HomeMy WebLinkAboutcoa.lu.pu.Pitkin Reserve Amendment.1982 1983 Nor
MEMORANDUM
TO: Land Use Files
FROM: Jessica Garrow, Planner
RE: Pitkin Reserve PUD allowable FAR
DATE: December 8, 2006
In the Pitkin Reserve Land Use Files there are discrepancies regarding the allowable FAR
in the PUD. This Memorandum is intended to clarify the various documents in the Land
Use Files.
There were a number of PUD Amendments dealing with allowable FAR that do not
appear to have been recorded. The findings in this Memo are intended to govern the
allowable FAR in this PUD.
On October 10, 1988, the City Council approved an FAR change between lots 3 and 4 on
the consent agenda. Part of the motion stated that the total allowable FAR in the PUD is
40,350 square feet. Other items in the Land Use files indicate the total allowable FAR in
the PUD is 45,850 square feet. There are no Planning or other City Official signatures ,
and there are no documents in the Land Use files stating this larger FAR number is
correct. There are Planning Staff signatures on other documents, including a 1991 letter
signed by Diane Moore, that agree the total allowable FAR in the PUD is 40,350 square
feet. Based on these signatures the Community Development Staff has determined that
the total allowable FAR in the PUD is 40,350 square feet.
In a June 30, 1987 document, then Planning Director Alan Richman approved of the
moving of 196 square feet FAR from Lot 1 to Lot 2. Based on this document, as well as
the above referenced 1991 letter, the Community Development staff has determined the
following FAR figures to be correct:
Lot 1 6,528 sf
Lot 2 6,920 sf
Lot 3 6,724 sf
Lot 4 6,724 sf
Lot 5 6,724 sf
Lot 6 6,724 sf
•
0 U E " 447 P 4GE C9 ` € �{ _ L2
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C+ ;E'.''" E AMENDMENT TO PUD AND SUBDIVISION AGREEMENT
PITM STC. FcolD cI`,
.C�
FOR THE PITKIN RESERVE
Jun I y 23
THIS AMENDMENT is made and entered into as of the 10th
day of January, 1983, by and between THE CITY OF ASPEN,
COLORADO, a municipal corporation (hereinafter referred to as
"City "), PITKIN LIMITED, a Colorado corporation (hereinafter
referred to as "the Owner "), and ASPEN MOUNTAIN PARK, a Colorado
general partnership (hereinafter referred to as "AMP ")
RECITALS
1. The City, Owner and AMP are parties to that
certain PUD and Subdivision Agreement for Pitkin Reserve re-
corded in Book 423 at Pages 417- 446 of the Pitkin County,
Colorado real property records (the PUD and Subdivision
Agreement).
2. Pursuant to Section V of the PUD and Subdivision
Agreement and to Section 24 -8.26 of the Municipal Code of The
City of Aspen, Colorado, the Owner did by letter application
dated October 12, 1982 (which letter was supplemented by the
Owner's Memorandum of December 10, 1982), petition the City for
an amendment to the PUD and Subdivision Agreement.
3. Following the recommendation of approval therefor
of its Planning and Zoning Commission, the City, acting through
its City Council at the duly constituted meeting thereof held
January 10, 1983, approved the petition of the Owner to amend
the PUD and Subdivision Agreement and the parties are desirous
of confirming herein such approval and setting forth such
amendments. NOW, THEREFORE,
AMENDMENTS
IN CONSIDERATION of the premises, the mutual covenants
contained herein and in the PUD and Subdivision Agreement, the
parties hereby agree to and do amend the PUD and Subdivision
Agreement for Pitkin Reserve as follows, and notwithstanding
anything therein to the contrary contained it is agreed that:
I. Amended Final Plat. The parties have executed
and caused to be recorded simultaneously herewith in Plat Book
at Page of the Pitkin County, Colorado real property
records the Amended Plat of The Pitkin Reserve (hereinafter
"Amended Plat "), which the Owner has submitted and the City has
accepted as being (a) superceding of the Final Plat for The
Pitkin Reserve recorded in Plat Book 12 at Pages 91 -100 of the
80014 447 PAGE GO
Pitkin County, Colorado real property records; and (b) in
conformance with the proposed development for The Pitkin Reserve
and the PUD approvals first given and, as above recited, as
amended.
II. Amendments to Section I - General Development
Plan.
A. The third sentence of subsection A - Devel-
opment Parcel, is amended to read as follows:
"Approximately 76% of the DevelopmentParcel has
been subdivided into 9 fee simple lots with
construction limited to approximately 50% of
that area. Therefore all construction will
take place to the north of the Greenbelt Line
designated on the Plat, with all land to the
south of that line remaining as open space to
be commonly maintained as provided in Section
VIII, paragraph C, below."
B. Subparagraph 1 - Free Market Development -
Lots 1 -12, is amended to read as follows:
"(1) Free Market Development - Lots 1 through
9.
The Development Parcel shall contain not more
than nine separately designated fee simple
lots, each as shown and noted on the Amended
Plat. Each such fee simple lot shall be deemed
augmented in size by an undivided one -ninth
(1 -9th) interest in Lot 10 -- the Common Area
component of the Development Parcel described
below. Prior to its conveyance by the Owner to
any third party, each fee simple lot shall be
deed or covenant restricted upon such terms as
shall provide that in the event an owner of
such fee simple lot shall wish to lease the
home constructed or to be constructed thereon
any such lease terms shall, at a minimum, be of
six (6) month duration with no more than two
(2) shorter tenancies per year, and the docu-
ments of conveyance to any such fee simple lot
shall, as well, expressly recite that the
property is so restricted."
C. Subparagraph 3 - Common Area - Lot 13, of
subsection A is amended to read as follows:
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BOOR 447 PAGE 61
"(3) Privately Owned Common Area - Lot 10.
Approximately 23.61% of the Development Parcel
shall consist of commonly owned area, which
shall be owned by the owners of Lots 1 -9 as a
nonpartitionable undivided appurtenance to
their lots. The Common Area shall be managed
and maintained as provided in Section VIII,
paragraph C, below. The deed restricted
employee housing unit shall be located in Lot
10."
D. The site data tabulations annexed to the PUD
and Subdivision Agreement as Exhibit "C" are deleted and hereby
superceded by the Summary and Site Data Tabulations hereto
annexed as Exhibit "A ".
E. The heading of Subsection B - Public Open
Space - Lot 14, is amended to read Public Open Space - Lot 11,
and the last full sentence of Subsection B is amended to read as
follows:
"Ownership of such open space shall be in
Pitkin County, Colorado; provided, however, and
always, that the benefit of the above - described
open space restriction and dedication shall be
specifically enforceable by (1) the City and /or
(2) the Owner, its successors, grantees and
assigns, including the owners (or an associa-
tion thereof) of Lots 1 -9 within the Develop-
ment Parcel."
III. Amendments to Section II - Interrelation of The
Pitkin Reserve and Smuggler Mobile Home Park.
A. Subsection C - Development Allotments, is
hereby amended to provide that nine (9) rather than twelve (12)
of the nineteen (19) otherwise nonexempt free - market housing
units resulting from the conversion and construction processes
at the Smuggler Mobile Home Park are to be utilized in connec-
tion with The Pitkin Reserve.
B. Subsection C - Development Allotments, is
hereby further amended by the addition of the following new
sentence:
"All of the nineteen (19) otherwise nonexempt
free market housing unit development rights not
utilized in connection with the actual
construction of homes at The Pitkin Reserve
shall be retained by Owner and shall be freely
transferable to other properties, and
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8008 447 PAGE 62
alienable. For these purposes, however, any
development proposal utilizing all or any
portion of the free market housing unit
development rights shall be subject to all the
applicable review processes set forth in The
Municipal Code of the City of Aspen, with the
single exception of review under the Growth
Management Quota System, which shall not be
necessary."
IV. Amendments to Employee Housing Dedication and
Restriction. Section 3 - Employee Dedication Restriction, is
hereby amended in its entirety to read as follows:
"The Owner hereby covenants with the City
that the employee unit described above in
Section I, paragraph A(2) shall be restricted
in terms of its use and occupancy to a resident
caretaker- employee for and of the Owner of Lots
1 -9 (or a collective association thereof), to
whom a monthly rental (which may be offset
against salary) may be charged not to exceed
"middle income" guidelines from time to time
established by the City. In the event the
owners of Lots 1 -9 (or a collective association
thereof) shall determine not to employ a
resident caretaker - employee, as above provided,
they (or it) shall have the right to lease the
unit to an individual(s) who shall otherwise
meet the income and occupancy eligibility
requirements generally established and applied
by the City in respect of employee housing and
who may be charged a rent not in excess of
"middle income" guidelines from time to time
established by the City, the proceeds of which
shall be used to defray common maintenance and
related costs associated with Lot 10 or other
facilities used in common by the owners (or an
association thereof) of Lots 1 -9. The fore-
going covenant shall be deemed to run with Lot
10 as a burden thereto for the benefit of and
shall be specifically enforceable by the City
by any appropriate legal action including
injunction, abatement, eviction or rescission
of any non - complying tenancy, for the period of
the life of the longest living member of the
presently existing City Council of the City of
Aspen, Colorado, plus twenty -one (21) years, or
for a period of fifty (50) years from the date
of recording hereof in the Pitkin County,
-4-
BOOK 447 PAGE 63
Colorado real property records, whichever
period shall be less."
V. Amendments to Section VI - Easements, Rights of
Way, and Relocations.
in Section VI is
A. The prefatory language e
P Y e i g 9
1
amended to read as follows:
"The Amended Plat sets forth certain
easements, rights of way, and anticipated
relocations that will be necessary to cause the
improvements anticipated thereon, which ease-
ments, rights of way, and relocations include
the following:"
B. Subsection D - Access Easement, is hereby
amended to read as follows:
"The owner hereby dedicates and grants unto the
owner(s) of Lots 1 -9 of The Pitkin Reserve the
twenty -foot (20') access and utility easement
shown and indicated on the Amended Plat for
their sole and exclusive use and enjoyment and
that of their guests, invitees and licensees."
VI. Amendments to Section VII - Other Dedications.
A. The second sentence of Subsection A -
Exemption, is amended to read as follows:
"In the event the Owner hereafter agrees to
deed restrict the employee housing unit to be
installed upon Lot 10 to low or moderate income
and occupancy eligibility guidelines, the City
agrees at that time, and upon the recording in
the Pitkin County real property records of such
a restriction, to exempt the employee housing
unit from the application of Section 20 -18 of
the Aspen Municipal Code."
B. Subsection B - Land Dedication, is amended
to read as follows:
"In respect of the free - market development to
occur on and within Lots 1 -9 and the employee
housing unit to be installed upon Lot 10, the
City hereby (1) accepts the dedication of Lot
11 in the manner and upon the terms and condi-
tions set forth in Section I, Paragraph B,
above, in lieu of the cash payment referred to
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BOOK 447 RAGE 64
in Section 20 -18 of the Aspen Municipal Code;
(2) confirms as accurate and accepts the
valuation of Lot 11 and the calculation of the
Park Dedication Fee based thereupon set forth
in the Land Valuation and Park Dedication Fee
calculation attached hereto as Exhibit "G "; and
(3) agrees that the value of Lot 11 as such is
sufficient at least to meet the requirements of
Section 20 -18, aforesaid concerning the
requirement of the dedication."
VII. Amendment to Section VIII - Open Space and
Common Area Management, Maintenance and Use.
A. Subsection A - General, is amended to read
as follows:
"The Amended Plat provides for a parcel that
includes open space dedicated for the benefit,
inter alia, of the City and a common area
component of the Development Parcel, the
undivided ownership of which, as hereinabove
provided, shall be in the owners of the sepa-
rately designated fee simple lots, 1 -9.
Respective responsibilities, limitations,
covenants and agreements regarding the manage-
ment, maintenance and use of the open space,
including that to the south of the Greenbelt
Line, and common area component of the Develop-
ment Parcel include the following:"
B. Subsection B - Publicly Owned Open Space --
Lot 14, is amended to read as follows:
"Publicly Owned Open Space -- Lot 11. Lot 11
shall be owned by Pitkin County, Colorado, and,
as such shall be managed and maintained perma-
nently and entirely by Pitkin County within
such framework as it may establish but which
shall not be inconsistent with the open space
purposes in perpetuity for which the land was
dedicated as above set forth, and in this
respect reference is specifically made to the
rights of the City therein, as described in
Section I, paragraph B, above."
C. Subsection C - Common Area -- Lot 13, is
hereby amended to read as follows:
"C. Privately Owned Common Area -- Lot 10.
Lot 10 and Area South of Greenbelt Line within
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BOON 447 PAGE 65
Lots 1 -9 -- The common area component of the
Development Parcel shall in its entirety be
owned in common by the owners of Lots 1 -9, the
owner(s) of each lot to own an undivided i
interest therein as a non - severable appurte-
nance to his or her lot. As indicated else-
where herein and upon the Amended Plat, Lot 10
will be improved with an employee- caretaker
unit of approximately 800 square feet of living
space, together with approximately 800 square
feet for storage space, will accommodate a
twenty -foot (20') easement for access to the
lots and for utility purposes and will support
the landscaping plan. Management and mainten-
ance of Lot 10 and of the area south of the
Greenbelt Line within Lots 1 -9 shall be the
responsibility of a collective homeowners'
association consisting of the owners of Lots
1 -9 and shall by it be undertaken pursuant to
such provisions as shall be set forth in
recorded covenants providing for such policies
and procedures governing the use and
maintenance of the common area, including for
necessary budgets and financial reserves to be
assessed against association members, and shall
insure permanently the fit and proper
maintenance, repair, replacement and enduring
first rate safety and quality of the entire
development, including its landscaped features,
common utility systems and paved areas.
Responsibility of the association in this
respect may by it be contractually delegated to
a private property management company or to a
salaried employee of the association. The
following as well shall apply to the
association hereinabove referred to:"
D. Subparagraph (3) - Membership Mandatory, of
Subsection C, is hereby amended to read as follows:
"(3) Membership Mandatory. Membership in the
association shall be mandatory for each owner
of the fee simple lots (1 -9) and shall be
automatic upon the recordation of any instru-
ment transferring a legal or equitable interest
(excluding standard security interests) in or
to any of such lots."
E. Subparagraph (5) of Subsection C, is hereby
amended to read as follows:
-7-
BOOK 447 PAGE 66
"The homeowners' association shall have the
power to levy assessments which will become a
lien on individual fee simple lots (1 -9) for
the purpose of paying the cost of operating and
maintaining common facilities;
F. Subparagraph (6) of Subsection C, is hereby
amended to read as follows:
"The Board of Managers of such homeowners'
association shall consist of at least three (3)
members who shall be owners of the fee simple
lots (1 -9) within the development."
G. The proposed covenants referred to in
Subparagraph (6) of Subsection C are deleted and hereby super-
ceded by the Declaration of Covenants, Conditions and Restric-
tions for The Pitkin Reserve hereto annexed as Exhibit "B ";
i provided that the owner reserves the right to amend the Declara-
tion upon the same terms as provision therefor was made in the
PUD and Subdivision Agreement.
H. Subsection D - Building Restrictions, is
hereby amended to read as follows:
"The Owner agrees and hereby covenants that the
number of units that will be built within The
Pitkin Reserve shall not exceed nine (9) free
market units plus one (1) employee- caretaker
unit and that all areas shown on the plat as
being open space or common area shall remain
perpetually so."
I. Subsection E - Party Wall Declaration, is
deleted in its entirety.
VIII. Amendments to Section IX - Water Rights and
Availability. The first sentence of the second full paragraph
of Section IX is amended to read as follows:
"A 16" main waterline crosses the Development
Parcel (as shown on the Amended Final Plat
between Lots 8 and 9) and water service lines
will be installed as shown on the utility
sheets."
IX. Exhibit G - Land Valuation and Park Dedication
Fee Calculation is hereby deleted and superceded by the Land
Valuation and Park Dedication fee calculation hereto annexed as
Exhibit "C ".
-8-
BOON 447 PAGE 67
X. Remaining Provisions Unaffected. Except to the
extent expressly hereinabove set forth, and except as manifestly
inconsistent herewith, the remaining provisions of the PUD and
Subdivision Agreement for Pitkin Reserve are unchanged and in
effect as written and recorded in Book 423 at Pages 417 - 446 of
the Pitkin County, Colorado real property records.
IN WITNESS WHEREOF, the parties have executed this
Amendment to PUD and Subdivision Agreement for Pitkin Reserve as
of the 10th day of January, 1983.
CITY OF ASPEN, a Municipal
ATTEST: corporation
t ae . s / � /� / ��/ . , By
— $Giivaii LUel, Mayor
• / - Jv , i /7s.w L. S AY/. - - jay
6 d
PITKIN LIMITED, a Colorado
ATIPEST: ' corporation
1
• ' visa 4 By U -
be t W. Hu• es, 'ecre ary U ae Li in, President
ASPEN MOUNT•IN PARK, a Colo do
ge eral /... tn: r hip �AcG rr
r.
1
B( ' W w 1 O U
?'exan:er E: ip in, a gen -ral
partner, by Robe t W. Hughes,
his attorney -in -fact
STATE OF COLORADO )
• . - i ) ss.
COUNTY OF PITKIN
The foregoing instrument was acknowledged before me this
)5f day of June, 1983, by WILLIAM L. STIRLING, as Mayor of the
City of Aspen, and attested by K1 2IIRIN IOCII, City Clerk, City
of Aspen. �2rm ¢GaaE a ti -. -- zzi.rteg,z„. -
WYTNESS my hand and offigia� seal.
My 'commission expires: 1/10/16
16
I till ll ll /y,
(SEAL) o,
` o GC
=- v Notary Public
c i
- • Address: /3U ‘.5 r � s
-9-
J
J l ........ft4
A 7 6
BOOK 44 1 PAGE 68
STATE OF COLORADO )
ss.
COUNTY OF PITKIN
The foregoing instrument was acknowledged before me
this 15th day of June, 1983, by Michael Lipkin, as President,
and Robert W. Hughes, as Secretary, of PITKIN LIMITED, a
Colorado corporation.
WITNESS my hand and official seal.
My commission expires:, /6/87
SEAL) A . ASV'
Notary////Pub is
• Addrefs: 600 E. Hopkc s
Aspen, CO 8 611
STATE OF COLORADO )
ss.
COUNTY OF PITKIN
The foregoing instrument was acknowledged before me
this 15th day of June, 1983, by Robert W. Hughes, as attorney-
in -fact for Alexander E. Lipkin, a general partner of ASPEN
MOUNTAIN PARK, a Colorado general partnership.
WITNESS my hand and official seal.
•
My commission expires: 3 /87
Ad
- 4SEAL) /
� A/ . Iii /j
Notar VSblic
f
Cp � J> Ad•ress! 600 E. Hopkin
Aspen, CO 81611
-10-
80041 447 PAGE 69
DEVELOPMENT SUMMARY AND SITE TABULATIONS
Name: The Pitkin Reserve
Number of Units: 9 free market units
1 PMH rental unit
Amenities: deed restricted caretaker /employee
facility above storage
*Unit Size: F.A.R. allows each house 6,050 sq. ft.
of applicable area
*Project Population: 42 (4.5 /unit plus caretaker)
*Parking: 2 indoor spaces per unit and 2 guest
parking spaces per unit in driveways
*Structures: 9 single family houses with architec-
tural controls established that pre-
serve the integrity of the Master
Plan, insure unobstructed views, and
provide for the use of high quality
building materials.
Acreage: 20± acres plus 6 acres of railroad ROW
Public Open Space: 13± acres
Development Site: 7.064 acres
* *Fee Simple Lots: 76.39% of development sites (Lots 1 -9)
with approximately 50% of the area of
the fee simple lots designated as
additional open space
Common Open Space: 23.61% of development site (Lot 10)
*Building Coverage: 29,500 sq. ft.
*Paved Areas: 30,000 sq. ft. (private drive, drive-
ways and parking)
* Estimate only due to custom nature of construction
EXHIBIT "A" TO AMENDMENT TO PUD AND
SUBDIVISION AGREEMENT FOR THE PITKIN RESERVE
BOON 447 PAGE 70
DECLARATION OF COVENANTS,
CONDITIONS, AND RESTRICTIONS
FOR THE PITKIN RESERVE
This Declaration of Covenants, Conditions, and
Restrictions is made this day of , 1982,
by Pitkin Ltd., a Colorado corporation, (hereinafter referred
to as "Declarant ").
W I T N E S S E T H:
Declarant is the owner of the real property
described in Exhibit "A" attached hereto and incorporated
herein by reference. Declarant intends by this Declaration to
impose upon the property mutually beneficial restrictions
under a general plan of improvement for the benefit of all .
owners of residential property within The Pitkin Reserve.
Declarant desires to provide a flexible and reasonable
procedure for the overall development of the property and to
establish a method for the administration, maintenance,
preservation, use, and enjoyment of such property as is now or
may hereafter be submitted to this Declaration.
NOW, THEREFORE, Declarant hereby declares that all
of the property described in Exhibit "A" and any additional
property as may by subsequent amendment be added to and
subjected to this Declaration shall be held, sold, and
conveyed subject to the following easements, restrictions,
covenants, and conditions which are for the purpose of
protecting the value and desirability of and which shall run
with the real property submitted to this Declaration and which
shall be binding on all parties having any right, title, or
interest in the described properties or any part thereof,
their heirs, successors, successors -in- title, and assigns, and
shall inure to the benefit of each owner thereof.
ARTICLE I
Definitions
Section 1. "Association" shall mean and refer to
The Pitkin Reserve Homeowners' Association, Inc., a Colorado
nonprofit corporation, its successors and assigns.
The "Board of Directors" or "Board" shall be
the elected body having its normal meaning under Colorado
corporate law.
Section 2. "Properties" shall mean and refer to
the real property described in Exhibit "A" attached hereto and
shall further refer to such additional property as may
hereafter be annexed by amendment to this Declaration or which
is owned in fee simple by the Association.
EXHIBIT "B" TO PUD AND
SUBDIVISION AGREEMENT
•
BOOR 447
PAGE 71
Section 3. "Owner" shall mean and refer to the
record owner, whether one or more persons or entities, of any
lot which is part of the Properties, but excluding in all
cases any party holding an interest merely as security for the
performance of an obligation.
Section 4. "Common Area" shall mean Lot 10, The
Pitkin Reserve and all real and personal property now or
hereafter owned by or otherwise coming under the
responsibility of the Association for the common use and
enjoyment of the owners.
Section 5. "Residential Lot" shall mean any
portion of the Properties intended for any type of separate
ndependent ownership for use and occupancy as a residence by a
single household and shall in all cases include any building
improvements thereon.
Section 6. "Area of Common Responsibility" shall
mean and refer to the Common Area, together with those areas,
if any, which become the responsibility of the Association.
In addition, any employee housing unit or caretaker's dwelling
or manager's office located on the Properties shall be part of
the Area of Common Responsibility.
Section 7. "Common Expenses" shall mean and
include the actual and estimated expenses of operating the
Association, including any reasonable reserve all as may be
found to be necessary and appropriate by the Board pursuant to
this Declaration, the By -Laws, and the Articles of
Incorporation.
Section 8. "Member" shall mean and refer to a
person or entity entitled to membership in the Association, as
provided herein.
Section 9. "Mortgage" shall include a deed of
trust, as well as a mortgage.
Section 10. "Mortgagee" shall include a
beneficiary or holder of a deed of trust, as well as a
mortgagee.
Section 11. "Mortgagor" shall include the trustor
of a deed of trust, as well as a mortgagor.
Section 12. "Person" means a natural person, a
corporation, a partnership, trustee, or other legal entity.
Secton 13. Residential Lot Assessments.
Residential Lot assessments for common expenses provided for
herein shall be used for the purposes of promoting the
i recreation, health, safety, welfare, common benefit, and
enjoyment of the owners of the Residential Lots against which
-2-
AMOK 447 PAGE 72
the specific parcel assessment is levied and of maintaining
the property within a given parcel, the Common Area, and the
Area of Common Responsibility, all as may be specifically
authorized from time to time by the Board of Directors and as
more particularly authorized below.
The Residential Lot Assessment shall be levied
equally against the owners of Residential Lots in a parcel for
such purposes that are authorized by this Declaration or by
the Board of Directors from time to time.
Section 15. "Residential Association" shall mean
any homeowners or other such association created on property
subject to this Declaration containing units, homes or other
structures for residential purposes.
ARTICLE II
Rights In Common Area
Every owner shall have a non - exclusive right to the
use and enjoyment in and to the Common Area subject to any
restrictions or limitations concerning the use thereof herein
contained or in any rules or regulations published by the
Association or subjecting this Declaration to such property.
Any owner may delegate his or her right of enjoyment to the
members of his or her family, tenants, and social invitees
subject to reasonable regulation by the Association and in
accordance with procedures it may adopt.
ARTICLE III
Membership and Voting Rights
Section 1. Membership. Every person or entity
(including Declarant) who is the record owner of a fee or
undivided fee interest in any Residential Lot that is subject
to this Declaration shall be deemed a member in the
Association. Membership shall be automatic upon the recording
of any document transferring a legal or equitable interest in
a Residential Lot and its appurtenant Parcel and shall be
appurtenant to and may not be separated from such ownership.
The foregoing is not intended to include persons who hold an
interest merely as security for the performance of an
obligation, and the giving of a security interest shall not
terminate the owner's membership. No owner, whether one or
more persons, shall have more than one membership per
Residential Lot owned. In the event of multiple owners of a
Residential Lot, votes and rights of use and enjoyment shall
be as provided herein. The rights and privileges of
membership, including the right to vote, may be exercised by a
! member or the member's spouse, but in no event shall more than
I one (1) vote be cast for each Residential Lot. The Declarant
-3-
BOON 447 PAGE 73
ARTICLE IV
Maintenance
The Association shall maintain and keep the Common
Area (and any personal property associated therewith) in good
repair, taste and order, including all paved areas, all land-
scaped areas, and any other improvements to or upon the Common
Area, such maintenance to be funded as hereinafter provided.
This maintenance shall include, but not be limited to,
maintenance, repair, and replacement, subject to any insurance
then in effect, of all landscaping and other flora,
structures, and improvements situated upon the Common Area,
all to the end that the first rate safety, appearance and
quality of the Common Area shall permanently endure. The
Association shall also by enforcement of rules and regulations
that it may from time to time adopt insure the quality of the
exterior appearance and aesthetic compatability of the
residential units within The Pitkin Reserve. The Association
shall have the power to assess the owners of Residential Lots
on parcels within The Pitkin Reserve to defray common costs
incurred in connection with the maintenance of the Common
Areas and the power specially to assess owners whose failure
to abide rules and regulations or otherwise properly to
maintain the exteriors of any improvements to their
Residential Lots results in the Association having to perform
such maintenance. All maintenance functions herein provided
on the part of the Association to perform may by it be
contractually delegated to a managing agent, including a
property management firm. The obligation herein of the
Association to maintain the Common Area shall, as well,
include the duty to pay all real and /or personal property
taxes that may be assessed against such Property, unless such
taxes be separately assessed against the owners of Residential
Lots.
ARTICLE V
Insurance and Casualty Losses
Section 1. Insurance. The Association's Board
of Directors or its duly authorized agent shall have the
authority to and shall obtain insurance for all insurable
improvements on the Common Area against loss or damage by fire
or other hazards, including extended coverage, vandalism, and
malicious mischief. This insurance shall be in an amount
sufficient to cover the full replacement cost of any repair or
reconstruction in the event of damage or destruction from any
such hazard. The Board shall also obtain a public liability
policy covering the Common Area, the Association, and its
members for all damage or injury caused by the negligence of
the Association or any of its members or agents, and, if
reasonably available, directors' and officers' liability
insurance. The public liability policy shall have at least a
-4-
II
I 0 - BOOK 447 PAGE 74
($ ) Dollar per person
limit, as respects bodily injury, a
($ ) Dollar limit per occurrence, and a
($ ) Dollar minimum property
damage limit. Premiums for all insurance on the Common Area
shall be common expenses of the Association. The policy may
contain a reasonable deductible, and the amount thereof shall
be added to the face amount of the policy in determining
• whether the insurance at least equals the full replacement
H , cost.
Cost of insurance coverage obtained for the
Common Area shall be included in the General Assessment, as
defined in Article IX, Section 1.
All such insurance coverage obtained by the
Board of Directors shall be written in the name of the
1 Association, as Trustee, for the respective benefited parties,
as further identified in (b) below. Such insurance shall be
governed by the provisions hereinafter set forth:
(a) All policies shall be written with a
company licensed to do business in the State of Colorado and
holding a rating of IX or better in the Financial Category as
established by A. M. Best Company, Inc., if available, or, if
not available, the most nearly equivalent rating.
(b) All policies on the Common Area shall be
for the benefit of the Residential Lot Owners and their
mortgagees as their interests may appear.
(c) Exclusive authority to adjust losses under
policies in force on the Property obtained by the Association
shall be vested in the Association's Board of Directors;
' provided, however, that no mortgagee having an interest in
such losses may be prohibited from participating in the
'
settlement negotiations, if any, related thereto.
(d) In no event shall the insurance coverage
obtained and maintained by the Association's Board of
Directors hereunder be brought into contribution with
j insurance purchased by individual owners, occupants, or their
mortgagees, and the insurance carried by the Association shall
be primary.
(e) All casualty insurance policies shall have
an agreed amount endorsement with an annual review by one or
more qualified persons.
1 (f) The Association's Board of Directors shall
1 be required to make every reasonable effort to secure
1 insurance policies that will provide for the following:
c
I
4 -5-
BOOK 447 PAGE 75
+y
(i) A waiver of subrogation by the
insurer as to any claims against the Association's Board of
Directors, its Manager, the owners and their respective
tenants, servants, agents, and guests;
(ii) A waiver by the insurer or its rights
to repair and reconstruct instead of paying cash;
(iii) That no policy may be cancelled,
invalidated, or suspended on account of any one or more indi-
vidual Residential Lot owners;
(iv) That no policy may be cancelled,
invalidated or suspended on account of the conduct of any
director, officer, or employee of the Association or its duly
authorized Manager without prior demand in writing delivered
to the Association to cure the defect and the allowance of a
reasonable time thereafter within which the defect may be
cured by the Association, its Manager, any owner or mortgagee;
and
(v) That any "other insurance" clause in
any policy exclude individual owners' policies from
consideration.
Section 2. No Partition. Except as is permitted
in the Declaration, there shall be no physical partition of
the Common Area or any part thereof, nor shall any person
acquiring any interest in the Property or any part thereof
seek any such judicial partition until the happening of the
conditions set forth in Section 4 of this Article in the case
of damage or destruction, or unless the Properties have been
removed from the provisions of this Declaration.
Section 3. Disbursement of Proceeds. Proceeds
of insurance policies shall be disbursed as follows:
(a) If the damage or destruction for which the
proceeds are paid is to be repaired or reconstructed, the
proceeds, or such portion thereof as may be required for such
purpose, shall be disbursed in payment of such repairs or
reconstruction, as hereinafter provided. Any proceeds
remaining after defraying such costs of repairs or
reconstruction to the Common Area, or in the event no repair
or reconstruction is made after making such settlement as is
necessary and appropriate with the affected owner or owners
and their mortgagee(s), as their interests may appear, if any
Residential Lot is involved, shall be retained by and for the
benefit of the Association. This is a covenant for the
benefit of any mortgagee of a Residential Lot and may be
enforced by such mortgagee.
(b) If it is determined, as provided for in
Section 4 of this Article, that the damage or destruction to
-6-
BOON 447 PAGE 76
•
the Common Area for which the proceeds are paid shall not be
repaired or reconstructed, such proceeds shall be disbursed in
the manner as provided for excess proceeds in Section 3(a)
hereof.
Section 4. Damage and Destruction.
(a) Immediately after the damage or
destruction by fire or other casualty to all or any part of
the Property covered by insurance written in the name of the
Association, the Board of Directors or its duly authorized
agent shall proceed with the filing and adjustment of all
claims arising under such insurance and obtain reliable and
detailed estimates of the cost of repair or reconstruction of
the damaged or destroyed property. Repair or reconstruction,
as used in this paragraph, means repairing or restoring the
property to substantially the same condition in which it
existed prior to the fire or other casualty.
(b) Any damage or destruction to the Common
Area shall be repaired or reconstructed unless at least
seventy -five (75%) percent of the total vote of the
Association shall decide within sixty (60) days after the
casualty not to repair or reconstruct. If for any reason
either the amount of the insurance proceeds to be paid as a
result of such damage or destruction, or reliable and detailed
estimates of the cost of repair or reconstruction, or both,
are not made available to the Association within said period,
then the period shall be extended until such information shall
be made available; provided, however, that such extension
shall not exceed sixty (60) days. No mortgagee shall have the
right to participate in the determination of whether the
Common Area damage or destruction shall be repaired or
reconstructed.
(c) In the event that it should be determined
by the Association in the manner described above that the
damage or destruction of the Common Area shall not be repaired
or reconstructed and no alternative improvements are
authorized, then and in that event the property shall 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.
Section 5. Repair and Reconstruction. If the
damage or destruction for which the insurance proceeds are
paid is to be repaired or reconstructed and such proceeds are
not sufficient to defray the.cost thereof, the Board of
Directors shall, without the necessity of a vote of the
Association's members, levy a special assessment against all
owners in proportion to the number of Residential Lots owned
by such owners. Additional assessments may be made in like
manner at any time during or following the completion of any
repair or reconstruction. If the funds available from
-7-
BOOK 447 PAGE 77
ti
Association's members, levy a special assessment against all
owners in proportion to the number of Residential Lots owned
by such owners. Additional assessments may be made in like
manner at any time during or following the completion of any
repair or reconstruction. If the funds available from
insurance exceed the cost of repair, such excess shall be
deposited to the benefit of the Association.
ARTICLE VI
Condemnation
Whenever all or any part of the Common Area shall be
taken (or conveyed in lieu of and under threat of condemnation
by the Board, acting on its behalf or on the written direction
of all Owners of Residential Lots subject to the taking, if
any) by any authority having the power of condemnation or
eminent domain, each owner shall be entitled to notice thereof
and to participate in the proceedings, incident thereto,
unless otherwise prohibited by law. The award made for such
taking shall be payable to the Association, as Trustee for all
owners, to be disbursed as follows:
If the taking involves a portion of the Common Area
on which improvements have been constructed, then, unless
within sixty (60) days after such taking at least seventy -five
percent (75%) of the voting members of the Association shall
otherwise agree, the Association shall restore or replace such
improvements so taken on the reamining land included in the
Common Area, to the extent lands are available therefore, in
accordance with plans approved by the Board of Directors of
the Association. If such improvements are to be repaired or
restored, the above provisions in Article V hereof regarding
the disbursement of funds in respect to casualty damage or
destruction which is to be repaired shall 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 shall
be disbursed to the Association and used for such purposes as
the Board of Directors of the Association shall determine,
1 including, as the case may be, ultimate disbursement to the
d owners.
ARTICLE VII
Rights and Obligations of the Association
Section 1. The Common Area. The Association,
subject to the rights of the owners set forth in this
Declaration, shall be responsible for the exclusive management
and control of the Common Area and all improvements thereon
(including furnishings and equipment related thereto), and
shall keep it in good, clean, attractive, and sanitary
-8-
ROM 447 PAGE 78
condition, order, and repair, pursuant to the terms and
conditions hereof.
Section 2. Personal Property and Real Property
for Common Use. The Association, through action of its Board
of Directors, may acquire, hold, and dispose of tangible and
intangible personal property and real property.
Section 3. Rules and Regulations. The
Association, through its Board of Directors, may make and
enforce reasonable rules and regulations governing the use of
the Properties, which rules and regulations shall be
consistent with the rights and duties established by this
Declaration. Sanctions may include reasonable monetary fines
which shall constitute a lien upon the owner's Residential Lot
and suspension of the right to vote and the right to use the
Common Area. In addition, the Board shall have the power to
seek relief in any court for violations or to abate
unreasonable disturbances.
Section 4. Implied Rights. The Association may
exercise any right or privilege given to it expressly by this
Declaration or the By -Laws, and every other right or privilege
reasonably to be implied from the existence of any right or
privilege given to it herein or reasonably necessary to effec-
tuate any such right or privilege.
ARTICLE VIII
Assessments
Section 1. Creation of General Assessment.
There are hereby created assessments for Common Expenses as
may be from time to time specifically authorized by the Board
of Directors. General Assessments shall be allocated equally
among all Residential Lots within the Association and shall be
for expenses determined by the Board to be for the benefit of
the Association as a whole. Each owner, by acceptance of his
or her deed, is deemed to covenant and agree to pay these
assessments. All such assessments, together with interest at
the highest rate in the circumstances allowable under the laws
I of Colorado, costs, and reasonable attorney's fees shall be a
charge on the land and shall be a continuing lien upon the
i Residential Lot against which each assessment is made.
Each such assessment, together with interest, costs,
and reasonable attorney's fees, shall also be the personal
obligation of the person who was the owner of such Residential
Lot at the time the assessment arose, and his or her grantee
shall be jointly and severally liable for such portion thereof
as may be due and payable at the time of conveyance, except no
first mortgagee who obtains title to a Residential Lot
pursuant to the remedies provided in the mortgage shall be
-9-
I
'BOOK 447 PAGE 79
• liable for unpaid assessments which accrued prior to such
acquisition of title.
Assessments shall be paid in such manner and on such
dates as may be fixed by the Board of Directors.
Section 2. ••Computation of Assessment. If the
Association incurs ongoing Common Expenses, the Board shall
prepare an annual budget, and the following provisions shall
apply:
It shall be the duty of the Board at least
thirty (30) days prior to the meeting at which the budget
shall be presented to the membership to prepare a budget
covering the estimated costs of operating the Association
during the coming year. The budget shall include a capital
contribution establishing a reserve fund, in accordance with a
capital budget separately prepared. The Board shall cause a
copy of the budget, and the amount of the assessments to be
levied against each Residential Lot for the following year, to
be delivered to each owner at least fifteen (15) days prior to
the meeting. The budget and the assessments shall become
effective unless disapproved at the meeting by a vote of at
least a majority of the total Association membership or
otherwise modified by a majority vote.
Section 3. Special Assessments. In addition to
the assessments authorized in Section 1, the Association may
levy a Special Assessment for the purpose of defraying any
costs incurred by the Association through its Board pursuant
to the provisions of this Declaration, which was not included
in the annual budget from which the general assessment was
levied.
Section 4. Lien for Assessments. All such
assessments shall constitute a lien on each Residential Lot
and Parcel prior and superior to all other liens, except (1)
all taxes, bonds, assessments, and other levies which, by law,
would be superior thereto, and (2) the lien or charge of any
first mortgage of record (meaning any recorded mortgage or
deed of trust with first priority over other mortgages or
deeds of trust) made in good faith and for value.
The Association, acting on behalf of the
owners, shall have the power to bid for the Residential Lot at
foreclosure sale, and to acquire and hold, lease, mortgage,
and convey the same. During the period owned by the
Association following foreclosure: (1) no right to vote shall
be exercised on its behalf; (2) no assessment shall be
assessed or levied on it; and (3) each other Residential Lot
shall be charged, in addition to its usual assessment, its
equal pro rata share of the assessment that would have been
charged such Residential Lot had it not been acquired by the
Association as a result of foreclosure.
-10-
gam 447 rAsE 80
Suit to recover a money judgment for unpaid
common expenses, rent, and attorneys' fees shall be
maintainable without foreclosing or waiving the lien securing
the same.
Section 5. Capital Budget and Contribution. The
Board of Directors shall annually prepare a capital budget
which shall take into account the number and nature of
replaceable assets, the expected life of each asset, and the
expected repair or replacement cost. The Board shall set the
required capital contribution, if any, in an amount sufficient
to permit meeting the projected capital needs of the
Association, as shown on the capital budget, with respect both
to amount and timing by annual assessments over the period of
the budget. The capital contribution required shall be fixed
by the Board and included within the budget and assessment, as
provided in Section 2 of this Article. A copy of the capital
budget shall be distributed to each member in the same manner
as the operating budget.
ARTICLE IX
Architectural Standards
All property which is now or may hereafter be
subjected to this Declaration is subject to architectural and
environmental review. This review shall be in accordance with
this Article and such standards as may be promulgated by the
Board. The Board of Directors shall have the authority and
standing on behalf of the Association to enforce in courts or
competent jurisdictions any violation of the architectural
standards promulgated by the Board.
Section 1. New Construction. The Board shall
promulgate Architectural and Environmental Standards and
Application Procedures. It shall make these available to
owners, builders, and developers who seek to engage in
development of or construction upon all or any portion of the
Properties and shall conduct its operations in accordance
therewith.
Section 2. Modifications. The Board shall have
exclusive jurisdiction over modifications, additions, or
alterations made on or to any building or landscaping
improvements from time to time installed on any Residential
Lot. The Board shall promulgate detailed standards and
procedures governing its area of responsibility and practice
in respect of modifications. In addition thereto, the
following shall apply: plans and specifications showing the
nature, kind, shape, color, size, materials and location of
such modifications, additions, or alterations shall be
submitted to the Board for approval as to quality of
workmanship and design and harmony of external design with
-11-
tea( 447 PAVE 81
existing structures and as to location in relation to
surrounding structures, topography, and finish grade
elevation. Nothing contained herein shall be construed to
limit the right of an owner to remodel the interior of his
residence or to paint the interior of his residence any color
desired. In the event the Board fails to approve or to
disapprove such plans or to request additional information
reasonably required within forty -five (45) days after
submission, the plans shall be deemed approved.
ARTICLE X
Use Restrictions
The Properties shall be used only for residential,
recreational, and related purposes as may more particularly be
set forth in this Declaration, or any amendments hereto. The
Association, acting through the Board of Directors, shall have
standing and the power to enforce use restrictions contained
in any such declaration as if such provision were a regulation
of the Association.
ARTICLE XI
Mortgagee Provisions
The following provisions apply to the Properties,
and none may be amended without the consent of at least
two - thirds (2/3) of the first mortgagees:
Section 1. Consent of Lenders Required. Unless
! two - thirds (2/3) of the institutional holders of first
mortgages within the Properties have given their prior
approval, the Association shall not be entitled to:
(a) by act or omission seek to abandon,
alienate, release, partition, hypothecate, subdivide, enumber,
sell, or transfer any common area owned, directly or
indirectly, by the Association for the benefit of the
Residentail Lots; provided, however, the granting of easements
for public utilities or for other public purposes consistent
with the intended use of such Common Area shall not be deemed
a transfer within the meaning of this clause;
(b) change the method of determining the
obligations, assessments, dues, or other charges which may be
levied against an owner;
(c) by act or omission change, waive, or
abandon the system of regulations and enforcement established
in this Declaration for architectural design or the exteriof
appearance and maintenance of Residential Lots, and the
maintenance of the Common Area in the Properties; or
-12-
`eat 447 PAtE
(d) use hazard insurance proceeds for losses to
any Common Area for other than the repair, replcement, or
reconstruction of such Common Area.
Section 2. Payment of Taxes. First mortgagees
of Residential Lots or parcels may, jointly or singly, pay
taxes or other charges which are in default and which may or
have become a charge against any Common Area and may pay
overdue premiums on hazard insurance policies or secure new
hazard insurance coverage on the lapse of a policy for such
Common Area. First mortgagees making such payments shall be
owed immediate reimbursement therefor from the Association.
Section 3. No Priority. No provision of this
Declaration gives or shall be construed as giving any owner or
any other party priority over any rights of the first
mortgagee of a Residential Lot pursuant to its mortgage in the
case of a distribution to such owner of insurance proceeds or
condemnation awards for losses to or a taking of Common Area.
Section 4. Notice to Mortgagee. Notwithstanding
anything contained herein which might otherwise be construed
to the contrary, a first mortgagee, upon request designating
such unit, will be entitled to written notification from the
Association of any default in the performance by any owner of
a Residential Lot or parcel in hich such mortgagee has an
interest of any obligation under this Declaration which is not
cured within sixty (60) days.
Section 5. Manaqemeht Agreement Limitations.
Notwithstanding anything contained herein which might
otherwise be construed to the contrary, any agreement for
professional management of the Common Area, or any other
agreement providing for services by others in respect of the
functions and responsibility of the Association herein may not
exceed one (1) year and must provide for termination by either
party without cause and without payment of a termination fee
on thirty (30) days or fewer written notice.
ARTICLE XII
• General Provisions
Section 1. Term. The covenants and restrictions
of this Declaration shall run with•and bind the Properties,
and shall inure to the benefit of and shall be enforceable by
the Association or the owner of any property subject to this
Delcaration, their respective legal representatives, heirs,
successors and assigns.
Section 2. Amendment. This Declaration may be
amended only by the affirmat ive vote (in person or by proxy)
or written consent of members representing a majority of the
total voting power of the Association, together with any
-13-
BOOK 447 PAGE 83
required affirmative approval of first mortgagors as
hereinabove provided in Article XI. Any amendment must be
recorded among the land records of Pitkin County, Colorado.
Section 3. Indemnification. The Association
shall indemnify every every officer and director against any
and all expenses; including counsel fees, reasonably incurred
by or imposed upon any officer of director in connection with
any action, suit or other proceeding (including settlement of
any suit or proceeding, if approved by the then Board of
Directors) to which he or she may be a party by reason of
being or having been an officer or director. The officers and
directors shall not be liable for any mistake of judgment,
negligent or otherwise, except for their own individual
willful misfeasance, malfeasance, misconduct or bad faith.
The officers and directors shall have no personal liability
with respect to any contract or other commitment made by them,
in good faith, on behalf of the Association (except to the
extent that such officers or directors be also members of the
Association), and the Association shall indemnify and forever
hold each such officer and director free and harmless against
any and all liability to others on account of any such
contract or commitment. Any right to indemnification provided
for herein shall not be exclusive of any other rights to which
any officer or director, or former officer or director, may be
entitled. The Association shall, as a common expense,
maintain adequate general liability and officers' and
directors' liability insurance to fund this obligation.
Section 4. Delegation of Use. Any owner may
delegate, in accordance with the By -Laws, Rules and
Regulations of the Association, his or her right of enjoyment
to the Common Area and facilitie to the members of his or her
family, tenants, and social invitees.
Section 5. Owner's Right to Ingress, Egress, and
Support. Each owner shall have the right to ingress and
egress over, upon, and across the Common Area necessary for
access to his or her Residential Lot and shall have the right
to lateral support for his or her Residential Lot, and such
rights shall be appurtenant to and pass with the title to each
Residential Lot.
Section 6. Easements of Encroachment. There
shall be and hereby are granted reciprocal appurtenant
easements of encroachment as between each Residential Lot and
such portion or portions of the Common Area adjacent thereto
to the extent any such easements may be necessary to maintain
any improvements to the Property at the time hereof existing
in their present configuration and proximity.
Section 7. Easements for Utilities, Etc. There
is hereby reserved the power to grant blanket easements upon,
across, over, and under all of the property for ingress,
-14-
BON 447 PAGE 84
egress, installation, replacing, repairing, and maintaining
master television antenna systems, security, and similar
systems, and all utilities, including, but not limited to,
water, sewers, telephones, and electricity. By virtue of any
such easement, it shall be expressly permissible for the
providing utility company or other supplier or servicer to
erect and maintain the necessary pies and other equipment on
said property and to affix and maintain utility wires,
circuits, and conduits on, above, across, and under the roofs
and exterior walls of any building improvmeents upon the
Residential Lots. Notwithstanding anything to the contrary
contained in this paragraph, no sewers, electrical lines,
water lines, or other utilities may be installed or relocated
on the property, except as may be approved by the
Association's Board of Directors. Should any entity
furnishing a service covered by the general easement herein
provided request a specific easement by separate recordable
document, the Board of Directors shall have the right to grant
such easement on said property without conflicting with the
terms hereof. The easements provided for in this Article
shall in no way adversely affect any other recorded easement
on the Properties.
Section 8. Pets. No animals, livestock, or
poultry of any kind shall be raised, bred, or kept on the
Properties, except that no more than a total of two (2) normal
household pets may be kept within Residential Lots, subject to
rules and regulations adopted by the Association through its
Board of Directors, provided that such pets are not kept,
bred, or maintained for any commercial purpose. Subject to
such Rules and Regulations that it may adopt, or from time to
time amend, the Board shall have the absolute power to
prohibit pets from being kept on the Properties.
Section 9. Severability. Invalidation of any
one 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.
Section 10. Perpetuities. If any of the
covenants, conditions, restrictions, or other provisions of
this Declaration shall be unlawful, void, or voidable for
violation of the rule against perpetuities, then such
provisions shall continue only until twenty -one (21) years
after the death of the longest lived member of the presently
constituted City Council of the City of Aspen, Colorado.
Section 11. Renting or Leasing. Homes
constructed upon the Residential Lots may be rented,or leased
only by written leases and subject to the following
restrictions:
-15-
Boor 447 PAGE 85
• i
Minimum Terms. Homes shall be restricted to
minimum six -month lease terms with no more than two shorter
tenancies per year.
Lessee to Comply With Declaration and By -Laws
-- Effect of Non - Compliance. All tenants shall be subject to
the terms and conditions of this Declaration, the By -Laws of
the Association, the Articles of Incorporation, and the rules
and regulations from time to time promulgated thereunder by
the Board of the Association.
Each owner agrees to cause his lessee,
occupant, or persons living with such owner or with his lessee
to comply with the Declaration, By -Laws, and the rules and
regulations promulgated thereunder, and is responsible and
liable for all violations and losses caused by such tenants or
occupants, notwithstanding the fact that such occupants are,
as well, fully liable for any violation of the documents and
regulations; failure to comply shall be, at the Board's
option, considered a default in the lease.
In the event that a lessee, occupant, or person
living with the lessee violates a provision of the
Declaration, By -Laws, or rules and regulations adopted
pursuant thereto, the Board shall have the power to bring an
action or suit against the lessee to recover sums due for
damages or injunctive relief, or for any other remedy
available at law or equity, incluidng, but not limited to, all
remedies available to a landlord upon the breach or default of
the lease agreement by the lessee.
The Board shall also have the power to impose
reasonable fines upon the lessee for any violation by the
lessee, occupant, or person living with the lessee of any duty
imposed under the Declaration, By -Laws, or rules and regula-
tions adopted pursuant thereto, and to suspend the right of
the lessee, occupant, or person living with the lessee to use
the Common Area.
IN WITNESS WHEREOF, the undersigned Declarant has
executed this Declaration this day of
1983.
PITRIN LTD., a Colorado
corporation
ATTEST:
By
, President
Secretary
(Notarial Clause on Page 17)
-16-
. BOON 447 PAGE 86
STATE OF COLORADO )
ss.
COUNTY OF PITKIN
The foregoing instrument was acknowledged before me
this day of , 1983, by
, as President and
as Secretary of Pitkin Ltd., a Colorado corporation,
WITNESS my hand and official seal.
My commission expires:
My address is:
(SEAL)
Notary Public
•
-17-
sooK 447 p 8 7
LAND VALUATION AND
PARK DEDICATION FEE CALCULATION
(calculated to the nearest 0.5 acre)
In accordance with Section 7 -143 of the Aspen Building Code and
Section 20 -18 of the Aspen Subdivision Code, the cash equiva-
lent for the park dedication fee and its determination for The
Pitkin Reserve Subdivision is as follows:
Purchase Price of Total Parcel $1,250,000.00
(20 acres)
Price Per Acre 20 71,428.60
Value of 7 -Acre Development
Parcel x 7 500,000.00
Value Per Unit (12 Units) 9 55,555.56
1% of Land Value Per Unit x.01 555.67
Fee per 4- Bedroom Unit * / 3 1,666.67
Value of 10.5 -acre parcel
dedicated to open space 750,000.00
Difference between cash
equivalent of park dedica-
tion fee (1,666.67 x 9 = $15,000.00)
and value of open space parcel 735,000.00
* * *
* /The park dedication fee for the employee housing units to be
constructed in Lot 10 will be calculated in the same manner
as above set forth and will proceed from the same land
valuation.
EXHIBIT "C" TO AMENDMENT TO PUD AND
SUBDIVISION AGREEMENT FOR THE PITKIN RESERVE
r
2 Id gli it
1 '1°
2°A'
0 A /zj
tw y i /q 4. P.U.D. AND SUBDIVISION AGREEMENT
l L�� FOR I f
PITKIN RESERVE
This P.U.D..apd Subdivis'•n Agreement is made and
entered into thisii of v , 1982, by and
between THE CITY OF ASPEN, COLORADO, a M nicipal Corporation
(hereinafter referred to as "City "), PIT IN LIMITED, a
Colorado corporation (hereinafter referred to as "the Owner "),
1 `i and Aspen Mountain Park, a Colorado general partnership
(hereinafter referred to as "AMP)
4-,� RECITALS
1. The Owner has submitted to the City for
approval, execution and recordation, the final plat and
development plan of a tract of land situate within the City
of Aspen, Colorado, legally described on Exhibit "A" attached
hereto and incorporated herein by this reference, and desig-
nated as "Pitkin Reserve" ( "The Plat "); and
2. The City has caused the annexation of the
real property covered by the Plat to the City of Aspen and
resulting zoning of the property to R -30 /PUD; and
3. The City has fully considered The Plat, the I
proposed development, the improvement of the land and the
burdens to be imposed upon other adjoining or neighboring
properties by reason of the proposed development and improve-
ment of land included in the Plat; and
4. The City is willing to approve, execute and
accep the Plat for recordation upon agreement of the Owner
to t matters herein described, and subject to all of the
requi ements, terms and conditions of the City of Aspen PUD
and subdivision regulations now in effect and other laws,
rules and regulations as are applicable; and
5. The City has imposed certain conditions and
requirements in connection with its approval, execution and
recordation of the Plat, such matters being necessary to
protect, promote, and enhance the public welfare; and
6. The Owner is willing to acknowledge, accept,
abide by and faithfully perform the conditions and require-
ments imposed by the City in approving the Plat; and
7. The submitted plat assumes and anticipates two
distinct developments viz., the one shown on the Plat and
hereinafter described and the other, herein referred to as
the Smuggler Mobile Home Park, which is to be developed by
its owner, AMP, on other real property more particularly
described on Exhibit "B" hereo; and
8. The Owner is the transferee from AMP of the
"free market" development rights to be employed in connection
with Pitkin Reserve, which development rights result from
and, as hereinafter provided, are conditioned upon the
development activity described in the Precise Plan and
Subdivision Agreement for Smuggler Mobile Home Park; and
9. The Owner and AMP acknowledge, understand and
agree that fulfillment of the terms, conditions and require-
ments of the Precise Plan and Subdivision Agreement For
Smuggler Mobile Home Park is a pre- condition to the approvals
of the City herein granted and to the development activity
i herein described; and
10. In recognition of the interrelatedness of the
[ two developments, AMP shall be and has become a party signa-
tory to this Agreement; and
11. Under the authority of Section 20 -16(c) and
24 -8.6 of the Municipal Code of the City of Aspen, Colorado,
the City is entitled to assurance that the matters herein-
after agreed to will be faithfully performed by the Owner;
NOW, THEREFORE,
AGREEMENT
IN CONSIDERATION OF THE PREMISES, the mutual
covenants herein contained, and the approval, execution and
acceptance of the Plat for recordation by the City, it is
mutually agreed as follows:
I .
GENERAL DEVELOPMENT PLAN
The Pitkin Reserve development as shown on the
Plat consists of twenty acres, more or less, and includes
the following elements:
A. Development Parcel. All land to the north of
the Denver and Rio Grande Western ( "D & RGW ") Railroad
Right -of -Way shown on the Plat shall be and constitute the
Development Parcel. The Development Parcel consists of
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7.064 acres, more or less, and shall be owned, improved,
marketed and sold by the Owner or its assigns on the open or
"free market" basis.. Approximately 35% of the Development
Parcel will be used for the construction of not more than
twelve residential free - market housing units and one detached
deed restricted employee housing unit. The following features
shall further define and describe the Development Parcel:
(1) Free Market Development -- Lots 1 -12.
The Development Parcel shall contain not more than twelve
separately designated fee simple lots, each consisting of
the land under and in the immediate vicinity of the twelve
homes to be constructed thereon, which shall be paired in
duplex fashion with a party wall straddling a common boundary
line creating a zero lotline. Each such lot shall be deemed
augmented in size by an undivided one - twelfth (1/12) interest
in the common area component of the Development Parcel
described below. Prior to its conveyance by the Owner to any
third party, each unit shall be deed or covenant restricted
to six (6) month minimum lease terms with no more than two
(2) shorter tenancies per year, and the document of conveyance
of any such unit shall expressly recite that the unit is so
restricted to six (6) month miniumum lease terms with no
more than two (2) shorter tenancies per year.
(2) Employee Housing. Within the common
area component of the Development Parcel described below,
one (1) employee housing unit shall be constructed, the use
and occupancy of which shall be restricted, as hereinbelow
provided, by a covenant that runs with the land to a resident
caretaker - employee for and of the owners (or a collective
association thereof) of the free - market units. The caretaker -em-
ployee may be charged a monthly rental (which may be offset
against salary) not to exceed employee "middle income"
guideines applicable at the time hereof. The employee
housing unit may also include storage facilities for maintenance
equipment and the like.
(3) Common Area -- Lot 13. Approximately
65% of the Development Parcel shall consist of commonly
owned area, which shall be owned by the owners of Lots 1 -12
as a non - partitionable undivided appurtenance to their lots.
The common area shall be managed and maintained as provided
in Section VIII, paragraph C, below.
(4) Site Data Tabulations. The Development
Summary and Site Data Tabulations hereto annexed as Exhibit
"C" and incorporated by reference herein defines and describes
further and more specific allocation of the uses anticipated
within the Development Parcel.
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B. Public Open Space -- Lot 14. Approximately
13 acres, more or less, consisting of all acreage within the
Pitkin Reserve Subdivision to the south of the D & RGW
Railroad Right -of -Way shown on the Plat, has been forever
restricted to its present natural state as open space to the
I exclusion of any improvements of whatsoever nature or kind,
I with the exception of non - vehicular paths and trails and
underground public improvements. Ownership of such open
space shall be in Pitkin County, Colorado; provided, however,
and always, that the benefit of the above - described open
space restriction and dedication shall be specifically
enforceable by (1) the City and /or (2) the Owner, its successors,
and assigns, including the owners (or an association
thereof) of Lots 1 -12 within the Development Parcel.
II
INTERRELATION OF PITKIN RESERVE AND
SMUGGLER MOBILE HOME PARK
A. Development Assumptions. As hereinabove
recited, the submitted Plat assumes and anticipates two
distinct developments -- viz., the one shown on the Plat and
herein described, and the other to occur on real property
more particularly described on Exhibit "B" hereto. The
other development -- the Smuggler Mobile Home Park, which is
being developed by its owner, AMP contemplates (a) the
conversion of some eighty -seven units from existing uncon-
trolled housing to housing that shall be deed or covenant
restricted in terms of rental and resale price controls in a
manner consistent with the provisions of the Aspen Municipal
Code in such cases made for the preservation of employee
housing; and (b) the construction of seventeen new housing
units that shall be deed or covenant restricted in accordance
with the provisions of the Aspen Municipal Code in such
cases made to induce the construction of employee housing,
all to the end and extent that in respect of these provisions
and development including, for purposes hereof, the em-
ployee- caretaker unit described in subsection A(2) above,
allowance is made for exceptions to or exemptions from the
growth management quota system of Article XI, Section 24 of
the Aspen Municipal Code. Although the review process for
each development has occurred independently of the other,
each development having been reviewed on its own merits, for
purposes of such exceptions to or exemptions from the growth
management quota system, it is agreed and understood that
the two developments shall be considered together as an
integrated whole.
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B. Interrelatedness of Improvements. In view of
the dual ownership, nature and situs of the developments,
and in consideration of governmental approvals given in
connection with each, it is (a) acknowledged that the performance
of the respective obligations of the Owner relative to
Pitkin Reserve and of AMP relative to the Smuggler Mobile
Home Park are mutually dependent upon one another and the
performance thereof shall be and remain conditions to the
obligations, agreements and approvals of the City herein
made or given or made or given in respect of any development
activities at the Smuggler Mobile Home Park; and (b) agreed
that (i) provision shall be made in a separate Precise Plan
and Subdivision Agreement to which both AMP and the Owner
shall become party signatories, for the construction, installa-
tion and erection of improvements within or upon the Smuggler
Mobile Home Park; and notwithstanding the foregoing that
(ii) as hereinafter used "Improvements" shall be deemed to
refer only to the improvements, facilities and systems to be
constructed, erected or installed within or upon the property
shown on the Plat and described in Exhibit "A ", hereto.
C. Development Allotments. The City acknowleges
and agrees that the conversion of the eighty -seven (87)
mobile home units at the Smuggler Mobile Home Park to res-
tricted housing units and the construction of seventeen (17)
new mobile homes at the Smuggler Mobile Home Park, which
conversion and construction will proceed and shall result in
restricted housing in the manner more particularly set forth
in the Precise Plan and Subdivision Agreement for Smuggler
Mobile Home Park, which plan and agreement is incorporated
by reference herein, shall and pursuant to the exception
provisions to the allotment procedures of the growth management
quota system set forth in Sections 24- 11.2(i) and (k) does
result in the exception from compliance with the allotment
procedures of the growth management quota system of development
activity consisting of not less than nineteen (19) otherwise
non - exempt free - market housing units, twelve (12) of which
are to be employed in connection with this Pitkin Reserve
development; k)rovided, however, that the Owner acknowledges
that a certificate(s) of occupancy on the free market units
contemplated herein, for Pitkin Reserve or any other free
market development rights resulting from such exceptions to
the growth management quota system shall not issue until the
City is satisfied that the terms, conditions and requirements
set forth in the Precise Plan And Subdivision Agreement For
Smuggler Mobile Home Park, hereinabove referenced, are
fulfilled or adequate provision for their fulfillment made.
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III.
EMPLOYEE HOUSING DEDICATION AND RESTRICTION
The Owner hereby covenants with the City that the
employee unit described above in Section I, paragraph A(2)
shall be restricted in terms of its use and occupancy to a
resident caretaker - employee for and of the Owner of Lots
1 -12 (or a collective association thereof), to whom a monthly
rental (which may be offset against salary) may be charged
not to exceed "middle income" guidelines from time to time
established by the City. in the event the owners of Lots
1 -12 (or a collective association thereof) shall determine
not to employ a resident caretaker - employee, as above provided,
they (or it) shall have the right to lease the unit to an
individual(s) who shall otherwise meet the income and occupancy
eligibility requirements generally established and applied
by the City in respect of employee housing and who may be
charged a rent not in excess of "middle income" guidelines
from time to time established by the City, the proceeds of
which shall be used to defray common maintenance and related
costs associated with Lot 13. The foregoing covenant shall
be deemed to run with Lot 13 as a burden thereto for the
benefit of and shall be specifically enforceable by the City
by any appropriate legal action including injunction, abatement,
eviction or rescission of any non - complying tenancy, for the
period of the life of the longest lived member of the presently
existing City Council of the City of Aspen, Colorado, plus
twenty -one (21) years, or for a period of fifty (50) years
from the date of recording hereof in the Pitkin County,
Colorado real property records, whichever period shall be
less.
IV.
CONSTRUCTION OF IMPROVEMENTS
A. Nature and Estimated Costs of Improvements.
Owner hereby agrees to be responsible for the making and
installation of the improvements to be contained within the
development indicated on the Plat, to the extent required by
Section 20 -16(a) of the Municipal Code. The nature, extent
and estimated cost of such improvements shall substantially
conform to the schedule entitled "Pitkin Reserve Improvements
Schedule" annexed hereto and made a part hereof as Exhibit
B. Construction Schedule. In accordance with
the requirements of Section 20- 16(c)(1) and 24- 8.9(b) of the
Municipal Code, construction of all development improvements
shall substantially conform to the "Development and Construction
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Schedule" annexed hereto and made a part hereof as Exhibit
"E ", except to the extent of amendment thereto in the manner
set forth in Section V, below, which schedule includes the
dates anticipated for the beginning and completion of the
improvements. The Owner further agrees that (1) no under -
grounding of any utilities will occur between November 1 and
April 15 of any year; and (2) it will in all events employ
its reasonable best efforts toward the completion of construction
of the improvements by the earliest time in all the circumstances
attainable.
C. Landscaping Plan. In accordance with Section
24 -8.16 of the Municipal Code, all landscaping shall substan-
1 tially conform to the "Landscape /Unit Plan" annexed to the
Plat and incorporated herein by reference, and to the "Landscape
1 Concept" described in Exhibit "F" hereto attached, which
1 together show the extent and location of all plant materials
I and other landscape features, flower and shrub bed definition,
proposed plant material at mature sizes in appropriate
I relation to scale, species and size of existing plant material,
proposed treatment of all ground surfaces (e.q., paving,
turf, gravel, etc.), location of water outlets, and a plant
material schedule with common and botanical names, sizes,
quantities, and methods of transplant. Landscaping will be
I completed in a logical phasing sequence commensurate with
the phasing of the improvements contemplated in the Development
and Construction Schedule. Additionally, and in lieu of any
bond to insure the installation, maintenance and replacement
of all landscaping, as the City otherwise would have the
right to require pursuant to Section 24 -8.16 of the Municipal
Code, the City and the Owner agree and acknowledge that no
certificate(s) of occupancy for the free market units contem-
plated herein for Pitkin Reserve shall issue unless the City
is satisfied that all such landscaping is installed, or
adequate provision made for its installation, and adequate
provision is made for the maintenance and replacement of such
landscaping for the two (2) year period succeeding its
installation.
D. Willoughby Way. The Owner shall assume and be
responsible for the repair, replacement and restoration of
and to Willoughby Way due to any damage or injury thereto
caused as a result of construction activities associated
with the Pitkin Reserve development.
E. Utilities Underground. All utility systems to
serve and crossing the Pitkin Reserve Development Parcel
shall be placed underground.
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V.
NON- COMPLIANCE AND REQUEST FOR AMENDMENTS
OR EXTENSIONS BY OWNER
In the event that the City determines that the
Owner is not acting in substantial compliance with the terms
of this agreemnt, the City may issue and serve upon the
Owner written order specifying the alleged non - compliance
and requiring the Owner to cease and desist from such
non - compliance and rectify the same within such reasonable
time as the City may determine and specify in such order.
Within twenty (20) days of the receipt of such order, the
Owner may file with the City a notice advising the City that
it is in compliance or a written petition requesting a
hearing to determine any one or both of the following matters:
(a) whether the alleged non - compliance exists or
did exist; or,
(b) whether a variance, extension of time or
amendment to this agreement shall be granted with respect to
any such non - compliance which is determined to exist.
Upon the receipt of such petition, the City shall
promptly schedule a hearing to consider the matters set
forth in the cease and desist order and in the petition.
The hearing shall be convened and conducted pursuant to the
procedures normally established by the City for other hearings.
If the City determines by a preponderance of the evidence
that a non - compliance exists which has not been remedied, it
may issue such compliance orders as may be appropriate;
provided, however, no order terminating any approval granted
herein shall be granted without a written finding of the
City that clear and convincing evidence warrants such action
and affording the Owner a reasonable time to remedy such
non - compliance. A final determination of non - compliance
which has not been remedied or for which no variance has
been granted shall, at the option of the City, and upon
written notice to the Owner terminate any of the approvals
contained herein.
In addition to the foregoing, the Owner may, on
its own initiative, at any time petition the City for an
amendment to this agreement and the exhibits annexed hereto
or to extend any of the time periods required for performance.
With respect to the Pitkin Reserve Improvements Schedule
(Exhibit D), and the Development and Construction Schedule
(Exhibit E), the Owner has made various assumptions, which
the City hereby acknowledges and accepts, including the
following:
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(1) Completion in an expeditious manner of
the bidding, contractor selection, and implementation phases
to meet the dates indicated;
(2) Confirmation of the construction schedule
by selected contractors;
(3) Availability of the required labor and
materials during each phase.
(4) Sale of residences at a rate that would
permit the phasing suggested in the Development and Construction
Schedule.
The City shall not refuse to extend the time
periods for performance indicated in the Development and
Construction Schedule or refuse to allow reasonable adjustments
to the Schedule if the Owner demonstrates by a preponderance
of the evidence that the reasons for such extension or said
adjustments result from the failure of such assumptions by
reason of events beyond the control of the Owner or are
otherwise beyond the control of the Owner despite good faith
efforts on its part to accomplish the same.
As is set forth below, the foregoing procedures
relative to non - compliance, amendments or extensions shall
not apply in respect of (a) the rights of the City pursuant
to the Financial Assurances of the Owner described in Section XI,
below; or (b) the rights of the City in the event of a
failure to maintain common facilities, which rights are more
particularly described in Section VIII, paragraph C, below.
VI.
EASEMENTS, RIGHTS OF WAY, AND RELOCATIONS
The attached Plat sets forth certain easements,
rights of way, and anticipated relocations that will be
necessary to cause the improvements anticipated thereon,
which easements, rights of way and relocations include the
following:
A. Connecting Pedestrian Trail Easement. As
shown on the Plat, the Owner hereby dedicates to the City a
twelve -foot (12') pedestrian trail easement within and upon
the twenty -foot (20') service road easement also shown on
the Plat and described below for use by the pedestrian
public as a connecting link between the "Rio Grande Horse
and Bicycle Trail" and Willoughby Way.
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B. Relocation of Railroad Right of Way. As
shown and indicated on the Plat, Pitkin County, Colorado,
the owner of the D & R G W Railroad Right of Way, and the
Owner have agreed to the exchange of deeds in order to
effect a relocation of the right of way to the configuration
and meander actually shown on the Plat. The Plat and this
Agreement are subject to and conditioned upon the consumma-
tion of the exchange and the recording of the resulting
exchange deeds. In connection with the relocation of the
right of way and development activities associated with the
Pitkin Reserve project, the Owner covenants and agrees that:
(1) Relocation and development shall be done
in a manner not inconsistent with the use at any time in the
future of the relocated right of way for railroad purposes;
(2) In the event that any portion of the
existing "Rio Grande Horse and Bicycle Trail" which now lies
within the present meander of the railroad right of way is
damaged or requires relocation as a result of the development
activities herein contemplated or relocation of the railroad
right of way, it will, at its expense and as promptly as in
the circumstances can be done, repair such damage and effect
the relocation, realignment or restoration of the horse and
bicycle trail; and
(3) It will grant such other and further
easements that may be necessary in order fully to effect the
relocation of the right of way and any appurtenant systems,
including the horse and bicycle trail and proximate utility
systems.
C. Service Road Easement. The owner hereby
dedicates and confirms the twenty -foot (20') service road
easement shown and indicated on the Plat for access, including
by means of motorized maintenance vehicles, to Lot 7, Pitkin
Green Subdivision for the purposes of maintaining the water
wells and equipment thereon situate, and for pedestrian and
motorized access, including by construction and maintenance
vehicles, to the Pitkin Reserve Subdivision, which dedication
and confirmation is made to the extent above - provided for
the benefit of owners of real property within the Pitkin
Green and Pitkin Reserve Subdivisions, their guests, invitees
and licensees.
D. Access Easement. The owner hereby dedicates
and grants unto the owner(s) of Lots one through twelve of
the Pitkin Reserve Subdivision the thirty -foot (30:) access
and utility easement shown and indicated on the Plat for
their sole and exclusive use and enjoyment and that of their
guests, invitees and licensees.
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E. Utilities and Drainage. There is hereby
established and agreed between the City and the Owner neces-
sary easements for the relocation, installation and mainten-
ance of utilities and the establishment and maintenance of
drainage, as such easements may be specifically set forth on
the utility sheets, the utility relocation sheets, and the
drainage sheets as appended to the Plat.
F. Miscellaneous. All easements, rights of way
and relocations as are further shown on the Plat albeit not
specifically herein referred to are hereby established,
granted, dedicated and confirmed by the Owner and authorized
and approved by the City.
VII.
OTHER DEDICATIONS
In accordance with Section 20 -18 of the Aspen
Municipal Code the following exemptions and dedications
apply:
A. Exemption. There are no exemptions from the
application of Section 20 -18 of the Aspen Municipal Code
that apply in respect of the development activity contemplated
for Pitkin Reserve. In the event the Owner hereafter agrees
to deed restrict the employee housing unit to be installed
on Lot 13 to low or moderate income and occupancy eligibility
guidelines, the City agrees at that time, and upon the
recording in the Pitkin County real property records of such
a restriction, to exempt the employee housing unit from the
application of Section 20 -18 of the Aspen Municipal Code.
B. Land Dedication. In respect of the free - market
development to occur on and within Lots 1 -12 and the employee
housing unit to be installed on Lot 13, the City hereby (1)
accepts the dedication of Lot 14 in the manner and upon the
terms and conditions set forth in Section I, Paragraph B,
above, in lieu of the cash payment referred to in Section
20 -18 of the Aspen Municipal Code; (2) confirms as accurate
and accepts the valuation of Lot 14 and the calculation of
the Park Dedication Fee based thereupon set forth in the
Land Valuation and Park Dedication Fee calculation attached
hereto as Exhibit "G "; and (3) agrees that the value of Lot
14 as such is sufficient at least to meet the requirements
of Section 20 -18, aforesaid concerning the requirement of
the dedication.
VIII.
OPEN SPACE AND COMMON AREA
MANAGEMENT, MAINTENANCE AND USE
A. General. The plat consists of certain parcels
that include open space dedicated for the benefit, inter
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alia, of the City and a common area that envelopes the
separately designated fee simple lots. Respective responsi-
bilities, limitations, covenants and agreements regarding
the management, maintenance and use of the open space and
common area parcels include the following:
B. Publicly Owned Open Space -- Lot 14. Lot 14
shall be owned by Pitkin County, Colorado and, as such shall
be managed and maintained permanently and entirely by Pitkin
County within such framework as it may establish but which
shall not be inconsistent with the open space purposes in
perpetuity for which the land was dedicated as above set
forth, and in this respect reference is specifically made to
the rights of the City therein, as described in Section I,
paragraph B, above.
C. Common Area -- Lot 13. Lot 13 shall in its
entirety be owned in common by the owners of Lots 1 -12, the
owner(s) of each lot to own an undivided interest therein as
a non - severable appurtenance to his or her lot. As indicated
elsewhere herein and upon the Plat, Lot 13 will be improved
with an employee- caretaker unit of approximately 800 square
feet of living space, together with approximately 800 square
feet for storage space, will accommodate a thirty foot (30')
easement for access to the lots and for utility purposes and
will support the landscaping plan. Management and maintenance
of Lot 13 shall be the responsibility of a collective home-
owner's association consisting of the owners of Lots 1 -12
and shall by it be undertaken pursuant to such provisions as
shall be set forth in recorded covenants providing for such
policies and procedures governing the use and maintenance of
the common area, including for necessary budgets and financial
reserves to be assessed against association members, and
shall insure permanently the fit and proper maintenance,
repair, replacement and enduring first rate safety and
quality of the entire development, including its landscaped
features, common utility systems and paved areas. Responsi-
bility of the association in this respect may by it be
contractually delegated to a private property management
company or to a salaried employee of the association. The
following shall, as well, apply to the association hereinabove
referred to:
(1) Formation. The association shall be fully
formed and established by the owner prior to the sale of any
lots within the development parcel and pursuant to applicable
statutes governing the formation of Colorado not - for - profit
homeowner's associations;
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(2) Documentation. Operative documents for
the association shall include articles of incorporation, by
laws, and rules and regulations, The City, if it elects,
shall have the right to approve such documents. Additionally,
the association shall be specifically enjoined with the duty
of enforcing such protective covenants as will be recorded
by the Owner for the purpose of preserving the architectural
and aesthetic compatibility of the entire development and
its component features.
(3) Membership Mandatory. Membership in the
association shall be mandatory for each owner of the fee
simple lots (1 -12) and shall be automatic upon the recordation
of any instrument transferring a legal or equitable interest
(excluding standard security interests) in or to any of such
lots.
(4) The homeowners' association shall be
responsible for a blanket liability and hazard insurance
policy with respect to the common areas as well as taxes and
maintenance of any recreational and other facilities;
(5) The homeowners' association shall have the
power to levy assessments which will become a lien on individual
fee simple lots (1 -12) for the purpose of paying the cost of
operating and maintaining common facilities;
(6) The board of managers of such homeowner's
association shall consist of at least five (5) members who
shall be owners of the fee simple lots (1 -12) within the
development.
proposed covenants respecting the management
and maintenance of Lot 13 are attached hereto as Exhibit
"H ". The Owner, however, reserves the right to modify these
covenants after the execution hereof and without the necessity
of involving the amendment procedure hereinabove set forth
in Section V; provided, however, that any modifications
shall not be inconsistent in any respect with the provisions
set forth in subparagraphs (1) through and including (6) of
paragraph C of this Section VIII and shall first be approved
as to legal form and effect by the City Council upon the
advice and recommendation of the City Attorney.
Moreover, in the event the homeowners' association
(or any successor organization) shall at any time fail to
maintain the common area in accordance with such covenants
the procedures and the rights of the City more particularly
described in Section 24- 8.19(b), which is hereby incorporated
by reference as though set forth verbatim herein, shall then
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and thereupon go into effect and apply. The Owner further
acknowledges that the procedure set forth in Section V,
above, pertaining to the procedure for default and amendment
of this agreement shall not be required with respect to the
enforcement and implementation of common facilities maintenance
a set forth and required by Section 24 -8.19 of the Municipal
Code.
D. Building Restrictions. The Owner agrees and
hereby covenants that the number of units that will be built
within the Pitkin Reserve subdivision shall not exceed
twelve (12) free market units plus one (1) employee- caretaker
unit and that all areas shown on the plat as being open
space or common area shall remain perpetually so.
E. Party Wall Declaration. In connection with
the sale of each of the improved free market lots (lots
1 -12) each transferee will be bound to the terms contained
in a Party Wall Declaration, which prior to the sale shall
1 by the Owner be recorded in the Pitkin County, Colorado real
property records so as to constitute a binding servitude
upon each fee simple interest in each lot. The Party Wall
Declaration, a proposed form of which is attached hereto as
Exhibit "I ", shall govern the ownership and maintenance of
the respective party walls wtihin dwelling units constructed
on the lots and of utility and related systems affecting
such units. The Owner, however, reserves the right to
modify the form and content of Exhibit "G" after the execution
hereof and without the necessity of invoking the amendment
procedure hereinabove set forth in Section V; provided,
however, that any modification shall first be approved as to
legal form and effect by the City Council upon the advice
and recommendation of the City Attorney.
IX.
WATER RIGHTS AND AVAILABILITY
Any water rights that may be appurtenant to the
Pitkin Reserve Subdivision have been previously conveyed to
the City in consideration of the agreement of the City to
supply water to the Development Parcel, as is more particularly
hereafter set forth.
A 16" main waterline crosses the Development
Parcel (as shown on the Plat between Lots 10 and 11) and
water service lines will be installed as shown on the utility
sheets. The City agrees upon approval of this Agreement and
the Plat through its water department to supply water consistent
with the proper servicing of the needs of the improvements
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to be constructed at Pitkin Reserve as above described, and
the Owner agrees to pay such tap fees therefor, as shall be
determined by the tap fee schedule presently in effect, at
the time water service shall be extended to the improvements.
The Owner and the City further acknowledge and agree that,
consistent with existing policy which is hereby confirmed,
the costs of any future looping of the water system as
extended to the Pitkin Reserve site with any proximate
terminus of the system, as well as the costs of any valving
�� that may be required in connection with the extension of
water service to the Pitkin Reserve site shall not be a cost
• \ of the Owner but, rather, shall be initially absorbed by the
4 water department and, as such, reflected in the P.I.F. /tap
fee sc dules be pome y ltj.Tate user! of tile system.
r-c( /on, ragr(r t✓&.tt+_-400 L S�
X.
SEWER AVAILABILITY
Sewer lines shall be installed consistent with the
provisions contained within the utility sheets, sewer line
details and the costs of such installation shall be those
estimated amounts as set forth on Exhibit "D" hereto annexed.
The City agrees, upon approval of this agreement and the
Plat by the Metropolitan Sanitation District that sewer
services are fully available for the development anticipated
on the Plat, and that the Owner agrees to pay such tap fees
therefor, as shall be determined by the tap fee schedules
presently in effect at the time sewer service shall be
extended to the improvements. The availability of such
sewer services shall be provided by the Sanitation District
in a manner that conforms to the estimated construction and
development schedule as set forth in Exhibit "E" attached
hereto. The Owner agrees that engineers from the Metropolitan
Sanitation District shall be entitled to inspect the construc-
tion of the main trunk sewer lines. Upon completion, these
lines will be turned over to the Metropolitan Sanitation
District, together with such appropriate easements as may be
necessary.
XI.
FINANCIAL ASSURANCES
Pursuant to Section 20 -16(C) of the Municipal
Code, Owner hereby agrees to provide a guaranty in the sum
of $337,586.00, which sum represents the estimated cost of
100% of that portion of the improvements set forth and
allocated under Exhibit D hereto for which the City, through
the City Engineer, has requested financial assurance. That
portion of the improvements for which financial assurance
has been requested and which hereby is agreed to be given is
described on Exhibit "J" hereto. The guaranty to be provided by
Owner shall be in the form of cash escrow with the City or a
-15-
I
bank or savings and loan association; or shall be in the
form of an irrevocable sight draft or letter of commitment
from a financially responsible lender; and such guaranty
shall give the City the unconditional right, upon default by
the Owner, or its successor or assigns, to withdraw funds
upon demand to partially or fully complete and /or pay for
any improvements or pay any outstanding bills for work done
thereon by any party. As portions of the improvements
required are completed, the City Engineer shall inspect
them, and upon approval and acceptance, he shall authorize
the release of the agreed estimated cost for that portion of
the improvements; provided, however, that ten percent (10%)
of the estimated cost shall be withheld until all proposed
improvements are completed and approved by the City Engineer.
The Owner, its successors or assigns, hereby
agrees to further provide unto City a warranty as to all
improvements for a period of one (1) year from and after
acceptance by the City as to such improvements.
The Owner shall further guaranty by a maintenance
bond or other suitable means, the repair of any existing
improvements damaged during the course of construction of
new improvements pursuant to the provisions hereof.
It is the express understanding of the parties
that the procedure set forth in paragraph V pertaining to
the procedure for default and amendment of this agreement
shall not be required with respect to the enforcement and
implementation of financial assurance and guaranties to be
provided by Owner as set forth above and required by Section
20 -16(c) of the Municipal Code.
XII.
MISCELLANEOUS
A. The provisions hereof shall be binding upon
and inure to the benefit of the Owner and City and their
respective successors and assigns.
B. This agreement shall be subject to and con-
strued in accordance with the laws of the State of Colorado.
C. If any of the provisions of this agreement or
any paragraph, sentence, clause, phrase, word, or section or
the application thereof in any circumstances is invalidated,
such invalidity shall not affect the validity of the remainder
of this agreement, and the application of any such provision,
paragraph, sentence, clause, phrase, word, or section in any
other circumstance shall not be affected thereby.
-16-
r)
D. This P.D.D. and Subdivision Agreement contains
the entire understanding between the parties herein with
respect to the transactions contemplated hereunder and may
be altered or amended from time to time only by written
instruments executed by all parties hereto.
E. Numerical and title headings contained in this
contract are for convenience only, and shall not be deemed
determinative of the substance contained herein. As used
herein, where the context requires, the use of the singular
shall include the plural and the use of any gender shall
include all genders.
F. In order more fully to effectuate and preserve
the performance of the terms, conditions, provisions, covenants
and agreements herein contained, the parties agree that this
P.U.D. and Subdivision Agreement for Pitkin Reserve shall,
by the City, be recorded in the Pitkin County, Colorado real
p property records.
G. Notices to be given to the parties to this
Agreement shall be considered to be given if delivered or if
deposited in the United State Mail to the parties by registered
or certified mail at the addresses indicated below, or such
other addresses as may be substituted upon written notice by
the parties or their successors or assigns:
CITY OF ASPEN PITKIN LTD.
City Manager c/o Robert W. Hughes, Esq.
130 S. Galena Street OATES, HUGHES & KNEZEVICH, P.C.
Aspen, CO 81611 600 E. Hopkins, Suite 200
Aspen, CO 81611
H. The terms, conditions, provisions and obligations
herein contained shall be deemed covenants that run with and
burden the real property more particularly described in
Exhibit A hereto and any and all owners thereof, their
successors, grantees or assigns and further shall inure to
the benefit of and be specifically enforceable by or against
the parties hereto, their successors, grantees or assigns.
IN WITNESS WHEREOF, the parties hereto have hereunto
executed their hands and seals on the dates and year respectively
-17-
r) ()
indicated, in full understanding and agreement to the terms
and conditions herein contained.
CITY OF ASPEN,
a Colo o Municipal Corporation
By
Herman el, Mayor
ATTEST: ��
J
City Clerk
PITKIN LTD., a Colorado
corporation
A TEST: By 4 - .. — _._� /
' (/te- a.- PS Ai .d
MA -a, A WA (el
•obert W. V.. e', :ecr @tary
ASPE .• NT.iN PA a Colorado
fn 4a PI71� •
, .� E ( '(.
. ...� I , -,)
STATE OF COLORADO )
ss.
COUNTY OF PITKIN ) 1
The foregoi g nstrument was acknowledged before
me this //" day of �� , 1982, by HERMAN EDEL
as Mayor and KATHRYN KOCH, as City Clerk of the City of
Aspen, a Colorado Municipal Corporation.
WITNESS my hand and official seal.
My P commission ex ire 3✓o?4M5
My address is:
(SEAL) .
` Wg1.41 " n /
NotarV Public
—18—
STATE OF COLORADO )
ss.
COUNTY OF PITKIN )
,jhe foregoing instrument was acknowledged before
me thisr day of /// AAL Q r. - , 1982, by
A(AN 7ijIOAL as Pr6s and by7&vjn i2L nlffi
as secretary of PITKIN LTD., a Colorado corporation.
WITNESS my hand and official seal.
My commission expires:Y /6/25'
My addres is:
/ Goo f chels,
(SEAL) ,4 /� 0,
No'ary •ublic /
STATE OF COLORADO )
ss.
COUNTY OF PITKIN )
Dhe foregoing nstrument was acknowledged (!f#& i4
me this„ day of ///nail-- , 1982, by -�
FO , lbeYi4 . 8. i a general partner of ASPEN MOUNTAIN
PARK, a Colorado general partnership.
WITNESS my hand and official seal.
My commission expires: / G y3
My address 's:
(SEAL) G6or E 69
otary ..blic
-19-
EXHIBIT A - Pitkin Reserve Legal Description
EXHIBIT B - Smuggler Mobile Home Park Legal
Description
EXHIBIT C - Development Summary and Site Tabulation
EXHIBIT D - Pitkin Reserve Improvement Schedule
EXHIBIT E - Development & Construction Schedule
.EXHIBIT F - Landscape Concept
EXHIBIT G - Land Valuation and Park Dedication Fee
Calculation
EXHIBIT H - Proposed Covenants
EXHIBIT I - Proposed Party Wall Declaration
•EXHIBIT J - Portion of Improvements to be
Financially Secured
LIST OF EXHIBITS
EXHIBIT A
1
BOUNDARY DESCRIPTION
A tract of land being part of the SW -1/4 of the SE -1/4 and Lot
14 of Section 1, and the NW -1/4 of the NE -1/4 and Lot 14 of
Section 12 and part of tract B of the Brown Placer D.S.M.S. No.
15047 and the Nellie Mc No. 2 U.S.M.S. No. 15047 together with
a part of Lot 23, Block 2, Pitkin Green Subdivision, all in
Township 10 South, Range 85 West of the Sixth Principal Meridian,
said tract is more fully described as follows:
Beginning at a point on the Northeasterly right of way line of
the Denver and Rio Grande Western Railroad whence the northeast
corner of said Section 12, a brass cap, bears N 70 °25'07" E
1636.50 feet; Thence along said right -of -way line the following
courses and distances:
S56 °10'00 "E 265.52 feet;
380.53 feet along the arc of a curve to the
left having a radius of 523.69 feet;
N82 °12'00 "E 137.57 feet;
248.29 feet along the arc of a curve to the right
having a radius of 623.29 feet to the .
intersection with the west line of Lot 1,
Green Acres Subdivision; Thence South 148.14 feet along
said west line to the intersection with the boundary
described in Book 213 at Page 163; Thence along said
boundary the following courses and distances:
N89 °04'00 "W 198.30 feet;
S40 °29'00 "W 59.20 feet;
S81 °12'00 "W 113.20 feet;
s65 °51'00 "W 23.76 feet to the intersection with the
northerly boundary of the Second Aspen Company Subdivision;
Thence along said northerly boundary and along the westerly
boundary of said subdivision the following courses and
distances:
S82 °17'00 "W 242.94 feet;
N84 °18'00 "W 180.76 feet;
S00 °26'55 "E to the centerline of the Roaring Fork
River;
Thence along the centerline of the Roaring Fork River to a
point at the confluence of the Roaring Fork
River and Castle Creek;
Thence along the centerline of the Roaring Fork River the
following courses and distances:
N07 °27'00 "E 268.81 feet;
N08 °37'00 "W 150.33 feet;
N37 °28'00 "W 66.23 feet;
N45 °41'00 "W 79.88 feet;
N51 °00'00 "W 76.10 feet;
N62 °23'00 "W 82.10 feet;
Thence departing from said centerline N43 °11'00 "E
213.52 feet to the most westerly corner of Lot 4,
Pitkin Green Subdivision; Thence southeasterly along the
1 -
southwesterly lines of Lots 4, 5, 6, 7, 9 and 10, Block 1,
Pitkin Green Subdivision, said lines being 10 feet from
and parallel to the northeasterly right-of-way line of the
Denver and Rio Grande Western Railroad, the following
courses and distances:
52.21 feet along the arc of a curve to the
right having a radius of 1015.37 feet and
whose chord bears S46 °41'23 "E 52.20 feet;
S45 °13'00 "E 147.00 feet;
309.83 feet along the arc of a curve to the
right having a radius of 1015.37 feet;
S27 °44'00 "E 81.00 feet;
365.21 feet along the arc of a curve to the
left having a radius of 730.80 feet;
S56 °22'00 "E 125.82 feet;
377.83 feet along the arc of a curve to the
right having a radius of 1333.57 feet;
S40 °08'00 "E 14.44 feet to the easterly line
of said Lot 10;
Thence along said easterly line N36 °09'00 "E 33.68 feet
to the westerly corner of Lot 23, Block 2, Pitkin
Green Subdivision;
Thence along the southerly line of said Lot 23 the following
courses and distances:
S61 °14'00 "E 135.43 feet;
S88 °50'00 "E 162.41 feet;
Thence S35 °52'00 "E 159.49 feet;
Thence S43 °12'00 "E 209.77 feet;
Thence S39 °04'00 "E 144.45 feet;
Thence S58 °00'00 "E 165.01 feet;
Thence S50 °00'00 "E 131.64 feet;
Thence S33 °10'00 "W 191.72 feet to the point of beginning;
Excepting therefrom that portion lying within the right of way
of the Denver and Rio Grande Western Railroad.
County of Pitkin, State of Colorado.
-2-
EXHIBIT B
— •
A tract of land situated. in a portion of the East Aspen Townsite, the
East one -half of the Southwest one - quarter and the West one -half of the
Southeast-one- quarter of Section 7, Township 10 South, Range 84 West'of
the 6th P,M., :described as follows: . .-
BEGINNING at Corner No, 10 of the East Aspen Townsite;
thence North 54 ° 52'17" West 58.10 feet to Corner No. 11 of said East
Aspen Townsite;
thence North 66 ° 11'00" West 142.33 feet;-
thence:North 05 ° 10'42 1 ! Weat 114.35 feet to Corner No. 16 of said East
.- Aspen . Townsite; . : : _ - . _ _. _ _ - _ . ... . • . - . •
thence North 44'29'22" Weat 312.67 feet to Corner No. 25 of said East
- Aspen Townsite along the Northerly boundary.of parcel of land described
in Book 205 at Page 579, Pitkin County records;
thence North 45'12'59" Weat 128.83 tb Corner No. 24 of said East Aspen
Townsite along a portion of said Northerly boundary;
thence North 24 ° 05'24" East 139.28 feet; -
thence North 37 ° 11'41" East 20.25 feet;
thence South 44 ° 35'50" East 12.15 feet;
thence North 29'03'05" East 1 feet along an existing fence and
extension thereof ;. •
thence South 4.08 feet ;•
thence North 37 ° 11'41" East 154.57 feet;
thence North 78 ° 25'15" East 77.68 feet;
thence North 89 ° 57'10" East 303.99.along boundary.line described in
Book 280 at Page 827 and re- recorded in Book 280 at Page 965, Pitkin
County records;
thence South 63 ° 44'45" East 168.08 feet along said boundary line;
thence South 81 °23'42" East 183.42 feet along said boundary line;
thence South 89 ° 25'42" East 98.00 feet along said boundary .line;
thence.South 54 ° 34'55" East 64.87 feet along said boundary line;
thence South 52 ° 47'48" West 188.36 to Coiner No. 5 of said East
Aspen Townsite; -
thence South 34 ° 55'18" West 760.18 feet to
The Point of Beginning.
Pitkin County, Colorado.
•
•
EXHIBIT C
DEVELOPMENT SUMMARY AND SITE TABULATIONS
Name: Pitkin Reserve
Number of Units: 12 free market units
1 PMH rental unit - deed - restricted
to low or moderate income
Amenities: Caretaker /employee facility above
storage
Unit Size: 3 bedrooms at approximately 3,000
sq. ft. of living space and 1,000
sq. ft. of parking and storage
Project Population: 43 (3.5 /unit plus caretaker)
Parking: 2 indoor spaces per unit and 2
quest parking spaces per unit
in driveways
Structures: 6 two -story duplex structures; lower
story and north wall of upper story -
concrete, block and stone; upper story
(when above grade) - wood frame construc-
tion with wood siding
Acreage: 20 +/- acres plus 6 acres of railroad
R.O.W.
Public Open Space: 13 +/- acres
Development Site: 7.064 acres
Fee Simple Lots: 35% of development site
(6,000- 10,000 sq. ft. per lot)
Dommon Open Space: 65% of Development Site
Builsing Coverage: 25,070 sq. ft. (.57 acres)
(4,045 sq. ft. per duplex and 800
sq. ft. for caretaker /storage bldg.)
Paved Areas: 30,242 sq. ft. (.69 acres)
(private drive = 16,956 sq. ft.
driveways and parking = 13,286 sq. ft.)
•
EXHIBIT D
PITKIN RESERVE IMPROVEMENT SCHEDULE
Item Item Cost Total Cost
Water Service
Alternative 41 $55,475.00
or or
Alternative 42 $48,757.00 .
8" DIP $ 31,325.00
4" DIP 4,200.00
Fire Hydrants w /valves 7,000.00
1" Water Service 2,250.00
3/4" Water Service 300.00
Alternative 11 -
Water Main Collection in-
cluding 16" valve, 8" valve
•
4" valve, 16" x 8" tee, 8"
x 4" tee, allthread, vavle
box, pipe $ 10,400.00
Alternative 42 -
Wet Tap 8" DIP to 16" DIP
including 8" valve, 4" valve
8" x 4" tee, allthread,
valve box, pipe - 3,500.00
Sewer $40,175.00
8" PVC $26,225.00
Manholes 1 -7 8,400.00
Sewer Tap 4,550.00
Tap to Existing Service 1,000.00
Drainage $20,975.00
18" CMP $ 8,845.00
25" x 16" CMP 3,380.00
Dry Wells 8,000.00
Wier Overflow 250.00
Excavation included in ---
roadwork
Rip -rap 500.00
le )
PITKIN RESERVE IMPROVEMENT SCHEDULE
Item Item Cost Total Cost
Private Drive $131,190.00
Asphalt $ 24,300.00
Base Course 20,440.00
Excavation 50,830.00
Fill 30,620.00
Electrical $59,700.00
Relocation of existing lines $ 59,700.00
Natural Gas Line $14,350.00
2" Main $ 12,250.00
3/4" Service Connections 2,100.00
•
PITKIN RESERVE IMPROVEMENT SCHEDULE
ITEM COST TOTAL COST
Revegetation Along Roadway $24,921.07
(1,325' x 30' wide = 39,750 sq. ft.)
Soil Preparation (.23 /sq.ft.) $9,142.50
Fine Grading ($.0225 / sq.ft.) 894.40
Hydroseeding ($.04 /sq.ft.) 1,590.00
Slope Stabilization ($1.03 / sq.ft. 4,539.17
Irrigation ($.22 /sq.ft.) 8,745.00
Landscaping of Individual Units $187,718.00
Native Landscape
Soil Preparation $25,372.50
Fine Grading 2,496.60
Hydroseeding 4,438.00
Slope Stabilization 6,833.83
Plant Material 18,086.00
Irrigation 24,412.00
Manicured Landscape
Soil Preparation $ 7,609.00
(.23 /sq.ft.)
Fine Grading (.0225 / sq.ft.) 1,986.00
Sod (.35 /sq.ft.) 5,793.00
Irrigation ($1.09 /sq.ft.) 18,041.00
Plant Material (12,175) 73,050.00
()
PITKIN RESERVE IMPROVEMENT SCHEDULE
TOTAL COSTS OF ALL IMPROVEMENTS
Utility Improvements
Alternative #1 $315,125.00
or or
Alternative #2 $308,225.00
Revegetation Along Roadway $ 24,921.00
($18.80 /linear foot of roadway)
Landscaping of individual units $187,718.00
($15,643 /unit)
TOTAL: ALTERNATIVE #1 $527,764.00
ALTERNATIVE #2 $520,864.00 •
•
EXHIBIT E
DEVELOPMENT AND CONSTRUCTION SCHEDULE
PHASE 1 April 15, 1982 - November 15, 1982
PHASE 2 (if necessary) April 15, 1983 - November 15, 1983
While it is Pitkin Ltd.'s intention to build the entire
program in phase 1, the phasing and timing of the construction of
these residences will depend upon market conditions. This schedule
is contingent upon:
1. Timely approval of the Final Plat.
2. Completion in an exeditious manner of the
bidding, contractor selection, and implementation
phases to meet the dated indicated.
3. Confirmation of the construction schedule
by the selected contractors.
4. Availability of the required labor and
materials during each phase.
5. Sale of residences at a rate that would
permit the phasing suggested above.
The completion of the site improvemenst (utilities and
landscaping) will be coordinated with the residential development
in each phase.
•
EXHIBIT F
/'1 r)
LANDSCAPE CONCEPT
• *•.• 7. • -. .
•
� •� 1I 111 11111 1 1 1. � •• • �r .l 1 •`It ,
t • Lo ' ' . II// . . 411 \��/
silo - ;. .. ' -, ; .to iii 11:,11 Il 1 1 al fV. , m p�
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• ../ �I.
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The existing landscape has been the primary shaper of this
scheme. Th proposed landscape concept works with the site plan
to define the edge of the broad, central meadow that stretches
to the tree lined banks of the Roaring Fork River. The architec-
tural concept of a continuous band of berms, earth terraces,
and retaining walls engulfing the houses demands rich landscape
plantings. The plantings will stabilize disturbed soils and
populate areas that have been sparse due to direct sun exposure
and a lack of suitable soil and water. Privacy for outdoor
living areas will result and aspen trees will shade the houses -
from the summer sun, but shed their leaves to allow in the
winter sun. The areas immediately around the house will re-
quire the most care - densely planted with Bearberry, Holly
Grape, Rocky Mountain Juniper, Potentilla, etc. The meadow
edge will be formed with the same materials as the corridor and
along the river - Aspens, Scrub Oak, Sage, Austrian Pine and
Spruce - planted between, behind, and occasionally in front of
the houses. This zone of planting should require limited
maintenance. The broad central meadow of native grasses, sage,
etc., should be entirely self- sufficient.
EXHIBIT G
(/ /)
LAND VALUATION
AND
PARK DEDICATION FEE CALCULATION
(calculated to the nearest 0.5 acre)
In accordance with Section 7 -143 of the Aspen Building Code and
Section 20 -18 of the Aspen Subdivision Code, the cash equivalent
for the park dedication fee and its determination for the Pitkin
Reserve Subdivision is as follows:
Purchase Price of Total Parcel
(17.5 acres) $1,250,000.00
Price Per Acre t 20 71,428.60
Value of 7 -Acre Development
Parcel x 7 500,000.00
Value Per Unit (12 units) s 12 41,667.00
1% of Land Value Per Unit x .01 416.67
Fee per 3- Bedroom Unit * / x 2.5 1,041.68
Value of 10.5 -acre parcel
dedicated to open space 750,000.00
Difference between cash
equivalent of park dedica-
tion fee ($1,041.68 x 12 =
$12,500.16) and value of
open space parcel 737,499.84
* * *
* /The park dedication fee for the employee housing unit to be
constructed on Lot 13 will be calculated in the same manner
as above set forth and will proceed from the same land valu-
ation.
EXHIBIT H
i i -, r
I! DECLARATION OF COVENANTS,
CONDITIONS, AND RESTRICTIONS
1
1
This Declaration of Covenants, Conditions, and
Restrictions is made this day of , 1982,
by Pitkin Ltd., a Colorado corporation, (hereinafter referred
to as "Declarant ").
G , ‘ W I T N E S S E T H :
li
Declarant is the owner of the real property described
bit "A" attached hereto and incorporated herein by
r
p nce. Declarant intends by this Declaration to impose
upon the property mutually beneficial restrictions under a
general plan of improvement for the benefit of all owners of
residential property within Pitkin Reserve. Declarant desires
to provide a flexible and reasonable procedure for the overall
development of the property and to establish a method for the
administration, maintenance, preservation, use, and enjoyment
of such property as is now or may hereafter be submitted to
this Declaration.
NOW, THEREFORE, Declarant hereby declares that all
of the property described in Exhibit "A" and any additional
property as may by subsequent amendment be added to and subjected'
to this Declaration shall be held, sold, and conveyed subject
to the following easements, re trictions, covenants, and
conditions which are for the ose of protecting the value
and desirability of and wh' hall run with the real property
submitted to this Declar. • and which shall be binding on
all parties having any r , title, or interest in the des-
cribed properties or a 1P.art thereof, their heirs, successors,
successors -in- title, an. assigns, and shall inure to the
benefit of each owner thereof.
ARTICLE I
Definitions
Section 1. "Association" shall mean and refer to
the Pitkin Reserve Homeowners' Association, Inc., a Colorado
nonprofit corporation, its successors and assigns.
The "Board of Directors" or "Board" sh 11 be
the elected body having its normal meaning under Co do
corporate law. �►
Section 2. "Properties" shall m��aaTtd refer to
the real property described in Exhibit "A" at�1ied hereto and
shall further refer to such additional propert as may hereafter
be annexed by amendment to this Declaration or which is owned
in fee simple by the Association.
Section 3. "Owner" shall mean and refer to the
record owner, whether one or more persons or entities, of any
Residential Unit which is part of the Properties, but excluding
in all cases any party holding an interest merely as security
for the performance of an obligation.
Section 4. "Common Area" shall mean Lot 13,
Pitkin Reserve and all real and personal property now or
hereafter owned by or otherwise coming under the responsibility
of the Association for the common use and enjoyment of the
owners.
Section 5. "Residential Unit" shall mean any
portion of the Properties intended for any type of independent
ownership for use and occupancy as a residence by a single
household and shall, unless otherwise specified, include
within its meaning condominiums, townhomes, or zero lot line
homes, as may be developed, used, and defined, as herein
provided or as provided in subsequent Declarations covering
all or a part of the Properties.
Section 6. "Area of Common Responsibility" shall
mean and refer to the Common Area, together with those areas,
if any, which become the responsibility of the Association.
In addition, any employee housing unit or caretaker's dwelling
or manager's office located on the Properties shall be part of
the Area of Common Responsibility.
Section 7. "Common Expenses" shall mean and
include the actual and estimated expenses of operating the
Association, including any reasonable reserve all as may be
found to be necessary and appropriate by the Board pursuant to
this Declaration, the By -Laws, and the Articles of Incorporation.)
Section 8. "Member" shall mean and refer to a
person or entity entitled to membership in the Association, as
provided herein.
Section 9. "Mortgage" shall include a deed of
trust, as well as a mortgage.
Section 10. "Mortgagee" shall include a beneficiary
or holder of a deed of trust, as well a a mortgagee.
Section 11. "Mortgagor" shall include the trustor
of a deed of trust, as well as a mortgagor.
Section 12. "Person" means a natural person, a
corporation, a partnership, trustee, or other legal entity.
Section 13. "Parcel" shall mean and refer to
separately designated lots developed for residential purposes,
or fee simple dwellings.
-2-
Secton 14. Parcel Assessments. Parcel assessments
for common expenses provided for herein shall be used for the
purposes of promoting the recreation, health, safety, welfare,
common benefit, and enjoyment of the owners of the Residential
Units against which the specific parcel assessment is levied
and of maintaining the property within a given parcel, the
Common Area, and the Area of Common Responsibility, all as may
be specifically authorized from time to time by the Board of
Directors and as more particularly authorized below.
The Parcel Assessment shall be levied equally against
the owners of Residential Units in a parcel for such purposes
that are authorized by this Declaration or by the Board of
Directors from time to time.
Section 15. "Residential Association" shall mean
any homeowners or other such association created on property
subject to this Declaration containing units, homes or other
structures for residential purposes.
ARTICLE II
Rights In Common Area
Every owner shall have a non - exclusive right to the
use and enjoyment in and to the Common Area subject to any
restrictions or limitations concerning the use thereof herein
contained or in any rules or regulations published by the
Association or subjecting this Declaration such property. Any
owner may delegate his or her right of enjoyment to the members
of his or her family, tenants, and social invitees subject to
reasonable regulation by the Association and in accordance
with procedures it may adopt.
ARTICLE III
Membership and Voting Rights
Section 1. Membership. Every person or entity
(including Declarant) who is the record owner of a fee or
undivided fee interest in any Residential Unit that is subject
to this Declaration shall be deemed a member in the Association.
Membership shall be automatic upon the recording of any document
transferring a legal or equitable interest in a Residential
Unit and its appurtenant Parcel and shall be appurtenant to
and may not be separated from such ownership. The foregoing
is not intended to include persons who hold an interest merely
as security for the performance of an obligation, and the
giving of a security interest shall not terminate the owner's
membership. No owner, whether one or more persons, shall have
more than one membership per Residential Unit owned. In the
event of multiple owners of a Residential Unit, votes and
rights of use and enjoyment shall be as provided herein. The
rights and privileges of membership, including the right to
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vote, may be exercised by a member or the member's spouse, but
in no event shall more than one (1) vote be cast for each
Residential Unit. The Declarant shall be entitled to one vote
for each Residential Unit or unimproved parcel, as the case
may be, that it owns.
ARTICLE IV
Maintenance
The Association shall maintain and keep the Common
Area (and any personal property associated therewith) in good
repair, taste and order, including all paved areas, all land-
! scaped areas, and any other improvements to or upon the Common
Area, such maintenance to be funded as hereinafter provided.
This maintenance shall include, but not be limited to, mainten-
ance, repair, and replacement, subject to any insurance then
in effect, of all landscaping and other flora, structures, and
improvements situated upon the Common Area, all to the end
1 that the first rate safety, appearance and quality of the
Common Area shall permanently endure. The Association shall
also by enforcement of rules and regulations that it may from
1 time to time adopt insure the quality of the exterior appearance !°
1 and aesthetic compatability of the residential units within
Pitkin Reserve. The Association shall have the power to
assess the owners of Residential Units on parcels within
Pitkin Reserve to defray common costs incurred in connection
with the maintenance of the Common Areas and the power specially
I to assess owners whose failure to abide rules and regulations
or otherwise properly to maintain the exteriors of their
! Residential Units results in the Association having to perform
1 such maintenance. All maintenance functions herein provided
I on the part of the Association to perform may by it be contrac-
tually delegated to a managing agent, including a property
management firm. The obligation herein of the Association to
maintain the Common Area shall, as well, include the duty to
pay all real and /or personal property taxes that may be assessed
against such Property, unless such taxes be separately assessed
against the owners of Residential Units or parcels.
ARTICLE V
Insurance and Casualty Losses
Section 1. Insurance. The Association's Board
of Directors or its duly authorized agent shall have the
authority to and shall obtain insurance for all insurable
improvements on the Common Area against loss or damage by fire
or other hazards, including extended coverage, vandalism, and
malicious mischief. This insurance shall be in an amount
! sufficient to cover the full replacement cost of any repair or
reconstruction in the event of damage or destruction from any
such hazard. The Board shall also obtain a public liability
policy covering the Common Area, the Association, and its
members for all damage or injury caused by the negligence of
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■
the Association or any of its members or agents, and, if
reasonably available, directors' and officers' liability
insurance. The public liability policy shall have at least a
($ ) Dollar per person
■ limit, as respects bodily injury, a
($ ) Dollar limit per occurrence, and a
j ($ ) Dollar minimum property
■ damage limit. Premiums for all insurance on the Common Area
I shall be common expenses of the Association. The policy may
contain a reasonable deductible, and the amount thereof shall
be added to the face amount of the policy in determining
whether the insurance at least equals the full replacement
cost.
Cost of insurance coverage obtained for the
Common Area shall be included in the General Assessment, as
defined in Article IX, Section 1.
All such insurance coverage obtained by the
11 Board of Directors shall be written in the name of the Associa-
h tion, as Trustee, for the respective benefited parties, as
further identified in (b) below. Such insurance shall be
governed by the provisions hereinafter set forth:
(a) All policies shall be written with a
company licensed to do business in the State of Colorado and
holding a rating of IX or better in the Financial Category as
established by A. M. Best Company, Inc., if available, or, if
not available, the most nearly equivalent rating.
(b) All policies on the Common Area shall be
for the benefit of the Residential Unit Owners or Parcel
Owners and their mortgagees as their interests may appear.
(c) Exclusive authority to adjust losses under
policies in force on the Property obtained by the Association
shall be vested in the Association's Board of Directors;
provided, however, that no mortgagee having an interest in
such losses may be prohibited from participating in the settle -
■ ment negotiations, if any, related thereto.
(d) In no event shall the insurance coverage
obtained and maintained by the Association's Board of Directors
hereunder be brought into contribution with insurance purchased
by individual owners, occupants, or their mortgagees, and the
insurance carried by the Association shall be primary.
1 (e) All casualty insurance policies shall have
an agreed amount endorsement with an annual review by one or
more qualified persons.
(f) The Association's Board of Directors shall
be required to make every reasonable effort to secure insurance
policies that will provide for the following:
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r
(i) A waiver of subrogation by the insurer
as to any claims against the Association's Board of Directors,
its Manager, the owners and their respective tenants, servants,
agents, and guests;
(ii) A waiver by the insurer or its rights
to repair and reconstruct instead of paying cash;
(iii) That no policy may be cancelled,
invalidated, or suspended on account of any one or more indi-
vidual owners;
(iv) That no policy may be cancelled,
invalidated or suspended on account of the conduct of any
director, officer, or employee of the Association or its duly
authorized Manager without prior demand in writing delivered
to the Association to cure the defect and the allowance of a
reasonable time thereafter within which the defect may be
cured by the Association, its Manager, any owner or mortgagee;
and
(v) That any "other insurance" clause in
any policy exclude individual owners' policies from consideration
Section 2. No Partition. Except as is permitted
1 in the Declaration, there shall be no physical partition of
1 the Common Area or any part thereof, nor shall any person
acquiring any interest in the Property or any part thereof
seek any such judicial partition until the happening of the
conditions set forth in Section 4 of this Article in the case
of damage or destruction, or unless the Properties have been
removed from the provisions of this Declaration.
Section 3. Disbursement of Proceeds. Proceeds
I of insurance policies shall be disbursed as follows:
(a) If the damage or destruction for which the
proceeds are paid is to be repaired or reconstructed, the
1 proceeds, or such portion thereof as may be required for such
purpose, shall be disbursed in payment of such repairs or
reconstruction, as hereinafter provided. Any proceeds remaining
I after defraying such costs of repairs or reconstruction to the
Common Area, or in the event no repair or reconstruction is
made after making such settlement as is necessary and appropriate
with the affected owner or owners and their mortgagee(s), as
their interests may appear, if any Residential Unit is involved,
shall be retained by and for the benefit of the Association.
This is a covenant for the benefit of any mortgagee of a
Residential Unit and may be enforced by such mortgagee.
(b) If it is determined, as provided for in
Section 4 of this Article, that the damage or destruction to
the Common Area for which the proceeds are paid shall not be
repaired or reconstructed, such proceeds shall be disbursed in
the manner as provided for excess proceeds in Section 3(a)
hereof.
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Section 4. Damage and Destruction.
(a) Immediately after the damage or destruction
by fire or other casualty to all or any part of the Property
covered by insurance written in the name of the Association,
the Board of Directors or its duly authorized agent shall
proceed with the filing and adjustment of all claims arising
under such insurance and obtain reliable and detailed estimates
of the cost of repair or reconstruction of the damaged or
destroyed property. Repair or reconstruction, as used in this
paragraph, means repairing or restoring the property to substan-
tially the same condition in which it existed prior to the
fire or other casualty.
(b) Any damage or destruction to the Common
Area shall be repaired or reconstructed unless at least
seventy -five (75%) percent of the total vote of the Association
shall decide within sixty (60) days after the casualty not to
repair or reconstruct. If for any reason either the amount of
the insurance proceeds to be paid as a result of such damage
or destruction, or reliable and detailed estimates of the cost
of repair or reconstruction, or both, are not made available
to the Association within said period, then the period shall
be extended until such information shall be made available;
provided, however, that such extension shall not exceed sixty
(60) days. No mortgagee shall have the right to participate
in the determination of whether the Common Area damage or
destruction shall be repaired or reconstructed.
(c) In the event that it should be determined
by the Association in the manner described above that the
damage or destruction of the Common Area shall not be repaired
or reconstructed and no alternative improvements are authorized,
then and in that event the property shall 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,
Section 5. Repair and Reconstruction. If the
damage or destruction for which the insurance proceeds are
paid is to be repaired or reconstructed and such proceeds are
not sufficient to defray the cost thereof, the Board of Directors
shall, without the necessity of a vote of the Association's
members, levy a special assessment against all owners in
proportion to the number of Residential Units owned by such
owners. Additional assessments may be made in like manner at
any time during or following the completion of any repair or
reconstruction. If the funds available from insurance exceed
the cost of repair, such excess shall be deposited to the
benefit of the Association.
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m
{ ARTICLE VI
Condemnation
Whenever all or any part of the Common Area shall be
taken (or conveyed in lieu of and under threat of condemnation
by the Board, acting on its behalf or on the written direction
of all Owners of Residentail Units subject to the taking, if
any) by any authority having the power of condemnation or
eminent domain, each owner shall be entitled to notice thereof
and to participate in the proceedings, incident thereto,
unless otherwise prohibited by law. The award made for such
taking shall be payable to the Association, as Trustee for all
{ owners, to be disbursed as follows:
If the taking involves a portion of the Common Area
on which improvements have been constructed, then, unless
within sixty (60) days after such taking at least seventy -five
percent (75%) of the voting members of the Association shall
otherwise agree, the Association shall restore or replace such
improvements so taken on the reamining land included in the
Common Area, to the extent lands are available therefore, in
accordance with plans approved by the Board of Directors of
the Association. If such improvements are to be repaired or
restored, the above provisions in Article V hereof regarding
the disbursement of funds in respect to casualty damage or
destruction which is to be repaired shall 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 shall
be disbursed to the Association and used for such purposes as
the Board of Directors of the Association shall determine,
including, as the case may be, ultimate disbursement to the
owners.
ARTICLE VII
Rights and Obligations of the Association
Section 1. The Common Area. The Association,
subject to the rights of the owners set forth in this Declaration,
shall be responsible for the exclusive management and control
of the Common Area and all improvements thereon (including
furnishings and equipment related thereto), and shall keep it
in good, clean, attractive, and sanitary condition, order, and
repair, pursuant to the terms and conditions hereof.
Section 2. Personal Property and Real Property
for Common Use. The Association, through action of its Board
of Directors, may acquire, hold, and dispose of tangible and
intangible personal property and real property.
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Section 3. Rules and Regulations. The Association,
I through its Board of Directors, may make and enforce reasonable
I rules and regulations governing the use of the Properties,
which rules and regulations shall be consistent with the
rights and duties established by this Declaration. Sanctions
may include reasonable monetary fines which shall constitute a
lien upon the owner's Residential Unit or Units and suspension
of the right to vote and the right to use the Common Area. In
addition, the Board shall have the power to seek relief in any
court for violations or to abate unreasonable disturbances.
Section 4. Implied Rights. The Association may
exercise any right or privilege given to it expressly by this
Declaration or the By -Laws, and every other right or privilege
reasonably to be implied from the existence of any right or
privilege given to it herein or reasonably necessary to effec-
tuate any such right or privilege.
ARTICLE VIII
Assessments
Section 1. Creation of General Assessment.
There are hereby created assessments for Common Expenses as
may be from time to time specifically authorized by the Board
of Directors. General Assessments shall be allocated equally
among all Residential Units within the Association and shall
be for expenses determined by the Board to be for the benefit
fo the Association as a whole. Each owner, by acceptance of
his or her deed, is deemed to covenant and agree to pay these
assessments. All such assessments, together with interest at
the highest rate in the circumstances allowable under the laws
of Colorado, costs, and reasonable attorney's fees shall be a
charge on the land and shall be a continuing lien upon the
Residential Unit against which each assessment is made.
Each such assessment, together with interest, costs,
and reasonable attorney's fees, shall also be the personal
obligation of the person who was the owner of such Residential
Unit at the time the assessment arose, and his or her grantee
shall be jointly and severally liable for such portion thereof
as may be due and payable at the time of conveyance, except no
first mortgagee who obtains title to a Residential Unit pursuant
to the remedies provided in the mortgage shall be liable for
unpaid assessments which accrued prior to such acquisition of
title.
Assessments shall be paid in such manner and on such
dates as may be fixed by the Board of Directors.
Section 2. Computation of Assessment. If the
Association incurs ongoing Common Expenses, the Board shall
prepare an annual budget, and the following provisions shall
apply:
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r-, f)
It shall be the duty of the Board at least
thirty (30) days prior to the meeting at which the budget
i shall be presented to the membership to prepare a budget
covering the estimated costs of operating the Association
during the coming year. The budget shall include a capital
contribution establishing a reserve fund, in accordance with a
I capital budget separately prepared. The Board shall cause a
copy of the budget, and the amount of the assessments to be
levied against each Residential Unit for the following year,
to be delivered to each owner at least fifteen (15) days prior
to the meeting. The budget and the assessments shall become
1 effective unless disapproved at the meeting by a vote of at
least a majority of the total Association membership or otherwise
modified by a majority vote.
Section 3. Special Assessments. In addition to
the assessments authorized in Section 1, the Association may
levy a Special Assessment for the purpose of defraying any
costs incurred by the Association through its Board pursuant
to the provisions of this Declaration, which was not included
in the annual budget from which the general assessment was
levied.
Section 4. Lien for Assessments. All such
assessments shall constitute a lien on each Residential Unit
and Parcel prior and superior to all other liens, except (1)
all taxes, bonds, assessments, and other levies which, by law,
would be superior thereto, and (2) the lien or charge of any
first mortgage of record (meaning any recorded mortgage or
deed of trust with first priority over other mortgages or
deeds of trust) made in good faith and for value.
The Association, acting on behalf of the owners,
shall have the power to bid for the Residential Unit or parcel
at foreclosure sale, and to acquire and hold, lease, mortgage,
and convey the same. During the period owned by the Association 1
following foreclosure: (1) no right to vote shall be exercised
i on its behalf; (2) no assessment shall be assessed or levied
{ on it; and (3) each other Residential Unit or parcel shall be
i charged, in addition to its usual assessment, its equal pro
rata share of the assessment that would have been charged such
Residential Unit or parcel had it not been acquired by the
Association as a result of foreclosure.
Suit to recover a money judgment for unpaid
common expenses, rent, and attorneys' fees shall be maintainable
without foreclosing or waiving the lien securing the same.
Section 5. Capital Budget and Contribution. The
Board of Directors shall annually prepare a capital budget
which shall take into account the number and nature of replaceabl
assets, the expected life of each asset, and the expected
repair or replacement cost. The Board shall set the required
capital contribution, if any, in an amount sufficient to
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(-)
permit meeting the projected capital needs of the Association,
as shown on the capital budget, with respect both to amount
and timing by annual assessments over the period of the budget.
The capital contribution required shall be fixed by the Board
and included within the budget and assessment, as provided in
Section 2 of this Article. A copy of the capital budget shall
be distributed to each member in the same manner as the operating
budget.
ARTICLE IX
Architectural Standards
All property which is now or may hereafter be subjected
to this Declaration is subject to architectural and environmental
review. This review shall be in accordance with this Article
and such standards as may be promulgated by the Board, the New
Construction Committee, or the Modifications Committee. The
Board of Directors shall have the authority and standing on
behalf of the Association to enforce in courts or competent
jurisdictions decisions of either Committee.
Section 1. New Construction Committee. The New
Construction Committee (NCC) shall have exclusive jurisdiction
over all original construction on any portion fo the Properties.
The NCC shall promulgate Architectural and Environmental
Standards and Application Procedures. It shall make both
available to owners, builders, and developers who seek to
engage in development of or construction upon all or any
portion of the Properties and shall conduct its operations in
accordance therewith. The Board of Direcotrs shall appoint
the members of the NCC which shall consist of three (3) members, 1
at least two of whom shall be required to be residents of
Pitkin Reserve.
Section 2. Modifications Committee. The Modifica-
tions Committee (MC) shall consist of at least three (3) and
no more than five (5) members, a majority of whom shall be
residents of Pitkin Reserve and all of whom shall be appointed
by the Board of Directors. The MC shall have exclusive juris-
diction over modifications, additions, or alterations made on
or to existing Residential Units or structures containing
Residential Units and the open space, if any, appurtenant
thereto.
The MC shall promulgate detailed standards and
procedures governing its area of responsibility and practice.
In addition thereto, the following shall apply: plans and
specifications showing the nature, kind, shape, color, size,
materials and location of such modifications, additions, or
alterations shall be submitted to the Modifications Committee
for approval as to quality of workmanship and design and
harmony of external design with existing structures and as to
location in relation to surrounding structures, topography,
• and finish grade elevation. Nothing contained herein shall be
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( J
construed to limit the right of an owner to remodel the interior
of his residence or to pain the interior of his residence any
color desired. In the event the MC fails to approve or to
disapprove such plans or to request additional information
reasonably required within forty -five (45) days after submission,
the plans shall be deemed approved.
ARTICLE X
Use Restrictions
The Properties shall be ued only for residential,
recreational, and related purposes as may more particularly be
set forth in this Declaration, or any amendments hereto. The
Association, acting through the Board of Directors, shall have
standing and the power to enforce use restrictions contained in
any such declaration as if such provision were a regulation of
the Association.
ARTICLE XI
Mortgagee Provisions
The following provisions apply to the Properties,
and none may be amended without the consent of at least two -third
(2/3) of the first mortgagees:
Section 1. Consent of Lenders Required. Unless
two - thirds (2/3) of the institutional holders of first mortgages
within the Properties have given their prior approval, the
Association shall not be entitled to:
(a) by act or omission seek to abandon, alienate,
release, partition, hypothecate, subdivide, enumber, sell, or
transfer any common area owned, directly or indirectly, by the
Association for the benefit of the Residentail Units; provided,
however, the granting of easements for public utilities or for
other public purposes consistent with the intended use of such
Common Area shall not be deemed a transfer within the meaning
of this clause;
(b) change the method of determining the
obligations, assessments, dues, or other charges which may be
levied against an owner;
(c) by act or omission change, waive, or
abandon the system of regulations and enforcement established
in this Declaration for architectural design or the exteriof
appearance and maintenance of Residential Units, and the
maintenance of the Common Area in the Properties; or
(d) use hazard insurance proceeds for losses to
any Common Area for other than the repair, replcement, or
reconstruction of such Common Area.
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)
Section 2. Payment of Taxes. First mortgagees
of Residential Units or parcels may, jointly or singly, pay
taxes or other charges which are in default and which may or
have become a charge against any Common Area and may pay
overdue premiums on hazard insurance policies or secure new
hazard insurance coverage on the lapse of a policy for such
Common Area. First mortgagees making such payments shall be
owed immediate reimbursement therefor from the Association.
Section 3. No Priority. No provision of this
Declaration gives or shall be construed as giving any owner or
any other party priority over any rights of the first mortgagee
of a Residential Unit pursuant to its mortgage in the case of
a distribution to such owner of insurance proceeds or condemna-
tion awards for losses to or a taking of Common Area.
Section 4. Notice to Mortgagee. Notwithstanding
anything contained herein which might otherwise be construed
to the contrary, a first mortgagee, upon request designating
such unit, will be entitled to written notification from the
Association of any default in the performance by any owner of
a Residential Unit or parcel in hich such mortgagee has an
interest of any obligation under this Declaration which is not
cured within sixty (60) days.
Section 5. Management Agreement Limitations.
Notwithstanding anything contained herein which might otherwise
be construed to the contrary, any agreement for professional
management of the Common Area, or any other agreement providing
for services by others in respect of the functions and responsi-
bility of the Association herein may not exceed one (1) year
and must provide for termination by either party without cause
and without payment of a termination fee on thirty (30) days
or fewer written notice.
ARTICLE XII
General Provisions
Section 1. Term. The covenants and restrictions
of this Declaration shall run with and bind the Properties,
and shall inure to the benefit of and shall be enforceable by
the Association or the owner of any property subject to this
Delcaration, their respective legal representatives, heirs,
successors and assigns.
Section 2. Amendment. This Declaration may be
amended only by the affirmative vote (in person or by proxy)
or written consent of members representing a majority of the
total voting power of the Association, together with any
required affirmative approval of first mortgagors as hereinabove
provided in Article XI. Any amendment must be recorded among
the land records of Pitkin County, Colorado.
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I
Section 3. Indemnification. The Association
shall indemnify every every officer and director against any
and all expenses, including counsel fees, reasonably incurred
by or imposed upon any officer of director in connection with
any action, suit or other proceeding (including settlement of
any suit or proceeding, if approved by the then Board of
Directors) to which he or she may be a party by reason of
being or having been an officer or director. The officers and
directors shall not be liable for any mistake of judgment,
negligent or otherwise, except for their own individual willful
mesfeasance, malfeasance, misconduct or bad faith. The officers
and directors shall have no personal liability with respect to
any contract or other commitment made by them, in good faith,
on behalf of the Association (except to the extent that such
officers or directors be also members of the Association), and
the Association shall indemnify and forever hold each such
officer and director free and harmless against any and all
liability to others on account of any such contract or commitment.
Any right to indemnification provided for herein shall not be
exclusive of any other rights to which any officer or director,
or former officer or director, may be entitled. The Association
shall, as a common expense, maintain adequate general liability
and officers' and directors' liability insurance to fund this
obligation.
Section 4. Delegation of Use. Any owner may
delegate, in accordance with the By -Laws, Rules and Regulations
of the Association, his or her right of enjoyment to the
Common Area and facilitie to the members of his or her family,
tenants, and social invitees.
Section 5. Owner's Right to Ingress, Egress, and
Support. Each owner shall have the right to ingress and
egress over, upon, and across the Common Area necessary for
access to his or her Residential Unit and shall have the right
to lateral support for his or her Residential Unit, and such
rights shall be appurtenant to and pass with the title to each
Residential Unit.
Section 6. Easements of Encroachment. There
shall be and hereby are granted reciprocal appurtenant easements
of encroachment as between each Residential Unit and such
portion or portions of the Common Area adjacent thereto to the
extent any such easements may be necessary to maintain any
improvements to the Property at the time hereof existing in
their present configuration and proximity.
Section 7. Easements for Utilities, Etc. There
is hereby reserved the power to grant blanket easements upon,
across, over, and under all of the property for ingress,
egress, installation, replacing, repairing, and maintaining
master television antenna systems, security, and similar
systems, and all utilities, including, but not limited to,
water, sewers, telephones, and electricity. By virtue of any
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r) r�
such easement, it shall be expressly permissible for the
providing utility company or other supplier or servicer to
erect and maintain the necessary pies and other equipment on
said property and to affix and maintain utility wires, circuits,
and conduits on, above, across, and under the roofs and exterior
walls of the Residences. Notwithstanding anything to the
contrary contained in this paragraph, no sewers, electrical
lines, water lines, or other utilities may be installed or
relocated on the property, except as may be approved by the
Association's Board of Directors. Should any entity furnishing
a service covered by the general easement herein provided
request a specific easement by separate recordable document,
the Board of Directors shall have the right to grant such
easement on said property without conflicting with the terms
hereof. The easements provided for in this Article shall in
no way adversely affect any other recorded easement on the
Properties.
Section 8. Pets. No animals, livestock, or
poultry of any kind shall bred, or kept on the
Properties, except that no more than a total of two (2) normal
household pets may be kept in Residential Units, subject to
rules and regulations adopted by the Association through its
Board of Directors, provided that such pets are not kept,
bred, or maintained for any commercial purpose. Subject to
such Rules and Regulations that it may adopt, or from time to
time amend, the Board shall have the absolute power to prohibit
pets from bein kept on the Properties, including inside Residen-
tial Units constructed thereon.
Section 9. Severability. Invalidation of any
one 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.
Section 10. Perpetuities. If any of the covenants,
conditions, restrictions, or other provisions of this Declara-
tion shall be unlawful, void, or voidable for violation of the
rule against perpetuitie, then such provisions shall continue
only until twenty -one (21) years after the death of the longest
lived member of the presently constituted City Council of the
City of Aspen, Colorado.
Section 11. Renting or Leasing of Residential
Unit. Units may be rented or leased only by written leases
and subject to the following restrictions:
Minimum Terms. Residential Units shall be
restricted to minimum six -month lease terms with no more than
two shorter tenancies per year.
Lessee to Com.1 With Declaration and B -Laws --
Effect of Non -Comp iance. A tenants s a .e subject to t e
terms and conditions of this Declaration, the By -Laws of the
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■
Association, the Articles of Incorporation, and the rules and
regulations from time to time promulgated thereunder by the
' Board of the Association.
Each owner agrees to cause his lessee, occupant,
or persons living with such owner or with his lessee to comply
with the Declaration, By -Laws, and the rules and regulations
promulgated thereunder, and is responsible and liable for all
violations and losses caused by such tenants or occupants,
notwithstanding the fact that such occupants of the unit are,
as well, fully liable for any violation of the documents and
regulations; failure to comply shall be, at the Board's option,
considered a default in the lease.
In the event that a lessee, occupant, or person
living with the lessee violates a provision of the Declaration,
By -Laws, or rules and regulations adopted pursuant thereto,
the Board shall have the power to bring an action or suit
against the lessee to recover sums due for damages or injunc-
tive relief, or for any other remedy available at law or
equity, incluidng, but not limited to, all remedies available
to a landlord upon the breach or default of the lease agreement
by the lessee.
The Board shall also have the power to impose
reasonable fines upon the lessee for any violation by the
lessee, occupant, or person living with the lessee of any duty
imposed under the Declaration, By -Laws, or rules and regula-
tions adopted pursuant thereto, and to suspend the right of
the lessee, occupant, or person living with the lessee to use
the Common Area.
IN WITNESS WHEREOF, the undersigned Declarant has
executed this Declaration this day of
1982.
PITKIN LTD., a Colorado
corporation
ATTEST:
By
, President
Secretary
(Acknowledgment on Page 17)
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STATE OF COLORADO )
ss.
COUNTY OF PITKIN )
The foregoing instrument was acknowledged before me
this day of , 1982, by
, as President and
as Secretary of Pitkin Ltd., a Colorado corporation,
WITNESS my hand and official seal.
My commission expires:
My address is:
(SEAL)
Notary Public
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EXHIBIT I
0
PARTY WALL DECLARATION FOR
LOTS and
PITKIN RESERVE
THIS DECLARATION, made this day of
1982, by PITKIN LTD., a Colorado corporation, hereinafter
called Declarant,
RECITALS
i i
A. Declarant is the present owner, in fee simple, of
1 certain improved real property situated in the County of
Pitkin, State of Colorado, and described legally as being Lots
and , Pitkin Reserve, according to the Plat thereof
recorded in Plat Book at Pages of the records of
Pitkin County, Colorado, (hereinafter such lots being collec-
tively referred to as the "Property "),
B. Declarant has previously caused the division of the
Property and the existing two - family dwelling improvement
thereon, into two seperate townhouse Lots, as shown and desig-
nated on the Plat of Pitkin Reserve above referenced.
C. Declarant intends to sell and convey such townhouse
lots as separate townhouse parcels with the improvements now
constructed thereon, separated by a common or party wall, and
to make provision in this Declaration for certain conditions,
reservations, easements, liens and charges, and restrictions
as hereinafter set forth.
D. Declarant hereby declares that the Property shall be
so divided, and that the Lots shown on the townhouse plat
shall be held, sold and conveyed, subject to the following
easements, reservations, restrictions, liens and charges,
covenants, conditions and definitions, which are for the
purpose of protecting and preserving the value and desirability
of each Lot and of the Property as a whole, and that the same
shall run with the land and be binding upon all parties having
any right, title or interest in such townhouse Lots or any
part thereof, their heirs, successors and assigns and the same
shall inure to the benefit of each Owner thereof, his heirs,
successors or assigns.
ARTICLE I
Definitions
1. "Property" shall mean and refer to all of the real
property described in Recital A above.
2. "Lot" shall mean and refer to any divisible
parcel of the Property as depicted and shown on the Plat of
Pitkin Reserve above and below referenced and described by
Lot letter thereon, title to which shall be owned and conveyed
in fee simple.
3. "Townhouse" shall mean and refer to the portion
of the existing two - family dwelling located upon a Lot, including
appurtenant rights in and to the party wall, as hereinafter
provided.
4. "Unit" shall mean the Lot and Townhouse.
5. "Plat" shall mean and refer to the Final Plat
for Pitkin Reserve recorded in Plat Book _ at Pages
of the Pitkin County, Colorado records.
6. "Owner" shall mean and refer to the record
owner, including Declarant, whether one or more persons or
entities, of the fee simple title to any Lot situated upon the
Property.
7. "Deed of Trust" shall mean and refer to a deed
of trust or mortgage instrument of record constituting a lien
upon a Lot as security for an indebtedness or other consideration.
8. "First Mortgagee" shall mean a person or persons,
or entity, which is the beneficiary of a deed of trust or
mortgage constituting a first lien against a Lot.
ARTICLE II
Party Wall
A. Easement for Pary Wall. The wall and any structural
extension that forms the division between the two units of the
present townhouse improvements on the Property, is hereby
declared to be a party wall, as shown and located on the Plat,
to be shared and owned in common by the Owners.
Each Lot shall be subject to an easement for encroach-
ment created by construction, settling or overhang of the
present party wall constructed upon the Property, and to a
reasonable degree, any subsequent improvement, addition or
replacement thereof, and for the maintenance of the same so
long as such encroaching portion of the improvements stands
and shall exist. In the event the townhouse is partially or
totally destroyed by fire or other disaster and rebuilt by the
Owners, such Owners agree that minor encroachments of parts of
the adjacent Townhouse building upon a Lot due to such recon-
struction, shall be permitted and that a valid easement for
said encroachment and the maintenance thereof shall and does
exist.
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Each Owner shall have an easement for horizontal and
lateral support for the Townhouse and other improvements
situated on such Owner's Lot.
B. Responsibility for Party Wall. Except as is otherwise
provided in this Declaration, the cost of reasonable maintenance,
repairs and replacement of the party wall shall be the joint
expense of the Owners. The cost of repairs and maintenance of
the finished surface of the party wall located within a Lot
shall be the sole expense of the Owner of such Lot.
An Owner shall have the right reasonably to maintain
and repair any utility installation located within a party
wall but in so doing shall restore the party wall to its
original condition.
C. Negligence by Owner. In the event the party wall is
damaged or destroyed by the act, omission, default or negligence
of one of the Lot Owners, such Owner shall rebuild or repair
the wall and shall compensate the other Owner for any damage
to the latter's property.
In addition, an Owner who by negligence or willful
act causes or permits a party wall to be exposed to the elements
of nature, shall bear the whole cost of furnishing the necessary
protection against such elements so as to protect the party
wall and the other Owner's property against such elements.
D. Standard of Repair. Any repairs or rebuilding of
the party wall shall be done in a workmanlike manner, and
shall conform, in all respects, to the laws regulating the
construction, restoration or repair of buildings in force at
the time.
E. Insurance. To the extent that damages to the party
wall are covered by insurance, the full insurance proceeds
shall be used and applied to repair, restore and replace the
party wall. Except as provided above, any deficiency shall be
paid as the joint expense of the Owners, without prejudice,
however, to the right of an Owner to demand a larger contri-
bution from the other Owner under any rule of law governing
liability for negligent or willful acts or omissions.
F. Common Law Application. To the extent they are not
inconsistent with the provisions of this Declaration, the
general rules of law regarding party walls shall apply to the
real property subject hereto.
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ARTICLE III
Owner's Maintenance Responsibility
For purposes of maintenance, repair, alteration and
remodeling of a Unit, an Owner shall be responsible for all
surfaces ( i.e., exterior, interior, structural and nonstruc-
tural) physically serving or connected with his Unit and all
utility systems ( e.q., pipes, wires, conduits) commencing at
the point where any of such systems depart an area of common
usage or an area of usage restricted to the other Unit and
begin in the direction of his Unit. All surfaces jointly
serving both units such as a party wall, and all utility
systems in any area of common usage shall be maintained,
repaired, altered or remodeled jointly by the Owners, with
each Owner being responsible for one half of all expenses.
Each Owner shall indemnify and hold the other forever harmless
from and against any and all loss or damage of whatsoever
nature occasioned in the performance of his respective obligation
of maintenance and repair, or in his failure to perform, and
in the alteration or remodeling of any areas for which he is
responsible as herein provided.
No repair, alteration, remodeling or maintenance thereof
shall modify the appearance or color scheme of the exterior
improvements as they may exist from time to time without the
written consent of both of the Owners and of any collective
association of homeowners within Pitkin Reserve. Any right to
repair, alter and remodel shall carry with it the obligation
to replace any finishing materials removed with similar or
other types or kinds of finishing materials of equal or better
quality, and to maintain the exclusive use area in neat and
clean condition. An Owner shall maintain and keep the interior,
together with exterior surfaces and other non - interior areas
for which he is responsible in good repair and condition. .
ARTICLE IV
Reservation for Access -
Maintenance, Repair and Emergencies
Each Owner shall have the irrevocable right to have
reasonable access to the other Unit during reasonable hours as
may be necessary for the inspection, maintenance, repair or
replacement of the party wall or any utilities located therein
or for making emergency repairs necessary to prevent damage to
the party wall or a Unit. Damage to any part of a Unit resulting
from maintenance, repair, or replacement of the party wall or
as a result of emergency repairs within a Unit shall be a
Common Expense of all of the Owners; provided, however, that
if such damage is the result of the negligence of a Unit
Owner, then such Unit Owner shall be responsible for all of
such damage.
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Any utility service provided to the improvements for the
common utilization by each Owner, shall be the joint expense
of the Owners and the rules respecting a nonpayment of any
such joint expense, as set forth in Article VI hereof, shall
be applicable. However, in the event any such utility service
is capable of and shall be separately metered and billed to
the separate Owners, each Owner shall then pay his separate
share of such expense as billed. In the event that an improvement
to joint utilities is for the comfort or convenience of a
single Owner and the other Owner does not elect in advance, in
1 writing, to share expenses thereof, then the utility service
shall not be deemed to be at the joint expense of both Owners
even though common utilization results from such improvement.
ARTICLE V
Insurance
A. Joint Insurance. The Owners shall jointly obtain
and maintain replacement value insurance for fire, lightning
and other common hazard for the entire building or buildings
as, from time to time, may occupy the Property, equal in
amount to at least 80% of the value of such building or buildings
and which amount shall be reviewed annually by such Owners and
increased as needed to equal such 80% of value. Premiums for
such insurance shall be the joint expense of Owners, each
Owner to pay one -half of such expense within ten (10) days of
the receipt of the premium notice for such policy. In the
event any Owner fails to make any payment required by this
j paragraph, the rights granted to a nondefaulting Owner in
Article VI shall apply.
B. Separate Insurance. In addition to the joint in-
I surance required to be carried by the Owners, an Owner may, if
so desired and at that Owner's sole expense, insure his own
Lot and Townhouse located wholly thereon, for his own benefit
and protection and at his sole expense, as well as any other
' form of insurance coverage deemed advisable. It shall be the
individual responsibility of each Owner, at his separate
expense, to maintain and pay for homeowner's liability insurance.
C. Use of Proceeds. Damage or destruction of the
premises as a result of fire or other casualty shall be governed
by the following provisions:
1. In the event of damage or destruction due
to fire or other disaster, the insurance proceeds, if sufficient
to reconstruct the residence, shall be promptly applied by the
Owner(s) to such reconstruction;
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2. If the insurance proceeds are insufficient
to repair and reconstruct the residence, the Owner or Owners
whose Unit(s) have been damaged shall be free to determine
whether to repair or reconstruct their respective Unit(s). In
the event it is determined not to repair or reconstruct, the
damaged portion shall not be left in an untidy or visually
detracting state.
ARTICLE VI
A. Nonpayment of Common Expenses. All sums due but
unpaid for the share of joint expenses chargeable to any Unit,
including interest thereon at eighteen percent (18 %) per
annum, from a date thirty (30) days after such sums have been
assessed, shall constitute a lien on such Unit superior (prior)
to all other liens and encumbrances except:
1. Tax and special assessment liens on the
Unit in favor of any governmental assessing entity;
2. All sums unpaid on a first mortgage or
first deed of trust of record, including all unpaid obligatory
sums as may be provided by such encumbrance, including additional
advances, refinance or extension of these obligations made
thereon prior to the arising of such a lien.
To evidence such lien the aggrieved Owner may, but shall not
be required to, prepare a written notice setting forth the
amount of such unpaid indebtedness, the name of the defaulting
Owner of the Unit and a description of the Unit. Such a
notice shall be designed by the aggrieved Owner, as appropriate,
and may be recorded in the Office of the Clerk and Recorder of
the County of Pitkin, State of Colorado. Such lien for the
joint expenses shall attach from the date of the failure of
payment of the debt, and may be enforced by foreclosure on the
defaulting Owner's Unit by the aggrieved Owner in like manner
as a mortgage or deed of trust on real property upon recording
of a notice or claim thereof. In any such foreclosure, the
defaulting Owner shall be required to pay the costs and expenses
of such proceedings, the costs and expenses for filing the
notice or claim of lien and all costs and reasonable attorneys'
fees incurred in enforcement of the lien claim. The foreclosing
party shall have the power to bid on the Unit at foreclosure
sale and to acquire and hold, lease, mortgage and convey same.
The amount of the joint expenses chargeable against each Unit
and the costs and expenses, including attorneys' fees, of
collecting the same shall also be a debt of the Owner thereof
at the time the same is due. Any mortgagee holding a lien on
a Unit may pay any unpaid joint expense payable with respect
to such Unit, and upon such payment such mortgagee shall have
a lien on such Unit for the amounts paid of the same priority
as the lien of such paying mortgagee's encumbrance. The right
to foreclose such lien shall not preclude an independent
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action by the aggrieved owner against the defaulting owner for
1 collection of the unpaid indebtedness, plus the aggrieved
owner's costs and reasonable attorneys' fees, in all cases
being additional sums due.
B. Liability for Joint Expense Upon Transfer of Unit.
Upon the written request of any Owner or of any Mortgagee or
i prospective Mortgagee of a Unit, the Owner of the other Unit
shall issue a written statement setting forth the amount of
the unpaid joint expenses, if any, with respect to the subject
Unit, the amount of the current monthly or other periodic
assessment and the date such assessment becomes due, and any
credit for advance payments or from prepaid items, which shall
be conclusive upon the issuer of such statement in favor of
all persons who rely thereon in good faith. Unless such
statement of indebtedness is furnished within fifteen days,
all unpaid joint expenses which became due prior to the date
of such request shall be subordinate to the lien of the mort-
gagee requesting such statement.
The grantee of a Unit shall be jointly and severally
liable with the grantor for all unpaid assessments against the
latter for his proportionate share of the joint expenses up to
the time of the grant or conveyance, without prejudice to the
grantee's right to recover from the grantor the amounts paid
by the grantee. However, upon written request, any prospective
grantee shall be entitled to a statement from the Owner of the
other Unit setting forth the amount of the unpaid assessments,
if any, with respect to the subject Unit, the amount of the
current monthly assessment and the date that such assessment
becomes due, and any credit for advanced payments or for
prepaid items, which shall be conclusive upon the issuer of
such statement. Unless such request for a statement of indebted-
ness shall be complied with within fifteen (15) days of such
request, then such grantee shall not be liable for, nor shall
the Unit conveyed be subject to a lien for any unpaid assessments
against the subject Unit.
ARTICLE VII
Arbitration
In the event of any dispute arising between the Owners
concerning any provision of this Declaration, except resulting
from the nonpayment of common expenses, which shall be resolved
in the manner set forth in Article VI, above, the same shall
be resolved by arbitration in accordance with the practice,
rules and regulations of the American Arbitration Association.
Notice of the demand for arbitration shall be filed in writing
with the other owner(s) and with the American Arbitration
Association. The demand shall be made within a reasonable time
after the claim, dispute or other matter in question has arisen.
In no event shall the demand for arbitration be made after the
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date when institution of legal or equitable proceedings based
on such claim, dipuste or other matter in question would be
barred by any applicable statute of limitations. The award
rendered by the arbitrators shall be final, and judgment may
be entered upon it in accordance with applicable law in any
court having jurisdiction thereof.
ARTICLE VIII
General Provisions
A. Covenants Run With Land. The covenants, easements,
reservations, liens and charges, and conditions and restrictions
of this Declaration shall run with and bind the land and shall
inure to the benefit of and be enforceable by the Owner or
Owners of each Lot, their respective legal representatives,
heirs, devisees, successors, and assigns. This Declaration, or
any provision herein, may be amended or terminated at any time
by an instrument in writing signed by all then Owners of Lots
and all then beneficiaries of Deeds of Trust thereon. Such
amendment or revocation must be duly recorded in the office of
the Clerk and Recorder of the County of Pitkin.
B. Grammar. The singular wherever used herein shall be
construed to mean the plural when applicable and the necessary
grammatical changes required to make the provisions hereof
apply either to a corporation or to individuals, men or women,
shall in all cases be amended as though in each case fully
expressed.
C. Consent. Whenever consent is required under this
Declaration, consent shall not be unreasonably withheld.
D. Attorneys' Fees. Should this Declaration become the
subject of litigation or arbitration to resolve a claim of
default in performance by either party, the party who is
determined to be in default shall pay the attorneys' fees,
expenses, and costs of the nondefaulting party.
E. Mailing of Notices. Each Owner shall supply his
mailing address to the other Owner and all notices or demands
intended to be served upon any Owner shall be either hand
delivered or sent by certified mail, postage prepaid, addressed
in the name of the Owner at such mailing address. All notices
or demands to be served on Mortgagees pursuant hereto shall be
sent by certified mail, postage prepaid, addressed in the name
of the mortgagee at such address as the mortgagee may have
furnished to the Owners in writing, or any address appearing
in the recorded mortgage or deed of trust. Any notice referred
to in this paragraph shall be deemed given when actually
delivered or when deposited in the mails in the form provided
for in this paragraph.
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G. Invalid Provision. If any provision of this Decla-
ration shall be determined to be void by any court of competent
jurisdiction, then such determination shall not affect any
!other provision hereof, all of which other provisions shall
remain in full force and effect. It is the intention of the
Declarant that if any provision of this Declaration is capable
of two constructions, one of which would render the provision
void and the other of which would render the provision valid,
then the provision shall have the meaning which renders it
valid.
H. Governing Law. The law of the State of Colorado
shall govern the interpretation and effect of this Declaration.
IN WITNESS WHEREOF, the undersigned, being the
Declarant herein, has hereunder set its hand and seal the day
and the year first above written.
PITKIN LTD., a Colorado
corporation
By
, President
By
, Secretary
STATE OF COLORADO
ss.
COUNTY OF PITKIN
The foregoing instrument was acknowledged before me this
day of , 1981, by
, as President and by
, as Secretary of Pitkin
Ltd.,
a Colorado corporation.
WITNESS my hand and official seal..
My commission expires:
My address is:
(SEAL)
Notary Public
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EXHIBIT J
At
CITY ASPEN
130 south galena street
aspen, colorado ;' 81611
March 4, 1982
Robert W. Hughes, Esq.
OATES, HUGHES & KNEZEVICH, P.C.
600 E. Hopkins, Suite 200
Aspen, CO 81611
Re: Financial Assurances for Improvements at
Pitkin Reserve
Dear Bob:
Pursuant to our discussion yesterday regarding re-
quired financial assurances for proposed improvements at Pitkin
Reserve, this letter is intended to set a dollar figure for the
estimated cost of improvements of particular concern to the City.
Following my conversation with you and a brief meeting with Dan
McArthur, Paul Taddune and myself, a determination was made as to
those items under the proposed schedule of improvements (Exhibit
D to the Subdivision Agreement) requiring a financial guaranty.
It was determined that the improvements of particular
concern to the City were those involving all utility mains,
drainage, road work, electric relocations and revegetation along
the County roadway.
The dollar amount to be inserted on Section XI of the
Agreement should be $337,586.00, which is the total construction
estimate for all proposed improvements in Exhibit D ($534,504.00)
excluding the following:
I. Water Improvements
1" Service lines $ 2,250.00
3 -1/2" Service Line 300.00
II. Sewer Improvements
Service taps 4,550.00
•
Robert W. Hughes, Esq.
March 4, 1982
Page Two
III. Gas System
3/4" Service Connections $ 2,100.00
IV. Landscaping of Private Units 187,718.00
Total Construction to be
Excluded 196,918.00
Total Construction Estimate 534,504.00
Service Connections not
requiring Guaranty - 196,918.00
FINANCIAL ASSURANCE AMOUNT $337,586.00
Please contact me should you need further assistance
or clarification.
Sincerely,
J• . Hammon.
_is ant City Engineer
JWH /caa
cc: Paul Taddune
Alan Richman