Improvements have been constructed, then, unless, within 60 days after such taking, Owners representing at least 67 % of the votes in the Association, including, during the Special Declarant Rights Period, the vote of Declarant, otherwise agree, the Association will restore or replace such Improvements so taken on the remaining land included in the Common Area to the extent lands are available therefor, in accordance with plans approved by the Board of Directors, the DRC, the City of Pueblo, if required, and any other authority having jurisdiction in such matters. If such Improvements are to be repaired or restored, the provisions in Article XIV above regarding the disbursement of funds with respect to casualty damage or destruction that is to be repaired will apply. If the taking does not involve any Improvements on the Common Area, or if there is a decision made not to repair or restore, or if there are net funds remaining after any such restoration or replacement is completed, then such award or net funds will be distributed in 111111 IN 111111111111111111111111111111111111111 IN 1353563 10/10/2000 02:55P DEC C Chris C. Munos 37 of 48 R 240.00 D 0.00 Pueblo Cty Clerk & Rec proportionate shares on the basis of the allocation to the Owners of Common Expenses under Section 9.3.2, first to the Mortgagees and then to the Owners, as their interests appear. Section 15.3. Complete Condemnation If all of the Project is taken, condemned, sold or otherwise disposed of in lieu of or in avoidance of condemnation, then the regime created by this Declaration will terminate, and the portion of the condemnation award attributable to the Common Area will be distributed as provided in the Act. ARTICLE XVI EXPANSION AND WITHDRAWAL Section 16.1. Incorporation of Additional Expansion Property Declarant reserves the right to incorporate into the Project real property that is not part of the EApa=on Property, subject to the limitations and requirements of the Act. Section 16.2. Declaration of Annexation Any expansion of the Project may be accomplished by recording a Declaration of Annexation and one or more supplemental Plats in the,records of the Clerk and Recorder of Pueblo County, Colorado, before the expiration of the Special Declarant Rights Period. The Declaration of Annexation will describe the real property to be expanded, submit it to these Covenants and provide for voting rights and Assessment allocations as provided in Sections 4.4, 9.3 and 9.5 of this Declaration. Specifically, each such Lot will be allocated one vote and liability for the Conunon Expenses equal to the liability allocated to each of the other Lots, and the proportionate voting interest and allocation of Common Expenses for the other Lots will be adjusted accordingly. Such Declaration of Annexation will not require the consent of Owners. Any such expansion will be effective upon the filing for record of such Declaration of Annexation, unless otherwise provided therein. The expansion may be accomplished in stages by successive supplements or in one supplemental expansion. Upon the recordation of any such Declaration of Annexation, the definitions used in this Declaration will be expanded automatically to encompass and refer to the Project as expanded. Such Declaration of Annexation may add supplemental covenants peculiar to the additional Property in question, or delete or modify provisions of this Declaration as it applies to the additional Property added. However, this Declaration may not be rnodified with respect to that portion of the Property already subject to this Declaration, except as provided below for amendment. Section 16.3. Withdrawal of Property Declarant reserves the right to withdraw from the jurisdiction of these Covenants any parcel of the Property, including the additional Property, subject to the limitations of the Act. After withdrawal of any parcel from the regime of these covenants, the Common Expenses and votes attributable to the Lots remaining in the Project will be allocated in accordance with Sections 4.4, and 93. and 9.5 above. 11 1111 1353563 10/10/2000 02:55P DEC C Chris C. Munoz 38 of 48 R 240.00 D 0.00 Pueblo Cty Clerk & Rec kv, ARTICLE XVII MORTGAGEE PROTECTIONS Section 17.1. Introduction This Article establishes certain standards and covenants which are for the benefit of the holders, insurers and guarantors of certain Mortgages. This Article is supplemental to, and not in substitution for, any other provisions of this Declaration, but in the case of any conflict, this Article shall control. Section 17.2. Percentage of Eligible Mortgage Holders Wherever in this Declaration the approval or consent of a specified percentage of Eligible Mortgage Holders is required, it will mean the approval or consent of Eligible Mortgage Holders under Mortgages encumbering Lots which in the aggregate have allocated to them such specified percentage of votes in the Association when compared to the total allocated to all Lots then subject to Mortgages held by Eligible Mortgage Holders. Section 173. Notice of Actions The Association will give prompt written notice to each Eligible Mortgage Holder of the following: 17.3.1. Any condemnation loss or any casualty loss which affects a material portion of the Common Area or any Lot in which an interest is held by the Eligible Mortgage Holder. 17.3.2. Any delinquency which remains uncured for 60 days in the payment of Assessments by an Owner whose Lot is encumbered by a Mortgage held by such Eligible Mortgage Holder. 17.3.3. Any lapse, cancellation or material modification of any insurance policy or fidelity bond maintained by the Association. 17.3.4. Any proposed action which would require the consent of Eligible Mortgage Holders as required in Section 17.4 below. Section 17.4. Consent Required 17.4.1. Document Changes No amendment of any material provision of this Declaration described in this Section 17.4.1. may be effective without the vote of at least 75 % of the Owners in the Association (subject to Section 20.3 below) and the approval in writing of at least 51 % of the Eligible Mortgage Holders. "Material" provisions include any provision affecting the following: (a) Assessments, Assessment Liens, or the subordination or priority of Assessment liens. (b) Voting rights. (c) Reserves for maintenance, repair and replacement of the Common Area. IIIIII IIIII IIIII IIIII IIIIIII IIIII IIIII III IIIII IF IN 1353563 10/10/2000 02:55P DEC C Chris C. Munoz 39 of 48 R 240.00 D 0.00 Pueblo Cty Clerk & Ree (d) Responsibility for maintenance and repairs. (e) Rights to use the Common Area. (f) Expansion or contraction of the Project, or the addition, annexation or withdrawal of property to or from the Project, except as provided in Article XVI above. (g) Insurance or fidelity bonds. (h) Imposition of any restrictions on an Owner's right to sell or transfer his Lot. (i) Restoration or repair of the Property after hazard damage or partial condemnation in a manner other than that specified in this Declaration. @ Termination of this Declaration after the occurrence of substantial destruction or condemnation. (k) The benefits of Eligible Mortgage Holders. 17.4.2. Actions The Association may not take any of the following actions, except as such rights have been specifically reserved by Declarant under the provisions of this Declaration, without the approval of at least 51 % of the Eligible Mortgage Holders: (a) Conveyance or encumbrance of the Common Area (provided, however, that the granting of easements for public utilities, for construction and maintenance of roads within the Project, or for other public purposes not inconsistent with the use of the Common Area by the Owners will not be deemed a transfer within the meaning of this clause). (b) Restoration or repair of the Property (after hazard damage or partial condemnation) in a manner other than that specified in this Declaration. (c) Termination of this Declaration for reasons other than substantial destruction or condemnation, as permitted with the approval percentages specified in Articles XIV and XV above. (d) Merger of the Project with any other common interest community. (e) The granting of easements, leases, licenses or concessions through or over the Common Area (excluding, however, any such grants for public utilities or other public purposes not inconsistent with the use of the Conunon Area by the Owners) . I I'llll "I'I II'I' I'll' I'llll"'ll' II"I I'I II'll I'll II'I 1353563 10/10/2000 02:55P DEC C Chris C. Munoz 40 of 48 R 240.00 D 0.00 Pueblo Ct.y Clerk & Ree (f) The assignment of the future income of the Association, including its right to receive Assessments. (g) Any action not to repair or replace the Common Area except as permitted under Articles XIV and XV above. Section 17.5. Notice of Objection Unless an Eligible Mortgage Holder provides the Secretary of the Association with written notice of its Objection, if any, to any proposed amendment or action outlined above within 30 days following the receipt of notice delivered by certified or registered mail, return receipt requested, of such proposed amendment or action, the Eligible Mortgage Holder will be deemed conclusively to have approved the proposed amendment or action. Section 17.6. First Mortgagees' Rights 17.6.1. Payment of Taxes and Insurance First Mortgagees, jointly or singly, may pay taxes or other charges which are in default and which may or have become a charge against any of the Cornmon Area or Improvements thereon, and may pay overdue premiums on hazard insurance policies, or secure new hazard insurance coverage on the lapse of a policy, for the Common Area. First Mortgagees making such payments will be owed immediate reimbursement from the Association. 17.6.2. Cure of Delinquent Assessments An Eligible Mortgage Holder will be entitled to cure any delinquency of the Owner of the Lot encumbered by the Eligible Mortgage Holder in the payment of Assessments. In that event, the Eligible Mortgage Holder will be entitled to obtain a release from the lien imposed or perfected by reason of such delinquency. Section 17.7. Title Taken by First Mortgagee Any First Mortgagee who obtains title to a Lot pursuant to the remedies provided in the First Mortgage, including foreclosure of the First Mortgage, will be liable for all Assessments due and payable as of the date title to the Lot vests in the First Mortgagee under the statutes of Colorado governing foreclosures. Except as provided in the Act such First Mortgagee will not be liable for any unpaid dues and charges attributable to the Lot which accrued prior to the date such title vests in the First Mortgagee. ARTICLE XVIII ENFORCEMENT OF COVENANTS Section 18.1. Violations Deemed a Nuisance Every violation of this Declaration or any other of the Association Documents is deemed to be a nuisance and is subject to all the remedies provided for the abatement of the violation. In addition, all public and private remedies allowed at law or in equity against anyone in violation of these Covenants will be available. 111111111111111111111111111111111111111111111111111 IN 1353563 10/10/2000 02:55P DEC C Chris C. Munoz 37 41 of 48 R 240.00 D 0.00 Pueblo Cty Clerk & Rec F1 1 1 Ill I ll IItN014111111 Section 18.2. Compliance Each Owner or other occupant of any part of the Property will comply with the provisions of the Association Documents as the same may be amended from time to time. Section 18.3. Failure to Comply Failure to comply with the Association Documents will be grounds for an action to recover damages or for injunctive relief to cause any such violation to be remedied, or both. Reasonable notice and an opportunity for a hearing as provided in the Bylaws will be given to the delinquent party prior to commencing any legal proceedings. Section 18.4. Who May Enforce Any action to enforce the Association Documents may be brought by Declarant, the Board, the Enclave Design Review Conunittee, the Design Review Committee, or the Manager in the name of the Association on behalf of the Owners. If after a written request from an aggrieved Owner, none of the foregoing persons or entities commences an action to enforce the Association Documents, then the aggrieved Owner may bring such an action. Section 18.5. Remedies In addition to the remedies set forth above in this Article, any violation of the Association Documents will give the Board, the Design Review Committee, the Enclave Design Review Committee, the Manager or Declarant, on behalf of the Owners, the right to enter upon the offending premises or take appropriate peaceful action to abate, remove, modify or replace, at the expense of the offending Owner, any structure, thing or condition that may exist thereon contrary to the interest of the Owners and the meaning of the Association Documents. If the offense occurs in any easement, walkway, Conuuon Area or the like, the cure shall be at the expense of the Owner or other person responsible for the offending condition. Section 18.6. Nonexclusive Remedies All the remedies set forth herein are cumulative and not exclusive. Section 18.7. No Waiver The failure of the Board of Directors, Declarant, the Enclave Design Review Committee, the Design Review Committee, the Manager or any aggrieved Owner to enforce the Association Documents will not be deemed a waiver of the right to do so for any subsequent violations or of the right to enforce any other part of the Association Documents at any future time. Section 18.8. No Liability No member of the Board of Directors, the Declarant the Design Review Committee, the Enclave Design Review Committee, the Manager or any Owner.will be liable to any other Owner for the failure to enforce any of the Association Documents at any time. Section 18.9. Recovery of Costs If legal assistance is obtained to enforce any of the provisions of the Association Documents, or in any legal proceeding (whether or not suit is brought) for damages or for the enforcement of the Association Documents or the restraint of violations of the Association Documents, the prevailing party will be entitled to recover all 1111111111111111111111 1 11111111111111111 ill 111111 ill 1111 1353563 10/10/2000 02:55P DEC C Chris C. Munoz 42 of 48 R 240.00 0 0.00 Pueblo Cl,y Clerk & Rec costs incurred by it in such action, including reasonable attorneys' fees and legal assistant's fees as may be incurred, or if suit is brought, as may be determined by the court. ARTICLE XIX RESOLUTION OF DISPUTES If any dispute or question arises between Members or between Members and the Association or relating to the interpretation, performance or nonperformance, violation, or enforcement of the Association Documents, such dispute or violation may be subject to a hearing and determination by the Board in accordance with the procedures set forth in the Bylaws. ARTICLE XX DURATION OF THESE COVENANTS AND AMENDMENT Section 20.1. Termination This Declaration and any amendments or supplements hereto will remain in effect from the date of recordation until the 21st anniversary of the date this Declaration is first recorded in the office of the Clerk and Recorder of Pueblo County, Colorado. Thereafter these Covenants will be automatically extended for five successive periods of 10 years each, unless otherwise terminated or modified as provided below. Section 20.2. Amendment This Declaration, or any provision of it, may be terminated, extended, modified or amended, or revoked as to the whole or any portion of the Property, upon the written consent of Owners holding 75 % or more of the votes in the Association, and upon compliance with Article XVII, as appropriate. Amendments made pursuant to this Section will inure to the benefit of and be binding upon all Owners, their families, tenants, guests, invitees and employees, and their respective heirs, successors and assigns. A certificate of a licensed abstract or title company showing record ownership of the Property and a certificate of the Secretary of the Association documenting votes held and voting rights exercised on the basis of such ownership records will be evidence of such ownership and voting representation for the purposes of any such amendment. Section 20.3. Declarant's Approval Notwithstanding the provisions of Section 20. 1, (i) no termination, extension, modification, amendment or restatement of this Declaration will be effective during the Period of Declarant Control, unless the written approval of Declarant is first obtained; and (ii) no termination, extension, modification, amendment or restatement of this Declaration may be made during the Special Declarant Rights Period to impair any of the Special Declarant Rights or Declarant's other rights under Article 11 or this Article 20 unless the written approval of Declarant is first obtained. Section 20.4. Notice of Amendment No amendment or revocation of this Declaration will be effective unless a written notice of the proposed amendment is sent to every Owner reasonably in advance of any action taken or purported to be taken and such Owner has been given the opportunity to vote or give its consent thereto. 111111111111111111111111111111111111111111111111111 IN 1353563 10/10/2000 02:55P DEC C Chris C. Munoz 43 of 48 R 240.00 D 0.00 Pueblo Cty Clerk & Rec 39 Section 20.5. Effective on Recording Any modification, amendment or revocation made in accordance with this Declaration will be immediately effective upon recording in Pueblo County, Colorado, a copy of such amendment, modification, or revocation executed and acknowledged by the necessary number of Owners (and by Declarant, as required), accompanied by a certificate of a licensed abstract or title company as to ownership, or alternatively, upon the recording in Pueblo County, Colorado, of a copy of the amendment, modification or revocation together with a duty authenticated certificate of the Secretary of the Association stating that the required number of consents of Owners were obtained, as evidenced by a certificate of a licensed title or abstract company or other authoritative evidence of compliance with the requirements of this Declaration regarding such matters, which will be placed on file in the office of the Association. ARTICLE XXI MISCELLANEOUS PROVISIONS Section 21.1. Severability This Declaration, to the extent possible, will be construed or reformed so as to give validity to all of its provisions. Any provision of this Declaration found to be prohibited by law or unenforceable will be ineffective to the extent of such prohibition or unenforceability without invalidating any other part hereof. Section 21.2. Construction In interpreting words in this Declaration, unless the context provides or requires otherwise, the singular will include the plural, the plural will include the singular, and the use of any gender will include all genders. Section 21.3. Heading The headings are included only for purposes of convenient reference, and they will not affect the meaning or interpretation of this Declaration. Section 21.4. Waiver No failure on the part of the Association or the Board to give notice of default or to exercise or to delay in exercising any right or remedy will operate as a waiver, except as specifically provided above in the event the Board fails to respond to certain requests. No waiver will be effective unless it is in writing and signed by the President or Vice President of the Association or by a member of the Board on behalf of the Association. Section 21.5. Limitation of Liability Neither the Association nor any officer or member of the Board will be liable to any party for any action or for any failure to act with respect to any matter arising by, through or under the Association Documents if the action or failure to act was made in good faith. The Association will indemnify all of the officers and Board members with respect to any act taken in their official capacity to the extent provided in this Declaration and by law and in the Articles of Incorporation and Bylaws. Section 21.6. Conflicts Between Documents In case of conflict between this Declaration and the Articles of Incorporation or the Bylaws, this Declaration will control. In case of conflict between the Articles of Incorporation and the Bylaws, the Articles of Incorporation will control. I IN 1353363 10/10/2000 02:55P DEC C Chris C. Munoz 44 of 48 R 240.00 D 0.00 Pueblo C!y Clerk 8 Rec 40 Section 21.7. Assiunment Subject to the requirements and limitations of the Act, Declarant may assign all or any part of the Special Declarant Rights or any of Declarant's other rights and reservations hereunder to any successor who takes title to all or part of the Property in a bulk purchase for the purpose of development and sale. Such successor will be identified, the particular rights being assigned will be specified, and, to the extent required, concomitant obligations will be expressly assumed by such successor, all in a written instrument duly recorded in the records of the Clerk and Recorder of Pueblo County, Colorado. FEKETE HOMES, INC. By: Its: President LORADO ss. ?UEBLO he foregoing instrument was acknowledged before me thi day of July, 2 , 000, by as President of Fekete Homes, Inc., a Colorado "corporation and sole general partner of Walking Stick U.S. Limited Partnership, a Colorado limited partnership. WITNESS my hand and official seal. My commission expires: Notary Public IIIIII 11111111111111111111111111111111111111111111 IIII 1353363 10/10/2000 02:55P DEC C Chris C. Mu 45 of 48 R 240.00 D 0.00 Pueblo Cty Clerk & Rec 41 EXHIBIT A TO DECLARATION OF COVENANTS, CONDITIONS RESTRICTIONS AND EASEMENTS FOR THE ENCLAVE AT WALKING STICK Legal Description of the Property All of Lots 1 through 29, both inclusive, Block 1 and all of Lots 1 through 21, both inclusive, Block 2 and all of Parcels A, B, C and D in Enclave at Walking Stick, according to the recorded plat thereof. County of Pueblo, State of Colorado. 1111111111111111111111 11111111111111111111 1111111111111 1333563 10/10/2000 02:55P DEC C Chris C. Munoz 46 of 48 R 240.00 D 0.00 Pueblo C!y Clerk & Rec EXHIBIT B TO DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS AND EASEMENTS FOR THE ENCLAVE AT WALKING STICK 1. Reservation of right of proprietor of any penetrating vein or lode to extract his ore, in U.S. Patent recorded in Book 10 at Page 80. 1. Reservations of (1) right of proprietor of any penetrating vein or lode to extract his ore; and (2) right of way for any ditches or canals constructed by authority of United States, in U.S. Patent recorded June 1, 1891 in Book 123 at Page 137 and August 18, 1891 in Book 123 at Page 401. 2. Right to deny or restrict each and every right of access to and from the land insured hereby, directly onto abutting street or highway designated as a portion of State Highway No. 47, along or across a line described as follows: U - 047 -1(1) 11 Rev. 2 Northerly Project Number Parcel Number Location of Line Beginning at a point on the South line of Section 17, Township 20 South, Range 64 West of the 6` P.M. in Pueblo County, Colorado, from which the SE corner of Section 17 bears North 88 deg. 38 min. East, a distance of 1,488.0 feet; 1. thence North 61 deg. 08 min. West, a distance of 232.9 feet; 2. thence North 54 deg. 28 min. 30 sec. West, a distance of 302.0 feet; 3. thence North 61 deg. 08 min. West, a distance of 1,600.0 feet; 4. thence North 67 deg. 58 min. 30 sec. West, a distance of 503.6 feet; 5. thence North 61 deg. 08 min. West, a distance of 1,448.9 feet to the Southwesterly property line as recorded in Book 1522 at Page 133; Project No. U 047 -1(1) College Road - Pueblo Parcel No. 11 -Rev. 2 ALSO Beginning at a point on the North line of Section 20, Township 20 South, Range 64 West of the 6` P.M. in Pueblo County, Colorado, from which the NE corner of said Section 20 bears North 88 deg. 38 min. East, a distance of 1,488.0 feet; 1. thence South 61 deg. 08 min. East, a distance of 61.7 feet to the Southeasterly property line as recorded in Book 1522 at Page 133. 111111111111111111111111111111111111111111111111111 Iff 1353563 10/10/2000 02:55P DEC C Chris C. M 47 of 48 R 240.00 D 0.00 Pueblo Ct.y Clerk & Ree ALSO Southerly 1353563 10/10/2000 02:55P DEC C Chris C. Munoz Location of Line 48 of 48 R 240.00 D 0.00 Pueblo Cty Clerk & Roe Beginning at a point on the Southwesterly property line as recorded in Book 1522 at Page 133, from which the SW corner of the NW 1/4 of the SW 1/4 of Section 17, Township 20 S,,uth, Range 64 West of the 6` P.M. in Pueblo County, Colorado, bears South 75 deg. 37 min. West, a distance of 819.9 feet; 1. thence along said Southwesterly property line along the arc of a curve to the left with a radius of 1,200.0 feet, a distance of 94.4 feet (the chord of this arc bears South 61 deg. 08 min. East, a distance of 94.3 feet), by reason of grant of relinquishment of said access right(s) by deed from Trustees of the State Colleges in Colorado on behalf of Southern Colorado State College to the Department of Highways, State of Colorado, recorded March 4, 1968 in Book 1630 at Page 593. 4. Terms, agreements, provisions, conditions and obligations as contained in Memorandum of Agreement by and between The State Board of Agriculture of The State of Colorado and Holystone Corporation, a Colorado Corporation recorded September 22, 1992 in Book 2615 at Page 211. 5. Terms, agreements, provisions, conditions and obligations as contained in Contract by and between Pueblo, a Municipal Corporation, and Holystone Corporation, a Colorado Corporation recorded April 29, 1994 in Book 2729 at Page 740. 6. Terms, agreements, provisions, conditions and obligations as contained in that certain Annexation Agreement recorded August 7, 1990 in Book 2510 at Page 564. 7. Easement, whether in fee or easements only, and the terms and conditions contained therein, granted to The City of Pueblo, in instrument recorded December 14, 1992 in Book 2630 at Page 455. 8. Right to deny or restrict each and every right of access to and from the land insured hereby, directly on to abutting street or highway designated as State Highway 47, along or across lines described in Deed recorded May 16, 1997 in Book 2997 at Page 723 by reason of grant or relinquishment of said access rights in said deed to the Department of Transportation, State of Colorado. Reception 1353564 10/10/2000 THE ENCLAVE DESIGN GUIDELINES The Enclave Design Guidelines (Design Guidelines), have been adopted pursuant to the Declaration of Covenants, Conditions, Easements and Restrictions for The Enclave. These design guidelines have been approved by the Design Review Committee for Walking Stick and are binding upon all persons who at any time construct, reconstruct, refinish, alter or maintain any improvement upon property; or make any change in the natural or existing surface, drainage, or plant life thereof. These design guidelines shall be administered and enforced by The Enclave Design Review Committee in accordance with the Declaration of Covenants, Easements and Restrictions for The Enclave and procedures outlined herein. See the recorded Subdivision plat for map of area included in these Design Guidelines. The Design Guidelines may be amended from time to time, upon written approval from the Design Review Committee for Walking Stick, and it is the responsibility of each owner or other person to obtain and review the most recently revised Design Guidelines. THE ENCLAVE DESIGN GUIDELINES The Enclave Design Guidelines (Design Guidelines), have been adopted pursuant to the Declaration of Covenants, Conditions, Easements and Restrictions for The Enclave. These design guidelines have been approved by the Design Review Committee for Walking Stick and are binding upon all persons who at any time construct, reconstruct, refinish, alter or maintain any improvement upon property; or make any change in the natural or existing surface, drainage, or plant life thereof. These design guidelines sliall be administered and enforced by the Enclave Design Review Committee in accordance with the Declaration of Covenants, Easements and Restrictions for The Enclave and procedures outlined herein. See lit A for map of area included in these Design Guidelines. - Tx e The Design Guidelines may be amended from time to time, upon written approval from the Design Review Committee for Walking Stick, and it is the responsibility of each owner or other person to obtain and review the most recently revised Desin Guidelines. 1 1 Z- 11111111111111111 111111111111111111111111111111 11 1 1 53564 10/10/2000 02.55P D GUIDE Cris C. M 2 of 17 R 85.00 0 0.00 Pueblo Cty Clerk & Recnoz t TABLE OF CONTENTS Page I. INTRODUCTION TO THE ENCLAVE AT WALKING STICK ................. ............................... 1 Purpose of The Enclave Guidelines .................................................. ............................... 1 The Enclave Design Theme ........................................................... ............................... 1 II. THE DESIGN REVIEW AND APPROVAL PROCESS ........................... ............................... 2 The Enclave Design Review Committee ............................................ ............................... 2 Modifications to Existing Homes ..................................................... ............................... 2 Step One: The Introductory Meeting ....................................... ............................... 3 Step Two: Preliminary Review .............................................. ............................... 3 Step Three: Final Review .................................................... ............................... 4 Step Four: Construction and Inspections .................................. ............................... 5 III. SITE PLANNING DESIGN GUIDELINES .......................................... ............................... 6 BuildingSiting .......................................................................... ............................... 6 BuildingSetbacks ....................................................................... ............................... 6 Grading and Drainage ................................................................. ............................... 6 Parkingand Driveways ................................................................ ............................... 7 Utilities................................................................................ ............................... 7 Mailboxes................................................................................ ............................... 7 Multiple Building Design ............................................................. ............................... 7 ExteriorStorage ........................................................................ ............................... 8 IV. ARCHITECTURAL DESIGN GUIDELINES ....................................... ............................... 8 BuildingSize ............................................................................ ............................... 8 Building Height, Massing and Scale ................................................ ............................... 8 Roofs...................................................................................... ............................... 8 ExteriorWalls ........................................................................... ............................... 9 Windowsand Doors .................................................................. ............................... 10 Decksand Balconies .................................................................. ............................... 10 Fireplaces............................................................................... ............................... 10 Chimneys............................................................................... ............................... 10 Detailing, Trim and Accent Colors ................................................. ............................... 10 Accessory Uses and Structures ..................................................... ............................... 10 V. LANDSCAPE ARCHITECTURE DESIGN GUIDELINES ...................... ............................... 1.1 Landscape Design Considerations .................................................. ............................... 11 Patios..................................................................................... ............................... 12 Irrigation................................................................................. ............................... 12 Retaining'Walls ........................................................................ ............................... 12 Fences.................................................................................... ............................... 12 Lighting.................................................................................. ............................... 12 SwimmingPools ....................................................................... ............................... 13 Easements............................................................................... ............................... 13 VI. CONSTRUCTION REGULATIONS ................................................ ............................... 13 Construction Management Plan ..................................................... ............................... 13 Construction Clean -up Deposit ...................................................... ............................... 14 1 1353564 10/10/2000 02:55P D GUIDE Chris C. Munoz 3 of 17 R 85.00 D 0.00 Pueblo Cty Clerk & Rec THE ENCLAVE DESIGN GUIDELINES I. INTRODUCTION TO THE ENCLAVE AT WALKING STICK The Walking Stick ' laster Plan includes a variety of residential, commercial and office uses creating a premier planned community. In the planning and development of Walking Stick design features such as landscaped boulevards, open space, intimate neighborhood streets, and recreational trails have been incorporated to achieve a distinctive community feeling. These guidelines are important to ensure the long term quality and integrity of Walking Stick. The Enclave at Walking Stick ( "The Enclave ") is a planned community within the Walking Stick Master Plan that shall be constructed generally in accordance with the Walking Stick Design Guidelines and specifically in accordance with The Enclave Design Guidelines as approved by the Design Review Committee for Walking Stick. PURPOSE OF THE ENCLAVE DESIGN GUIDELINES Design principles used to achieve continuity within Walking Stick and The Enclave include general consistency in architectural style, the use of a limited number of building materials, subtle colors, a comfortable human scale, and a simple practicality in approach to design. The three major objectives of The Enclave Design Guidelines are: (1) To establish clearly defined architectural and landscape design standards to guide the design and development of all improvements in The Enclave; (2) To foster a unified design theme for the community while also allowing for the individual architectural expression of the property owner; and (3) To protect each owner's investment in his or her home by requiring every property owner comply with the same high level of design and construction standards. These Design Guidelines are not intended to suggest that all homes must be designed the same or use identical building materials. Rather they are written to encourage architectural harmony in the design and development of buildings and improvements. It is the intention of these Design Guidelines that no single structure or improvement stand apart in its design or construction so as to dclract from the overall appearance of the community. THE ENCLAVE DESIGN THEME When defining the Enclave Design Theme ( "Design Theme "), there must be a reflection of the environmental conditions and natural characteristics of the site. The architectural style, building materials, colors and other design considerations expressed by the design theme must be responsive to the physical characteristics of the site, climatic considerations, and lifestyle alternatives of its residents. 111111111111111111111111111111111111111111111111111 1353564 10/10/2000 02:55P D GUIDE Chris C. IN Munoz 4 of 17 R 85.00 D 0.00 Pueblo Cty Clerk & Rec The design theme for The Enclave has its roots in the Mediterranean /Mission architectural styles. Design features typically associated with these architectural styles include the use of brick, stucco and stone as the prominent exterior wall material, gently sloping tile roofs, relatively low -scale buildings and "stepped." building massing, generally subdued building colors, the use of outdoor spaces such as decks and patios, and subtle architectural details to add character and individuality to buildings. II. THE DESIGN REVIEW AND APPROVAL PROCESS THE ENCLAVE DESIGN REVIEW COMMITTEE The design review process involves a series of meetings between the Owner, their design team and The Enclave Design Review Committee (EDRC). Initially, the EDRC will consist of one representative of the Declarant for The Enclave, Fekete Homes, Inc. As The Enclave develops, two other members may be added at the discretion of the Declarant. The approval of all plans for The Enclave is at the sole discretion of the EDRC. The interpretation of the guidelines outlined in this documents is based upon the sole and absolute discretion of the EDRC. The EDRC and the Declarant shall not be liable or responsible in any way to any Owner for any decision or interpretation of The Enclave Design Guidelines. In light of the foregoing, in the event any Owner commences legal proceedings to challenge the discretion of the EDRC's decision or interpretation of The Enclave Design Guidelines, the EDRC, and the Declarant shall be entitled to recover from the Owner challenging such authority reasonable attorneys' fees and costs for its defense. In order to respond to unique situations, the EDRC has the authority to approve variances from any of the design standards in these Enclave Design Guidelines. It should be understood, however, that any request for a variance from The Enclave Design Guidelines will be evaluated at the sole discretion of the EDRC and that the approval of any variances will be limited to creative design solutions necessary to resolve unique situations. Prior to the EDRC approving any variance from The Enclave Design Guidelines, it must be demonstrated by the applicant that the proposal is consistent with the overall objectives of the Design Guidelines, and that the variance will not adversely affect adjoining lots or The Enclave as a whole. Any forbearance by the EDRC in exercising any process, right or remedy hereunder pursuant to the Association Documents, or afforded by law, shall not constitute a waiver or preclude the exercise of any such process, right or remedy in the future. MODIFICATIONS TO EXISTING HOMES Written approval by the EDRC is required for any exterior modifications to an existing home or lot. Modifications may include improvements such as additions to buildings, changes in building color, landscaping, the addition of new windows, or site improvements such as a patio, fence, or wall. The review of modifications to existing homes will generally follow the procedures outlined below in Step Two. Submittal requirements will generally be limited to graphic and written material or actual building materials or color samples necessary to demonstrate the proposed modifications. Prior to initiating the design of any modifications to an existing home or lot, owners are encouraged to contact the EDRC to establish a review process and submittal requirements for the proposed modification. Pa 11111111111111111113 1111111111111111 lil 111111111 IN 1353564 10/10/2000 02:55P D GUIDE Chris C. Mi o= 5 of 17 R 85.00 D 0.00 Pueblo Cty Clerk & Rec STEP ONE: THE INTRODUCTORY MEETING The Introductory Meeting provides an opportunity for the owner, their design team and the EDRC to have an informal discussion of The Enclave Design Guidelines. Items to be discussed at this meeting are the Design Theme, the design review and construction process, and specific site planning, architectural and landscape guidelines. This meeting also gives the owner an opportunity to share their initial design concepts with the EDRC. This dialogue is an important first step in the design process in order to identify any major issues with the initial design concept prior to the owner expending large amounts of time and money on detailed design. The EDRC shall not make any formal decisions during the Introductory Meeting. The Introductory Meeting may be held any time after a contract has been fully executed for a lot. The meeting will be held with Tom Black of the EDRC. During the course of this meeting, owners are encouraged to visit the future home site with Tom Black to discuss site specific issues relative to The Enclave Design Guidelines. There are no formal submittal requirements for the Introductory Meeting. It is the responsibility of the owner and their architect to obtain all supplemental guidelines and information from the EDRC prior to initiating formal design work. STEP TWO: PRELIMINARY REVIEW This step in the design review process is a preliminary review of the proposed residence prior to the preparation of construction drawings. Complete architectural and landscape design drawings shall be submitted to the EDRC by the Owner two weeks prior to a request for Preliminary Review Approval. A key element of this step is a site visit by the EDRC. Prior to this visit, Owners shall arrange to have a surveyor "stake" the site. Staking shall indicate the location of property line corners, building footprints, centerline of the driveway, and other site improvements such as on -grade decks, patios and fences. Preliminary Review Approval submittals will be reviewed for compliance with all applicable design guidelines outlined in this document. If the proposal is found by the EDRC, in its sole discretion, to be acceptable and in compliance with The Enclave Design Guidelines, the proposed plans will be approved in writing by the EDRC by signing off on the proposed plans. Proposals that are deemed by the EDRC to be inconsistent with The Enclave Design Guidelines will be denied. Within thirty days of this meeting, the EDRC will provide the owner with a written decision as to the EDRC's disposition of the submittal. In the case of disapproval, the EDRC may list recommendations for modification and r(-submittal. Two sets. of the following submittal material shall be required: 1. Property survey at a scale of 1 ":20' feet or greater indicating property boundaries, easements and site contours at two foot intervals. 2. Site Plan at a scale of 1 ":20' or greater indicating the location of all proposed structure and improvements, grading, drainage, site access and utility service lines. Page 111111111111 11111 11111 1111111 11111 11111 11111111 11111111 1353564 10/10/2000 02:55P D GUIDE Chris C. Munoz 6 of 17 R 85,00 D 0.00 Pueblo C!y Clerk & Rec 3. Floor Plans with dimensions of all proposed buildings drawn at a scale of 1/8 ":1' or greater showing all interior floor area and finished floor elevations. 4. Building elevations of all proposed buildings drawn at the same scale as the Floor Plans indicating all exterior wall treatments, fenestration, decks and terraces, heights of all major roof ridges, and eaves lines, and existing and proposed finished grades around the structure. 5. Foundation plan with dimensions of all proposed walls drawn at a scale of 1/8 ":l' or greater, showing elevations. 6. Landscape and Drainage plans drawn at the same scale as the Site Plan indicating the size and location of all new plant material, planting beds, areas of the site to be irrigated, exterior lighting and all site improvements such as patios, terraces, driveways, walkways retaining walls, fences and pools. Said plan shall also indicate how water will be kept away from the foundation of the house. 7. List of building and landscape materials and a color and material board. 8. Site staking as described above. 9. Any other drawings, materials or information requested by the EDRC. STEP THREE: FINAL REVIEW After written Preliminary Review Approval, final construction plans shall be submitted to the EDRC. A formal meeting between the owner and the EDRC is not required. The purpose of this step is to ensure that final construction plans are consistent with the plans approved by the EDRC during Step Two. A written Notice to Proceed will be issued by the EDRC for Final Review submittals that are consistent with accepted Preliminary Review Approval plans. In such cases, the EDRC shall issue the Notice to Proceed within fifteen days from the date Final Construction Plans are submitted. In the event that construction plans are not approved, the EDRC may provide a written explanation to the owner outlining specific deviations within thirty days from the date Final Construction Plans are submitted. It is recognized that minor design changes often occur between preliminary design and construction drawings. The EDRC may approve minor modifications that deviate from accepted Preliminary Review Approval Plans provided such deviations are consistent with all applicable design guidelines. Examples of minor modifications include changes to window treatments, landscaping or building color. More substantial modifications such as changes to building form or building location will require re- submittal of Preliminary Plans. After obtaining a written Notice to Proceed from EDRC, a building permit must be obtained from Pueblo Regional Building Department and the property must be built to comply with City of Pueblo zoning regulations and all applicable rules and regulations administered by Pueblo Regional Building Department. Pa 1 1353564 10/10/2000 02:55P D GUIDE Chris C. ML OX 7 of 17 R 85.00 D 0.00 Pueblo Cty Clerk & Roe Such rules and regulations are in addition to procedures outlined in this document and the Declaration of Covenants, Conditions, Restrictions and Easements for The Enclave. A building permit from Pueblo Regional Building Department must be obtained prior to initiating any site preparation or construction. A Notice to Proceed from the EDRC is valid for a period of six months from the date of issuance. If a building permit has not been issued and construction has not commenced within six months, the Notice to Proceed shall become invalid. Once construction of a project has commenced, owners shall proceed with due diligence and shall complete construction of the project within one year from the date of notice to proceed, unless a longer time frame is specifically outlined and approved in the EDRC's final review. Two sets of the following submittal material are required: 1. A comprehensive set of construction plans including, but not limited to a grading plan, foundation plan, framing plan, floorplan, roofing plan and all specifications and material schedules. A licensed engineer who has experience working with the types of soils found in this area to engineer the foundation design is required. 2. A final site plan indicating building footprints, access, utility connections and all significant site improvements. 3. A final landscape plan indicating the size and location of all new plant material, areas of the site to be irrigated, exterior lighting and all site improvements such as patios, terraces, driveways, walkways, retaining walls, fences and pools. STEP FOUR: CONSTRUCTION AND INSPECTIONS It is common for the design of new homes to be refined during the construction process. Any changes to the exterior appearance of the approved plans require review and approval by the EDRC. Submittal requirements and the review process will vary depending upon the extent of the proposed changes. If the home, landscaping and all site improvements are completed in accordance with approved construction plans, the EDRC shall issue a Certificate of Compliance. The Contractor also is responsible for obtaining a final Certificate of Occupancy from Pueblo Regional Building Department. In the event a home is completed prior to the completion of all landscaping and site improvements, an owner may request a temporary Certificate of Compliance from the EDRC. The EDRC may issue a temporary Certificate of Compliance in accordance with the provisions of the Declarations of Covenants, Conditions, Restrictions and Easements for The Enclave. The purpose of the temporary Certificate of Compliance is to allow owners to occupy their residence prior to completion of all landscaping and site improvements while providing some assurances that such improvements will be completed in the immediate future. A temporary or permanent certificate of occupancy must be obtained from Pueblo Regional Building Department before the EDRC may issue the Temporary Certificate of Compliance. 111111111111111111111111111111111111111111111111111 IN 1353564 10/10/2000 02:55P D GUIDE Chris C. Munoz 8 of 17 R 85.00 D 0.00 Pueblo Cty Clerk & Rec Page 5 of 14 III. SITE PLANNING DESIGN GUIDELINES Although addressed separately, site planning is interrelated with architectural and landscape design and will be considered as a whole when the EDRC is reviewing the design of the home. Properly siting a home and other improvements on a lot is a critical first step to a successful design process. Effective site planning involves creatively integrating the design of a home with the lot and surrounding development. Building location and orientation, views, site access, parking, grading, drainage, setbacks, and the relationship to adjacent lots are some of the major considerations to be addressed during the site planning process. BUILDING SITING Many building sites in The Enclave offer short -range views to the Walking Stick Golf Course and long -range views to distant mountain ranges. When possible, the location and orientation of a home should be designed to maximize these attributes. At the same time, consideration should also be given to view opportunities from adjacent lots. When practical, buildings should be sited so as to minimize impacts on view corridors from adjoining lots. With the exception of accessory structures that may be approved by the EDRC, all improvements shall be located within one structure. Separate garages are not permitted in The Enclave. BUILDING SETBACKS Building setbacks have been established for all single - family zoned lots in The Enclave. The purpose of the setback area is to maintain a buffer between buildings and establish a sense of openness throughout The Enclave. Setbacks delineate an area around the perimeter of each lot within which no buildings, structures, or parking areas may be located. Minimum setback requirements for The Enclave exceed City of Pueblo zoning standards. Minimum setback requirements for single family lots are 25 feet in the front yard, 10 feet in the side yard, and 20 feet in the rear yard. The EDRC may approve variances to these setback requirements provided such variances allow for creative site planning and design solutions for the development, and that such variances do not adversely impact adjacent lots and the overall design goals for The Enclave. In no case can proposed variances to setback- requirements described above result in setback distances less that what is required by the City of Pueblo. GRADING AND DRAINAGE The Enclave is generally characterized by relatively flat or gently sloping terrain. On sloping lots, buildings and site improvements should be designed to complement existing land forms. Significant regrading of building sites is discouraged and the "building up" of existing sites contours is prohibited, When required, regrading should be designed to feather into existing site contours, and all grades should interface with existing contours of adjoining lots. 1353564 10/10/2000 02:55P D GUIDE Chris C. Munoz Page 9 of 17 R 85.00 D 0.00 Pueblo Cty Clerk & Rae All site drainage shall be designed in compliance with the Walking Stick Master Drainage Plan. In order to implement this plan and facilitate drainage, drainage easements have been established throughout the project. The construction of buildings or improvements that may interfere with drainage patterns within drainage easements is prohibited. In addition, no site modifications or landscaping that may alter drainage within these easements shall be permitted. PARKING AND DRIVEWAYS All single family homes shall provide a minimum of three on -site parking spaces. At a minimum, two of the required parking spaces shall be provided within an enclosed garage. All unenclosed spaces shall be provided on a driveway or other paved hard surface. On -site parking and driveways shall not be located within any required side yard setback. Due to the access allowed by a ramp curb, no cuts or modifications of the curb or gutter area will be allowed. Recommended driveway materials are concrete or pre -cast concrete pavers. Other driveway materials may be approved by the EDRC. Large expanses of paved surfaces are to be avoided and the width of driveways shall be no greater than necessary to provide access to enclosed parking spaces and to provide required on -site parking. Circular or loop driveways may be approved by the EDRC provided a landscape island is incorporated into the design. Driveways on corner lots should be located as far.as possible from adjoining street intersections. UTILITIES All utility lines shall be installed underground. Above ground utility boxes and other equipment should be located to minimize their visual impact from the residence, adjacent lots and roadways. When appropriate, utility boxes should be screened with landscape materials. MAILBOXES In order to maintain continuity along the streetscape, all mailboxes shall comply with a uniform mailbox design. EDRC has designed and approved a mailbox design that is to be used throughout the community. The approved mailbox design is available from the EDRC. Owners are responsible for constructing mailboxes in conformance with the pre- approved design. The location of mailboxes shall be approved by the EDRC during the design review process. MULTIPLE BUILDING DESIGN It is important that the siting and design of multiple building projects avoid repetition and monotony. Multiple - building projects should be characterized by a unified design that integrates building with the site and each other, while at the same time avoiding the appearance of row or tract housing. This can be achieved by avoiding repetition in building elevations, varying building setbacks and floor plans, and utilizing a variety of compatible building materials and colors. Landscape materials also should be used to integrate building design while also providing variety and interest to a site. 11111111111111111111111111111111111111 1353564 10/10/2000 02:55P D GUIDE Chris C. Cty Clerk 8 IN o= Rec 10 of 17 R 85.00 D 0.00 Pueblo 1 LL6%' / V 1 1 It EXTERIOR STORAGE The exterior storage or parking of any commercial vehicles or recreational vehicle including but not limited to RV's, snowmobiles, boats, trailers and similar equipment is prohibited within The Enclave. In addition, the exterior storage of building materials, firewood, recreational equipment, trash facilities or other similar materials is prohibited. Recreation vehicles and material listed above may be stored on -site provided they are fully enclosed within the garage. IV. ARCHITECTURAL DESIGN GUIDELINES BUILDING SIZE Building size is determined by the total enclosed floor area of a home, exclusive of the basement level, garage and -any unheated areas such as patios or sunrooms. All lots in The Enclave require a minimum of 1,800 square feet for Ranch Plans and 2,200 square feet for Multi -Level homes. BUILDING HEIGHT, MASSING AND SCALE The maximum building height of residential buildings in The Enclave shall not exceed 30 feet. Building height shall be determined based on the system used by Pueblo Regional Building Department. Some lots within The Enclave may have a different height restriction due to lot elevation. All lots adjacent to the Walking Stick Golf Course shall be Ranch Plans. Building height should be varied and generally be limited to one or two stories. Buildings should reflect a low - profile or human scale. The visual scale of buildings can be reduced a number of different ways. For example, introducing offsets in building elevations, fenestration, decks and balconies, roof overhangs, dormers and other architectural elements can reduce the visual scale of buildings. Effective building massing also can be used to achieve human -scale in buildings. Buildings should be designed using a series of additive building forms as opposed to a large single structure. Continuous uninterrupted two to three story wall planes should be avoided. The use of additive forms allow the opportunity to introduce offsets and to vary building setbacks in order to break up the mass of a building. On sloping sites, buildings should be designed to naturally step with the contours of the site. On such lots, the design of a walkout level on the downhill side of the building is encouraged. ROOFS Roofs are the most prominent visual element of a building- and as such, play, a key role in unifying the design of buildings and reinforcing the Design Theme. In keeping with the design theme, all roofs in The Enclave shall be constructed of concrete tile. The EDRC has pre- approved specific roof tiles that are required for use in The Enclave. In addition, a range of acceptable colors also has been determined. All roof tiles used in The Enclave shall be selected from the specific manufacturers, styles and colors approved by the EDRC. Examples of all approved roof materials are available from the EDRC. 111111111111111111111111111111111111111111111111111 IN P, 1353564 10/10/2000 02:55P D GUIDE Chris C. Munoz 11 of 17 R 85.00 D 0.00 Pueblo Ct.y Clerk & Ree Major roof forms shall be either gable or hip with a minimum pitch of 4:12 and a maximum pitch of 6:12. Flat or shed roofs may be approved for minor roof elements such as covered entries or patio roofs. Dormers are an important architectural element consistent with the Design Theme. When used, dormers should be designed and located relative to the style and proportional balance of the roof and building. Dormers may be either gable, hip or shed in form with pitches from 4:12 to 6:12. All gutters, downspouts, vents, flues and other roof related devices shall be painted to match the building. When feasible, such devices should be consolidated and enclosed in a manner compatible with the overall form of building. Swamp (evaporative) coolers, or any roof mounted devices, are prohibited in The Enclave. Skylights must be integrated with the roof form to be as unobtrusive as possible. EXTERIOR WALLS A very limited range of exterior wall materials and colors will unify the design of buildings and reinforce the Design Theme. The predominant wall material of all buildings shall be stucco, other similar plaster -like finishes, clay brick, or stone. In addition to stucco, other materials may be used to add interest and variety to exterior walls. Ceramic or glazed tiles may be used as a very minor accent trim element. In order to maintain coherence, the number of exterior wall materials used on any single building should be limited to no more than three. When applying stucco, a number of alternatives are available to add individual character to exterior walls. For example, hand - troweled stucco applied in an informal or irregular manner can add to the visual appeal of walls. Niches and reveals can be used to accentuate openings for light fixtures or decorative features, and stucco can be formed with eased corners and include deeply set openings for windows and doors. In all cases, stucco finishes mus, extend down to grade in order to conceal unfinished foundation walls. Synthetic stucco system may be approved by the EDRC. The EDRC has pre- approved specific color schemes for exterior walls that are required for use in The Enclave. In order to define the Design Theme and to maintain continuity between buildings, exterior wall materials should be limited to the materials described above. At the discretion of the EDRC, materials other than those listed may be approved. The following list, are examples of materials that do not comply with the Design Theme and are specifically prohibited: • .Logs ff ilff ``ff ii •Plastic materials • Imitation brick • Cinder block 125of6171R`85.0000 GUIDE oZ & Rec • Shingles or shakes • Metal siding • Plywood or composition siding including T -111 Page 9 of 14 WINDOWS AND DOORS Windows and doors offer the opportunity to add individual character to a building. The introduction of decoratively carved or richly detailed doors is encouraged. The use of aluminum exterior doors is prohibited. Windows and doors set "within the wall" will add interest to a building and also provide visual relief to building elevations. Arched windows and doors are very characteristic of the Design Theme and their use is encouraged. DECKS AND BALCONIES Above grade decks and balconies can reduce the scale of a building and add relief and interest to building elevations. These features are encouraged and when used should be integrated with the structure and detailed with materials and colors consistent with the overall design of the building. When locating decks and balconies, consideration should be given to sun /shade, views and relationship to adjacent interior uses. Solid stucco walls, wood slats or wrought iron may be used to define above grade decks and balconies, however, in all cases materials used shall be consistent with the overall design of the residence. FIREPLACES The fireplace fuel permitted by these design guidelines is natural gas only. Wood or coal burning fireplaces or stoves are not permitted. CHIMNEYS Chimneys are often prominent visual and structural elements of a residence. They should be designed in proportion to the residence and be constructed of materials that lend a substantial and stable appearance. All chimneys and flues shall be designed with painted down -draft deflectors and spark arresters. DETAILING, TRIM AND ACCENT COLORS All trim work, mullions, soffits, fascia, flashing, exterior lighting and other exterior finishes shall be consistent with the design, materials and color of the residence. Accent colors should be selected to provide visual interest to a building and as such, a fair amount of latitude is available in selecting trim and accent colors. The use of accent colors should not, however, call undue attention to any single element of the residence. Residential address and other home identification signs may be located on the residence. Home identification signs shall not exceed six inches in height and shall be constructed of materials and /or painted to be compatible with the residence. ACCESSORY USES AND STRUCTURES All accessory structures such as gazebos or pool houses shall be integrated with the design of the residence through the use of similar materials, colors, architectural style and form. All accessory structures shall be located within required setback lines. 111111111111111111111111111111111111111111111111111111 1353564 10/10/2000 02:55P D GUID ChriMn 13 of 17 R 85.00 D 0.00 Pueblo CtyClerk 8 Reeo All utility meters and other similar connections shall be enclosed or incorporated into the design of the residence. Adequate provisions for the enclosed storage of trash facilities shall be required. With the exception of trash pick -up, in no case shall garbage cans be stored outdoors. Large satellite dishes are discouraged, however the EDRC may approve satellite dishes if properly located and effectively screened from adjacent properties and roadways. Satellite dishes shall be located to minimize the visual impact of the dish from adjacent surrounding properties and roads. Satellite dishes should be located proximate to the residence and painted to match the color of the residence. Landscape materials shall be used to conceal the visual impact of the dish. The use of mesh dishes is encouraged. Rooftop installation of satellite dishes is prohibited. Exterior antennas are discouraged in The Enclave and must be approved by the EDRC. V. LANDSCAPE ARCHITECTURE DESIGN GUIDELINES The goal of landscape design in The Enclave is to create a unified landscape integrated by the use of similar plant materials and other landscape treatments. The landscaping of public spaces such as the entry to The Enclave, major roads, and neighborhood entries will establish an overall theme, or context for landscape improvements in the community. These areas provide a guide for future landscape improvements on individual lots. The overall landscape theme for The Enclave is to establish formal manicured lawns. In doing so, however, it is necessary to recognize that The Enclave lies in a relatively arid environment. As such, the use of drought tolerant landscape materials will be encouraged by the EDRC. As with architectural guidelines, a major goal of these guidelines is to ensure landscape continuity throughout The Enclave. This does not mean, however, that all landscaping must look the same and use the same materials. Rather, landscape design can express individuality of the owner within the overall context of these guidelines. LANDSCAPE DESIGN CONSIDERATIONS The scale, placement and type of landscape materials shall be integrated throughout a site and should be designed to achieve a number of functional goals. Factors to be considered during the design of landscape plans include the use of plant materials to buffer prevailing winds, provide seasonal shade, screen undesirable views, define driveway and pedestrian entries and frame desirable views. The use of color and texture should be considered in the selection of landscape materials. The present and mature size of landscape material should also be considered when selecting and locating trees and shrubs. Coniferous trees, deciduous trees, shrubs and planted beds shall be incorporated into all landscape plans. Trees may be clustered to establish large planting masses or may be located to define linear spaces such as the road edge, driveways or walkways. Planting beds should be located to provide accent elements around buildings and exterior spaces such as walkways and patios. Rock shall be limited to accent purposes only. 111!111 11111 1353564 11111 11111 10/10/2000 1111111 11111 HE 111111111111 02:55P D GUIDE Chris C. III Munoz 14 of 17 R 85.00 D 0.00 Pueblo Cl,y Clerk & Rec Page 11 of 14 With the exception of planted beds, walkways, driveways and patios, all areas of a site shall be seeded with a grass mix or sodded. Owners shall be responsible for landscaping and maintaining lawns up to the curb line adjacent to their lot. PATIOS Patios are very characteristic of the Design Theme and the introduction of such improvements is encouraged. Patios provide the opportunity to transition between interior and exterior spaces and to strengthen the integration of the building with the site. The design and use of materials should relate to the overall design of the residence. Low level (four feet or less) stucco walls and plant materials may be used to define the patio areas and provide seasonal shade. IRRIGATION The installation of automatically timed underground irrigation systems shall be required for all landscaped areas of a site. Irrigation systems shall be designed to minimize the use of water. Irrigation heads shall be at least 4' from any foundation walls. RETAINING WALLS When retaining walls are required, they shall be constructed of materials compatible with the materials and colors of the residence and other site improvements. When feasible, retaining walls should be designed as an architectural extension of the home. The use of plant materials to soften the visual impact of retaining walls is encouraged. FENCES In order to maintain continuity in The Enclave, all perimeter fences shall comply with the uniform fence design created by the EDRC. The approved fence design is available from the EDRC. Owners are responsible for constructing and maintaining fences in conformance with the pre - approved uniform fence design. Fences shall only be constructed on the rear and side portions of Lots within The Enclave. Any proposed alternatives from the uniform fence design shall be submitted to the EDRC during the design review process outlined above. Approval of the EDRC is required for all fencing constructed in The Enclave. Dog runs may be permitted in rear yards only and shall be located adjacent to the residence. Dog runs shall not exceed six feet in height and shall be no more than 100 square feet in size. EDRC approval is required for all dog runs. Landscape materials are required to conceal dog runs. LIGHTING The goal of exterior lighting should be to provide general ambience light for the purpose of safety and security. When lighting walkways, driveways and patios, the use of low level downlighting is encouraged. Fixtures with indirect sources and horizontal cutoffs are strongly recommended. No exterior lighting in which the direct source is visible from a neighboring property or which produces excessive glare to 111111 11111111111111111111111111111111111111111 1353564 10/10/2000 III 02:55P D GUIDE Chris C. IN Munoz 15 of 17 R 85.00 D 0.00 Pueblo Cty Clerk & Rec pedestrian or vehicular traffic shall be permitted. When exterior lighting is used, the use of white exterior lights is required. SWIMMING POOLS Swimming pools should be designed with adequate buffers to minimize impacts on adjacent lots and must be located within required setbacks. Only permanent in- ground pools shall be permitted in The Enclave. Pool fencing shall comply with fence guidelines described above and require the approval of the EDRC. EASEMENTS Easements are located at various points throughout The Enclave. Easements provide land for the installation and maintenance of utilities and drainage facilities. Grading, structures, plantings or other improvement that may damage or interfere with utilities or drainage are prohibited within these easements. VI. CONSTRUCTION REGULATIONS Careful management and control of construction activity is a critical element in the successful design and development of The Enclave to protect the site and adjacent sites from potential damage from construction and to protect The Enclave property owners. There will always be a certain level of disturbance from construction, but if all owners comply with the same stringent standards, the impact on neighbors can be greatly minimized. CONSTRUCTION MANAGEMENT PLAN The construction management plan, which shall be created during the Final Review process, shall consist of narrative and graphic material (plans drawn at the same scale as the project site plan) in sufficient detail to address the following considerations: Limits of Construction The physical limits of all construction and all construction - related activity shall be indicated on the Construction Management Plan. Prior to initiating construction, grading or any modifications to the site, the limits of construction shall be delineated on site with a temporary snow fence or similar barrier. All construction activity, storage of all construction materials, temporary construction trailer and sanitary facilities, vehicle parking, dumpsters and any other construction equipment or facilities shall be located within the limits of construction area. Temporary Sanitary Facilities Job sites shall be equipped with temporary sanitary facilities. To the extent feasible, such facilities shall be located to minimize the visual impact from adjacent properties and roadways. Pal I IIIIII IIIII 111111111111111111111111111111111111111 1111 1353564 10/10/2000 02:55P D GUIDE Chris C. Munoz i6 of 17 R 85.00 D 0.00 Pueblo Cty Clerk & Rec CONSTRUCTION CLEAN -UP DEPOSIT Maintenance of the Job Site Job sites shall be cleaned up daily to remove construction material and debris. Any debris that cannot be temporarily stored in dumpsters shall be removed from the site daily. Concrete remaining from the clean -up of trucks shall be removed from the site within seven days. Excavation Material All excavation material not used for backfill or final grading shall be removed from the construction site and the development within one month after completion of backfill. Dust and Noise Control Reasonable noise and dust levels shall be maintained at all times. Construction Suns Temporary construction signs shall be installed on each site. Construction signs shall be limited to no more that 10 square feet and shall include the job name and the name of the contractor in order to facilitate the delivery of construction materials. Hours of Construction Hours of construction shall be limited to 7:00 A.M. through 6:00 P.M. Monday through Saturday. 1111111111111111111111111111111111 02 1353564 10/10/2000 02:55P D GUIDE Chris C. 17 of 17 R 85.00 D 0.00 Pueblo Cty Clerk & Ree Page 14 of 14 11111111111111111111111111111 1353553 10/10/2000 IN 111111111111111111 02:55P DEC C Chris C. IN Munoz 1 of 12 R 60.00 D 0.00 Pueblo C1,y Clerk & Rec DECLARATION OF RESTRICTIVE COVENANT FOR STORM WATER DETENTION THIS RESTRICTIVE COVENANT AGREEMENT (this "Agreement ") is entered by and between the Colorado State Board of Agriculture, a body corporate, for the use and benefit of the University of Southern Colorado ( "the University ") and WS Land, LLP, a Colorado limited liability partnership, its assigns, if any ( "the Grantee "). WHEREAS the University is the owner of the property described in Exhibits A and B attached hereto and incorporated by reference, all of which is on, adjacent to or in the vicinity of the University of Southern Colorado Campus property owned by the University (the "Campus ") and WHEREAS the University pursuant to Section 23 -30 -102, C.R.S. (1999) has legal authority to convey such property, and WHEREAS the Grantee is purchasing that certain property from the University which is described in Exhibit A (the "Takedown Parcel "), and WHEREAS Fekete Homes, Inc. will be purchasing and subdividing the Takedown Parcel for residential development to be known as the Enclave at Walking Stick, and WHEREAS all property referenced herein is located in the City of Pueblo, and WHEREAS the City of Pueblo has conditioned approval of the subdivision plan for the Takedown Parcel, in part, upon a certain amount of storm water detention being maintained, and WHEREAS detention of such storm water on the Takedown Parcel will reduce the amount of developable land and accordingly the appraised value to be paid to the University, and WHEREAS detention of such storm water on the University property described in Exhibit B (the "Detention Parcel ") will remove the need for detention on the Takedown Parcel and will maximize the value of the Takedown Parcel to be paid to the University, and WHEREAS the Grantee will design, engineer, excavate and construct storm water detention facilities and improvements to be completed on the Detention Parcel (the "Detention Facilities ") as required by the City of Pueblo for the subdivision of the Enclave at Walking Stick. NOW THEREFORE in consideration of the foregoing recitals and the mutual promises contained herein, and other good and valuable consideration, the receipt and sufficiency of which the parties hereby acknowledge, the parties agree as follows: 111111 tllll 11111 III1I 1111111 1111 111111 III 11111 1111 1111 1353553 10/10/2000 02:55P DEC C Chris C. Munoz 2 of 12 R 60.00 D 0.00 Pueblo Cty Clerk & Ree ARTICLE I University's Grant of Restrictive Covenant 1.1 Creation of Restrictive Covenant. In exchange for the promises of the Grantee and its assigns, as set forth in this Agreement, the University hereby declares and covenants that, subject to completion of the Detention Facilities under this Agreement, it will maintain storm drainage detention facilities on the Detention Parcel sufficient to detain not less than 705,000 cf of runoff, historic and developed, from the Campus (the "Restrictive Covenant "). The Restrictive Covenant runs with and burdens the Detention Parcel specifically described in Exhibit B for the benefit of the Takedown Parcel specifically described in Exhibit A. 1.2 University May Relocate Detention Parcel. The University specifically reserves the right, at its own cost and expense, to physically relocate the Detention Facilities as described in Exhibit B to a different location on other property, detaining the same runoff source, within the Campus. In the event the University elects to relocate the Detention Facilities, the relocated Detention Facilities must conform to the drainage design established within the City approved FINAL DRAINAGE REPORT FOR Enclave at Walking Stick as prepared by NorthStar Engineering and Surveying, Inc. dated , 2000. A summary of each release point from the tributary upstream basin is presented below: (a) Detention Basin D -2 — The outlet point from Detention Basin D -2 is a 24 inch HDPE pipe crossing Walking Stick Boulevard approximately 195 feet north of the intersection of Walking Stick Boulevard and Augusta Lane. Detention Basin D -2 is designed to store 1.99 acre -feet (86,766 cubic feet). Additionally, an emergency spillway is designed for Detention Basin D -2 that will discharge overflow storm water into Walking Stick Boulevard at a point approximately 100 feet north of the intersection of Walking Stick Boulevard and Augusta Lane. Design release rates from Detention Basin D -2 are 10.0 cfs and 26.0 cfs for the 10 -year and 100 -year storm events, respectively. (b) Detention Basin D -3 — The outlet point from Detention Basin D -3 is an 18 inch HDPE pipe crossing Walking Stick Boulevard approximately 285 feet north of the intersection of Walking Stick Boulevard and Doral Drive. Detention Basin D -3 is designed to store 12.49 acre -feet (543,860 cubic feet) and provides sufficient capacity to store the entire 100 -year storm event. Design release rates from Detention Basin D -3 are 14.0 cfs and 18.0 cfs for the 10 -year and 100 -year storm events, respectively. 2 I 111111111111111111111111111111111111 IN 1353553 10/10/2000 02:55P DEC C Chris C 3 of 12 R 60.00 D 0.00 Pueblo Cty Clerk & Rec (c) Detention Basin D -4 — The outlet point from Detention Basin D -4 is a 24 inch HDPE pipe crossing Uravan approximately 85 feet east of the intersection of Walking Stick Boulevard and Uravan and to flow into Detention Basin D -3. Detention Basin D -4 is designed to store 1.69 acre -feet (73,757 cubic feet). Additionally, an emergency spillway is designed for Detention Basin D -4 that will discharge overflow storm water into Walking Stick Boulevard at a point approximately 130 feet south of the intersection of Walking Stick Boulevard and Uravan. Design release rates from Detention Basin D -4 are 11.0 cfs and 18.0 cfs for the 10 -year and 100 -year storm events, respectively. In such event, and upon written certification by a professional engineer in the State of Colorado that the design parameters (a), (b) and (c) have been complied with, the University shall be entitled to file an amendment to the Agreement substituting the new location for the Detention Parcel hereunder and such amendment shall be deemed to (a) release the Detention Parcel from the covenants set forth herein; and (b) automatically subject the new location to the covenants set forth in this Agreement. Thereafter, the Restrictive Covenant shall run with and burden the new location for the benefit of the Takedown Parcel. ARTICLE II Obligations of Grantee 2.1 Planning and Building of Detention Facilities Area. The Grantee, and its assigns, if any, will plan, design, engineer and construct the storm water detention facilities on the Detention Parcel in conformance with the requirements of the City approved Final Drainage Report for the Enclave at Walking Stick as prepared by NorthStar Engineering and Surveying, Inc. Grantee will consult with USC in preparation of all designs and construction plans, and submit them to the University for approval by the USC Vice - President of Finance and Business not less than fourteen days prior to the beginning of construction. Such review shall be for the sole purpose of confirming that the plans for the Detention Facilities meet the requirements of this Agreement and Grantee shall remain solely responsible for adequacy of design, engineering and construction. By this Agreement, the Grantee and its assigns are authorized to remove the soil excavated (approximately 40,000 cubic yards), no portion of which shall be disposed of or stored on the University's property, from the Detention Parcel to the Takedown Parcel. The University explicitly disclaims the suitability of such soil for any purpose contemplated by the Grantee. Selection of a contractor by Grantee is subject to University approval, which approval shall not be unreasonably withheld. 2.2 Survey. The Grantee agrees that all documents, plats and descriptions as are attached hereto as exhibits are the result of surveys and engineering or design work engaged in by the Grantee at its sole expense, and the University assumes no responsibility for the accuracy of such surveys, engineering or design work obtained by the Grantee, nor for damages resulting from inaccuracies. 3 1111111111111111111111 1111111 1111111111111111111111 IN 1353553 10/10/2000 02:55P DEC C Chris C. Munoz 4 of 12 R 60.00 D 0.00 Pueblo Cty Clerk 6 Ree 2.3 Consent for Work. Except in cases of emergency, Grantee shall obtain the prior consent of the University or its representative before undertaking any work or activity upon University properly. To effectuate the terms of this Agreement, such consent shall not be unreasonably withheld. All access routes to the land described for Grantee's construction of the Detention Facilities shall be via a route or routes designated by the University and, after completion of any work, Grantee shall restore the access land and all prior improvements to its prior condition (provided, however, such restoration will not include any obligation for ongoing maintenance thereafter). 2.4 Costs to be Borne by Grantee and Bond Requirements. All costs incurred in connection with any construction work for the Detention Facilities contemplated by this Restrictive Covenant shall be borne entirely by the Grantee. Grantee shall comply with the requirements of all applicable law in carrying out its obligations under this Agreement. In addition, since the work of the Grantee is to be complete on real property owned by the State of Colorado, the Grantee shall comply with the payment and performance requirements set forth in Section 38 -26 -101, et seq. C.R.S. (1999). Grantee shall assign to the University any and all construction or other warranties obtained in the contracting for the Detention Facilities. Grantee shall cooperate as necessary to permit enforcement thereof. 2.5 Landscaping. After completion of the construction work undertaken in connection with this Restrictive Covenant, Grantor shall be responsible for landscaping of the Detention Parcel and all maintenance of the Detention Parcel thereafter to the extent and in the manner determined by the Grantor. At closing of the Takedown Parcel, the Grantee and Fekete Homes, Inc. shall each pay $25,000.00, for a total of $50,000.00 to the Grantor to be used by the Grantor for the landscaping of the Detention Parcel. 2.6 Indemnification. The Grantee shall indemnify, save and hold harmless the State, the University, its employees and agents, against any and all claims, damages, liability and court awards including but not limited to costs, expenses, and attorney fees incurred as a result of any act or omission by the Grantee, or its employees, agents, subcontractors, or assignees pursuant to the terms of this Agreement. 2.7 Compliance with Rules and Regulations. Grantee will comply with all reasonable rules and regulations regarding the use of the land which have been or may be adopted by the University. fl 1 111111111111111111111111111111111111111111111111111111 1353553 10/10/2000 02:55P DEC C Chris C. Munoz 5 of 12 R 60.00 D 0.00 Pueblo Cty Clerk & Ree ARTICLE III Rights Reserved by the University 3.1 Reservation of Rights. The University reserves all rights (including mineral and water rights) in the Detention Parcel and the right to occupy and use it for all purposes not inconsistent with the rights granted herein to the Grantee. 3.2 Sale, Lease or Other Easement. The University may grant any other interest in real property upon the Detention Parcel, so long as the volume or operation of the Detention Facilities is not unreasonably impaired or interfered with. ARTICLE IV Enforcement of this Restrictive Covenant 4.1 Covenant Runs with Land. As provided in Paragraph 1.1 the Restrictive Covenant shall run with, and burden, the real property included in the Detention Parcel and described on Exhibit B, and the new location, if any, described in Paragraph 1.2 above, for the benefit of the Takedown Parcel. Specifically, Grantee and subsequent owners of the Takedown Parcel may enforce this Restrictive Covenant. 4.2 City of Pueblo may enforce this Restrictive Covenant. The City of Pueblo shall be deemed a third party beneficiary of this Restrictive Covenant and, as such, may enforce the Restrictive Covenant to require maintenance of the Detention Facilities on the Detention Parcel, and the new location, if any, described in Paragraph 1.2 above. The City's rights as a third party beneficiary hereunder shall be limited to specific performance or similar equitable remedies and the University shall have no liability for damages of any nature, whether compensatory or consequential for the failure to perform the provisions of this Agreement. By acknowledging the City of Pueblo as a third party beneficiary of the Restrictive Covenant, the University neither submits to the jurisdiction of the City of Pueblo nor does it create any other rights or remedies outside of this Agreement. 4.3 Limited Right of Entry. The City of Pueblo may, in emergency circumstances, enter the Storm Water Detention Area to effectuate emergency repairs. Should the City of Pueblo exercise this right it is solely responsible for such activity and shall have no right to recover its costs from the University. 5 11111111111111111111111111111111111111111111111111 1353553 10/10/2000 02:55P DEC C Chris C. Cty Clerk Munoz & Ree 6 of 12 R 60.00 D 0.00 Pueblo ARTICLE V Other Terms and Conditions 5.1 Sovereign Immunity. Notwithstanding any other provision of this Agreement to the contrary, the parties hereto understand and agree that no term or condition of this Agreement shall be construed or interpreted as a waiver, either express or implied, of any of the immunities, rights, benefits or protection provided to the University under governmental immunity laws from time to time applicable to the University, including without limitation, the Colorado Governmental Act (C.R.S. 24 -10 -101 et seq.), as the same may apply. 5.2 Successors. This Agreement shall be binding on the parties' legal successors. The Grantee shall have the limited right to subcontract or assign its obligations under this Agreement to Fekete Homes, Inc., provided, however, Grantee is not released from its obligation by such subcontract or assignment. 5.3 Representatives and Notice. For the purposes of this Agreement, the parties designate the following persons as their representatives and list the following addresses for the delivery or mailing of notices and other communications: Representative for the Grantee: with a copy also provided to: J.P. Scheidegger Tuck Young WS Land, LLP Kettelkamp, Young & Kettelkamp, P.C. 65 Proctor Avenue 201 West 8t Street, Suite 540 Thornhill, Ontario L3T 1M6 Pueblo, CO 81003 Representative for the University: with a copy also provided to: Vice President for Finance and Business Office of the General Counsel University of Southern Colorado Colorado State University 2200 Bonforte Boulevard 202 Administration Building Pueblo, CO 81001 -4901 Fort Collins, Colorado 80523 -0006 Any notice required or desired to be given under this Agreement shall be delivered or mailed by certified mail to the addresses listed above. 5.4 The laws of the State of Colorado and the rules and regulations issued pursuant thereto shall be applied in the interpretation, execution and enforcement of this Restrictive Covenant. Any provisions rendered null and void by the operation of this provision will not invalidate the remainder of this Restrictive Covenant to the extent that the Agreement of the parties is capable of execution and enforcement. 6 1111111111 iii 111111111 1111111111111111111111111 ee 1353553 10/10/00p002:5 peblo Cty Clerk & R 7 of 12 R 60.0 5.5 The signatories hereto aver that they are familiar with 18 -8 -301, et. sea. (Bribery and Corrupt Influences) and 18 -8 -401, et. se q., (Abuse of Public Office) C.R.S. 1973, as amended, and that no violation of such provision is present. 5.6 The signatories hereto aver that to their knowledge, no State employee has any personal or beneficial interest in the property described herein. 5.7 This Agreement shall be effective on the date it is recorded in the records of the Clerk and Recorder of the County of Pueblo, Colorado. FOR THE GRANTEE: WS LAND, LLP By can Pierre Scheide g r President of TMC (Heritage) Corp., The sole general partner of WS Land, LLP STATE OF COLORADO ) SS. COUNTY OF PUEBLO ) The foregoing instrument was acknowledged before me this — day of July, 2000 by Jean Pierre Scheidegger, as President of TMC (Heritage) Corp., the sole general partner of WS Land, LLP for WS Land, LLP. My commission expires: / 1�lr 0TA) . Notary Public a �� L1 7 1 1 1353553 10/10/2000 02:55P DEC C Chris C. Munoz 8 of 12 R 60.00 D 0.00 Pueblo C!y Clerk & Roe FOR THE STATE BOARD OF AGRICULTURE: Secretary LE President APP OVED: 2 Z. USC Vice - President of Finance and Business Associate General Counsel STATE OF COLORADO COUNTY OF PuPhl ss. The foregoing instrument was acknowledged before me this 24th day of July, 2000 by Tito Guerrero III as President, 00 /py My Commission Expires: 08 /12/2001 Witness my hand and official seal. .•'• TA 0 tary Public 8 A$ 1111111111111111111111 1353553 Milli 1111111111 10/10/2000 02:55P DEC C Chris C. IN Munoz 9 of 12 R 60.00 D 0.00 Pueblo Cty Clerk & Ree ' "M LAND DESCRIPTION OF PLATTED LOT AREA OF ENCLAVE AT WALKING STICK A portion of the NW1 /4 and SW1 /4 of Section 17, Township 20 South, Range 64 West of the 6` P.M., County of Pueblo, State of Colorado, being a portion of that Tract of Land conveyed to the Trustees of State Colleges in Colorado by deed recorded in Book 1533 at Page 985 of the Pueblo County records and being more particularly described as follows: Considering the North line of said Section 17 to bear N.88 °45'07 "E. and all bearings contained herein being relative thereto. Commencing at the Northeast comer of said Section 17; thence S.64 °05'58 "W., a distance of 3352.54 feet to the Easterly boundary line of Walking Stick Golf Course, as conveyed to the City of Pueblo by deeds recorded in Book 2430 at Page 651 and in Book 2630 at Page 446 of the said County records and the True Point of Beginning; thence Southwesterly, along the arc of a curve to the left whose center bears S.47 °30'27 "E. and whose radius is1000.00 feet, a distance of 284.74 feet; thence S.26" 10'42 "W., a distance of 930.35 feet; thence S.31 °07'54 "W., a distance of 150.56 feet; thence S.26 °10'42 "W., a distance of 229.13 feet; thence S.71 °10'42 "W., a distance of 60.81 feet; thence N.63 °49' 18 "W., a distance of 151.27 feet; thence Westerly, along the arc of a curve to the left whose radius is 540.00 feet, a distance of 167.33 feet to the said Easterly boundary line of Walking Stick Golf Course; thence Northeasterly, along said boundary line the following eight (8) courses: 1. N.17' 18'22 "E., a distance of 435.74 feet; 2. NrT 8 0 08'01 "E., a distance of 235.55 feet; 3. N.07'01' 13"E., a distance of 466.71 feet; 4. N.07 °35'02 "W., a distance of 237.05 feet; 5. N.29 °22'01 "E., a distance of 86.60 feet; 6. N.73'2 1'34"E., a distance of 243.61 feet; 7. N.77 °43'50 "E., a distance of 108.53 feet; 8. S.69'01' 16"E., a distance of 448.86 feet to the Point of Beginning. Containing 17.87 acres. Prepared by: NORTHSTAR ENGINEERING AND SURVEYING, INC. 111 E. 51h Street Pueblo, CO 81003 November 6, 1997 JN 97 100 00 EXHI[B]IT "A" 9710000.1006 1111111111111111111111111111111111111111111111111111111 1353553 10/10/2000 02:55P DEC C Chris C. Munoz 10 of 12 R 60.00 D 0.00 Pueblo Cty Clerk & Ree . LAND DESCRIPTION OF DETENTION PARCEL: A portion of the SE 1 /4 of the NW 1 /4 and the NE 1 /4 of the SW1 /4 of Section 17, Township 20 South, Range 64 West of the 6 th P.M., County of Pueblo, State of Colorado, being a portion of that Tract of Land conveyed to the Trustees of State Colleges in Colorado by deed recorded in Book 1533 at Page 985 of the Pueblo County records and being more particularly described as follows: Considering the North line of said Section 17 to bear N. 88 0 45'07" E. and all bearings contained herein being relative thereto. Beginning at the Easternmost corner of Walking Stick Blvd., as platted in Enclave at Walking Stick, according to the recorded plat thereof; thence Northeasterly, along the arc of a curve to the right whose center bears S. 47 0 30'27" E. and whose radius is 900 feet, a distance of 123.65 feet; thence S. 48 0 46'54" E., a distance of 113.10 feet; thence S. 41 °32'31" W., a distance of 219.38 feet to the North right -of -way line of a private road; thence N. 57 0 19'54" W., along said North right -of -way line, a distance of 119.70 feet to the East right -of -way line of said Walking Stick Blvd.; thence Northeasterly, along said East right -of -way line, along the arc of a curve to the right whose center bears S. 54 0 47'04" E. and whose radius is 900 feet, a distance of 114.31 feet to the Point of Beginning (containing 0.634 acres). AND Commencing at the Easternmost corner of Walking Stick Blvd., as platted in Enclave at Walking Stick, according to the recorded plat thereof; thence Southwesterly, along the East right -of -way line of said Walking Stick Blvd. and along the arc of a curve to the left whose center bears S. 47 0 30'27" E. and whose radius is 900 feet, a distance of 194.33 feet to the South right -of -way line of a private road and the True Point of Beginning of the parcel of land herein described; thence S. 57 0 19'54" E., along said South right -of- way line, a distance of 71.41 feet; thence S. 00 0 3423" W., a distance of 250.09 feet; thence S. 26 0 10'42" W., a distance of 555.74 feet; thence S. 65 0 03'20" W., a distance of 101.43 feet to the North right -of -way line of a second private road; thence Northwesterly, along said North right -of -way line, the following two (2) courses: 1. along the arc of a curve to the left whose center bears S. 30 0 35'28" W. and whose radius is 360 feet, a distance of 27.73 feet; 2. N. 63 0 49'18" W., a distance of 89.81 feet to the said East right - of -way line of Walking Stick Blvd.; thence Northeasterly, along said East right -of -way line, the following two (2) courses: i iiii IIIII IIIII IIIII IIIIII IIII IIIIII III IIIIII III IIII 3553 10/10/2000 02:55P DEC C Chris C. Munoz 11 of 12 R 60.00 D 0.00 Pueblo C!y Clerk & Ree 1. N. 26 0 10'42" E., a distance of 805.35 feet; 2. along the arc of a curve to the right whose radius is 900 feet, a distance of 61.93 feet to the Point of Beginning (containing 3.243 acres). AND Commencing at the Easternmost corner of Walking Stick Blvd., as platted in Enclave at Walking Stick, according to the recorded plat thereof; thence Southwesterly, along the East right -of -way line of said Walking Stick Blvd., the following two (2) courses: 1. along the arc of a curve to the left whose center bears S. 47 30'27" E. and whose radius is 900 feet, a distance of 256.26 feet; 2. S. 26 0 10'42" W., a distance of 885.35 feet to the South right -of- way line of a private road and the True Point of Beginning of the parcel of land herein described; thence Southeasterly, along said South right -of -way line, the following three (3) courses: 1. S. 63 0 49'18" E., a distance of 89.81 feet; 2. along the arc of a curve to the right whose radius is 280 feet, a distance of 58.71 feet; 3. S. 51 0 4832" E., a distance of 57.78 feet; thence S. 26 0 18'22" W., a distance of 81.28 feet; thence N. 76 0 2523" W., a distance of 92.68 feet; thence S. 26 0 10'42" W., a distance of 238.13 feet; thence N. 63 11 49'18" W., a distance of 113.97 feet to the said East right -of -way line of Walking Stick Blvd.; thence N. 26 0 10'42" E., along said East right -of -way line, a distance of 357.79 feet to the Point of Beginning (containing 1.145 acres). Containing 5.022 acres, total. Prepared by: NORTHSTAR ENGINEERING AND SURVEYING, INC. 111 E. 5 th Street Pueblo, Colorado 81003 July 24, 2000 JN 97 100 00 11111111111111111111111111111111111111 IN 1111111111111111111111 1353553 10/10/2000 02:55P DEC C Chris C. Munoz 17 .r 17 o am as n a as D Li 1-6 .. Pi ..L A Dew EXHIBI T "B " R -900.00 L -"7.0' 6.15D6 56 I r P.O. R- 900,00' L- 61.93' r � o-oas6's1• �'�i �!� r O P.O. �_°p �O 6-2 U 7S N� h 9CALEj ILTA 10, G d .. 111111111111111111111111111111111111111111111111111 IN 1353554 10/10/2000 02:55P QUIT Chris C. Munoz 1 of 2 R 10.00 D 21.09 Pueblo Cty Clerk & Rec QUIT CLAIM DEED The Colorado State Board of Agriculture, a university governing board established pursuant to the laws and Constitution of the State of Colorado ( "Grantor "), whose street address is 110 16th Street, Suite 640, Denver, Colorado, 80202, for the consideration of two hundred ten thousand eight hundred sixty six dollars ($210,866.00) and other good and valuable consideration, in hand paid, hereby sells and quit claims to the WS Land, LLP, a Colorado limited liability partnership, whose street address is 65 Proctor Avenue, Thornhill, Ont., Canada, L3T 1M6, that certain real property in the County of Pueblo and State of Colorado as described in Exhibit "A" attached and incorporated hereto (1 page), with all its appurtenances thereunto belonging or in anywise thereunto appertaining. Executed this 24th day of July, 2000. THE COLORADO STATE BOARD OF AGRICULTURE, a university governing board, acting by and through its ATTEST: attorney -in -fact, the University of Southern Colorado. � %- wo BY: Tit1e:�Xf�` f >1iE'Ss'iS L,fr� TITLE: Dr. Tito Guerrero III, President University of Southern Colorado COUNTY OF R A 10 - k T — ) STATE DOCWIENTARY FEE ) SS. PUEBLO COUNTY STATE OF COLORADO ) $ The foregoing instrument was acknowledged before me this A7 * day of September, 2000 by Dr. Tito Guerrero as President of the University of Southern Colorado, for the Colorado State Board of Agriculture, a University governing board. Witness my hand and official seal. My commission expire . 5 I &Q 0 [SEAL] walkingstick \qu itclaimdeed.5- OO.wpd Notary Public U .. r�FRR. % R . c1►� p U` S t �� O EXHIBIT "A" (Legal Description - Enclave at Walkingstick) - 111111 IiII! illll 11111 lllllil IIII 111111 III 11111 IIII 1111 1353554 10/10/2000 02:55P QUIT Chris C. Munoz Pueblo Cty Clerk & Ree 2 of 2 R 10.00 D 21.09 A portion of the NW1 14, SW1 14 and SE1 14 of Section 17, Township 20 South, Range 54 West of the 6th P.M., County of Pueblo, State of Colorado, being a portion of that Tract of Land conveyed to the Trustees of State Colleges in Colorado by deed recorded in Book 1533 at Page 985 of the Pueblo County records and being more particularly described as follows: Considering the North line of said Section 17 to bear N.88'45'07 "E and all bearings contained herein being relative thereto. Commencing at the Northeast corner of said Section 17; thence S.64'05'58 "W, a distance of 3352.54 feet to the Easterly boundary line of Walking Stick Golf Course, as conveyed to the City of Pueblo by deeds recorded in Book 2430 at Page 651 and in Book 2630 at Page 446 of the said County records and the True Point of Beginning; thence S.47'30 27 "E., a distance of 100.00 feet; thence Southwesterly, along the arc of a curve to the left whose center bears S.47'3027 "E. and whose radius is 900.00 feet, a distance of 256.27 feet; thence S.26'10'42" W., a distance of 1283.36 feet; thence S. 19'09'06 E., a distance of 77.00 feet; thence Southeasterly, along the arc of a curve to the right whose center bears S.26'40'11 "W. and whose radius is 555.00 feet, a distance of 512.26 feet; thence 5.89'5238'W., c distance of 5.00 feet; thence S.00'07 22 E., a distance of 192.77 feet; thence Southeasterly, along the arc of a curve to the left whose radius is 450.00 feet, a distance of 480.74 feet; thence S.51'19'56'E, a distance of 659.17- feet; thence S.24'54 J9'W., a distance of 190.24 feet to the Northerly right -of -way line of Colorado State Highway No. 47, as conveyed to the State of Colorado, Department of Transportation by deed recorded in Book 2997 at Page 723 of the said County records; thence N.51 '35 29'W. (S.61'37'18 "E., Hwy.), along said right -of -way line, a distance of 100.19 feet; thence N.24'54 ,39'E., a distance of 51.69 feet, thence Northwesterly, along the arc of a curve to the left whose center bears N.89'41 27 "W. and whose radius is 68.00 feet, a distance of 73.16 feet; thence N.28'40'04'E, a distance of 3.00 feet; thence N.61'1955 "W, a distance of 508.23 feet; thence Northwesterly, along the arc of a curve to the right whose radius is 550.00 feet, a distance of 587.57 feet; thence N.00'07 22'W., a distance of 192.77 feet; thence Northwesterly along the arc of a curve to the left whose radius is 450.00 feet, a distance of 500.29 feet; thence N.63'49'18'W., a distance of 8.95 feet; thence S.71'12'31'"W., a distance of 58.02 feet; thence S.26'10 "42'W., a distance of 399.42 feet to the said Northerly right -of -way line of Colorado State Highway No. 47, as conveyed to the State of Colorado, Department of Transportation by deed recorded in Book 2.997 at Page 723 of the said County records; thence N. 6,3'49'45"W. (S.63'48'58 E, Hwy.), along said right -of -way line, a distance of 100.00 feet; thence N.26'10'42'EE., • distance of 358.21 feet; thence N.18'49'18 "W., a distance of 112.04 feet; thence N.26'10'42'E, • distance of 93.00 feet; thence N.63'49'18 "W., a distance of 128.04 feet; thence Westerly, along the arc of a curve to the left whose radius is 540.00 feet, a distance of 167.33 feet to the said Easterly boundary line of Walking Stick Golf Course; thence Northeasterly, along said boundary line the following eight (8) courses: 1. N. 17 18 22'E , a distance of 435.74 feet; 2. N.38'08'01 E, a distance of 235.55 feet; 3. N.07 *01 '13'E., a distance of 466.71 feet; 4. N. 07'35'02 V., a distance of 237.05 feet; 5. N.2922'01 'E, a distance of 86.60 feet; 6. N. 73'21 '34 "E., a distance of 243.61 feet; 7. N. 77'43 50'E., a distance of 108.53 feet; 8. S.69 *01 '16E, a distance of 448.86 feet to the Point of Beginning. Reception 1353555 10/10/2000 STATEMENT OF AUTHORITY Pursuant to C.R.S. 38 -30 -172, the undersigned certifies as a Statement of Authority for WS Land, LLP as follows: 1. The proper name of the entity is WS Land, LLP, a Colorado limited liability partnership. 2. WS Land, LLP was formed and remains organized under the laws of the State of Colorado as a limited liability partnership. 3. The mailing address of WS Land, LLP is 65 Proctor Avenue, Thornhill, Ontario, Canada L3T 1M6. 4. The name of the person authorized to execute documents conveying, encumbering or otherwise effecting title to real property on behalf of WS Land, LLP is Jean Pierre Scheidegger, President of TMC (Heritage) Corp., the sole general partner of WS Land, LLP. WS LAND, LLP By an Pierre Scheidegger President of TMC (Heritage) Corp. The sole general partner of WS Land, LLP STATE OF COLORADO ) SS. COUNTY OF PUEBLO ) The foregoing instrument was acknowledged before me this � y� day of July, 2000 by Jean Pierre Scheidegger, as President of TMC (Heritage) Corp., the sole general partner of WS Land, LLP for WS Land, LLP. My Commission Expires: e Notary Public ,. :: G ��9 .....b ,�