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~01652782 (,i/24/~6 01: 39 PM REAL ESTC :. RECORDS F2165 CHARLOTTE HOUSTON BOULDER CNTY CO RECORDER

DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS

FOR S. CREEK HOMEOWNERS ASSOCIATION

LAFAYETTE,COLORADO

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TABLE OF CONTENTS

Article Paragraph

Preamble

1 Definitions 2

I.A. Act ......................................................... 2 1.B Architectural Control Committee .................................. 2 I.C Association ................................................... 2 I.D Assessment ......................................... ... -; . . . ... 2 I.E Board of Directors .. .- ........................................... 2 I.F Common Areas ................................................ 2 1.G Declarant ..................................................... 2 I.H Dwelling Unit ................................................. 2 1.1 First Mortgagee ................................................. 3 I.J Lot .......................................................... 3 I.K Owner ....................................................... 3 1.L Properties ..................................................... 3 1.M Rules ........................................................ 3

2 Property Rights 4

2.A Owner's Use of Common Areas ................................... 4 2 B Delegation of Use .............................................. 4 2.C Easements Deemed Appurtenant. .................................. 4 2.0 Lot Use ...................................................... 5 2.E Building Type ................................................. 5 2.F Temporary Structures ........................................... 5 2.G Tanks, Boats, Campers and Other Vehicles .......................... 5 2.H Hearing, Cooling and Refrigeration Apparatus ....................... 5 2.1 Animals and Pets ............................................... 5 2.1 Trash ......................................................... 6 2.K Nuisance ..................................................... 6 2.L Utilities ...................................................... 6 2.M Signs ........................................................ 7 2.N Fences, Mailboxes and Property Identification ........................ 7 2.0 Leasing ...................................................... 7

Article

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4

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TABLE OF CONTENTS

Paragraph

2.P Damage or Destruction .......................................... 7 2.Q Landscaping .................................................. 7 2.R Maintenance of Drainage Patterns ........ , ........................ 7 2.S Condemnation ................................................. 8 2.T Title to the Common Areas ....................................... 8

Membership, Rights and Duties of the Association 8

3.A General Duties of the Association .................................. 8 3.B Articles and Bylaws ..................................... ;- ..... 08 3.C Membership 0 ••••• 0 .- •• 0 0 0.0. 0 •• 0 0 0 0 0 0 • 0 0 0 0 ••• 0 • 0 •• 0 0 • 0 0 •• 0 • 0 ••• 8 _ 3.D Voting .... 0 •••• 0 0 ••••• 0 0 • 0 0 ••••••• 0 ••• 0 0 • 0 • 0 • 0 0 • 0 0 0 0 • 0 0 • 0 0 0 • 09

3.E Board of Directors 0 0 0 •• 0 0 •• 0 0 0 0 0 • 0 • 0 0 • 0 • 0 0 • 0 0 0 0 •• 0 0 0 0 0 0 0 0 • 0 •• 0 0 0 9

3.F Indemnification .. 0 ••• 0 •••••• 0 0 0 0 0 • 0 0 • 0 0 • 0 0 • 0 0 • 0 0 0 0 0 • 0 ••• 0 0 0 •••• 9

3.G Rights of the Association ......... 0 •• 0 • 0 •••• 0 •••• 0 ••••••••••••••• 9

3.H Annual Meeting ..... 0 •••• 0 0 0 ••• 0 • 0 •••••• 0 0 ••• 0 •••• 0 0 0 ••••••••• 10

Assessments 11

4.A Purpose of Assessment ..... 0 ••••• 0 ••• 0 • 0 •••••••• 0 •••••••••• 0 ••• 11 4.B Annual Assessment. 0 ••••• 0 ••••• 0 ••••••••••••• 0 ••••••••••• 0 • 0 •• 11 4.C Special Assessment .. 0 ••••• 0 •••••••••• 0 0 • 0 0 0 0 •• 0 •••••••• 0 •••••• 11 4.D Uniform Rate of Assessment o. 0 ••••••••• 0 0 • 0 • 0 ••• 0 •••••••••••••• 12 4.E Notice and Quorum ..... 0 ••• 0 0 ••••••• 0 ••••••••••••• 0 • 0 •• 0 •••••• 12 4.F Effect of Non Payment ............................. 0 0 •• 0 •••• 0 •• 12 4.G Subordination of Lien ................. 0 •••••••••••••••• 0 •••••• 0 12 4.H Costs of Filing Lien ............. 0 •• 0 •••••••••••••••••••• 0 ••••• 12 4.1 Suspension of Right to Vote and Right to Use Common Areas ........... 12 4.1 Fines ................ 0 •••••••• 0 0 • 0 ••••••• 0 ••••• 0 0 ••••• 0 •••••• 13 4.K Working Capital Fund .................................. 0 • 0 0 •••• 13

Architectural Control Committee 14

SoA Establishment of Committee ...... 0 •••••••••••••••••••••••• 0 0 •••• 14 SoB Membership .. 0 ••• 0 •• 0 •••••••• 0 0 0 • 0 0 0 ••••••••• 0 •• 0 •• 0 0 0 • 0 0 • 0 • 0 14 SoC Control. 0 • 0 0 •••••• 0 0 • 0 0 •• 0 0 •••••• 0 •••••••••••••• 0 0 0 •• 0 ••••• 0 • 14

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T ABLE OF CONTENTS

Article Paragraph

5.D Approval .................................................... 15 5.E Inspection of Construction ...................................... 15 5.G Right of Entry ................................................ 16

6 Easements 17

6.A Utility and Drainage ........................................... 17 6.B Utility Access ................................................ 17

7 Insurance 17

7.A Insurance Policy .............................................. 17 7.B Liability ..................................................... 17 7. C Other Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 7.D Payment ..................................................... 18 7.E Coverage .................................................... 1 9 7.F Rebuilding of Damaged Common Areas ............................ 20 7.G Miscellaneous ................................................ 21

8 Rights of the First Mortgagee 21

8.A Entitlement .................................................. 21 8.B Payment of Charges ........................................... 22

9 Expansion 22

9.A Reservation of Right to Expand .................................. 22 9.B Expansion of Definitions ........................................ 22 9.C Interests on Enlargement ........................................ 22 9.D Taxes, Assessment and Other Liens ............................... 23 9.E Termination of the Right of Expansion ............................. 23

10 General Provisions 23

10.A Duration .................................................. 23 10.B Amendment ................................................. 23 lO.C Enforcement ................................................ 24 10.D Severability ................................................. 24

III

Article

Exhibit A

Exhibit B

Exhibit C

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TABLE OF CONTENTS

Paragraph

10.E Notices ..................................................... 24 10.F Gender and Grammar .......................................... 24 1 O.G Books and Records ........................................... 24 10.H Controlling Law ............................................. 24

Legal Description of the Real Property Submitted to the Declaration of Covenants, Conditions and Restrictions of the S. Creek Homeowners Association

Legal Description of the Common Areas Submitted to the Declaration ot: Covenants, Conditions and Restrictions of the S. Creek Homeowners Association

Legal Description of the Real Property Which May be Submitted to the Declaration of Covenants, Conditions and Restrictions of the S. Creek Homeowners Association

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DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS

OF

THE S. CREEK HOMEOWNERS ASSOCIATION

THIS DECLARATION, made on the date hereinafter set forth by 10,000 Arapahoe LLC, hereinafter referred to as "Declarant".

RECITALS

A. Declarant is the owner of property situated in the County of Boulder, State of Colorado, hereinafter referred to as the Spring Creek Subdivision and is more particularly described in Exhibit A attached hereto and incorporated here by reference; and

B. Declarant will construct site improvements and lot infrastructure together with other improvements thereon; and

DECLARATIONS

Declarant hereby declares that all of the Properties described above and herein shall be held, sold, and conveyed subject to the following easements, restrictions, covenants, and conditions, which are for the purpose of preserving and protecting the value and desirability of the Properties and providing for the care and maintenance of the Common Areas for the use and benefit of all Owners; and which shall nm with the real property and shall be binding on any person who acquired any right, title, or interest in the Properties; and which shall be a burden and benefit to any persons acquiring such interests, their heirs, successors and assigns.

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ARTICLE I: DEFINITIONS

As used in this Declaration, the terms hereinafter set forth shall have the following meanmgs:

A. "Act"

means the Colorado Common Interest Ownership Act C.R.S §§ 38-33.3-101 et~. as it may be amended from time to time.

B. "Architectural Control Committee"

means the Committee described in this Declaration of Covenants.

C. "Association"

means S. Creek Homeowners Association, Inc., a Colorado Non-profit Corporation and its successor and assigns.

D. "Assessment"

means all money due the Association from Owners as assessed by the Board of Directors.

E. "Board of Directors"

means all persons elected by the Owners according to the adopted by laws of the Association.

F. "Common Areas"

means that portion of the Properties owned by the Association for the common use and enjoyment of all Owners and as more fully described in Exhibit B attached hereto.

G. "Declarant"

means 10,000 Arapahoe Development Company, LLC and its successors and assigns if such successors or assigns are specifically assigned any of Declarant's rights hereunder by an instrument duly recorded with the Clerk and Recorder's Office of Boulder County.

H. "Dwelling Unit"

means the single family residence constructed on each Lot of the Properties and any replacement thereof, including the basement, garage and any other appurtenant structure.

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I. "First Mortgagee"

means any person, corporation, partnership, trust, company, association or other legal entity who is the beneficiary of a mortgage or deed of trust reflecting a first lien against a Lot within the Properties.

J. "Lot"

means Lots one through thirty-three as shown on the recorded plat.

K. "Owner"

Means the owner of record, including the Declarant, or a fee simple title to any Lot which is part of the Properties, whether one or more persons or legal entities, excluding those baving an interest merely as security for the performance of an obligation.

L. "Properties"

means such real property and the improvements thereof which constitute Spring Creek Subdivision and described in Exhibit A attached hereto and any additional property which is made subject to this Declaration as provided herein.

M. "Rules"

means any and all rules and regulations adopted by the Board of Directors as provided in the Association bylaws and as amended from time to time.

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ARTICLE II: PROPERTY RIGHTS

A. Owner's Use of Common Areas

Each Owner shall have the nonexclusive right of use and enjoyment in and to any Common Areas related to this Declaration subject to the following provisions:

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1. The right of the Association through its Board of Directors to make such use of the Common Areas as may be necessary or appropriate for the performance of its duties and functions which it is obligated or permitted to perfoffil under this Declaration;

2. The right of the Board of Directors, in its sole discretion, to grant easements and rights of way on, across, under and over the Common Areas to any entity providing water, sewer, gas, electricity, telephone, cable television, drainage or other similar services to the Properties;

3. The right of the Board of Directors to make reasonable rules and regulations regarding the use and upkeep of the Common Areas and facilities located thereon;

4. The right of the Board of Directors to dedicate :)r transfer all or any part of the Common Areas to any public agency, authority, or utility for such purposes and subject to such conditions as may be agreed to by the Owners;

5. The right of the Association to close or limit the use of the Common Areas or portions thereof for any reasonable purpose.

B. Delegation of Use

Any Owner may delegate, in accordance with the Association Bylaws and the adopted rules and regulations of the Association, his or her right of enjoyment of the Common Areas to members of his family, his tenants, contract purchasers or guests. All owners shall comply strictly with and cause all family members, tenants, purchasers or guests to comply with this Declaration, the Articles oflncorporation, the Bylaws of the Association, and the decisions, rules regulations and resolutions of the Association. Each Owner shall be fully responsible for the actions of his or her guests.

C. Easements Deemed Appurtenant

The easements and rights herein created for an Owner shall be deemed appurtenant to the Lots owned by such Owner. All conveyances and instruments affecting title to a Lot shall be deemed to grant and reserve the easements and rights of v:ay as provided herein, as though set forth in such documents in full, even though no specific reference to such easements or rights of way appear.

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D. Lot Use

No lot within the Properties shall be used for any purpose other than a private, single family residence. No improvement shall be made to any Lot which is not compatible with the character, quality and standards of the subdivision. All commercial enterprises shall be prohibited except home occupations which involve only the residents of the Dwelling Unit on the Lot and which can be accommodated within the Dwelling Unit.

E. Building Type

All buildings must comply with the applicable building, fire and other codes of the County of Boulder and the City of Lafayette and any other municipality which has jurisdiction over the Properties. The location, height and design of allY structure must be approved by the Architectural Control Committee as set forth in these Declaratiom. Approval by the Architectural Control Committee and any "approval by the applicable local municipality must be obtained prior to any construction or subsequent alteration to any Residence.

F. Temporary Structures

No structure of a temporary nature, including but not limited to a trailer or tent shall be placed on the Properties except by Declarant or a builder for use during construction. Such structures must be removed immediately upon completion of construction. The construction, alteration, or remodel of a building on the Properties shall be completed within one year of the date of commencement of construction.

G. Tanks, Boats, Campers and Other Vehicles

No boat, camper, trailer, motor home, commercial vehicle, heavy equipment, recreational vehicle, go-cart, non-operable car or similar vehicle shall be kept or stored so as to be visible from any other Lot or the street except during construction and/or repair to any Dwelling Unit. No tanks of any kind will be pennitted on the Prope11ies except by consent of the Architectural Control Committee.

H. Heating, Cooling and Refrigeration Apparatus

All heating, cooling, and refrigeration app3ratus must be concealed from neighboring Lots and the street.

I. Animals and Pets

No animals, livestock, poultry, or any type of house pet shall be raised, bred or kept on the Properties on a commercial basis. Owners may keep dogs, cats, or other household pets in a reasonable number, conforming to the City of Lafayette or County of Boulder codes. In

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addition, the following restrictions shall apply to all animals and pets: such animals shall be controlled within the Ownet's property in such a manner as to not be a nuisance or disturbance to other Owners; dogs must be on a leash at all times when not on the Owner's property; Owners must clean up dog litter immediately from the Common Areas or adjacent public areas; if a household pet creates a nuisance to other Owners because of noise, destruction or nuisance, the Board of Directors may require the Owner of said pet to remove it from the Properties. No removal shall be enforced until the Board has given the Owner written notice as to the reason for the animal's removal. Said Owner shall have fifteen days from receipt of notice of the pending removal to provide the Board written notice of the Owner's proposed solution. If, after fifteen days of the Owner's receipt ofthe written notice, the Owner has failed to respond, or has failed to provide a solution which meets the Board's approval, or said Owner has failed to comply \vith the Owner's offered solution, said household pet shall be removed from the Properties.

J. Trash

Each Lot shall contain such area as required for trash, garbage and other refuse as determined by the Architectural Control Committe. Each Owner shall provide for regular removal of trash and agrees to use the trash company designated by the Architectural Control Committee, if one is so designated. Each Owner shall provide the necessary space and recycle bins required for participation in a local municipality's recycling program if such program is available to each Owner. Each Owner shall keep his or her Lot in a neat, clean and sightly condition and grass and weeds shall be kept mowed. Trash, litter, junk, boxes, containers, bottles, cans, implements, tools, machinery, lumber, firewood and building materials shall not be visible from any neighboring Lot or from the street, except as reasonably necessary during periods of construction. The Board of Directors, upon receipt of Owner of written notice, may require an Owner to remove unsightly material.

K. Nuisance

No noxious, offensive, or illegal activity shall be conducted or permitted on any part of the Properties. nor shall anything be done thereon which may be or become an annoyance or nuisance to the Owner of any Lot.

L. Utilities

All electric, television, radio, telephone, and any cable line installations and connections from the Owner's property line to any structure on the Lot shall be placed underground. All antennas must be contained within the structure and not exposed to public view. No aerial masts or satellite discs shall be allowed.

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M. Signs

No signs or advertising of any kind shall be erected or maintained on the Properties except for the following: such political signs which are permitted by federal, state and local law; a "For Sale" or "For Rent" sign not exceeding the size permitted in the City of Lafayette; signs indicating protection by security systems or neighborhood watch programs; and any signs deemed necessary by the Declarant and its sales agents.

N. Fences, Mailboxes and Property Identification

Fences, mailboxes and property identification must be approved by the Architectural Control Committee.

o. Leasing

The entire Dwelling Unit may be rented or leased as a single unit to a single person or family. All leases or rental agreements shall be in \\Titing and shall specifically provide that the lease or rental agreement is subject to the terms of this Declaration, the Bylaws of the Association, the Articles of Incorporation and the Rules and Regulations of the Association. Failure of any lessee or renter to comply with the terms of the Declarations, Bylaws, Articles of Incorporation or the Rules and Regulations of the Association shall constitute a default and such default shall be enforceable by either the Board or the lessor, or by both of them. No room or rooms in any Dwelling Unit may be rented or leased and no paying guest may be housed in any Dwelling Unit.

P. Damage or Destruction

In the event any structure is damaged or destroyed by fire or other casualty, said structure shall be promptly rebuilt or remodeled to conform to this Declaration, or all debris and remaining portions of the structure, including the foundation shall be promptly removed from the Properties.

Q. Landscaping

Landscape design must be approved by the Architectural Control Committee.

R. Maintenance of Drainage Pattern

No interference with the drainage pattern initially established by the Declarant or builder over any of the Lots or Common Areas within the Properties shall be allowed, except as approved in writing by the Architectural Control Committee. Approval shall be granted only when provision is made for alternative drainage.

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S. Condemnation

In the event of a proceeding in condemnation of any Common Area by any authorized governmental authority, the proceeds from such condemnation attributable to the Common Areas shall be distributed to the Association for repair of the Common Areas after condemnation and, at the discretion of the Board, the balance remaining shall be distributed to all Owners equally.

T. Title to the Common Areas

The Declarant hereby covenants that it shall convey fee simple title to the Common Areas to the Association, free and clear of all liens and encumbrances, prior to the conveyance of the first Lot within the Properties and shall furnish anci pay for a title insurance policy reflecting same.

ARTICLE III: MEMBERSHIP, RIGHTS AND DUTIES OF THE ASSOCIATION

A. General Duties of the Association

The Association, by and through its Board of Directors, shall further the interests of the Owners of the Association, perform management functions as provided in this Declaration and provide for the care and maintenance of outlots and Common Areas including keeping the Common Areas in a safe, attractive, functional and repaired condition. The Association shall have all the powers necessary or desirable to effectuate such purposes including such powers as are enumerated in the Association Articles and Bylaws. Any purchaser of a Lot shall be deemed to have assented to, ratified and approved all actions of the Board if said actions are in accordance with the Board's powers as herein set forth.

B. Articles and Bylaws

The Articles oflncorporation and the Bylaws of the Association shall further augment and define the powers of the Board of Directors. In the event either the Articles or Bylaws conflict with the Declarations, the Declarations shall control. In the event the Articles of Incorporation conflict with the Bylaws, the Articles shall controL

C. Membership

Every person or legal entity who is a record Owner of a Lot which is subject to assessment shall be a member of the Association. Provided however, that a person or legal entity who has only a security interest in a Lot shall not be an Member. Where more than one person or entity is a record Owner of Lot, both persons or entities shall be Members. Membership shall be appurtenant to and may not be separated from the ownership of any Lot.

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D. Voting

The Association shall have two classes of voting membership as outlined below.

Class A: Class A members shall be all Owners with the exception of the Declarant and shall be entitled to one vote for each Lot owned. When more than one person or entity owns a Lot, either person or entity shall be entitled to exercise that Lot's vote, provided however, that an objection or protest by any other Owner is not received by the Board prior to the completion of the scheduled vote. If the Owners of the Lot cannot agree on the manner of casting their vote within a reasonable time, said Owners shall not exercise their vote.

Class B: Class B members shall be the Declarant. The Declarant shall be entitled to four (4) votes for each Lot owned. Class B membership shall be converted to Class A membership when seventy-five percent of the Lots have been conveyed to Owners other than Declarant or on January 1, 1999 whichever occurs first.

E. Board of Directors

The Members of the Association shall elect four persons to the Board of Directors. The Board shall manage the affairs of the Asso<.:iation. The Board may by resolution delegate authority to a Managing Agent, provided however, that the Board shall retain final responsibility for all actions or decisions of the Managing Agent.

F. Indemnification

The Association shall indemnify every director, officer, agent or employee and any former director, officer, agent or employee against loss, costs. ancl expense, including reasonable attorney fees incurred in connection with any action, suit, or proceeding in which such person may be made a party by reason of being, or having been such director, officer, agent or employee of the Association or Board. This indemnification shall not apply to acts where such person is liable for gross negligence or fraud. Any sl~ch indemnification may only be paid out of the insurance coverage which furnishes Officers imd Directors of the Association errors and omissions insurance coverage or similar coverage. All payments or settlements of this indemnification shall be limited to the actual proceeds of insurance policies received by the Association less any deductible owed by tile Association under the terms of the insurance policy.

G. Rights of the Association

1. Association as Attorney-in-Fact for Owners

The Board is hereby irrevocably appointed attorney-in-fact for the Association, to manage, control and deal with the interest of the Association so as to permit the Association to fulfill all of its duties and obligations hereunder. The Board is granted all the power necessary to

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govern, manage, maintain, repair, administer and regulate in order to accomplish all duties required of it.

2. Contracts, Licenses and Other Agreements

The Executive Board shall have the right to enter into or grant contracts, easements, licenses, leases and agreements, concerning the use of the Common Areas and any improvements located thereon. .

3. Implied Rights

The Board shall have and may exercise any right or privilege given to it expressly by this Declaration, or reasonably implied from the provisions of this Declaration, or given or implied by law, including those established by the Colorado Common Interest Ownership Act as itmay be amended from time to time (Article 33.3, Title 38 of the Colorado Revised Statutes) or which may be necessary or desirable to fulfill its duties, obligations, rights or privileges.

H. Annual Meeting

The Board of Directors shall hold at least one meeting per year to which all Owners are invited to attend. Notice for said meeting shall be mailed to the last address of record of each Owner not earlier than fifty days prior to the meeting and not later than twenty days prior to the meeting.

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ARTICLE IV: ASSESSMENTS

A. Purpose of Assessment

The Association shall levy such assessments as it deems necessary for the purposes of promoting the health, safety and enjoyment of the Owners. In addition, said assessment may be used for the maintenance, repair and improvements of the Common Areas and landscaping thereon, for payment of management fees, payment of insurance premiums and maintaining adequate reserves. Also, the assessments may be used for any other purpose reasonably necessary to implement the purposes described herein.

B. Annual Assessment

In the first year of the Spring Creek Subdivision's existence, the annual assessment per Lot, other than by Lots owned by Declarant, shall be Three Hundred and Sixty Dollars ($360.00) per year. Assessments shall be prorated based on the number of months remaining in the calendar year. The assessment for the each year shall be set annually by the Board of Directors at least thirty days prior to the close of the Association's fiscal year, subject to the provisions of this Declaration. The Annual Assessment may be later adjusted upon a finding of necessity of the Board, but in no event shall the amount of the Annual Assessment be adjusted more than twice in anyone year. Written notice of the AImual Assessment shall be sent to every Owner within thirty days of the Board's determination of the amount of the Assessment, but at least fourteen

. days prior to the date upon which the assessment is due. However, in the event that the Board makes no change in the amount of the annual assessment. no notice need be sent.

The annual assessment shall be payable in equal monthly installments on the first day of every month unless an installment is delinquent as outlined below. At its discretion, the Board of Directors may establish different payment provisions other than those outlined herein.

Any assessment increase by more than twenty-five percent shall require the consent of two-thirds of each class of member who are voting at a meeting of Owners wherein the quorum requirement outlined in these Declarations is followed.

C. Special Assessment

In addition to the almual assessment, The Board may levy any special assessment for the purpose of defraying, in whole or part, any construction, reconstruction, repair, or replacement of a capital improvement upon the Common Areas, provided however that any such special assessment shall have the assent of two-thirds of the votes of each class of Members at a meeting of Owners wherein the notice and quorum requirement outlined in these Declarations is followed.

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D. Uniform Rate of Assessment

Both Annual and special assessments shall be fixed at a uniform rate for all Lots.

E. Notice and Quorum

Written notice of the annual meeting or other specifically called meetings of Owners shall be mailed to all Owners not less than twenty (20) days nor more than fifty (50) days in advance of such meeting. Sixty percent of all Owners shall constitute a quorum. If a quorum is not present, another meeting may be called under the same notice requirements, and the required quorum at such subsequent meeting shall be fifty (50) percent of all Owners.

F. Effect of Non Payment

All installments of assessments shall become delinquent unless paid within thirty (30) days after becoming due. If an installment is delinquent more than thirty (30) days, the entire unpaid balance of the annual assessment is immediately due and payable. All delinquent assessments shall bear interest of eighteen (18) percent per annum beginning with the due date. The Association may bring an action against the O""ner personally or file a lien against the Lot for the amount of the unpaid assessments, interest, recording costs, and attorney fees and other costs of collection. Said liens may be foreclosed upon as provided by law. No Owner may waive liability for the assessment because of non-use of the Common Areas, abandonment of the Lot, any claim that the Association or the Board is not properly exercising its duties and powers under this Declaration or other reasons.

G. Subordination of Lien

The lien of the assessment provided for herein shall be subordinate to the lien of any purchase money loan evidenced by a recorded first mortgage or a recorded first deed of trust. Sale or transfer of any Lot shall not affect the assessment lien. The lien shall be superior to any homestead exemption as now or hereafter may be provided by Colorado law, and the acceptance of a deed to land subject to this Declaration shall constitute a waiver of homestead exemption as against the assessment lien.

H. Costs of Filing Lien

In the event any lien is required to be filed and released to enforce collection hereunder, all costs of preparation, filing and release shall be paid by the Owner as a cost of collection.

I. Suspension of Right to Vote and Right to Usc Common Al'cas

The Board may suspend the rights of any Owner who is in default in the payment of its obligations to the Association to use the Common Areas until the default is cured. Further. the

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Board may suspend the right of any Owner to vote on Association matters until such default is cured.

J. Fines

The Board shall have the right to levy a fine against any O\vner for any violation of this Declaration, the Association Bylaws, the Articles of Incorporatioll and the Rules and Regulations of the Association; provided however, that the following conditions are met: (1) the Board shall give the Owner written notice as to the reason for the fine at least thirty days prior to the date upon which the fine will take effect; (2) the O\\'11er shall have the opportunity for a hearing before the Board within thirty days of receiving said written notice; and (3) the Board shall levy the fine by a two-thirds vote of the total votes of all Board members.

K. Working Capital Fund

The Association shall establish a \Vorking Capital Fund. Each Lot's contribution to such Working Capital Fund shall be equal to at lease two months p0l1ion of such Lots total annual assessment. Each Lot's non refundable contribution shall be collected and transfen'ed to the Association at the closing of the initial sale of such Lot and shall be maintained in a segregated account for the use and benefit of the Association. Amounts paid into the fund are not considered advance payments of the assessments and each O\Vner must pay all assessments as they become due.

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ARTICLE V: ARCHITECTURAL CONTROL COMMITTEE

A. Establishment of Committee

There is hereby created the S. Creek Architectural Control Committee, hereinafter referred to as "Committee" for the purpose of maintaining within the Spring Creek Subdivision a nature of building design which is homogenous to the area's physical setting and complementary to other Dwelling Units within the subdivision. The Committee may adopt and amend from time to time, written standards which may be made available to Owners and prospective Owners upon request.

B. Membership

The Committee shall be composed of three members, Michael Markel and two Qther persons to be appointed by the Declarant. -The Declarant reserves the right to terminate or replace the two other persons at its discretion. The Declarant, for itself, its successors, transferees and assigns, hereby releases and waives any and all claims against the members of the Committee for acts or omissions done in good faith arising our of their services on the Committee.

The original Committee members shall serve until such time as the Declarant owns less than two Lots. When the Declarant owns less than two Lots. the Committee shall be elected for a term of two years by the Owners at the next millual meeting of the Association. Members of the Committee shall not be entitled to any compensation for services performed pursuant to this Declaration.

C. Control

No building, fence, wall, solar device, exterior remodeling, addition, change of grade, change of drainage pattern, or planting of trees or shrubs shall be erected, placed or altered on any Lot until construction plans and specifications showing the nature, kind, shape, height, materials and locations of the structure have been submitted to and approved by the Committee. Changes of exterior stain or paint must be submitted to the Committee and approved prior to application. Changes in landscaping of Lot areas seen by neighboring Lots or from the street must be approved by the Committee except for small shrubs, perennials or annual plants. Each Owner, at his or her expense, shall provide such plans and specifications aincluding a site plan showing the location of the proposed structure with respect to topography, finish grade elevations and any existing structures on or adjacent to said building site as are required by the Design Guidelines established by the Committee. Plans must he submitted to the Committee at such time as established in the Design Guidelines. The intent of such timing is to allow adequate time for processing and review.

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No building or other structure shall be erected or be allowed to remain on any lot which violates any of the covenants or restrictions contained herein. The issuance of a building permit or license, which may be in contravention of these protective covenants, shall not prevent the Committee from enforcing these provision. The Committee's approval of a building, fence, wall or other structure does not release the Owner from being responsible for obtaining a building permit from the appropriate governmental authorities. At its discretion, the Board of Directors of the Association shall have the right to make corrections necessary to bring any construction or alteration within the terms of these Dedarations or within the tenus of any guidelines outlined by the Committee. If the Owner refuses to pay for such cOlTeclions, the Association may bring an action against the Owner personally, or file a lien against the Lot for the amount of the charges plus interest at eighteen (18) per cent per annum, attorneys fees and other costs of collection. Said lien may be foreclosed in like manner as a mortgage on real estate and as provided by law.

It is suggested that, prior to any construction or alteration, all Owners submit toJhe Committee preliminary drawings of such 'work and obtain tentative approval before incurring any expense or time necessary for complete specifications and final approval.

All decisions of the Committee shall be final, subject to appeal to the Board of Directors, in which case, the Board's decision shall be final. The Committee shall keep written records of all plans submitted to it and of all actions taken.

No member of the Committee shall be responsible in any way for any defect in any plans or specifications submitted in accordance with the foregoing, nor for any defects in any work done according to such approved plans or specifications.

D. Approval

All approvals or disapprovals of the Committee shall be in writing. If the Committee fails to take action upon any written submittal for construction or alteration of any Owner within sixty days, approval of stIch submittal shall be deemed to have been given.

E. Inspection of Construction

The Committee shall have the right to inspect any construction or alteration to any Lot prior to or after completion to ascertain whether said construction or alteration was in accordance with submitted plans. In place of inspection by the Committee, the Owner may submit a letter from a licensed professional such as an engineer or architect stating that the construction meets the intent of the plans and that such construction meets current building codes. Such right of inspection shall terminate sixty (60) days after the Committee receives notice of completion from the Owner. If the Committee does not notify the Owner of noncompliance with submitted plans within sixty (60) days after receipt of notice of completion by Owner, such construction shall be deemed to be in compliance with submitted plans.

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F. Right of Entry

The Committee, through its authorized employees and contractors, shall have the right, after reasonable notice to the Owner, to enter any Lot at any reasonable hour on any day to perform such maintenance as may be authorized in these Declarations.

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ARTICLE VI: EASEMENTS

A. Utility and Drainage

Easements for utilities over and across the Properties shall be those of record or as shown on the recorded plat of the Properties. Other easements over and across the Common Areas may be granted by the Board of Directors.

B. Utility Access

No dwelling unit or other structure of any kind shall be built, erected or maintained on any such easement, reservation or right of way, and such er.sements. reservations, and rights of way shall at all times be open and accessibJe to public and quasi-public utility corporations. their employees and contractors, and shall also be open, and accessible to Declarant, and Declarant's successors and assigns, all of which shall have the right and privilege of doing whatever may be necessary in, or under and above such locations to carry out any of the purposes for which such easements, reservations, and rights of way are reserved.

ARTICLE VII: INSURANCE

A. Insurance Policy

The Board shall obtain and maintain an "all-risk" form policy for broad form covered causes of loss, including fire and hazard insurance with extended coverage for vandalism. malicious mischief, windstorm, sprinkler leakage (if applicable), debris removal, cost of demolition and water damage endorsements, all of the insurable improvements located on the Common Areas, including fixtures, machinery, equipment, fences and supplies and any other personal property belonging to the Association on a current replacement cost basis ill an amount of one hundred percent. The Association shall be named owner and beneficiary of the policy. In addition, any other insurance the Board deems appropriate shall be obtained. If any First Mortgagee detelmines current coverage is not adequate, the Board shall obtain additional coverage.

B. Liability

An insurance policy shall be obtained and maintained by the Board of Directors for comprehensive general liability. Said policy shall insure the Association and each Officer, Director, Member, Executive Board Member, the management agent, and their respective employees, agents and all persons acting as c.gents against any liability to the public or to Owners and their invitees. agents and employees arising out of, or incident to, ownership and use of such Common Areas. The insurance shall cover claims of one or more insured parties against other insured parties. The minimum allow'able insurance limited shall be one million dollars covering all claims for bodily injuries or deaths arising from a single incident. Reasonable amounts of

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"umbrella" liability insurance in excess of the primary limits may also be obtained at the discretion of the Board. .

c. Other Insurance

1. Flood Insurance

If the Spring Creek Subdivision is located in an area identified by the Secretary of Housing and Urban Development (HUD) or the Director of the Federal Emergency Management Agency (FEMA) as a Special Flood Hazard Area, flood insurance for the Common Areas shall be maintained providing coverage equivalent to that provided under the National Flood Insurance Program in an amount equal to one hundred percent of current replacement cost.

2. Fidelity Insurance

The Association shall obtain and maintain adequate tidelity insurance coverage to protect against dishonest acts on the part of the Directors, Officers, Trustees, Employees or Volunteers of the Association and all others who handle or are responsible for handling funds. Such fidelity coverage shall name the Association as the named insured and be written in an amount sufficient to cover the maximum funds that will be in the custody of the Association at the time while the insurance is in force, but in no event less in aggregate than two month's Clment assessments plus reserves, as calculated from the current budget of the Association. In addition, the fidelity insurance coverage must contain waivers of any defense based upon the exclusion of persons who serve without compensation.

3. Workman's Compensation and Employer's Liability Insurance

The Association shall obtain Workman's Comp~nsation and Employer's Liability Insurance and other similar insurance with respect to employees of the Association in the amount and in the forms now or hereafter required by law.

4. Other Insurance

The Association may obtain such other insurance of a similar of dissimilar nature, as the Board shall deem appropriate, including, but not limited to, Host Liquor Liability, Contractual and All-Written Contract Insurance and Comprehensive Automobile Liability Insurance.

D. Payment

Insurance premiums shall be paid by the Association funds and shall be collected from the Owners as part of the annual assessment.

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( 31-- :<1 E. Coverage

1. Each policy carried pursuant to these Declarations shall provide:

a. Each Owner is an insured person under the policy with respect to liability arising out of such Owner's interest in the Common Areas;

b. The insurer waives its rights to subrogation under the policy against any Owner or member of his or her household;

c. No act or omission of any Owner, unless acting within the scope of such Owner's authority on behalf of the Association, will void the policy or be a condition of recovery under the policy;

d. If, at the time of a loss under the policy, there is other insurance in the name of the Owner covering the same risk covered by the policy, the Association's policy provides primary msurance;

e. Such policy shall not be canceled, invalidated or slispended because of the conduct of any Owner (including said Owner's guests, tenants, or agents) or of any officer, agent or employee of the Association without a prior demand in writing to the Association that the conduct or defect be cured and the Association shall not have so cured within sixty (60) days of said demand;

f. The Declarant, so long as Declarant shall continue to own any Unit or portion of the Properties shall be protected by all sllch policies;

g. A waiver of any right of the insurer to repair, rebuild or replace any damage or destruction if a decision is made by the Board pursuant to this Declaration not to do so;

h. The insurer shall not cancel or refnse to renew such policy until thirty days after notice of the proposed cancellation or nonrenewal has been mailed to the Association at its last-known address;

i. The following endorsements or their equivalent: No Control Endorsement, Contingent Liability from Operating of Building Laws or Codes Endorsement, Cost of Demolition Endorsement, Increased Cost of Constmction Endorsement, Agreed Amount Endorsement, and Inflation Guard Endorsement, if available;

j. That any "no other insurance" clause expressly exclude individual owners' policies from its operation so that the property insurance policy purchased by the Board of Directors shall be deemed primary coverage and any individual Owners' policies shall be deemed excess coverage, and in no event shall the insurance coverage obtained and maintained by the Board of

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Directors hereunder provide for or be brought imo contribution with insurance purchased by individual Owners or their First Mortgagees, unless otherwise required by law.

2. No policy shall contain any of the following limitations or provisions:

a. Under the terms of the insurance company's charter, bylaws or rules, contributions or assessments may be made against the Association, the Owners, a first mortgagee or said mortgagee's designee or assignee; .

b. Under the telms of the insurance company's charter, bylaws, or rules, any loss payments are contingent upon action by the insurance company's board of directors, shareholders, policy holders or members.

3. All policies, to the extent obtainable, shall contain waivers of subrogation against the Declarant, the Association, the Executive Hoard, Owners, their guests and assignees.

4. The Board may require that said policies contain endorsements such as the following: no control; contingent liability from operation of building codes; cost of demolition; increased cost of construction; inflation guard.

5. A certificate or memorandum of insurance, or a duplicate original of any policy of insurance, all renewals thereof, and any subpolicies or certificates and endorsements issued thereunder, together with proof of payment of premiums, shall be promptly delivered by the insurer to the Association or to any Owner or to any first mortgagee requesting same.

6. As attorney-in-fact, the Board of Directors shall have full and complete authorization, power and right to make, execute and deliver any contract or any other instrument with respect to the interest of the Common Areas which is necessary and appropriate to exercise the power herein granted. Repair and reconstruction of the damaged Common Areas shall be done in accordance with these Declarations.

7. The deductible, if any, on such insurance policy shall be as the Board determines to be consistent with good business practice; provided however. that the deductible shall not exceed Ten Thousand Dollars or one percent of the face amount of the policy, whichever is less. Any loss falling within the deductible ponion of a policy shall be paid by the Association. Funds to cover the deductible amounts shall be included in the Association's Reserve Funds and be so designated.

F. Rebuilding of Damaged Common Areas

Any portion of the insurable Common Areas that are damaged or destroyed shall be repaired or replaced promptly by the Board unless a "Declaration Not to Rebuild" signed by at least two-thirds of the members of the Board is recorded within one hundred days of the date of

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damage or destruction indicating their intention not to rebuild in the office of the County Clerk and Recorder, Boulder County, Colorado.

In the event of any repair and/or rtconstruction, the proceeds of any insurance collected shall be available to the Association for the purpose of repair and/or reconstruction. If the insurance proceeds are insufficient to properly repair and/or reconstruct the damaged Common Areas, such excess cost shall be assessed against the Owners in accordance with these Declarations.

G. Miscellaneous

The Board and the Declarant shalll.ot be liable for failure to obtain any coverages required in these Declarations if such failure is due to the unavailability of such coverages or if such coverages are available only at unreasonable cost. If required in writing by an Owner, the Board shall furnish a certificate of insurance or notices of tennination of coverage or changes in coverage.

ARTICLE VIII: RIGHTS OF THE FIRST MORTGAGEES

A. Entitlement

Upon written request a first mortgagee shall be entitled to receive any ufthe following:

1. Budgets, notices of assessments, or any other notices provided for under this Declaration by the Association to any Owner in any Lot in which a first mortgagee has a security interest.

2. Financial statements of the Association which arc prepared for the Association and distributed to its Owners.

3. Notices of meetings of the membership and the right to be represented at any meeting by a designated representative.

4. Notice of the decision of the Owners to make any material amendment to this Declaration, the Bylaws, and/or the Articles of Incorporation of the Association.

5. Notice of the commencement of any condemnation proceedings with respect to any part of the Properties.

6. Notice of any default of by Owner of a Lot in which a first mortgagee has a security interest in the performance of apy obligations under this Declaration, the Articles of Incorporation and/or Bylaws of the Association, which remains uncured for a period of sixty days.

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7. Notice of any lapse, cancellation or material modification of any hazard or liability insurance policy or fidelity bond maintained by the Association.

8. Any condemnation loss or any casualty loss which affects a material portion of the Properties or any Lot in which a Fist Mortgagee has a security imerest.

9. Notice of any proposed action requiring the consent of the First Mortgagees as described herein. .

B. Payment of Charges

First mortgagees may pay overdue premiums on hazard insurance policies or secure new hazard insurance coverage on a lapse of a policy and may also pay taxes and other charges which are in default or which mayor have become a charge against the Common Areas. A first mortgagee making such payments shall be owed immediate reimbursement from the Association. Entitlement to such reimbursement is to be reflected in an agreement in favor of all first mortgagees duly executed by the Association.

ARTICLE IX: EXPANSION

A. Reservation of Right to Expand

Declarant hereby expressly reserves the right to expand or enlarge the Properties by submitting to the Properties from time to time a Supplemental Declaration adding any of the real property described in Exhibit C attached hereto. Said expansion may occur in stages or in one supplemental expansion as long as each supplemental expansion is contiguous to the Properties already subject to this Declaration or any Supplemental Declaration on file with the Clerk and Recorder for Boulder County, Colorado. All real estate acquired by said expansion shall be subject to all terms and conditions of this Declaration as amended or supplemented upon filing the Declaration and Supplemental Declaration with the Clerk and Recorder for Boulder County, Colorado. All conveyances of Lots shall be effective to transfer rights in the Properties as expanded with additional references to the Supplemental Declaration.

B. Expansion of Definitions

In the event of said expansion, the clefinitions used in this Declaration shall be expanded. For example, "Lot" and "Common Areas" shall mean the Lots and Common Areas described herein plus any additional Lots and Common Areas added by any and all Supplemental Declarations.

C. Interests on Enlargement

All Owners who purchase properties which has been added to the Properties through

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expansion shall be a member of the Association and shall be entitled to the same rights, privileges and responsibilities of any Owner as described in these Declarations and any Supplemental Declarations. All Lots, whether originally part of these Declarations or added through any subsequent expansion, shall be treated as if the lots were developed, owned, occupied and used by the Owners thereof as a single undivided development.

D. Taxes, Assessment and Other Liens

All taxes and other assessments relating to any real property which would be added to the Spring Creek Subdivision through expansion covering any period of time prior to the addition of such property or any portion thereof to the Properties must be paid or otherwise provided for by the Declarant to the satisfaction of all first m0I1gagees.

Liens arising out of construction of improvements in later phases shall not extend into prior phases and shall not adversely affect the rights of Owners or the priority of first mortgages and deed of trust on any Lot in a prior phase.

E. Termination of the Right of Expansion

The right of expansion shall terminate, at the option of the Declarant, by its written notice to the Secretary of the Association, but in any event, such right to expand shall terminate not later than:

1. The annexation of all of the Lots and Common Areas described on Exhibit C to the Properties;

2. Five years from the date of the recording of this Declaration in the Boulder County, Colorado records, whichever shall tirst occur.

ARTICLE X: GENERAL PROVISIONS

A. Duration

The covenants and restrictions of this Declaration shall run with and bind the land for a term of twenty (20) years from the date this Declaration is recorded, and then shall automatically be extended for periods of ten years unless a document revoking this Declaration is signed by two-thirds of the then Owners prior to the commencement of any ten year period, and such document is recorded.

B. Amendment

This Declaration or any provision hereof, or any covenant. condition, restriction or

reservation contained herein may be terminated, extended, modified or amended as to the whole of said Properties or any portion thereof with the written consent of the Owners of two-thirds of the Properties subject to these restrictions; provided, however, that during the initial twenty year term of these covenants, no such termination, extension, modification or amendment shall be effected without the written approval of the Declarant. Such tennination, extension, modification or amendment shall be immediately effective upon recording a proper instrument in writing executed and acknowledged by such Owners and where required by the Declarant in the office of the Clerk and Recorder of Boulder, State of Colorado.

C. Enforcement

The Association or any Owner shall have the right to enforce, by any legal proceeding. all restrictions, conditions, covenants, reservations, liens and charges imposed by this Declaration. Failure by the Association or any Owner to enforce any portion of this Declaration shall not be deemed a waiver of the right to do so thereafter.

D. Severability

Invalidation of anyone of these covenants or restrictions by judgment or court order shall in no way affect any other provisions, which shall remain in full force and effect.

E. Notices

Each Owner shall register his mailing address with the Association. Any notice required to be sent to any Owner under the provisions of the Declaration shall be deemed to have been properly sent when mailed postage prepaid addressed to the last know address of the Owner in the records of the Association.

F. Gender and Grammar

The singular wherever used herein shall be construed to mean the plural when applicable and the necessary grammatical change required to make the provisions hereof apply either to corporations or individuals, men or women, shall in cases be assumed though in each case fully expressed.

G. Books and Records

Any Owner or their mortgagees shall have the right to examine the books and records of the Association any reasonable time upon reasonable notice. Copies are available at reasonable cost.

H. Controlling Law

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These Declarations, and the rights and responsibilities described herein, shall be governed by and construed under the laws of the State of Colorado. Venue for the resolution of any dispute shall be Boulder County, Colorado.

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EXECUTION

IN WITNESS WHEREOF, 10,000 Arapahoe, LLC hereby executes and thereby adopts the foregoing Declaration of Covenants, Conditions and Restrictions for 10,000 Arapahoe, LLC, Subdivision this 14 th day of October ,1996.

By: Michael

State of Colorado ) ) SS

County of Boulder )

The above and foregoing instrument was acknowledged before me this 14th day of October ,1996 by Michael Markel, Managing Member of 10,000 Arapahoe, LLC.

Notary Public My commission expires: 7/07/2000 ~"-'

.. --~-- -

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EXHIBIT A

TO THE DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS

OF

S. CREEK HOMEOWNERS ASSOCIATION

Legal Description of the R(>al Property Submitted to the Declaration of Covenants,

Conditions and Restrictions of the S. Creek Homeowners Association

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EXHIBIT B

TO THE DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS

OF

S. CREEK HOMEO\VNERS ASSOCIATION

Legal Description of the Common Areas Submitted to the Declaration of Covenants,

Conditions and Rtstrictions of the S. Creek Homeowners Association

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EXHIBIT C

TO THE DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS

OF

S. CREEK HOMEO\VNERS ASSOCIATION

Legal Description of the Real Property which may be Submitted to the Declaration of Covenants,

Conditions and Restrictions of the S. Creek Arapahoe Homeowners Association

iIi Later Phases

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