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Home My WebLink AboutLanduse Case.CO.308 E Hopkins Ave.0083.2009.ASLU-REQUEST FOR CONDO 2737 07 3 29 007 s ( U O� 7 2 q File Edit Record Navigate Form Reports Format Tab Help J ►X ► ' 0--, � � E � � ' � i j 1 J .1 �] � t jump s i Main L�Ldluation Custom Fods gctions Feel Parcels Fee Summary Sub permits Attaftients Routng Status Routing 1 ► G� F-`;—Type aslu _- Aspen Land Use Permit # 10083.2009.ASLU Address 1308 E HOPKINS AVE J Apt/Suite i $ City ASPEN State CO -�-] zip 81611 3#f I Permit Information Master Permit Project Description REQUEST FOR CONDOMINIUMIZATION i Submitted ILENNIE OATES 9201700 Owner Last Name FW VENTURE LLC Phone (970)920-1776 vo Owner Is Applicant? Applicant Routing Queue as1u07 Applied 12/10/2009 Status pending Approved j J Issued F—� Final Clock Running pays F---b Expires 1210512010 First Name PO BOX 8769 ASPEN CO 81612 Last Name JJW VENTURE LLC First Name Phone (970) 920-1776 Cust # i27291 Lender Last Name J First Name Phone cV -* IzC1 o PO BOX 8769 — ASPEN CO 81612 AspenGold(b) Record: 1 of 1 THE CITY OF ASPEN City of Aspen Community Development Department CASE NUMBER PARCEL ID NUMBER PROJECTS ADDRESS PLANNER CASE DESCRIPTION REPRESENTATIVE DATE OF FINAL ACTION 0083.2009.ASLU 2737 07 3 29 007 308 E. HOPKINS AVE JENNIFER PHELAN REQUEST FOR CONDOMINIUMIZATION LENNIE OATES 2.4.11 CLOSED BY ANGELA SCOREY ON: 05.6.11 CONDOMINIUM DECLARATION FOR 308 East Hopkins Condominiums Aspen, Colorado i TABLE OF CONTENTS OF CONDOMINIUM DECLARATION FOR 308 EAST HOPKINS CONDOMINIUMS ARTICLEI - RECITALS.............................................................................................................................. 7 Section1.1. The Declarant............................................................................................................................. 7 Section1.2. The Property.............................................................................................................................. 7 Section13. The Development......................................................................................................................... 7 Section1.4. The Community........................................................................................................................... 7 Section15. The Name of the Community........................................................................................................ 7 Section 1.6. The Name of the Association......................................................................................................... 7 Section1.7. The Condominium Map............................................................................................................. 8 Section1.8. Maximum Number of Units........................................................................................................ 8 Section1.9. The Purpose................................................................................................................................ 8 ARTICLE II - DEFINITIONS....................................................................................................................... 8 Section2.1. Act.............................................................................................................................................. 8 Section2.2. Affordable Housing Units....................................................................................................... 8 Section2.3. Association................................................................................................................................ 8 Section2.4. Building..................................................................................................................................... 8 Section2.5. Commercial Units....................................................................................................................... 8 Section 2.6. Common Elements...................................................................................................................... 8 Section2.7. Common Expenses...................................................................................................................... 9 Section 2.8. Community ................................................................................................................................ 9 Section2.9. Condominium Map.................................................................................................................. 9 Section2.10. Executive Board....................................................................................................................... 9 Section2.11. Free Market Units................................................................................................................. 9 Section2.12. General Common Elements..................................................................................................... 9 Section2.13. Housing Authority................................................................................................................... 9 Section2.14. Limited Common Elements.................................................................................................... 9 Section2.15. Mortgage................................................................................................................................... 9 Section2.16. Mortgagee................................................................................................................................ 9 Section2.17. Owner.................................................................................................................................... 9 Section2.18. Property................................................................................................................................. 9 -2- S Section2.19. Residential Units.................................................................................................................... 9 Section2.20. Unit........................................................................................................................................ 9 ARTICLE III- CONDOMINIUM OWNERSHIP......................................................................................... 10 Section3.1. Separate Interests...................................................................................................................... 10 Section3.2. Title..........................................................................................................................................10 Section3.3. Enjoyment of Common Elements............................................................................................. 10 Section3.4. Inseparability........................................................................................................................... 10 Section3.5. No Partition.............................................................................................................................. 10 Section3.6. Separate Titles and Taxation................................................................................................... 10 Section3.7. Mechanic's Lien Rights............................................................................................................ 10 Section3.8. Description of Units................................................................................................................... 11 ARTICLE IV - EASEMENTS; ENCROACHMENTS................................................................................... 11 Section4.1. Condominium Map Dedications.............................................................................................. 11 Section4.2. Enjoyment and Access................................................................................................................ 11 Section4.3. Utilities....................................................................................................................................... 11 Section4.4. Maintenance Easement............................................................................................................. 11 Section 4.5. Ventilation Chase Easements (Exhaust and Make -Up Air)............................................................ 11 Section4.6. Encroachments......................................................................................................................... 12 Section 4.7. Constructive Grant of Reciprocal Easements............................................................................ 12 Section4.8. Service Elevator........................................................................................................................ 12 ARTICLE V - BOUNDARIES AND COMMON ELEMENTS....................................................................... 12 Section5.1. Unit Boundaries......................................................................................................................... 12 Section 5.2. Allocation of Limited Common Elements................................................................................ 13 Section 53. Reallocation of Limited Common Elements................................................................................. 13 ARTICLE VI - MAINTENANCE AND REPAIRS ......................................................................................... 14 Section 6.1.Owner's Duties - Units and Limited Common Elements........................................................... 14 Section 6.2. Association's Duties - Common Elements................................................................................ 14 Section 6.3. Maintenance Costs - Common Elements.................................................................................. 14 Section6.4. Parking......................................................................................................................................14 Section 6.5. Association's Right of Access.................................................................................................... 15 Section6.6. Snow Removal........................................................................................................................... 15 Section6.7.Owner Caused Damage........................................................................................................... 15 Section6.8. Association's Right to Maintain............................................................................................... 15 Section6.9. Declarant's Right to Maintain.................................................................................................... 15 Section6.10. Landscaping and Lawn Care..................................................................................................16 -3- Section6.11.Owner Responsibility............................................................................................................... 16 Section 6.12. Determination of Obligation and Supervision.................................................................. 16 ARTICLE VH - THE ASSOCIATION.......................................................................................................... 16 Section7.1. Purposes and Powers................................................................................................................ 16 Section7.2. Membership.............................................................................................................................. 16 Section 73. The Executive Board; Representation on Board....................................................................... 16 Section 7.4. Articles of Incorporation; Bylaws.............................................................................................. 17 Section 7.5. Voting by Multiple Owners........................................................................................................ 17 Section7.6. Exercise of Powers..................................................................................................................... 17 Section7.7. Assessments.............................................................................................................................. 17 Section7.8. Special Assessments.................................................................................................................... 18 Section7.9. Allocation of Assessments for Common Expenses........................................................................ 18 Section7.10. Payment of Assessments......................................................................................................... 19 Section7.11. Periodic Assessments.............................................................................................................. 19 Section7.12. Added Charges........................................................................................................................ 19 Section7.13. Collection of Assessments....................................................................................................... 19 Section7.14. Assessment Liens..................................................................................................................... 19 Section7.15. Budget Approval Process........................................................................................................ 19 Section 7.16. Audits.....................................................................................................................................19 Section7.17. Rules and Regulations............................................................................................................. 20 ARTICLE V11I - ALLOCATED INTERESTS.............................................................................................. 20 Section8.1. Common Elements.................................................................................................................... 20 Section 8.2. APCHA Interest in Affordable Housing Units.......................................................................... 20 Section 83. Liability For Common Expenses................................................................................................. 20 Section8.4. Voting Rights............................................................................................................................ 20 Section8.5. Allocation of Interests................................................................................................................ 21 ARTICLE IX - DECLARANT'S RESERVED DEVELOPMENT RIGHTS ................................................ 21 Section9.1. Rights Reserved......................................................................................................................... 21 Section9.2. Exercise of Development Rights................................................................................................. 22 Section 93. Reserved Construction Easement.............................................................................................. 22 Section9.4. Signs and Marketing................................................................................................................. 22 Section9.5. Removal of Declarant's Property ............................................................................................... 22 Section9.6. No Interference......................................................................................................................... 22 Section 9.7. Promotional Activity of the Declarant...................................................................................... 22 Section9.8. Time Limit................................................................................................................................. 23 -4- Section 9.9. Release or Assignment of Declarant's Rights............................................................................. 23 Section 9.10. Controlling Authority .......................................................................................................... 23 ARTICLE X - DECLARANT'S RIGHTS TO CONTROL THE ASSOCIATION AND LIMITATIONS...... 23 Section 10.1. This Article Controls.............................................................................................................. 23 Section 10.2. Period of Declarant Control................................................................................................. 23 Section103. Voluntary Surrender................................................................................................................ 24 Section10.4. Association's Records................................................................................................................ 24 ARTICLE XI - USE RESTRICTIONS........................................................................................................ 24 Section11.1. Leases..................................................................................................................................... 24 Section11.2. Affordable Housing Units........................................................................................................ 24 Section113. Animals................................................................................................................................... 24 Section 11.4 Restrictions on Floor Loads...................................................................................................... 25 Section115. No Nuisance or Hazard............................................................................................................. 25 Section 11.6. Use of Commercial Units.......................................................................................................... 25 Section 11.7. Use of Residential Units............................................................................................................ 26 Section11.8. Storage of Personal Property.................................................................................................. 26 Section11.9. Garbage and Trash............................................................................................................... 26 ARTICLE XH- NOTICE OF MIXED USE DEVELOPMENT.................................................................. 26 Section12.1. Notice of Mixed Use................................................................................................................ 26 Section 12.2. Annoying Light, Sound or Odor........................................................................................... 26 Section 12.3. Commercial Deliveries............................................................................................................ 27 Section12.4. Complaints.............................................................................................................................. 27 ARTICLE XHI - INSURANCE................................................................................................................... 27 Section 13.1. Association to Maintain Insurance............................................................................................. 27 Section13.2. Non -Availability ..................................................................................................................... 28 Section 133. Additional Coverage Required.............................................................................................. 28 Section13.4. Adjustment of Property Loss............................................................................................... 28 Section 13.5. Procedures; Deductibles; Assessments.................................................................................... 28 Section13.6: Owner's Insurance................................................................................................................ 28 Section13.7.Officers and Directors........................................................................................................... 28 Section 13.8. Fidelity Bonds and Insurance................................................................................................. 29 Section 13.9. Managing Agent Insurance...................................................................................................... 29 Section 13.10. Worker's Compensation and Employer's Liability Insurance ................................................ 29 Section13.11.Other Insurance..................................................................................................................... 29 Section13.12. Insurance Expense............................................................................................................... 29 -5- s Section13.13. Annual Review..................................................................................................................... 29 Section13.14. Duty to Repair....................................................................................................................... 29 ARTICLE XIV - ASSESSMENT CERTIFICATES AND NOTICES......................................................... 29 Section14.1. Assessment Certificates........................................................................................................... 29 Section 14.2. Notice of Assessment Liens...................................................................................................... 29 ARTICLE XV - GENERAL PROVISIONS................................................................................................. 30 Section15.1. Notices to Owners................................................................................................................... 30 Section15.2. Recording Data..................................................................................................................... 30 Section 15.3. Covenants to Run with the Land............................................................................................ 30 Section15.4. Enforcement........................................................................................................................... 30 Section15.5. Amendments........................................................................................................................... 30 Section15.6. Termination of Declaration.................................................................................................... 31 Section15.7. Restoration............................................................................................................................. 31 Section15.8. Duration..................................................................................................................................... 31 Section 15.9. Interpretation and Conflicts ......................................................................................................... 31 Section15.11. Severability ............................................................................................................................... 31 -6- I CONDOMINIUM DECLARATION FOR 308 EAST HOPKINS CONDOMINIUMS (Aspen, Colorado) KNOW ALL MEN BY THESE PRESENTS that JW Ventures, LLC, does hereby declare and adopt the following Condominium Declaration (the "Declaration"), which shall run with the land and be binding upon all parties acquiring any interest therein or thereto. ARTICLE I - RECITALS Section 1.1. The Declarant. JW Ventures, LLC (the "Declarant") is a limited liability company duly organized and existing under and by virtue of the laws of the State of Colorado. Section 1.2. The Property. The real property submitted to this Declaration, including all easements, rights -of -way and appurtenances thereto and the buildings and improvements erected thereon, is owned by the Declarant, is located in the City of Aspen, County of Pitkin, State of Colorado, and is described, as follows: 308 EAST HOPKINS AVENUE SUBDIVISION (the "Property") Section 1.3. The Development. The Property shall be developed as a mixed -use condominium project, containing one (1) 3-story building, plus subgrade level (`Building"). The Building will consist of two (2) Commercial Units, one on the ground floor and the other on the subgrade level, and Residential Units on the second and third floors in the Building, pursuant to approvals granted by the City of Aspen Historic Preservation Commission Resolutions 18, (Series of 2006) and 19 (Series of 2007), City of Aspen Council Ordinance 27 (Series of 2007) the Subdivision Agreement for 308 East Hopkins Subdivision which resulted therefrom ("SIX") and the City of Aspen Growth Management Quota Allocation granted to Declarant in 2008 permitting Declarant to use the subgrade level of the Building for commercial purposes; and, this Declaration shall be subject to the terms, conditions and obligations of said Resolutions, Ordinance, SIA and Growth Management Quota Allocation Section 1.4. The Community. The Development shall constitute a common interest community within the meaning of the Colorado Common Interest Ownership Act, §§38-33.3-101, et seq. of the Colorado Revised Statutes, as it may be amended from time to time (the "Act"� The Development will constitute a "condominium," within the meaning of the Act. The Development shall be located, in its entirety, within Pitkin County, Colorado. Section 1.5. The Name of the Community. The name of the common interest community is 308 East Hopkins Condominiums. Section 1.6. The Name of the Association. The name of the Association that shall manage the Community in accordance with the provisions of this Declaration and the Act is 308 EAST HOPKINS -7- I CONDOMINIUMS ASSOCIATION, a not for profit corporation organized under the Colorado Revised Non -Profit Corporation Act Section 1.7. The Condominium Map. The Development is depicted on the Condominium Map of recorded as Reception No. , in Plat Book at Page of the Pitkin County, Colorado records. Section 1.8. Maximum Number of Units. The Community shall include two (2) Free Market Residential Units, three (3) Deed Restricted Employee Dwelling Residential Units and two (2) Commercial Units. Both Commercial Units shall be confined to the ground floor and subgrade level and all Residential Units shall be confined to the upper levels of the Buildings. The Unit designations are hereinafter set forth. Section 1.9. The Purpose. The purpose of this Declaration is to create a common interest community under the name of 308 East Hopkins Condominiums, in which portions of said Property will be designated for separate ownership and use by means of the condominium form of ownership, for residential and commercial purposes and in which the remainder of said Property will be designated for common ownership solely by the owners of the separate ownership portions, and to further the interests of the Community, to protect and enhance the property values, to set forth Declarant's reserved development rights and to otherwise effectuate the terms and provisions of the Act. ARTICLE H - DEFINITIONS The following terms shall have the following meanings when used herein unless the context otherwise requires: Section 2.1. Act. The "Act" means the Colorado Common Interest Ownership Act, C.R.S. 38-33.3-101, et seq. Section 2.2. Affordable Housing Units. "Affordable Housing Units" means the Deed Restricted Employee Dwelling Residential Units that are affordable housing units designated as such on the Condominium Map; and, which are subject to the Guidelines set forth in the Development Approvals. There are three (3) Affordable Housing Units, Units 202, 203 and 204. Section 2.3. Association. "Association" means and refers to 308 East Hopkins Condominiums Association, a Colorado not for profit corporation. Section 2.4. Building. "Building" means the building improvements in the single building in which the Units are located. Section 2.5. Commercial Units. "Commercial Unit" means and includes the two (2) Units located one on the main floor (ground level), Unit 101 and the other on subgrade level of the Building, Unit LLL Section 2.6. Common Elements. "Common Elements" means and includes all parts of the Property, grounds, improvements, installations and facilities which are not included within the Units. -8- Section 2.7. Common Expenses. "Common Expenses" means and refers to expenditures made or liabilities incurred by or on behalf of the Association, together with any allocations to reserves. Section 2.8. Community. "Community" means and includes all the Property submitted to this Declaration. Section 2.9. Condominium Map. "Condominium Map" means the Condominium Map of 308 East Hopkins Condominiums, referenced in Section 1.7. above, and any supplements thereto filed as phases of development thereof occur. Section 2.10. Executive Board. "Executive Board" means the Executive Board of the Association. Section 2.11. Free Market Units. "Free Market Units" means any (Residential or Commercial) Unit that is not an Affordable Housing Unit or a Commercial Unit. There are two Free Market Units, Units 201 and 301. Section 2.12. General Common Elements. "General Common Elements" means the Common Elements, exclusive of the Limited Common Elements. Section 2.13. Housing Authority. "Housing Authority" means the Aspen Pitkin County Housing Authority ("APCHA"). Section 2.14. Limited Common Elements. "Limited Common Elements" means that portion of the Common Elements allocated by the Declaration or the Condominium Map for the exclusive use of one or more, but fewer than all of the Units. Section 2.15. Mortgage. "Mortgage" means and refers to any mortgage, deed of trust or other security instrument by which a Unit or any part thereof is encumbered. Section 2.16. Mortgagee. "Mortgagee" means and refers to any person or entity named as a mortgagee or beneficiary under any deed of trust or mortgage under which the interest of any Owner is encumbered. Section 2.17. Owner. "Owner" or "Unit Owner" means and refers to any person or entity, including the Declarant, at any time owning a Unit. Section 2.18. Pro e . "Property" means the property described in Section 1.2. above, all of which is submitted to this Declaration. Section 2.19. Residential Units. "Residential Units" means and includes all of the Units located above the main floor on the two (2) upper levels (the second and third floors) of a Building, consisting of both "Free Market Units" and three (3) "Affordable Housing Units." Section 2.20. Unit. "Unit" means a physical portion of the Property consisting of airspace designated for separate ownership and shall refer to any of the numbered Units shown on the Condominium Map, as the same may be amended from time to time. -9- S ARTICLE M- CONDONUNIUM OWNERSHIP Section 3.1. Separate Interests. The Property shown on the Condominium Map is hereby divided into Common Elements and separate fee simple interests in the individual Units depicted thereon. The ownership of a Unit includes and is subject to the easements, rights, and obligations created by this Declaration and the Bylaws of the Association. Section 3.2. Title. Title to a Free Market Unit may be held or owned by any person or entity in any manner by which title to any other real property may be held or owned in the State of Colorado. Title to and use and occupancy of an Affordable Housing Unit upon the sale thereof by the Declarant is limited exclusively to natural persons. Each Affordable Housing Unit may only be used for residential purposes and may only be sold and resold pursuant to the terms of the Deed Restriction recorded as Reception No. of the Pitkin County, Colorado records. Section 3.3. EnLyment of Common Elements. Subject to the limitations contained in this Declaration, every Owner shall have the nonexclusive right to use and enjoy the General Common Elements and the exclusive right to use and enjoy those Limited Common Elements designated by the Condominium Map or this Declaration as appurtenant to his Unit. Limited Common Elements designated by the Condominium Map or this Declaration as appurtenant to more than one, but fewer than all of the Units shall vest each of the Units so designated with the nonexclusive right to use and enjoy those Limited Common Elements. Section 3.4. Inseparability. Every conveyance, transfer, gift, devise, encumbrance, or other disposition of a Unit, or any part thereof (other than an undivided interest in the whole), shall be presumed to be a conveyance, transfer, gift, devise, encumbrance, or disposition, as the case may be, of the entire Unit, together with all appurtenant rights created by this Declaration. No part of a Unit or of the legal rights appurtenant thereto may be separated from any other part thereof. Section 3.5. No Partition. No Owner may bring any action for partition of the Common Elements. Section 3.6. Separate Titles and Taxation. Each Unit, together with its interest in the Common Elements, constitutes for all purposes a separate parcel of real estate and must be separately assessed and taxed. The value of the Common Elements shall be assessed proportionately to each Unit in accordance with such Unit's allocated interest in the Common Elements. Upon the filing for recordation of this Declaration and the Condominium Map, the Declarant shall deliver a copy of such filing to the Assessor of Pitkin County, Colorado. Thereafter, all taxes, assessments, and other charges of the State, or any political subdivision, or of any special improvement district, or of any other taxing or assessing authority shall be assessed against and collected on each Unit, each of which shall be carried on the tax roUs as a separate and distinct parcel for that purpose. No forfeiture or sale of any Unit for delinquent taxes, assessments, or other governmental charges shall divest or in any way affect the title of the other Units. Section 3.7. Mechanic's Lien Rights. No labor performed or materials furnished for use in connection with any Unit with the consent or at the request of an Owner, an Owner's agent, or subcontractor shall create any Mechanic's Lien or right to file a statement of Mechanic's Lien against the Unit of any other Owner, or against any interest in the Common Elements. -10- Section 3.8. Description of Units. Every deed for the conveyance of a Unit and every other instrument affecting title to a Unit shall identify the County in which the Unit is located and may describe that Unit by the number shown on the Condominium Map with appropriate reference to the Condominium Map and to this Declaration, as each shall appear in the records of Pitkin County, Colorado, in the following fashion: UNIT , 308 EAST HOPKINS CONDOMINIUMS, according to the Condominium Map recorded as Reception No. , and subject to the Condominium Declaration therefor recorded as Reception No. of the Pitkin County, Colorado, Records. ARTICLE IV - EASEMENTS; ENCROACHMENTS Section 4.1. Condominium Map Dedications. In addition to the easements described in this Article IV and elsewhere in this Declaration, all dedicated easements described in the attached Exhibit A and/or shown on the Condominium Map or provided herein are hereby dedicated or reserved for the purposes intended. Section 4.2. Enioyment and Access. Every Owner shall have a non-exclusive right and an easement appurtenant to such Owner's Unit for the enjoyment and use of the Common Elements and for access to such Owner's Unit and the Limited Common Elements appurtenant to said Unit, including an easement for ingress and egress for pedestrian traffic over, through, and across sidewalks, paths, walks, and lanes as the same may from time to time exist upon the Common Elements and for pedestrian and vehicle traffic over, through, and across such areas and intended for such purposes. Section 4.3. Utilities. The Property shall be subject to a blanket easement in favor of the Association over, across, and through the Common Elements to install, repair, replace, and maintain all utilities, including, without limitation, water, sewer, gas, telephone, electricity, telecommunications and intemet services and cable TV ("utility service lines"). The Units themselves shall be subject to easements in favor of the Association to maintain, repair, replace or reconstitute common utility service lines, fixtures, equipment and facilities serving the Units and/or the Common Elements. Section 4.4. Maintenance Easement The Common Elements, and to the extent necessary, the Units themselves, shall be subject to a non-exclusive right and easement in the Association, including its agents, employees, contractors, and subcontractors, as may be necessary or appropriate for maintenance and repairs and the performance of such other duties and functions as the Association is permitted or obligated to perform under this Declaration. Section 4.5. Ventilation Chase Easements (Exhaust and Make -Up Air). Any portion of the Commercial Units located within twenty-five (25) feet of any existing ventilation chase forming a part of the General Common Elements shall carry an easement to access, connect to and use such existing ventilation chase for exhaust and make-up air handling purposes, provided that, the Owner(s) of the Commercial Unit shall obtain all necessary permits and licenses, shall comply with all applicable laws, rules, regulations and codes, the connection shall not interfere with any easement or the structural integrity of any part of the Common Elements or impair any pre-existing use of the ventilation chase. Prior to any such connection, appropriate plans and specifications shall be submitted to the Association. No such connection shall be made without the prior written approval of the Association, which approval shall not be unreasonably withheld. Subject to Section 5.1(b) following, no right shall exist to encroach upon the airspace of any other Unit for purpose of such connection. Section 4.6. Encroachments. If a Unit shall encroach upon any other Unit by reason of original construction or by the non -purposeful or non -negligent act of the Owner, then an easement appurtenant to such encroaching Unit, to the extent of such encroachment, shall exist so long as such encroachment shall exist. If any Common Element shall encroach upon any Unit by reason of original construction, or the non -purposeful or non -negligent act of the Association, then an easement appurtenant to such Common Element to the extent of such encroachment shall exist so long as such encroachment shall exist. Section 4.7. Constructive Grant of Reciprocal Easements. All conveyances of Units hereafter made, whether by the Declarant or otherwise, shall be construed to grant and reserve such reciprocal easements as shall give effect to the preceding Sections of this Article, even though no specific reference to such easements appear in the conveyance. Such easements and covenants are intended and hereby are declared to run with the land and to be appurtenant to the respective Units, and each of them. Section 4.8. Service Elevator.. The service elevator shown on the Map is designated as and is a Limited Common Element for Units 1 and LL1 and all expenses relating to the repair, maintenance and replacement thereof shall be allocated between those Units. The Affordable Housing Unit shall have an easement for the use of the said service elevator to move items into and out of the Affordable Housing Units which would be unable or difficult to be moved otherwise, such as, by way of example, furniture, equipment and appliances. Any damage to the service elevator caused by the use thereof by an Affordable Housing Unit Owner, such Owner's agents and invitees shall be the responsibility of such Affordable Housing Unit Owner. The easement created by this Section 4.8 shall not be used for general access to the Affordable Housing Units, there being stairs provided for such purpose. ARTICLE V - BOUNDARIES AND COMMON ELEMENTS Section 5.1. Unit Boundaries. The boundaries of each Unit are shown on the Condominium Map. Unit boundaries of Residential Units and Commercial Units consist of the airspace within unfinished walls, floors and ceilings provided that: (a) Unit boundaries of Residential Units consist of the airspace within unfinished interior walls, drywall to drywall, subflooring and to bottom (innermost element) of the Unit's lowest ceiling structural, provided that all lath, furring, wallboard, plasterboard, plaster, paneling, tiles, wallpaper, paint and finished flooring and any other materials constituting any part of the finished surfaces thereof are a part of the Unit, and all other portions of the walls, floors or ceilings are a part of the Common Elements. (b) The boundaries of the Commercial Units are the airspace areas bounded by unfinished surfaces of the exterior wall, unfinished lower and upper interior surfaces to the subfloor and bottom of each Commercial Unit's lowest ceiling structural element. -12- (c) If any chute, flue, duct, wire, cable, conduit, bearing wall, bearing column or other fixture lies partially within and partially outside the designated boundaries of a Unit, any portion thereof serving only that Unit is a Limited Common Element allocated solely to that Unit, and any portion thereof serving more than one Unit, serving any other Unit or serving any portion of the Common Elements, is a part of the General Common Elements, except that heating, cooling and ventilating systems ("HVAC Systems") and other equipment, the use of which is limited to Residential Units, are Limited Common Elements allocated to the Residential Units served thereby, and provided further, that HVAC Systems and other equipment, the use of which is limited to the Commercial Units are Limited Common Elements allocated to the Commercial Units. (d) Subject to the provisions of paragraph (b) of this Section 5.1, all spaces, interior partitions and other fixtures and improvements within the boundaries of aUnit are a part of the Unit. (e) Any shutters, awnings, window boxes, doorsteps, stoops, porches, terraces, balconies and patios and all exterior doors and windows or other fixtures designed to serve a single Unit including storm windows and storm doors, are Limited Common Elements allocated exclusively to that Unit whether located inside or outside the Unit's boundaries. Section 5.2. Allocation of Limited Common Elements. In addition to the Limited Common Elements identified in Sections 5.1(b) and 5.1(d) above, the following portions of the Common Elements are designated Limited Common Elements and assigned to the Unit or Units so designated: (a) The elevators (except the service elevator provided for in Section 4.8 hereof), stairs and stairwells extending from the main floor (ground level) to the upper levels and all upper floor stairways, stairwells, and hallways are designated Limited Common Elements and allocated to the Residential Units served thereby, provided however, that stairs and stairwells shall be subject to a general access easement appurtenant to of the Commercial Unit for the limited purpose of maintaining, servicing and repairing Limited Common Elements appurtenant to the Commercial Units. (b) Any utility areas, the use of which is limited to Residential Units are designated Limited Common Elements and allocated to the Residential Units served thereby. (c) Any utility areas, the use of which is limited to Commercial Units are designated Limited Common Elements and allocated to the Commercial Units served thereby. Any balcony or other terrace designated a Limited Common Element is allocated to the particular Unit designated on the Condominium Map. (i) Any other portion of the Common Elements, designated a Limited Common Element is allocated to the particular Unit or Units designated on the Condominium Map. Section 5.3. Reallocation of Limited Common Elements, The Declarant may reallocate the Common Elements, including any Limited Common Element designated as appurtenant to a Unit or Units owned by the Declarant, in the exercise of Declarant's reserved development right to further subdivide a Unit. A Limited Common Element may be reallocated by the Association between or among Units only to the extent permitted and in the manner authorized by the Act. Likewise, a Common Element not previously allocated as a Limited Common Element may be allocated as a Limited Common Element by the -13- Association only to the extent permitted and in the manner authorized by the Act. ARTICLE VI - MAINTENANCE AND REPAIRS Section 6.1. Owner's Duties - Units and Limited Common Elements. Each Owner shall be responsible for maintenance and repair of such Owner's Unit and all Limited Common Elements exclusively serving such Unit, including fixtures and improvements and all utility lines and equipment located within and serving only such Unit. Each Owner shall, at all times, maintain and keep in good condition and repair, said Owner's Unit and all Limited Common Elements serving such Unit. In performing such maintenance or repair, or in improving or altering a Unit, an Owner shall obtain all necessary permits and licenses, and shall comply with all applicable laws, rules and regulations, including the Rules and Regulations of the Association. Notwithstanding the foregoing, no Owner shall do any maintenance, repair or improvement work that impairs the structural soundness of the Building in which such Owner's Unit is located or that interferes with any easement. No Owner shall change or alter the appearance or the structural integrity of any Limited Common Element without the written permission of the Association. No Owner shall have the right to make or cause to be made any additions, alterations or repairs to the General Common Elements. Section 6.2. Association's Duties - Common Elements. The Association shall be responsible for the maintenance and repair of all the Common Elements, except for those Limited Common Elements appurtenant to a single Unit. Without limiting the generality of the foregoing, the Association shall provide lawn, grounds and landscaping care, shall water, trim, prune and winter wrap trees and shrubs, maintain and operate the raw water irrigation system for the benefit of the Community and otherwise maintain and keep in good repair and condition all sidewalks, yards, grounds, green areas, and signage, if any, and all other improvements and facilities which form a part of the General Common Elements. The Association shall provide for the removal of snow from steps, stairs, walkways and sidewalks which form a part of the General Common Elements. The Association shall provide for the removal of snow and ice from the roofs and gutters, as and when necessary or otherwise advisable. The Association shall maintain the Common Elements to substantially the same or better standards as originally installed. Section 6.3. Maintenance Costs - Common Elements. The costs of the maintenance, repair and upkeep of the General Common Elements shall be a Common Expense of all the Owners; provided that, any such costs attributable to any Limited Common Element allocated to the Residential Units shall be assessed exclusively to those Residential Units served thereby, and any such costs attributable to any Limited Common Element allocated to the Commercial Units shall be assessed exclusively to those Commercial Units served thereby; and provided further that, the cost of maintenance, repair and upkeep of any of the General Common Elements necessitated by excessive wear or abuse caused by or attributable to the Owner or Owners of one or more of the Units, may by resolution adopted by the Executive Board, be assessed to the Owner or Owners responsible for the excessive wear or abuse in such proportions as the Executive Board reasonably determines to be proper. Section 6.4. Pam.. One (1) parking space is provided for each Free Market Residential Unit located in a garage within the Building as shown on the Map. Those parking garages shall be a part of the Units as designated on the Map. One parking space is provided to the Affordable Housing Residential Units. The use thereof shall be as determined by the Declarant so long as any Affordable Housing Residential Unit shall be owned by it. At such time as all of the Affordable Housing Rental Units shall be sold by the Declarant, then as determined by the Declarant by designation of such parking -14- space as a Limited Common Element appurtenant to a specific Affordable Housing Residential Unit. Such designation shall be in writing by a document executed by Declarant and recorded in the real property records of Pitkin County, Colorado. Section 6.5. Association's Right of Access. The Association shall have the right of access to any Unit, at any time, for the purpose of making emergency repairs necessary to prevent damage to the Common Elements or to another Unit or Units and the right of access to any Unit at reasonable times to perform routine maintenance and repairs upon the Common Elements. The costs of repairing any damage to a Unit resulting from entry therein for the purpose of repairing or maintaining the Common Elements or preventing damage to the Common Elements or another Unit, shall be a Common Expense of all the Owners. The costs of repairing any damage to a Unit resulting from entry therein for the purpose of repairing or maintaining a Limited Common Element shall be charged to the Owner of the Unit or Units served by such Limited Common Element. Section 6.6. Snow Removal. No Owner of any Unit shall allow any snow or ice to accumulate or remain upon any terrace or balcony located (other than on the ground floor), which constitutes a Limited Common Element appurtenant exclusively to an Owner's Unit for more than twenty-four (24) hours from the time the latest accumulation of snow has occurred. Should the Owner fail to remove the snow in compliance with the provisions of this Section, the Association shall have the right to access any such terrace or balcony at reasonable hours, through the Unit or otherwise, in order to perform the snow removal function mentioned. The costs of perfomung the snow removal function by reason of the Owner's neglect or failure to maintain the same, shall be charged to the Owner of the Unit to which the deck or balcony is allocated as a Limited Common Element. The Association may also levy a fine or successive fines in accordance with such Rules and Regulations as the Executive Board may adopt. (The purpose of this provision is to minimize or eliminate the discharge or release of waters from snow melt dripping from the upper terraces or balconies which may damage the Common Elements, pose a hazard by the buildup of ice on walkways below or inconvenience persons passing below). Snow removal shall be effected so as not to place snow on the Common Elements in a manner which will interfere with the use thereof. Section 6.7. Owner Caused Damage. Notwithstanding the foregoing, if damage to the Common Elements or to any Unit is caused by the negligence or intentional act of an Owner or if entry into a Unit is required because of any negligence or intentional act on the part of an Owner, such Owner shall pay, or reimburse the Association, for all costs of repairing such damage and shall be liable to the Association and the other Owners for all additional losses or expenses suffered as a result of his negligence or intentional acts, including without limitation, reasonable attorney's fees. Section 6.8. Association's Right to Maintain. If in the judgment of the Executive Board, any Owner has failed to keep and maintain such Owner's Unit, or any Limited Common Element serving such Owner's Unit exclusively, in good condition and repair, the Association may, after thirty (30) days notice to the Owner, perform all work necessary to maintain the Unit or the Limited Common Element in good condition and repair and the Association shall have access to the Unit for such purposes. The Owner shall reimburse the Association for the cost of such work, and such costs may be collected in the same manner as assessments under this Declaration and the Act Section 6.9. Declarants Right to Maintain. So long as the Declarant shall own any Unit in the Community, if, in the judgment of Declarant, the Association has failed to keep and maintain the Common Elements in good condition and repair, the Declarant may, after thirty (30) days notice to the -15- Association, perform all work necessary to maintain the Common Elements in good condition and repair and Declarant shall have access to any Unit and the Common Elements for such purposes. The Association shall reimburse Declarant for the cost of such work, which shall be a Common Expense of all Owners. Section 6.10. Landscaping and Lawn Care. Any landscaping, in addition to that provided by the Declarant in connection with the initial construction of the Building, shall be at the discretion of the Executive Board. Section 6.11. Owner Responsibility. Any maintenance or repair required by reason of the willful or negligent act of the Owner, members of his family or guests, tenants or occupants of the Owner's Unit, shall be attributed to the Owner and shall be the responsibility and obligation of such Owner. The Association shall have the right to perform any such maintenance or repairs and recover the costs incurred from the Owner responsible. Section 6.12. Determination of Obligation and Supervision. The responsibility for the performance of any maintenance, repair, lawn care, snow removal or other work not expressly delineated above shall be determined by the Association. In the event any dispute should arise as to the construction or interpretation of the foregoing Sections, the determination with regard thereto made by the Association shall be conclusive. The Association shall have the right to prescribe minimum standards with regard to an Owner's performance of any maintenance for which the Owner is responsible. The Owners shall comply with all guidelines and requirements prescribed by the Association in this connection, and in furtherance hereof, the Association shall have the right to require any Owner at any time, to forthwith correct any repair or any maintenance deficiency then existing. ARTICLE VII - THE ASSOCIATION Section 7.1. Purposes and Powers. The Association through the Executive Board or a Managing Agent engaged by the Executive Board shall perform the functions and hold and manage property as provided in this Declaration so as to further the interests of the Unit Owners in the Community. The Association shall have all the powers necessary or desirable to effectuate such purposes. Section 7.2. Membership. Every Owner shall be entitled and required to be a member of the Association. An Owner shall be entitled to one (1) membership for each Unit Owner. Each such membership shall be appurtenant to and inseparable from the Unit upon which it is based, and shall be transferred automatically by the transfer (in whatsoever form) of that Unit. Ownership of a Unit shall be the sole qualification for membership. No person or entity other than an Owner may be a member of the Association. Voting however, shall be determined pursuant to Section 8.4 by this Declaration. Section 7.3. The Executive Board, Representation on Board The affairs of the Association shall be managed by an Executive Board which may by resolution delegate any portion of its authority to an Executive Committee or to a Managing Agent for the Association. There shall be no fewer than three members of the Executive Board, during the period of Declarant control, at least one of which shall be an Owner of a Commercial Unit. After the period of Declarant control, the Executive Board shall be composed of three (3) persons. At least one (1) Member of the Executive Board shall be elected by the Owner of the Commercial Units. At least one member of the Executive Board shall be elected from among the Free Market Residential Unit Owners or from among candidates nominated and approved -16- by the Free Market Residential Unit Owners. Subject to the provisions contained herein for Declarant control, for so long as the Declarant shall own any of the Affordable Housing Residential Units, it shall designate one (1) member of the Executive Board. Section 7.4. Articles of Incorporation, Bylaws. The purposes and powers of the Association and the rights and obligations with respect to Owners set forth in this Declaration may be amplified under the provisions of the Association's Bylaws and reasonable Rules and Regulations adopted by the Association pursuant to the Association's policy on adoption of Rules and Regulations. Section 7.5. Voting by Multiple Owners. Owners of one (1) or more Units shall have the right to cast the aggregate number of votes that the Unit or Units which such Owner owns, which is the Unit or Unit's undivided percentage interest in the Common Elements. If any Unit is owned by multiple parties, all such parties shall be Members. If only one (1) of the multiple Owners of a Unit is present at a meeting of the Association, such Owner is entitled to cast all the votes allocated to that Unit. If more than one (1) of the multiple owners are present, the votes allocated to that Unit may be cast only in accordance with the agreement of a majority in interest of the Owners. There is majority agreement, if any one (1) of the multiple Owners casts the votes allocated to that Unit without protest being made promptly to the person presiding over the meeting by any of the other Owners of the Unit. In no event shall more votes be cast with respect to any Unit than the total number of votes allocated to that Unit. No vote(s) allocated to a Unit owned by the Association may be cast. Cumulative voting shall not be permitted in the election of the Executive Board or for any other purpose. Section 7.6. Exercise of Powers. The Association may exercise any right or privilege given it expressly by this Declaration, by the Act or otherwise by law, and every other right, privilege and power reasonably to be implied from this Declaration or reasonably necessary to effectuate its function and purposes. Section 7.7. Assessments. The Association shall have the right to levy and make regular assessments for Common Expenses, in accordance with this Declaration and its Bylaws, for the following purposes: (a) To promote the recreation, health, safety, and welfare of the Owners and the residents of the property; (b) To pay the costs and expenses of maintaining the Common Elements as set forth in this Declaration; (c) To pay the premiums for all insurance which the Association is required or permitted to maintain; (d) To pay taxes and special assessments levied against any property of the Association, whether real or personal; (e) To provide lawn, grounds and landscaping care for the Common Elements, maintain and operate the raw water irrigation system for the benefit of the Common Elements, and to otherwise maintain the Common Elements; -17- (f) To provide for the removal of snow from sidewalks, trails, roadways, driveways, and parking lots which form a part of or adjoin the Common Elements and from the roofs and gutters as needed; (g) To pay all charges for lighting, utilities, irrigation water, trash removal and other services attributable to the Common Elements; (h) To pay wages for Association employees, Association management expenses, legal and accounting fees; (i) To pay any deficit remaining from any previous assessment period; 0) To pay any other expenses and liabilities which may be incurred by the Association for the benefit of the Owners under or by reason of this Declaration, its Articles of Incorporation or Bylaws or the Act; and (k) For any other purpose permitted by the Act. Section 7.8. Special Assessments In addition to the annual or regular Common Expense assessments, the Association may establish at any time a special assessment for the purpose of paying or creating a reserve, surplus and/or sinking fund for, in whole or in part, the cost of any expense which the Association is entitled to incur pursuant to the provisions of the Declaration, the Articles or the Bylaws and which is not scheduled to be paid in a budget adopted by the Association. No special assessment may be levied by the Association unless such special assessment has been approved by the Executive Board and by the majority vote of the Owners present in person or proxy at a meeting called for such purpose at which a quorum was present. Section 7.9 Allocation of Assessments for Common Expenses. Each Owner shall pay such Owner's prorata share of the Common Expenses. Such proration shall be made in accordance with each Unit's undivided interest of the Common Elements, except as follows: For any special assessments and assessments for capital improvements ("Special Assessments"), each Unit's share of any such assessment shall be an amount equal to the then current assessed valuation of such Unit divided by the then current total assessed valuation of all of the Units, with such "assessed valuation" being the assessed value of each Unit as determined by the Pitkin County Assessor from time to time. (a) The Association shall allocate expenses that inherently relate only to residential uses only to the Owners of the Residential Units and allocate expenses that inherently relate only to commercial uses only to the Owners of the Commercial Units; and The utility, maintenance and repair costs associated with any Limited Common Element serving more than one Unit shall be apportioned and assessed among the Units served thereby on a proportionate square foot basis; and (b) As a part of its maintenance duties, the Association shall periodically clean fireplace flues and the clothes dryer exhaust vents. Such elements serve the Units within which they are situated exclusively and the Association shall allocate those expenses to those Units, respectively; and (c) Nothing contained herein shall prohibit certain Common Expenses from being apportioned -18- to a particular Unit or Units as provided elsewhere in this Declaration or as determined appropriate by the Executive Board. Section 7.10. Payment of Assessments. Each Owner shall pay to the Association, such assessments as may be periodically made by the Association. Estimated assessments shall be made upon the original sale of each Unit by Declarant. Declarant shall pay assessments on all Units owned by it. Section 7.11. Periodic Assessments. After any assessment has been made by the Association, assessments shall thereafter be made monthly or on such other periodic basis as the Executive Board shall determine, but no less frequently than annually, and shall be based on a budget adopted no less frequently than annually. Section 7.12. Added Charizes. The Association may impose charges for late payment of assessments, recover reasonable attorney's fees and other costs of collection and levy fines for violations of the Declaration, the Bylaws or the Rules and Regulations of the Association. All such charges shall be enforceable as assessments. Any assessment or portion thereof which is not paid when due shall bear interest from and after the date the same becomes due at the rate of eight percent (8%) per annum or at such greater rate as may be established by the Executive Board, but not exceeding twenty-one percent (21 %) per year. Section 7.13. Collection of Assessments. The Association shall have the right to bring an action at law against the Owner personally obligated to pay any delinquent assessment or fines. Section 7.14. Assessment Liens. The Association shall also have a statutory lien on any Unit for any assessment levied against that Unit or fines imposed against the Unit Owner. The amount of the lien shall include any fees, charges, late charges, attorney's fees, fines and interest. This Declaration constitutes record notice and perfection of the statutory lien. No further recordation of any claim of lien or assessment is required. The statutory lien for unpaid assessments is extinguished unless proceedings to enforce the lien are instituted within six (6) years after the full amount of assessments become due. The Association's lien for assessments and enforcement rights in respect thereto shall be governed by the applicable provisions of the Act, as now in effect or hereafter amended. Section 7.15. Budget_ Approval Process. It shall be the duty of the Executive Board to formulate and propose a budget of expenses, not less frequently than annually. Within ninety (90) days after adoption of any proposed budget for the Common Interest Community, the Executive Board shall mail, by ordinary first-class mail, or otherwise deliver a summary of the budget to all the Unit Owners and shall set a date for a meeting of the Unit Owners to consider the budget. Such meeting shall occur within forty-five (45) days after mailing or other delivery of the summary. The Executive Board shall give notice to the Unit Owners of the meeting in accordance with the Bylaws. The budget proposed by the Executive Board shall not require approval from the Unit Owners and it will be deemed approved by the Unit Owners in the absence of a veto at the noticed meeting by a majority in interest of all Unit Owners, whether or not a quorum is present. In the event that the proposed budget is vetoed, the periodic budget last proposed by the Executive Board and not vetoed by the Unit Owners must be continued until a subsequent budget proposed by the Executive Board is not vetoed by the Unit Owners. Section 7.16. Audits. The books and records of the Association shall be subject to an audit in accordance with the requirements of the Act. -19- Section 7.17. Rules and Re lgu ations. In furtherance of the intent, purposes and provisions of this Declaration, rules and regulations may be adopted, amended or repealed from time to time by the Executive Board if approved by the Owners by a vote of a majority of Owners at a meeting at which a quorum is present. Notwithstanding the above, if the change to the Rules and Regulations would only affect one type of Unit Owner, i.e. Residential or Commercial Unit Owners, a majority of the affected Unit Owners, in addition to a majority of all Owners at a meeting at which a quorum is present, must approve the change. All rules and regulations adopted by the Association shall be applied uniformly in a non-discriminatory manner. The Executive Board may also establish and enforce reasonable penalties and fines for the infraction of any rule or regulation, which fines shall be collectable as assessments in the manner provided above. In addition, after notice and an opportunity to be heard, the Board shall be allowed to take any action that the Owner has failed to take in order to comply with these Rules and Regulations, and to assess the Owner any costs reasonably incurred to take such action. ARTICLE VM - ALLOCATED INTERESTS Section 8.1. Common Elements. The Common Elements are allocated among the Residential Units and the Commercial Units on a proportionate square foot basis. A table describing each Unit's square footage and corresponding percentage interest in the Common Elements is attached and incorporated herein as Exhibit A. The allocated interests shall be final and not subject to reallocation, except as may otherwise be provided herein. Section 8.2 APCHA Interest in Affordable Housing Units. Unless a different arrangement is worked out with the City, and only to the extent required to comply with applicable Colorado law, a one -tenth of one percent interest in each of the Affordable Housing will be conveyed to APCHA. Said one -tenth of one percent interest is hereinafter referred to as the "APCHA Interest." The conveyance of the APCHA Interest shall be expressly subject to the understanding and agreement that (a) ownership of the APCHA Interest only gives APCHA the right to enforce the deed restrictions on the Affordable Housing Units, and does not give APCHA any authority or rights that are not specifically set forth in the deed restriction, (b) in all other respects, APCHA shall be deemed to have no ownership rights or responsibilities in connection with the Affordable Housing Units and the Declarant, as the Owner of the remaining interest in Affordable Housing Units shall have full right and authority to lease, encumber, or otherwise deal with the Affordable Housing Units as if such owner held a 100 percent interest therein, (c) APCHA shall have no liability to third persons arising solely out of its ownership of the APCHA Interest, and the party conveying the APCHA Interest shall indemnify APCHA from and against any losses or liabilities arising solely out of its ownership of the APCHA Interest, (d) the APCHA Interest will be conveyed to the then current owners of the Affordable Housing Units if and when the Colorado legislature or a court of competent jurisdiction legalizes the imposition of rent restrictions on affordable housing dwelling units, and (e) the APCHA Interest will be conveyed to the buyers of the Affordable Housing Units, respectively, upon the sale thereof by the Declarant subject, however, to the deed restriction in place for the benefit of APCHA. Section 8.3. Liability For Common Expenses. Except as otherwise provided in Article VII above, each Unit's share of liability for Common Expenses shall be in the same percentage as that Unit's percentage interest in the Common Elements. Section 8.4. Voting Rights. The aggregate number of votes authorized and allocated among the -20- Units shall total one hundred (100) votes. The number of votes allocated to each Unit is determined by multiplying the Unit's percentage interest in the Common Elements by one hundred (100). Section 8.5. Allocation of Interests. With reference to the foregoing criteria, the interests of each Unit have been determined and are hereby allocated as provided in Exhibit A attached. The allocation of interests reflected in Exhibit A attached shall be deemed binding and conclusive. ARTICLE IX - DECLARANT'S RESERVED DEVELOPMENT RIGHTS Section 9.1. Rights Reserved. The Declarant hereby reserves, to the fullest extent permitted by law, subject always to the applicable requirements of the City of Aspen Land Use Code, the following development rights and the right to supplement and amend this Declaration in the exercise of any or all of the following development rights: (a) The right to construct and complete the Units and Common Elements shown on the Condominium Map, in any sequence and order that the Declarant shall determine; (b) The right to construct underground utility lines, pipes, wires, ducts conduits and other facilities across any portion of the Property for the purpose of furnishing utilities and other services to the Building and improvements constructed or to be constructed in the Community; (c) The right to withdraw and grant easements and licenses to public utility companies and to convey improvements within those easements anywhere in the Community not occupied by the Building for the purposes mentioned; (d) The right to amend the Condominium Map to reconfigure the Residential Units so that the boundaries of the Residential Units are defined by the interior unfinished walls, (e) The right to amend the Condominium Map to reconfigure the Commercial Units so that the boundaries of Commercial Units are defined as provided herein; (f) The right to reconfigure any or all of the Units and the Common Elements to accommodate such reconfigurations and to construct and complete the Units as reconfigured, together with the Common Elements, provided that the Declarant shall have no right to reconfigure a Unit the Declarant does not own and subject to the terms of any contractual agreements between Declarant and potential purchasers, and the right to file a supplement to this Declaration and the Condominium Map that shall defined and describe common obligations and assessments and shall show the locations and dimensions of such reconfigured dimensions of the Units; (g) The right to subdivide and successively subdivide and convert a Unit previously created into additional Units, Common Elements or both and to reallocate all of the allocated interests of the Unit among the Units created by the subdivision in any reasonable manner, together with the right to construct and complete the additional Units and Common Elements created, in any sequence and order that the Declarant shall determine; provided always that, the number of each type of Unit shall in no event exceed the maximum number of that type of Unit indicated in Section 1.8. above; and (h) The right to use so much of the Common Elements as it may deem necessary or convenient for the purpose of the construction and development of the improvements on the Property; provided, -21- however, that such use shall not unreasonably interfere with an Owner's access to his Unit; (i) To exercise the "Special Declarant Rights" defined in the Act, including the rights to construct and complete the improvements, to exercise any development right, including those expressly reserved in this Declaration, to maintain sales offices, management offices, model Units and signs advertising the Development, to use easements through the Common Elements for the purpose ofmaking improvements within the Property and to appoint and to remove any officer of the Association or any Executive Board member during the period of Declarant controls herein set forth; and 0) To amend the Declaration, Association Articles and Bylaws to correct technical errors contained therein and/or to conform the same to requirements of the Act or the Colorado Revised Non -Profit Corporation Act. Section 9.2. Exercise of Development Rights. Any development right may be exercised with respect to different portions of the Property, at different times and in such sequence as the Declarant may determine. No assurances are made as to which portions of the Property may be subjected to the exercise of each development right, or in which order each development right may be exercised or applied to any portion of the Property. If any development right is exercised in any portion of the Property that development right need not be exercised in all or any portion of the remainder of the Property. The exercise of development rights with respect to some portions of the Property will not obligate the Declarant to exercise any development rights as to other portions. Section 9.3. Reserved Construction Easement. Declarant reserves the right to perform warranty work, repairs and construction work in the Units and Common Elements, to store materials in secure areas, and to control and have the right of access to work and make repairs until completion of the entire project. All work may be performed by the Declarant without the consent or approval of the Executive Board or the Association. The Declarant reserves an easement through the Common Elements as may be reasonably necessary for the purpose of discharging the Declarant's obligations or exercising Declaranfs rights, whether arising under the Act or reserved in this Declaration. This easement and the reserved rights attendant thereto includes the right to convey access, utility and drainage easements to the City of Aspen or any other special district, governmental authority, public utility or the State of Colorado. Section 9.4. Signs and Marketing. Declarant reserves the right to post and maintain signs and displays in Units owned by the Declarant and in the Common Elements in order to promote sales of Units. Declarant also reserves the right to conduct general sales activities in a manner which will not unreasonably disturb the rights of Owners. Section 9.5. Removal of Declarants Property. Declarant reserves the right to remove and retain all of its property and equipment used in the sales, management, construction and maintenance of the property whether or not the same have become fixtures. Section 9.6. No Interference. Neither the Association nor any Owner may take any action or adopt any rule that will interfere with or diminish any reserved rights of the Declarant, without the prior written consent of the Declarant. Section 9.7. Promotional Activity of the Declarant. The Declarant may maintain a sales office or -22- management office within any Unit or Units located on the Property. Any Unit or Units may be used as a model for promotional purposes. The Declarant reserves the right to maintain signs on the Common Elements, so long as the Declarant owns any Unit held for sale within the Community. Section 9.8. Time Limit. The development rights reserved to the Declarant must be exercised within seven (7) years from the date of this Declaration. Section 9.9. Release or Assignment of Declarants Rights. Declarant may release or transfer any or all the Declarant's rights reserved under this Article or elsewhere in this Declaration, but only by instrument acknowledged in the manner of a Deed and recorded in the records of the Clerk and Recorder of Pitkin County, Colorado. Declarant may restrict or limit the exercise of any rights and interests so assigned. Any successor in interest to Declarant, in respect to any portion of the Declarant's rights hereunder, may further assign and transfer such rights and interests in like manner, but only to the extent expressly permitted in the assignment from the Declarant. Section 9.10. Controlling Authority. The provisions of this Article supersede and control all conflicting provisions contained elsewhere in this Declaration or in the Bylaws of the Association, including those provisions which otherwise apply to the Declarant as an Owner. ARTICLE X - DECLARANT'S RIGHTS TO CONTROL THE ASSOCIATION AND LIMITATIONS Section 10.1. This Article Controls. The provisions of this Article shall control all inconsistent and conflicting provisions contained elsewhere in this Declaration or in the Bylaws of the Association. Section 10.2. Period of Declarant Control, There shall be a period of Declarant control of the Association, during which a Declarant, or persons designated by the Declarant, may appoint and remove the officers of the Association and members of the Executive Board, (a) The period of Declarant control shall terminate no later than the earlier of (i) sixty (60) days after conveyance of seventy-five percent (75%) in number of the Units that may be created in the Community to Owners other than a Declarant; or (ii) two years after the last conveyance of a Unit by the Declarant in the ordinary course of business; or (iii) two years after any right to add new Units was last exercised. (b) Not later than sixty (60) days after conveyance of twenty-five percent (25%) in number of the Units that may be created to Owners other than a Declarant, at least one member and not less than twenty-five percent (25%) of the members of the Executive Board shall be elected by Unit Owners other than the Declarant. Not later than sixty (60) days after conveyance of fifty percent (50%) in number of the Units that may be created to Owners other than a Declarant, not less than thirty-three and one-third percent (33 1/31/6) of the members of the Executive Board must be elected by Owners other than the Declarant. (c) Except as otherwise provided in CKS. §38-33.3-220(5), not later than the termination of any period of Declarant control, the Owners shall elect an Executive Board of three (3) members, at least a majority of whom must be Owners other than the Declarant or designated representatives of Unit Owners other than the Declarant; and the Executive Board shall elect the officers and the Executive Board -23- members and officers shall take office upon election. (d) Notwithstanding any provision of this Declaration or the Bylaws to the contrary, following notice under C.R.S. § 38-33.3-308, the Owners, by a vote of sixty-seven percent (67%) in interest of all Owners present and entitled to vote at a meeting of the Unit Owners at which a quorum is present may remove a member of the Executive Board with or without cause other than a member appointed by the Declarant. Section 10.3. Voluntary Surrender. The Declarant may voluntarily surrender the right to appoint and remove officers and members of the Executive Board before termination of the period of Declarant control set forth above. In that event, the Declarant may require that, for the duration of the period of Declarant control, specified actions of the Association or Executive Board as described in a recorded instrument executed by the Declarant, be approved by the Declarant before becoming effective. Section 10.4. Association's Records. Within sixty (60) days after termination of Declarants control and the election of a new Executive Board by the members, the Declarant shall deliver to the Association all records and property of the Association held or controlled by the Declarant as prescribed by the Act. ARTICLE XI - USE RESTRICTIONS Section 11.1. Leases. Any lease agreement shall provide that the terms of the lease shall be subject in all respects to the provisions of this Declaration, the Articles of Incorporation, Bylaws and duly promulgated Rules and Regulations of the Association, and that any failure by the tenant to comply with the terms of such documents shall be a default under the lease. All leases shall be in writing. Other than as provided in this Section, there is no restriction on the right of any Owner of a Residential Free Market Unit or Commercial Unit to lease such Owner's property. Section 11.2 Affordable Housing Units. The following restrictions shall apply to the Affordable Housing Units: (a) Affordable Housing. No Affordable Housing shall be occupied for living or sleeping purposes by more persons than the Unit was designed to safely accommodate. Units shall be used and occupied primarily for a residence and secondarily for a home office if the home office complies with the following criteria: (i) no goods or merchandise may be produced, stored, displayed or sold as a part of the business conducted at the home office; (ii) only one other person not a resident in the Unit may be employed or associated with the business conducted at the home office; (iii) no separate entrance to the home office shall be permitted; (iv) no signs identifying the home office shall be permitted; and (v) such use complies with the land use regulation of the City of Aspen, Colorado. (b) APCHA/Govemance of Affordable Housing Under Subdivision Improvements Agreement Affordable Housing Units shall be owned, sold, conveyed, leased and occupied under the rules, regulations, requirements and guidelines of APCHA and the provisions of the SIA. Pursuant to the SIA, the Affordable Housing shall be owned initially by the Declarant. Section 11.3. Animals. No animals of any kind shall be raised, bred or kept in the Community, -24- except that dogs and cats may be kept in the Free Market Residential Units, provided that they are not kept, bred or maintained for any commercial purpose and that such pets are at all times under the control of their Owner, well-mannered and behaved; and provided further that, in no event shall any Owner or occupant of any Unit keep more than a total of two (2) such animals, in any combination, at any time. Any Owner or occupant of a Unit harboring an animal upon the Property shall at all such times keep and maintain, in full force and effect, a homeowners insurance policy or other liability insurance coverage, with limits of not less than $500,000, the covered risks of which shall include bodily injury, death and property damages caused by such animal. Notwithstanding the foregoing, the Executive Board may promulgate rules and regulations concerning the keeping of dogs and cats within the Community, which are more restrictive than those limitations set forth above. By way of example and not by way of limitation, the Executive Board shall have the right to absolutely prohibit the keeping of dogs or cats, or to implement a plan of special pet assessment dues which shall be payable by any Owner who keeps a dog or cat upon the Property. Section 11.4. Restrictions on Floor Loads. No Owner may place a load on any floor which exceeds the load for which the floor was designed. No Owner shall install or maintain any item of heavy furniture or equipment or make any other installation, except in a manner designed to achieve a proper distribution of weight. Section 11.5. No Nuisance or Hazard No nuisance shall be permitted within the Unit or upon the Property, nor any use, activity or practice which would reasonably constitute an annoyance or hazard or which otherwise would tend to disturb or offend any Owner or interfere with another Owner's peaceful possession or enjoyment of his Unit or any part of the Common Elements shall be permitted. No unsafe, hazardous or unlawful use shall be permitted upon the Property or any portion thereof. All applicable laws, ordinances and governmental regulations shall, at all times, be observed. The discharge of firearms upon or within any part of the Community, including the Units, is expressly prohibited. Section 11.6. Use of Commercial Units. Subject to the other provisions of this Section 11, the Commercial Units shall be used for permitted business and commercial purposes allowed by the City of Aspen Land Use Code. No action shall be taken by the Association, any Member or any group of Members that would operate to prevent, hinder or compromise the use of the Commercial Units or the conduct of any business from the Commercial Units which is otherwise in compliance with the applicable land use regulations and this Declaration. The Commercial Units may be used for any purpose (other than residential) permitted by the applicable land use regulations and this Declaration. Neither the Association nor its Members shall circumvent such entitlement through the adoption of Hiles or regulations or the amendment of this Declaration or the Bylaws, whether by vote or otherwise. Any restrictions on the use of the Commercial Units beyond those contained in this Declaration and the applicable land use regulations shall require the written agreement of the Owners of all the Commercial Unils. The following restrictions and requirements shall, however, apply to the Commercial Units: (a) The Commercial Unit shall not be used for residential purposes. (b) The Commercial Units shall not be used for the operation of a contractor construction yard, commercial laundry or dry cleaning business; cold storage plants; electric, satellite or microwave receiving stations (not to be construed to prohibit satellite receivers for the in Unit reception of television and communication devices); motion picture or music recording studio; facilities such as athletic clubs, -25- lodges for fraternal orders, video arcade whether as a primary use or as an accessory use in association with permitted uses; or food processing plants (except in connection with restaurant use). Section 11.7. Use of Residential Units. Residential Units shall be used for single family residential purposes only, provided that, in -home businesses or occupations which do not involve employees other than the Owner(s), the solicitation or invitation of the general public, or the servicing of customers shall be permitted, so long as activities are conducted entirely within the Residential Unit and do not cause additional traffic, increase the parking burden within the development or otherwise create a nuisance. Any in -home business or occupation must also fully comply with all applicable requirements of the City of Aspen Land Use Code. Section 11.8. Storage of Personal Property. Decks, patios, balconies, porches and General and Limited Common Elements shall not be used for the storage of personal property of any kind. Nothing shall be placed on or in windows or doors or otherwise on the exterior of any Residential Unit or on the Common Elements, which creates an unsightly appearance. Skis, snowboards, bikes, mountain bikes, kayaks and other items of personal property shall not be allowed to remain outside except when in actual use. No laundry shall be dried or hung outside. Section 11.9. Garbage and Trash. With the exception of dumpsters or other trash receptacles provided by the Association on Common Elements, no refuse, garbage, trash, grass, shrub or tree clippings, plant waste, scrap, rubbish or debris of any kind shall be kept, stored, maintained or allowed to accumulate or remain anywhere within the Project. No garbage containers, trash cans or receptacles shall be maintained in an unsanitary or unsightly condition, and except when being carried to and from the dumpsters, such shall be kept completely within a Unit. ARTICLE XII — NOTICE OF MIXED USE DEVELOPMENT Section 12.1. Notice of Mixed Use The Community contains both Residential and Commercial Units and there will be activities, noises and orders at the Community that might not be encountered in a purely residential or purely commercial development. All Owners and their occupants shall take title to and be subject to the rights of Commercial Owners to conduct its business operations and Residential Owners to use and enjoy their Residential Units. Section 12.2. Annoying Light, Sound or Odor. The Commercial Condominium uses may produce noise, vibration, odor, fumes, pedestrian and vehicular traffic at variable levels and at variable times throughout the day or night. Although all Commercial Condominium Unit Owner and its occupants shall conduct commercial uses in accordance with applicable building, land use regulations and health and safety codes, all Residential Unit Owners and their occupants shall take title to and be subject to the rights of commercial users to conduct their business operations. All exterior lights installed or maintained on any Unit shall be placed so that the light source is screened or shielded from any other Condominium Unit, and shall require the prior written approval of the Executive Board in each instance. No light shall be emitted from any part of the Community (including any Unit) which is unreasonably bright or causes unreasonable glare. Without limiting the generality of the foregoing, no spotlights, floodlights or other high -intensity lights shall be permitted within the Community without the prior written approval of the Executive Board. Without limiting the foregoing, all lighting must comply with applicable rules and regulations of the City of Aspen. -26- 0 Section 12.3. Commercial Deliveries. Parking for commercial deliveries shall be limited to a maximum of thirty (30) minutes. No deliveries shall be made between the hours of 9:00 p.m. and 7:00 a.m. Deliveries shall be made at the back of the Commercial Unit which is receiving said delivery. Section 12.4. Complaints Complaints regarding violations of any applicable covenants, conditions, restrictions, rules and regulations, including but not limited to those between Commercial and Residential Units, shall be addressed pursuant to the Association's Policies and Procedures Regarding Enforcement of Covenants and Rules and Consideration of Complaints. ARTICLE XIll - INSURANCE Section 13.1. Association to Maintain Insurance. Commencing not later than the time of the first conveyance of a Unit to a person other than the Declarant, the Association shall maintain to the extent reasonably available: (a) Property insurance on the Common Elements for broad form covered causes of loss. Such coverage shall afford protection against loss or damage by fire and other hazards covered by a standard extended coverage endorsement and such other risks as from time to time shall be customarily covered with respect to buildings similar in construction, location and use, as the buildings on the Property, including, but not limited to vandalism and malicious mischief. The amount of insurance must be not less than the full insurable replacement cost of the insured property, less applicable deductibles at the time the insurance is purchased and at each renewal date, exclusive of land, excavations, foundations and other items nomnally excluded from property policies; provided that the casualty protection on the buildings and improvements maintained by the Association shall insure the improvement only to the interior bare walls as initially constructed and installed by the Declarant. It shall be the responsibility of each Owner to insure the finish of the interior walls and all cabinets, fiunishings, fixtures, appliances, personal property, and other contents of such Owner's Unit. The named insured shall be the Association, individually, and as agent for the Owners and their Mortgagees, without naming them. Provisions shall be made for the issuance for mortgagee endorsements and memoranda of insurance to the Mortgagees of the Owners. Such insurance policy shall provide that payments by the insurer for losses shall be made to the Association or to an insurance trustee in the State of Colorado designated by the Association for that purpose. Such insurance policy shall contain a "severability of interest" clause or endorsement which shall preclude the insurer from denying the claim of an Owner because of negligent acts of the Association or other Owners. The scope of coverage must include all other coverage in the kinds and amounts commonly required by private institutional mortgage investors for projects similar in construction, location, and use. (b) Commercial general liability insurance against claims and liabilities arising in connection with the ownership, existence, use or management of the Common Elements with coverage limits as deemed sufficient in the judgment of the Executive Board, but in no event less than $1,000,000 per occurrence and $2,000,000 aggregate, insuring the Executive Board, the Association, the management agent, if any, and their respective employees, agents, and all persons acting as agents. The Declarant shall be included as an additional insured in Declarant's capacity as an Owner and Executive Board member. The Owners shall be included as additional insureds, but only for claims and liabilities arising in connection with the ownership, existence, use or management of the Common Elements. The insurance shall cover claims of one (1) or more insured parties against other insured parties. -27- Section 13.2. Non -Availability. If the insurance described above is not reasonably available, or if any policy of such insurance is canceled or not renewed, without a replacement policy therefore having been obtained, the Association promptly shall cause notice of that fact to be hand delivered, or sent prepaid, U.S. mail, to all Owners and the Association shall obtain such property and commercial general liability insurance as shall be as close as possible to the coverage provided for in Section 13.1 above and 13.3 and 13.4 below. Section 13.3. Additional Coverage Required. Pursuant to the Act, the property insurance and the Commercial General Liability Insurance required above, must provide that: (a) Each Owner is an insured person under the policy with respect to liability arising out of such Unit Owner's interest in the Common Elements or membership in the Association; (b) The insurer waives its rights to subrogation under the policy against any Unit Owner or member of such Owner's household; (c) No act or omission by any Unit Owner, unless acting within the scope of such Unit Owner's authority on behalf of the Association, will void the policy orbe condition to recovery under the policy; and (d) If, at the time of a loss under the policy, there is other insurance in the name of a Unit Owner covering the same risk covered by the policy, the Association's policy provides primary insurance. Section 13.4. Adjustment of Property Loss. Any loss covered by the property insurance described above, must be adjusted with the Association, but shall be held, administered and applied in the manner provided by the Act, C.R.S. §38-33.3-313(5) - (9). Section 13.5. Procedures; Deductibles; Assessments. The Association may adopt and establish written nondiscriminatory policies and procedures relating to the submittal of claims, responsibility for deductibles, and any other matters of claims adjustment. To the extent the Association settles claims for damages to real property, it shall have the authority to assess negligent Owners causing such loss or benefitting from such repair or restoration, all deductibles paid by the Association. In the event that more than one (1) Unit is damaged by a loss, the Association, in its reasonable discretion, may assess each Owner a pro rata share of any deductible paid by the Association. Section 13.6: Owner's Insurance. An insurance policy issued to the Association does not obviate the need for Owners to obtain insurance for their own benefit for such coverage as each shall determine appropriate, such as by way of example and not limitation contents insurance, premises, liability and business interruption. Section 13.7. Officers and Directors. The Association shall keep and maintain Officers and Directors errors and omissions and personal liability coverage, with coverage limits of not less than $1,000,000 per occurrence and $2,000,000 aggregate, to protect the Association's officers and Executive Board Members from personal liability in relation to or arising out of their duties on behalf of the Association. -28- Section 13.8. Fidelity Bonds and Insurance. The Association may obtain adequate fidelity bonds or insurance coverage to protect against dishonest acts of any Owner, Executive Board member, Officer, employee or Manager of the Association handling or responsible for Association funds. Such fidelity bonds or insurance coverage shall not be less than the aggregate amount of two (2) months current assessments for the entire Property, plus reserves as calculated from the current budget of the Association, or $50,000, whichever is greater. The Association may carry fidelity bonds or insurance and such greater amount as the Executive Board deems prudent. Section 13.9. Managing Agent Insurance. The Association shall require any independent contractor employed for purposes of managing the Community to carry fidelity bonds or insurance for the benefit of the Association to the same extent as the Association or with such greater coverage limits as the Association or the Act may require, for the benefit of the Association and any such Manager shall maintain and submit evidence of such coverage to the Association. Section 13.10. Worker's Compensation and Employer's Liability Insurance. The Association shall obtain worker's compensation and employer's liability insurance and all other similar insurance with respect to its employees in the amounts and forms as may now or hereafter be required by law. Section 13.11. Other Insurance. The Association may also obtain insurance coverage against any such other risks of a similar or dissimilar nature, as deemed appropriate. Section 13.12. Insurance Expense. The cost of all insurance which the Association is required or permitted to maintain, shall be assessed to the Owners as a Common Expense; PROVIDED, HOWEVER, any cost of insurance for the Commercial Unit and the Residential Units shall be allocated so that the cost therefore is paid by the respective Owners of each of those Units. Section 13.13. Annual Review. The Executive Board shall review the insurance coverage for the Association at least annually for the purpose of determining the amount of insurance required. Section 13.14. Dpty to Repair. Any portion of the Community for which insurance is required under this Article which is damaged or destroyed must be repaired or replaced promptly by the Association unless: the Community is terminated in accordance with the Act; the repair or replacement would be illegal; sixty-seven percent (67%) in interest of the Owners, including every Owner of a Unit or assigned Limited Common Element that will not be rebuilt, vote not to rebuild; or, prior to the conveyance of any Unit to a person other than the Declarant, the holder of a Deed of Trust or Mortgage on the damaged portion of the Community rightfully demands all or a substantial part of the insurance proceeds. ARTICLE XIV - ASSESSMENT CERTIFICATES AND NOTICES Section 14.1. Assessment Certificates. Upon request, the Association shall provide any Owner, prospective purchaser, Mortgagee or prospective Mortgagee, of any Unit in the Community a certificate in writing signed by an officer of the Association setting forth the amount of any assessments, interest or late charges due in connection with any specified Unit. A reasonable charge may be made by the Association for the issuance of such certificates. Section 14.2. Notice of Assessment Liens. Upon written request, delivered personally or by -29- certified mail, first-class postage prepaid, return receipt requested, to the Association's registered agent, the Association shall fiunish to an Owner or his designee, or to a holder of a Security Interest, mortgage or deed of trust, or its designees, a written statement setting forth the amount of unpaid assessments currently levied against such Owners Unit. This statement shall be famished within fourteen (14) days after receipt of the request, and is binding on the Association, the Executive Board and every Owner. If no statement is furnished to the Owner or holder of the Security Interest, mortgage or deed of trust, or to a designee of the foregoing, delivered personally or by certified mail, first-class postage prepaid, return receipt requested, to the inquiring party, then the Association shall have no right to assert a lien upon the Unit for unpaid assessments which were due as of the date of the request. ARTICLE XV - GENERAL PROVISIONS Section 15.1. Notices to Owners. Notice to an Owner of matters affecting the Community by the Association or by another Owner, shall be sufficiently given if such notice is in writing and is delivered personally, by courier or private service delivery, or by deposit in the U.S. mail, postage prepaid, addressed to such Owner at the registered mailing address furnished by the Owner to the Association in accordance with the Bylaws. Such mailing shall be deemed adequate, whether mailed ordinary mail, certified mail or registered mail. Section 15.2. Recording Data. All recorded easements and licenses appurtenant or included in the Community, are set forth on Exhibit B and the Subdivision Plat for 308 East Hopkins Avenue Subdivision recorded as Reception No. 543921 in Plat Book 85 at Page 54 of the Pitkin County, Colorado records. In addition, the Community will be subject to the easements and licenses granted or reserved pursuant to this Declaration and the Condominium Map and to the provisions of the Approval Resolutions and Ordinance ("Approvals") (All Reception Nos. and Book and Page refer to the records of Pitkin County, Colorado). Section 15.3. Covenants to Run with the Land. This Declaration shall run with the land and be a burden and a benefit to the Units within the Community. Section 15.4. Enforcement. The failure of any Owner to comply with the provisions of this Declaration or with the Articles of Incorporation, Bylaws or the duly promulgated Rules and Regulations of the Association, shall give rise to a cause of action in the Association, as well as any aggrieved Unit Owner for the recovery of damages or injunctive relief, or both. In any action brought to enforce the provisions of this Declaration, the Articles of Incorporation, the Bylaws or the duly promulgated Rules and Regulations of the Association, between or among (in any combination) the Association, the Declarant and/or any Owner(s), the prevailing party or parties shall be entitled to recover from the non -prevailing party or parties all reasonable costs and expenses, including attorney's fees incurred in connection with any such action. The failure of the Association, the Declarant or any Owner to enforce any such rights, shall in no event be deemed a waiver of the right to do so in the future. The City of Aspen is recognized as a third -party beneficiary with respect to the use restrictions relating to the Affordable Housing Units described in Article 11 and matters contained in the Approvals, and may enforce the same in its own right, including enforcement of any terms in the Approvals as to the Affordable Housing Units. Section 15.5. Amendments. The Declarant may amend the Declaration and any Condominium Map to correct clerical, typographical or technical errors or to comply with the requirements of the Act, -30- requirements, standards or guidelines of recognized secondary mortgage markets, the Department of Housing and Urban Development, the Federal Housing Administration, the Veterans Administration, the Federal Home Loan Mortgage Corporation, the Government National Mortgage Association or the Federal National Mortgage Association. The Declarant may also amend this Declaration in the exercise of Declarant's reserved rights and as otherwise permitted by the Act. The Association may amend this Declaration with respect to those matters expressly permitted by the Act. Except as provided above, this Declaration may be amended only by the vote or agreement of Owners representing at least sixty-seven percent (67%) in interest of the Units within the Community, and the consent of the APCHA regarding amendments which affect the use or ownership of the Affordable Housing Units, and by the recordation of a certified copy of the Resolution of Amendment, signed and acknowledged by the President and Secretary of the Association, recorded in the records of the Clerk and Recorder of Pitkin County, Colorado. Section 15.6. Termination of Declaration. This Declaration shall not be terminated except in accordance with the Act. Section 15.7. Restoration. If at any time sixty seven percent (67%) in interest of the Owners shall agree that the Community has become obsolete and shall approve a plan for its renovation or restoration, the Association shall promptly cause such renovation or restoration to be made according to such plan. All Owners shall be bound by the terms of such plan and the cost of the work shall be a Common Expense. Section 15.8. Duration. This Declaration shall continue in effect until revoked or terminated in the manner provided above. Section 15.9. Interpretation and Conflicts. Any provision of this Declaration in conflict with the Act shall not be deemed invalid in its entirety, but shall be deemed amended to the minimum extent necessary to comply with the Act. In the event of any dispute between the provisions of this Declaration and the Association Articles of Incorporation, Bylaws, Rules and Regulations or Policies and Procedures, this Declaration shall prevail, and the remainder in the order set forth above. Section 15.11. Severability. If any clause or provision of this Declaration is determined to be illegal, invalid or unenforceable under present or future laws, all other terms and provisions hereof shall nevertheless remain in full force and effect. JW VENTURES, LLC George Walter Harris, Member John R. Provine, Member Charles Cunniffe, Member Robert L. Eisel, Trustee of the James Pelham Farmer, Irrevocable Trust U/T/A -31- dated 6/22/99, Member Robert L. Eisel, Trustee of the Christopher Gueen Farmer Irrevocable Trust U/T/A dated 6/22/99, Member Robert L. Eisel, Trustee of the Jennifer Grace Farmer Irrevocable Trust U/T/A dated 6/22/99, Member STATE OF COLORADO SS. COUNTY OF The foregoing instrument was acknowledged before me this day of , 2009, by George Walter Harris, as Member of JW Ventures, LLC. Witness my hand and official seal. My commission expires: Notary Public STATE OF COLORADO ) SS. COUNTY OF The foregoing instrument was acknowledged before me this day of , 2009, by John R. Provine, as Member of JW Ventures, LLC. Witness my hand and official seal. My commission expires: Notary Public STATE OF COLORADO ) SS. COUNTY OF The foregoing instrument was acknowledged before me this day of , 2009, by Charles Cunniffe, as Member of JW Ventures, LLC. Witness my hand and official seal. My commission expires: -32- 0 STATE OF COLORADO Notary Public I SS. COUNTY OF The foregoing instrument was acknowledged before me this day of , 2009, by Robert L. Eisel as Trustee of the James Pelham Farmer, Irrevocable Trust U/T/A dated 6/22/99, the Christopher Gueen Farmer Irrevocable Trust U/T/A dated 6/22/99 and the Jennifer Grace Farmer Irrevocable Trust U/T/A dated 6/22/99. Witness my hand and official seal. My commission expires: -33- Notary Public CERTIFICATE OF COMPLETION The undersigned, an independent licensed surveyor, hereby certifies to the best of my knowledge, information and belief that all structural components of the 308 East Hopkins Condominium located in Aspen, Colorado, as more particularly described in the Condominium Declaration for 308 East Hopkins Condominiums to which this Certificate is attached, are substantially complete as required by Section 38-33.3-201 of the Colorado Common Interest Ownership Act. Date: 2009 Printed Name: JOHN HOWORTH Firm: Aspen Survey Engineers, Inc. -34- • • EXHIBIT A To Condominium Declaration for 308 East Table of Interests Hopkins Condominiums Square Percentage Percentage Percentage Votes in Footage Share of Share of Share of Affairs of of Units Ownership Regular or Special Association [net in the Annual Common floor Common Interest Interest area Elements Expenses Expenses Unit Unit Type calc LL1 Commercial 3.868 28.70% 28.70% 28.70 101 Commercial 2.679 19.87% 19.87% 19.87 202 Affordable 582 4.32% 4.32% 4.32 Housing Residential 203 Affordable 650 4.82% 4.82% 4.82 Housing Allocated Residential Based on Assessed 204 Affordable 558 4.14% 4.14% 4.14 Housing Valuation Residential 201 Free 1.795 13.32% 13.32% 13.32 Market Residential 301 Free 3.347 24.83% 24.83% 24.83 Market Residential Totals 1 13.479 100% 100% 100 • EXHIBIT • Rights or claims of parties in possession not shown by the public records. Easements, or claims of easements, not shown by the public records. Discrepancies, conflicts in boundary lines, shortage in area, encroachments, any facts which a correct survey and inspection of the premises would disclose and which are not shown by the public records. Any lien, or right to a lien, for services, labor, or material heretofore or hereafter furnished, imposed by law and not shown by the public records. Defects, liens, encumbrances, adverse claims or other matters, if any, created, first appearing in the public records or attaching subsequent to the effective date hereof but prior to the date the proposed insured acquires of record for value the estate or interest or mortgage thereon covered by this Commitment. Taxes due and payable, and any tax, special assessment, charge or lien imposed for water or sewer service or for any other special taxing district. The premises hereby conveyed may be entered by the proprietor of any vein or lode of quartz or other rock in place, bearing gold, silver, cinnabar, lead, tin, copper or other valuable deposits, for the purpose of extracting and removing the ore from such vein or lode, should the same, or any part thereof, be found to penetrate, intersect, pass through, or dip into the mining ground or premises, as reserved in United States Patent recorded February 18, 1888 in Book 59 at Page 349. The premises hereby conveyed may be entered by the proprietor of any•vein or lode of quartz or other rock in place, bearing gold, silver, cinnabar, lead, tin, copper or other valuable deposits, for the purpose of extracting and removing the ore from such vein or lode, should the same, or any part thereof, be found to penetrate, intersect, pass through, or dip into the mining ground or premises, as reserved in United States Patent recorded November 28, 1888 in Book 59 at Page 518. Terms, conditions, provisions and obligations as set forth in Multipurpose Easement Agreement recorded September 16, 1976 in Book 316 at Page 705. Terms, conditions, provisions and obligations as set forth in License Agreement recorded November 26, 1991 in Book 662 at Page 968. Terms, conditions, provisions, obligations and all matters as set forth in Resolution of the Aspen Historic Preservation Commission recorded March 26, 2001 as Reception No. 452717 as Resolution No. 6. Terms, conditions, provisions, obligations and all matters as set forth in Resolution of the Aspen Historic Preservation Commission recorded July 28, 2006 as Reception No. 526959 as Resolution No. 18, Series of 2006. Terms, conditions, provisions, obligations and all matters as set forth in Resolution of the Aspen Historic Preservation Commission recorded July 30, 2007 as Reception No. 540463 as Resolution No. 07-19. Terms, conditions, provisions, obligations and all matters as set forth in Ordinance No. 27, Series of 2007 by City of Aspen recorded August 8, 2007 as Reception No. 540761. (Continued) EXHIBIT 46 Terms, conditions, provisions, obligations and all matters as set forth in Subdivision Agreement recorded November 8, 2007 as Reception No. 543922. Easements, rights of way and all matters as disclosed on Plat of subject property recorded November 8, 2007 in Plat Book 85 at 54 as Reception No. 543921. Terms, conditions, provisions, obligations and all matters as set forth in Resolution of the Aspen Historic Preservation Commission recorded December 11, 2008 as Reception No. 554947 as Resolution No. 28, Series of 2008. Easements, rights of way and all matters as disclosed on Plat of 308 East Hopkins Condominiums recorded 2009 in Plat Book _ at Page Terms, conditions, provisions, obligations, easements, restrictions and assessments as set forth in the Condominium Declaration for 308 East Hopkins Condominiums recorded _, 2009 as Reception No. , deleting therefrom any restrictions indicating preference, limitation or discrimination based on race, color, religion, sex, handicap, familial status or 6ational origin. Construction Deed of Trust from : JW VENTURES, LLC, A COLORADO LIMITED LIABILITY COMPANY To the Public Trustee of the County of PITKIN For the use of : ALPINE BANK, A COLORADO BANKING CORPORATION Original Amount $9,000,000.00 Dated March 31, 2008 Recorded April 9, 2008 Reception No. 548216 Disburser's Notice given in connection with the above Deed of Trust recorded April 9, 2008 as Reception No. 548217. Construction Deed of Trust from : JW VENTURES, LLC, A COLORADO LIMITED LIABILITY COMPANY To the Public Trustee of the County of PITKIN For the use of : ALPINE BANK Original Amount $1,920,000.00 Dated April 20, 2009 Recorded May 22, 2009 Reception No. : 559263 Disburser's Notice given in connection with the above Deed of Trust recorded May 22, 2009 as Reception No. 559264. Mechanics Lien, as evidenced by Statement of Lien, filed by Myers & Co. Architectural Metals, in the amount of $43,025.50, recorded October 21, 2009 as Reception No. 563788. LAW OFFICES OF OATES, KNEZEVICH, GARDENSWARTZ Hs KELLY, P.C. PROFESSIONAL CORPORATION THIRD FLOOR. ASPEN PLAZA BUILDING 533E HOPKINS AVENUE ASPEN, COLORADO, 81611 LEONAROM OATES RICHARD A KNEZEVICH TED D. GARDENSWARTZ DAVID B. KELLY MARIA MORROW OF COUNSEL: RECEIVED, JOHN T KELLY STEPHEN R. CONNOR SFr n y Am, ANNE MARIE McPHEE GI WENDYC FOSTVEDT SARAH M OATES I 1-%0r-rj'y COMMUNITY DELOPMENT December 9, 2009 Drew Alexander, Staff Planner City of Aspen Community Development Department 130 S. Galena Aspen, CO 81611 TELEPHONE (970) 920-1700 FACSIMILE (970) 920-1121 Imo@okglaw.com VIA HAND DELIVERY Re: Application for Approval of Condominiumization/Adminstrative Review — 308 E. Hopkins Condominiums Dear Drew: You will please find enclosed herewith in duplicate the following in connection with the above Application: 1. City of Aspen Pre -Application Conference Summary dated November 20, 2009 2. Attachment 2 — Land Use Application 3. Authorization to File Application for Condominium ization 4. Agreement for Payment of City of Aspen Application Fees 5. Proposed Condominium Map 6. Title Insurance Commitment evidencing proof of ownership 7. Condominium Declaration for 308 E. Hopkins Condominiums 8. Deed Restriction for Affordable Housing Units (Units 202, 203 & 204) We would ask that you advise as to the completeness of this Application and proceed with your internal review as expeditiously as possible. Please copy Jennifer Phelan on this because she is monitoring the Deed Restriction which has been submitted to the Housing Authority for its review. Sincerely, OATES, KNEZEVICH, GARDENSWARTZ & KELLY, P.C. -1 S�" n By 1< Leonard M. Oates cc: Jennifer Phelan, Deputy Director Cindy Christensen LMO/bab Macintosh HD:LMOASST -Data: Clients - LMO:Provine, John:JW Ventures, Law RedevelopmentLtr to Alexander re App 123.09.doc CITY OF ASPEN COMMUNITY DEVELOPMENT DEPARTMENT k6CEI VED Agreement for Payment of City of Aspen Development Application Fees DEC o CITY OF ASPEN (hereinafter CITY) and JW Ventures, LLC IN Ut t I itAw Ji''tlV (hereinafter APPLICANT) AGREE AS FOLLOWS: ' DF*tQP MENT 1. APPLICANT has submitted to CITY an application for Condominiumization of a mixed use project - 2 commercial units, 2 free market residential (hereinafter, THE PROJECT). units and 3 deed restricted residential units at 308 East Hopkins Avenue Aspen, Colorado. 2. APPLICANT understands and agrees that City of Aspen Ordinance No. 57 (Series of 2000) establishes a fee structure for Land Use applications and the payment of all processing fees is a condition precedent to a determination of application completeness. 3. APPLICANT and CITY agree that because of the size, nature or scope of the proposed project, it is not possible at this time to ascertain the full extent of the costs involved in processing the application. APPLICANT and CITY further agree that it is in the interest of the parties that APPLICANT make payment of an initial deposit and to thereafter permit additional costs to be billed to APPLICANT on a monthly basis. APPLICANT agrees additional costs may accrue following their hearings and/or approvals. APPLICANT agrees he will be benefited by retaining greater cash liquidity and will make additional payments upon notification by the CITY when they are necessary as costs are incurred. CITY agrees it will be benefited through the greater certainty of recovering its full costs to process APPLICANT'S application. 4. CITY and APPLICANT further agree that it is impracticable for CITY staff to complete processing or present sufficient information to the Planning Commission and/or City Council to enable the Planning Commission and/or City Council to make legally required findings for project consideration, unless current billings are paid in full prior to decision. 5. Therefore, APPLICANT agrees that in consideration of the CITY's waiver of its right to collect full fees prior to a determination of application completeness, APPLICANT shall pay an initial deposit in the amount of $ $735. 00 which is for, hours of Community Development staff time, and if actual recorded costs exceed the initial deposit, APPLICANT shall pay additional monthly billings to CITY to reimburse the CITY for the processing of the application mentioned above, including post approval review at a rate of $235.00 per planner hour over the initial deposit. Such periodic payments shall be made within 30 days of the billing date. APPLICANT further agrees that failure to pay such accrued costs shall be grounds for suspension of processing, and in no case will building permits be issued until all costs associated with case processing have been paid. CITY OF ASPEN By: Chris Bendon Community Development Director APPLICANT JW Ventures, LLC By: -fepj agent Date: Bill To Mailing Address and Telephone Number: c/o Oates, Knezevich, Gardenswartz & Kelly, P.C. bJJ E. Hopkins Ave., Jra kioor Aspen, CO 81611 970-920-1700 0 *RECEIVED Fr () u %t►04 �DDI 1/AMI ATTACHMENT 2-LAND USE APPLICATION LlI I ur mor'tIN QM UNITY D OPM N1 Name: JW Ventures, LLC Location: 308 East Hopkins Ave., Aspen, CO 81611 (Indicate street address, lot & block number, legal description where appropriate) Parcel ID # (REQUIRED) 27307329007 REPRESENTATIVE: Name: Leonard M. Oates Address: 533 E. Hopkins Ave., 3rd Floor, Aspen, CO 81611 Phone #: 970-920-1700 PROJECT: Name: 303 East Hopkins Condominiums Address: 306 East Hopkins Ave., Aspen, CO 81611 Phone#: 970-920-1700 TYPE OF APPLICATION: (please check all that apply): ❑ Conditional Use ❑ Conceptual PUD ❑ Conceptual Historic Devt. ❑ Special Review ❑ Final PUD (& PUD Amendment) ❑ Final Historic Development ❑ Design Review Appeal ❑ Conceptual SPA ❑ Minor Historic Devt. ❑ GMQS Allotment ❑ Final SPA (& SPA Amendment) ❑ Historic Demolition ❑ GMQS Exemption ❑ Subdivision ❑ Historic Designation ❑ ESA - 8040 Greenline, Stream x❑ Subdivision Exemption (includes ❑ Small Lodge Conversion/ Margin, Hallam Lake Bluff, condo mini tun ization) Expansion Mountain View Plane ❑ Lot Split ❑ Temporary Use ❑ Other: Lot Line Adjustment 0 Text/Map Amendment EXISTING CONDITIONS: (description of existing buildings, uses, previous approvals, etc.) New constructed mixed use condominium - two (2) free market units, three (3) deed restricted affordable housing units and two (2) commercial units 'ROPOS.AL: (description of proposed buildings, uses, modifications, etc.) Condominiumization of newly constructed mixed use building IIave you attached the following? FEES DUE: S 735.00 x❑ Pre -Application Conference Summary ® Attachment #1, Signed Fee Agreement ❑ Response to Attachment #3, Dimensional Requirements Form ❑ Response to Attachment #4, Submittal Requirements- Including Written Responses to Review Standards All plans that are larger than 8.5" x 11" must be folded and a floppy disk with an electronic copy of all written text (Microsoft Word Format) must be submitted as part of the application. RECEPTION#: 565898, 01/05/2010 at 02:48:13 PM, 1 OF 2, R $11.00 Janice K. Vos Caudilowitkin County, CO • STATEMENT OF LIEN In accordance with Article 22 of Title 38 of the Colorado Revised Statutes, Hajoca Corporation makes the following statement of lien: FIRST: That the name of the owner or reputed owner of such property to be charged with the lien is: JW Ventures, LLC, P.O. Box 8769, Aspen, CO 81612 and/or JW Ventures, LLC, 309 E. Hopkins Ave,, Aspen, CO 81611. SECOND: That the name and mailing address of the person claiming the lie 400 West, Salt Lake City, UT 84115. a supplier. That the name of the person who fumished the laborers or material or performed the labor or services, or supplied the machinery, tools or equipment for which said lien is claimed is Hajoca Corporation. That the name of the principal contractor is John Olson Builder, Inc., 300 E. Hymen, Suite 210, Aspen, CO 81611 and/or John Olson Builder, Inc., P.O. Box 10147, Aspen, CO 81611. THIRD: That the property to be charged with such -lien is described as follows: Now known as: Subdivision: 308 EAST HOPKINS AVE also known by street number as 308 East Hopkins Avenue, Aspen, CO 81611 situate in the County of Pltkin, State of Colorado. That the said lien is held for and on account of Hajoca Corporation for labor performed and materials furnished. FOURTII. That the amount of indebtedness due or owing the claimant for which said lien is claimed, for laborers or material furnished, labor and services performed, machinery, tools and equipment supplied is $33,273.07, together with interest thereon at the legal rate. H�AJOC*-COR RATION Jane Rose, Distn ' rodit Manager STATE OF UTAH COUNTY OF SALT LAKE I, Jane Rose, being of lawlbl age and being fast duly sworn upon oath, do say that I am the District Credit Manager for claimant herein named; that 1 have read the within statement of lien and abstract of indebtedness and know the contents thereof; and that the same is true and correct, to the best of my lmgwledge; i tion and belief, and is made on behalf of the claimant. Jane Rose — Subscribed and swom to beforeme in the County of Salt Lake, State of Utah, this la_. day of December, 2009. My commission expires: ? n ; Witness my hand and official seal. I AMANM j.00YtE ` 1 v ota u is ma,a1, 23.2013 t ,n+ $tMtfOf Utah r J Name and Address of Person Crewing Newsy Crauod Legal Description (§38-35-106.5, C.RSJ Once reconlod, please mums to: lack a Kelly PLLC 1099 1 e Smw. Suile 2150 Dewey.CO 80202 ID0602078. 1) No. 180A. Rev. 8.00. STATEMENT OF LIEN WITII NOTICE OF INTENT TO FILE A LIEN STATEMENT (Page I of 2) RECEPTION#: 565898, 01/05/2010 at 02:48:13 PM, 2 OF 2, Janice K. Vos Caudill�tkin County, CO • NOTICE OF INTENT TO FILE A LIEN STATEMENT TO THE OWNER AND TO THE PRINCIPAL CONTRACTOR: Take Notice that the Lien Claimant set forth on the Statement of Lien contained on the reverse of this Notice claims a Mechanic's Lien for laborers or material or equipment supplied to, or labor performed on, the project situate upon the real property described on said Statement of Lien, for the amount stated. If payment is not made within ten (10) days, the Claimant intends to record said Statement of Lien in the Countyyberet�tSe re perry is loc+tted. This notice is given pursuant to Section 38-22-109(3) C.R.S. /" Jane Rose, District Credit Manager Hajoca Corporation 2205 South 400 West Salt Lake City, UT 84115 AFFIDAVIT OF SERVICE OR MAILING — OWNER STATE OF COLORADO CITY AND COUNTY OF DENVER The undersigned, being of lawful age and being first duly sworn upon oath, deposes and says that this Notice of Intent to File a Lien Statement was mailed by fully prepaid certified mail, return receipt requested, to the last known address of the owner or reputed owner or his agent, as follows: JW Ventures. I,LC, P.O. Box 8769, Aspen, CO 81612 and JW Ventures, L E. Hopkins Ave-, Aspen, CO 81611 on the " day of Decem 2009. Subscribed swpn��j }ne�n th 'ity and County of Denver, State of Colorado, thbs� day c,f Ik4 ember, 2(X)9. My commi , n e-Vi Witness my h effjGi81 "'—1 4Lil `�-•�—�.9 ` _ _ OF Gp1 Notary Public My Cwffllkabn EOW04Ab ' OF SERVICE OR MAILING —CONTRACTOR STATE OF COLORADO CITY AND COUNTY OF DENVER The undersign &MV d being first duly sworn upon oath, deposes and says that this Notice of Intent to File a Lien Statetnen tletl 6y fW d certified mail, return receipt requested, to the last known address of the principal or prime con a folto : John Olson Builder, Inc., 300, Hyman, Suite 210, Aspen, CO 81611 and Jahn Olson IW6r,. Bird 10 7, Aspen, CO 81611 on the � day of December, 2009. PUBLOG :��- Subscribed and City and County of Denver, &ate of Colorado, th' day of December, 2009. My commission ex Witness my p404/2pt31LL_JG�_k----- Notary Public AFFIDAVIT OF SERVICE OR MAILING PRIOR TO FILING LIEN STATEMENT STATE OF COLORADO CITY AND COUNTY OF DENVER The undersigned, bein , ful age and being first duly sworn, deposes and says that this Notice of Intent to File a Lien Statement was se 's�yjyl1I ion 38-22.109(3) C.RS, as evidenced by the Affidavits of Service or Mailing, at least ten (10) days b 7}'. Lien Statement with the Col Clerk and Recorder, r �� TAR y •• ti �--�. Subscribed, d swym� tpt� rnei th ity and County of or, orado, thi>J day r 2 1 Mycommis., itQ j+tr�s""lt Witness myhan, AIRQD�M Notary Public My Conwissm Expires 04XY M13 (D0"2078.1)No.180A. Rev. 8- 0. S I ATEMEN' OF LIEN WITH NOTICE OF EYfENT TO FILE A LIEN STATEMENT (rifle 2 of 2) COMMITMENT FOR TITLE INSURANCE SCHEDULEA 1. Effective Date: January 5, 2010 at 8:00 AM 2. Policy or Policies to be issued: (a) ALTA Owner's Policy-(6/17/06) Proposed Insured: PROFORMA (b) ALTA Loan Policy-(6/17/06) Proposed Insured: (c) ALTA Loan Policy-(6/17/06) Proposed Insured: Case No. PCT226831_2 Amount$ 0.00 Premium$ 0.00 Rate: Amount$ 0.00 Premium$ 0.00 Rate: Amount$ Premium$ Rate: 3. Title to the FEE SIMPLE estate or interest in the land described or referred to in this Commitment is at the effective date hereof vested in: JW VENTURES, LLC, A COLORADO LIMITED LIABILITY COMPANY 4. The land referred to in this Commitment is situated in the County of PITKIN State of COLORADO and is described as follows: UNITS 308 EAST HOPKINS CONDOMINIUMS, according to the Condominium Plat thereof recorded _, 2009 in Plat Book _ at Page _ as Reception No. and as defined and described in the Condominium Declaration for 308 East Hopkins Condominiums recorded _, 2009 as Reception No. PITKIN COUNTY TITLE, INC. 601 E. HOPKINS, ASPEN, CO. 81611 970-925-1766 Phone/970-925-6527 Fax 877-217-3158 Toll Free AUTHORIZED AGENT Countersigned: Schedule A-PG.1 This Commitment is invalid unless the Insuring Provisions and Schedules A and B are attached. 0 SCHEDULE B - SECTION 1 REQUIREMENTS The following are the requirements to be complied with: ITEM (a) Payment to or for the account of the grantors or mortgagors of the full consideration for the estate or interest to be insured. ITEM (b) Proper instrument(s) creating the estate or interest to be insured must be executed and duly filed for record to -wit. - THIS COMMITMENT IS FURNISHED FOR INFORMATIONAL PURPOSES ONLY, IT IS NOT A CONTRACT TO ISSUE TITLE INSURANCE AND SHALL NOT BE CONSTRUED AS SUCH. IN THE EVENT A PROPOSED INSURED IS NAMED THE COMPANY HEREBY RESERVES THE RIGHT TO MAKE ADDITIONAL REQUIREMENTS AND/OR EXCEPTIONS AS DEEMED NECESSARY. THE RECIPIENT OF THIS INFORMATIONAL REPORT HEREBY AGREES THAT THE COMPANY HAS ISSUED THIS REPORT BY THEIR REQUEST AND ALTHOUGH WE BELIEVE ALL INFORMATION CONTAINED HEREIN IS ACCURATE AND CORRECT, THE COMPANY SHALL NOT BE CHARGED WITH ANY FINANCIAL LIABILITY SHOULD THAT PROVE TO BE INCORRECT AND THE COMPANY IS NOT OBLIGATED TO ISSUE ANY POLICIES OF TITLE INSURANCE. SCHEDULE B SECTION 2 EXCEPTIONS The policy or policies to be issued will contain exceptions to the following unless the same are disposed of to the satisfaction of the Company: 1. Rights or claims of parties in possession not shown by the public records. 2. Easements, or claims of easements, not shown by the public records. 3. Discrepancies, conflicts in boundary lines, shortage in area, encroachments, any facts which a correct survey and inspection of the premises would disclose and which are not shown by the public records. 4. Any lien, or right to a lien, for services, labor, or material heretofore or hereafter furnished, imposed by law and not shown by the public records. 5. Defects, liens, encumbrances, adverse claims or other matters, if any, created, first appearing in the public records or attaching subsequent to the effective date hereof but prior to the date the proposed insured acquires of record for value the estate or interest or mortgage thereon covered by this Commitment. 6. Taxes due and payable; and any tax, special assessment, charge or lien imposed for water or sewer service or for any other special taxing district. 7. The premises hereby conveyed may be entered by the proprietor of any vein or lode of quartz or other rock in place, bearing gold, silver, cinnabar, lead, tin, copper or other valuable deposits, for the purpose of extracting and removing the ore from such vein or lode, should the same, or any part thereof, be found to penetrate, intersect, pass through, or dip into the mining ground or premises, as reserved in United States Patent recorded February 18, 1888 in Book 59 at Page 349. 8. The premises hereby conveyed may be entered by the proprietor of any vein or lode of quartz or other rock in place, bearing gold, silver, cinnabar, lead, tin, copper or other valuable deposits, for the purpose of extracting and removing the ore from such vein or lode, should the same, or any part thereof, be found to penetrate, intersect, pass through, or dip into the mining ground or premises, as reserved in United States Patent recorded November 28, 1888 in Book 59 at Page 518. 9. Terms, conditions, provisions and obligations as set forth in Multipurpose Easement Agreement recorded September 16, 1976 in Book 316 at Page 705. 10. Terms, conditions, provisions and obligations as set forth in License Agreement recorded November 26, 1991 in Book 662 at Page 968. 11. Terms, conditions, provisions, obligations and all matters as set forth in Resolution of the Aspen Historic Preservation Commission recorded March 26, 2001 as Reception No. 452717 as Resolution No. 6. 12. Terms, conditions, provisions, obligations and all matters as set forth in Resolution of the Aspen Historic Preservation Commission recorded July 28, 2006 as Reception No. 526959 as Resolution No. 18, Series of 2006. 13. Terms, conditions, provisions, obligations and all matters as set forth in Resolution of the Aspen Historic Preservation Commission recorded July 30, 2007 as Reception No. 540463 as Resolution No. 07-19. 14. Terms, conditions, provisions, obligations and all matters as set forth in Ordinance No. 27, Series of 2007 by City of Aspen recorded August 8, 2007 as Reception No. 540761. (Continued) SCHEDULE B SECTION 2 EXCEPTIONS - (Continued) 15. Terms, conditions, provisions, obligations and all matters as set forth in Subdivision Agreement recorded November 8, 2007 as Reception No. 543922. 16. Easements, rights of way and all matters as disclosed on Plat of subject property recorded November 8, 2007 in Plat Book 85 at 54 as Reception No. 543921. 17. Terms, conditions, provisions, obligations and all matters as set forth in Resolution of the Aspen Historic Preservation Commission recorded December 11, 2008 as Reception No. 554947 as Resolution No. 28, Series of 2008. 18. Easements, rights of way and all matters as disclosed on Plat of 308 East Hopkins Condominiums recorded _, 2009 in Plat Book _ at Page _ . 19. Terms, conditions, provisions, obligations, easements, restrictions and assessments as set forth in the Condominium Declaration for 308 East Hopkins Condominiums recorded _, 2009 as Reception No. , deleting therefrom any restrictions indicating preference, limitation or discrimination based on race, color, religion, sex, handicap, familial status or national origin. 20. Construction Deed of Trust from : JW VENTURES, LLC, A COLORADO LIMITED LIABILITY COMPANY To the Public Trustee of the County of PITKIN For the use of ALPINE BANK, A COLORADO BANKING CORPORATION Original Amount : $9,000,000.00 Dated : March 31, 2008 Recorded April 9, 2008 Reception No. 548216 Disburser's Notice given in connection with the above Deed of Trust recorded April 9, 2008 as Reception No. 548217. 21. Construction Deed of Trust from : JW VENTURES, LLC, A COLORADO LIMITED LIABILITY COMPANY To the Public Trustee of the County of PITKIN For the use of ALPINE BANK Original Amount : $1,920,000.00 Dated April 20, 2009 Recorded : May 22, 2009 Reception No. : 559263 Disburser's Notice given in connection with the above Deed of Trust recorded May 22, 2009 as Reception No. 559264. 22. Mechanics Lien, as evidenced by Statement of Lien, filed by Myers & Co. Architectural Metals, in the amount of $43,025.50, recorded October 21, 2009 as Reception No. 563788. 23. Mechanics Lien, as evidenced by Statement of Lien, filed by Hajoca Corporation, in the amount of $33,273.07, recorded January 5, 2010 as Reception No. 565898. CITY OF ASPEN PRE -APPLICATION CONFERENCE SUMMARY PLANNER: Drew Alexander, (970) 429-2739 DATE: 11/20/09 PROJECT: 308 E. Hopkins Condominiums, Condominium/Subdivision OWNER: JW Ventures, LLC REPRESENTATIVE: Lenny Oates, (970) 920-1700 TYPE OF APPLICATION: Condominiumization DESCRIPTION: The Applicant would like to condominiumize the existing structure, located at 308 E. Hopkins Ave. The property consists of two (2) commercial units, two (2) free-market residential units, and three (3) affordable housing units. Staff has detailed that all certificates of occupancy must be provided for the affordable housing units before the other uses can be occupied. The unit numbers on the recorded plat should correspond with the adopted addressing plan for the property. No Historic Designation. Condominiumization review (which is a form of subdivision) is required in order to create a condominium form of ownership. Land Use Code Section(s) 26.304 Common Development Review Procedures REC 26.480.090 Condominiumization DEC 0 9 2009 Review by: Staff for complete application t✓l yr HJf'ttV - Community Development Director for condominiumization "OMMUNITY DEVELOPMENT Public Hearing: No hearing required Planning Fees: $735.00 Deposit for 3 hours of staff time (additional staff time required is billed at $235 per hour) Referral Fees: None Total Deposit: $735.00 Total Number of Application Copies: Subdivision and associated reviews: 2 Copies To apply, submit the following information: 1. Total Deposit for review of application. 2. Applicant's name, address and telephone number, contained within a letter signed by the applicant stating the name, address, and telephone number of the representative authorized to act on behalf of the applicant. 3. Street address and legal description of the parcel on which development is proposed to occur, consisting of a current certificate from a title insurance company, or attorney licensed to practice in the State of Colorado, listing the names of all owners of the property, and all mortgages, judgments, liens, easements, contracts and agreements affecting the parcel, and demonstrating the owner's right to apply for the Development Application. 4. Completed Land Use Application. 5. Signed fee agreement. 6. Pre -application Conference Summary. 7. An 8 1/2" x 11" vicinity map locating the subject parcel within the City of Aspen. 8. Proof of ownership. 9. Proposed condominium plat. 10. A written description of the proposal and a written explanation of how a proposed development complies with the review standards relevant to the development application. 11. All other materials required pursuant to the specific submittal requirements. Disclaimer: The foregoing summary is advisory in nature only and is not binding on the City. The summary is based on current zoning, which is subject to change in the future, and upon factual representations that may or may not be accurate. The summary does not create a legal or vested right. • • AUTHORIZATION TO FILE APPLICATION FOR CONDOMINIUMIZATION I, John R. Provine, a Member of JW Ventures, LLC and authorized representative and owner of the properties at 308 East Hopkins Avenue ("Owner"), hereby authorize Leonard M. Oates of Oates, Knezevich, Gardenswartz & Kelly, P.C. to represent the Owner in the matter of the Application for Condominiumization of the property and all related matters. Dated this oU' day of NOV, 114 lV, 2009 RECEIVED DEC 0 9 2009 Jo n R. rovine, ember of JW Ventures, LLC 0 moklk:N COMMUNITY DEVELOPMENT STATE OF COLORADO ) )ss. COUNTY OF PITKIN ) The foregoing instrument was acknowledged before me this X day of /114erng,;k, 2009 by John R. Provine, as Member of JW Ventures, LLC. Witness my hand and official seal. s: BETH BRANDON NOTARY PUBLIC STATE OF-COLORADO No Public � 1,. �!, r7%--:. 1107/2010 • • COMMITMENT FOR TITLE INSURANCE SCHEDULE A 1. Effective Date: November 4, 2009 at 8:00 AM 2. Policy or Policies to be issued: (a) ALTA Owner's Policy-(6/17/06) Proposed Insured: PROFORMA (b) ALTA Loan Policy-(6/17/06) Proposed Insured: (c) ALTA Loan Policy-(6/17/06) Proposed Insured: Case No. PCT22683L Amount$ 0.00 Premium$ 0.00 Rate: Amount$ 0.00 Premium$ 0.00 Rate: Amount$ Premium$ Rate: 3. Title to the FEE SIMPLE estate or interest in the land described or referred to in this Commitment is at the effective date hereof vested in: JW VENTURES, LLC, A COLORADO LIMITED LIABILITY COMPANY 4. The land referred to in this Commitment is situated in the County of PITKIN State of COLORADO and is described as follows: UNITS , 308 EAST HOPKINS CONDOMINIUMS, according to the Condominium Plat thereof recorded _, 2009 in Plat Book _ at Page _ as Reception No. and as defined and described in the Condominium Declaration for 308 East Hopkins Condominiums recorded _, 2009 as Reception No. PITKIN COUNTY TITLE, INC. 601 E. HOPKINS, ASPEN, CO. 81611 970-925-1766 Phone/970-925-6527 Fax 877-217-3158 Toll Free AUTHORIZED AGENT Countersigned: 0 Schedule A -PGA This Commitment is invalid unless the Insuring Provisions and Schedules A and B are attached. 0 SCHEDULE B - SECTION 1 REQUIREMENTS The following are the requirements to be complied with: ITEM (a) Payment to or for the account of the grantors or mortgagors of the full consideration for the estate or interest to be insured. ITEM (b) Proper instrument(s) creating the estate or interest to be insured must be executed and duly filed for record to -wit: THIS COMMITMENT IS FURNISHED FOR INFORMATIONAL PURPOSES ONLY, IT IS NOT A CONTRACT TO ISSUE TITLE INSURANCE AND SHALL NOT BE CONSTRUED AS SUCH. IN THE EVENT A PROPOSED INSURED IS NAMED THE COMPANY HEREBY RESERVES THE RIGHT TO MAKE ADDITIONAL REQUIREMENTS AND/OR EXCEPTIONS AS DEEMED NECESSARY. THE RECIPIENT OF THIS INFORMATIONAL REPORT HEREBY AGREES THAT THE COMPANY HAS ISSUED THIS REPORT BY THEIR REQUEST AND ALTHOUGH WE BELIEVE ALL INFORMATION CONTAINED HEREIN IS ACCURATE AND CORRECT, THE COMPANY SHALL NOT BE CHARGED WITH ANY FINANCIAL LIABILITY SHOULD THAT PROVE TO BE INCORRECT AND THE COMPANY IS NOT OBLIGATED TO ISSUE ANY POLICIES OF TITLE INSURANCE. SCHEDULE B SECTION 2 EXCEPTIONS The policy or policies to be issued will contain exceptions to the following unless the same are disposed of to the satisfaction of the Company: 1. Rights or claims of parties in possession not shown by the public records. 2. Easements, or claims of easements, not shown by the public records. 3. Discrepancies, conflicts in boundary lines, shortage in area, encroachments, any facts which a correct survey and inspection of the premises would disclose and which are not shown by the public records. 4. Any lien, or right to a lien, for services, labor, or material heretofore or hereafter furnished, imposed by law and not shown by the public records. 5. Defects, liens, encumbrances, adverse claims or other matters, if any, created, first appearing in the public records or attaching subsequent to the effective date hereof but prior to the date the proposed insured acquires of record for value the estate or interest or mortgage thereon covered by this Commitment. 6. Taxes due and payable; and any tax, special assessment, charge or lien imposed for water or sewer service or for any other special taxing district. 7. The premises hereby conveyed may be entered by the proprietor of any vein or lode of quartz or other rock in place, bearing gold, silver, cinnabar, lead, tin, copper or other valuable deposits, for the purpose of extracting and removing the ore from such vein or lode, should the same, or any part thereof, be found to penetrate, intersect, pass through, or dip into the mining ground or premises, as reserved in United States Patent recorded February 18, 1888 in Book 59 at Page 349. 8. The premises hereby conveyed may be entered by the proprietor of any vein or lode of quartz or other rock in place, bearing gold, silver, cinnabar, lead, tin, copper or other valuable deposits, for the purpose of extracting and removing the ore from such vein or lode, should the same, or any part thereof, be found to penetrate, intersect, pass through, or dip into the mining ground or premises, as reserved in United States Patent recorded November 28, 1888 in Book 59 at Page 518. 9. Terms, conditions, provisions and obligations as set forth in Multipurpose Easement Agreement recorded September 16, 1976 in Book 316 at Page 705. 10. Terms, conditions, provisions and obligations as set forth in License Agreement recorded November 26, 1991 in Book 662 at Page 968. 11. Terms, conditions, provisions, obligations and all matters as set forth in Resolution of the Aspen Historic Preservation Commission recorded March 26, 2001 as Reception No. 452717 as Resolution No. 6. 12. Terms, conditions, provisions, obligations and all matters as set forth in Resolution of the Aspen Historic Preservation Commission recorded July 28, 2006 as Reception No. 526959 as Resolution No. 18, Series of 2006. 13. Terms, conditions, provisions, obligations and all matters as set forth in Resolution of the Aspen Historic Preservation Commission recorded July 30, 2007 as Reception No. 540463 as Resolution No. 07-19. 14. Terms, conditions, provisions, obligations and all matters as set forth in Ordinance No. 27, Series of 2007 by City of Aspen recorded August 8, 2007 as Reception No. 540761. (Continued) SCHEDULE B SECTION 2 EXCEPTIONS - (Continued) 15. Terms, conditions, provisions, obligations and all matters as set forth in Subdivision Agreement recorded November 8, 2007 as Reception No. 543922. 16. Easements, rights of way and all matters as disclosed on Plat of subject property recorded November 8, 2007 in Plat Book 85 at 54 as Reception No. 543921. 17. Terms, conditions, provisions, obligations and all matters as set forth in Resolution of the Aspen Historic Preservation Commission recorded December 11, 2008 as Reception No. 554947 as Resolution No. 28, Series of 2008. 18. Easements, rights of way and all matters as disclosed on Plat of 308 East Hopkins Condominiums recorded _, 2009 in Plat Book _ at Page _ . 19. Terms, conditions, provisions, obligations, easements, restrictions and assessments as set forth in the Condominium Declaration for 308 East Hopkins Condominiums recorded , 2009 as Reception No. , deleting therefrom any restrictions indicating preference, limitation or discrimination based on race, color, religion, sex, handicap, familial status or national origin. 20. Construction Deed of Trust from : JW VENTURES, LLC, A COLORADO LIMITED LIABILITY COMPANY To the Public Trustee of the County of PITKIN For the use of ALPINE BANK, A COLORADO BANKING CORPORATION Original Amount $9,000,000.00 Dated March 31, 2008 Recorded April 9, 2008 Reception No. 548216 Disburser's Notice given in connection with the above Deed of Trust recorded April 9, 2008 as Reception No. 548217. 21. Construction Deed of Trust from : JW VENTURES, LLC, A COLORADO LIMITED LIABILITY COMPANY To the Public Trustee of the County of PITKIN For the use of ALPINE BANK Original Amount $1,920,000.00 Dated April 20, 2009 Recorded May 22, 2009 Reception No. : 559263 Disburser's Notice given in connection with the above Deed of Trust recorded May 22, 2009 as Reception No. 559264. 22. Mechanics Lien, as evidenced by Statement of Lien, filed by Myers & Co. Architectural Metals, in the amount of $43,025.50, recorded October 21, 2009 as Reception No. 563788. Jennifer Phelan From: Jennifer Phelan Sent: Monday, December 14, 2009 2:24 PM To: 'Leonard M. Oates' Cc: Mike Metheny Subject: Status of condo plat: 308 E. Hopkins Hi Lennie: I just wanted to update you on the status of the draft condo plat and deed restriction/condominium declaration. 1) Deed restriction. I checked in with Cindy and she said that she may have a few minor changes to request. I noticed that the rental units are being deed restricted at category 2, although the ordinance approving the subdivision requires category 3. If you want to restrict to a lower category, I don't think anyone will mind -it's just lower rental revenue for the owner. 2) Overall, I think the plat looks good. I'd like to see the certificate for the development director clarified. Could the paragraph read, " This condominium map of 308 East Hopkins Condominiums, shown hereon, was approved by the Community Development Director of the City of Aspen this day of , 2009 subject to the terms and conditions set forth in the following documents: Aspen Historic Preservation Commission Resolutions No. 18 (Series of 2006) and No. 19 (Series of 2007); Aspen Planning and Zoning Commission Resolutions No. 18 (Series of 2007) and No. 30 (Series of 2007); Aspen City Council Ordinance No. 27 (Series of 2007) and recorded at reception no. 540761; and the Subdivision Agreement recorded at reception no. 543922." 1 think it organizes the information a bit more clearly. Thanks. 3) Tricia Aragon is back in the office tomorrow and I have asked her to review the plat ASAP. It looked like the things she usually calls out were included on the plat so I'm hoping she will not have any comments. 4) At this point I don't know if we will be able to record by the 215`; however, this plat is almost there and if we need to extend the conditional certificate of occupancy I'm willing to do so. Thanks for your effort, Jennifer Je, fer Pheta vv, AICP Deputy Director Community Development Department City of Aspen 130 S. Galena Street Aspen, CO 81611 PH: 970.429.2759 FAX: 970.920.5439 www.aspenpitkin.com MASTER DEED RESTRICTION AGREEMENT FOR THE OCCUPANCYAND RESALE OF 308 EAST HOPKINS CONDOMINIUMS THIS MASTER DEED RESTRICTION AGREEMENT FOR THE OCCUPANCY AND RESALE OF 308 EAST HOPKINS CONDOMINIUMS (the "Agreement") is made and entered into this day of 2009, by JW Ventures, LLC, a Colorado limited liability company (hereinafter referred to as "Declarant"), for the benefit of the parties and enforceable by the ASPEN/PITKIN COUNTY HOUSING AUTHORITY (hereinafter referred to as "APCHA"), a duly constituted multi - jurisdictional Housing Authority established pursuant to the THIRD AMENDED AND RESTATED INTERGOVERNMENTAL AGREEMENT by and between the City of Aspen, Colorado (the "City") and Pitkin County, Colorado (the "County"), dated October 28, 2002 and recorded at Reception No. 477066 on January 8, 2003, of the records of the Pitkin County Clerk and Recorder's Office. WITNESSETH: WHEREAS, Declarant owns the real property described in Exhibit "A" attached hereto and incorporated herein and hereafter intends to own and hold the same for rental for the foreseeable future. For purposes of this Agreement, the real property and all dwellings, appurtenances, improvements and fixtures associated therewith shall hereinafter be referred to as the "Property"; and WHEREAS, as a condition of the approval granted by the Aspen City Council for subdivision approval of the Property, the Declarant is required to enter into this Agreement; and WHEREAS, Declarant agrees to restrict the rental use and/or transfer of the three (3) condominium units (the "Units) described in "Exhibit A" to "Qualified Tenants/Buyers," as that term is defined in this Agreement, who fall within the Category 2 income range established and adopted by the APCHA from time to time in its Aspen/Pitkin County Employee Housing Guidelines (hereinafter the "Guidelines"). In addition, the Declarant agrees that this Agreement shall constitute a resale agreement setting forth the maximum resale price for which the Units may be sold ("Maximum Resale Price") and the terms and provisions controlling the resale of the Units. Finally, by this Agreement, Declarant and the Condominium Association restricts these Units against use and occupancy inconsistent with this Agreement. WHEREAS, so long as the Units are rental units, they shall be owned by Declarant. Concurrently with the execution of this Agreement, Declarant shall convey a one -tenth of one percent interest in each of the Units to APCHA. Said one -tenth of one percent interest is hereinafter referred to as the "APCHA Interest." The conveyance of the APCHA Interest shall be expressly subject to the understanding and agreement that: a) ownership of the APCHA Interest only gives the APCHA the right to enforce the deed restrictions on the Units, and does not give the APCHA any authority or rights that are not specifically set forth in this deed restriction; b) in all other respects, the APCHA shall be deemed to have no ownership rights or responsibilities in connection with the Units, and the record owner of the remaining interest in the Units shall have full right and authority to lease, encumber, or otherwise deal with the Units as if such owner held a 100% interest therein; c) APCHA shall have no liability to third persons arising solely out of its ownership of the APCHA Interest, and the party conveying the APCHA Interest shall indemnify APCHA from and against any losses or liabilities arising solely out of its ownership of the APCHA Interest; d) the APCHA Interest will be conveyed to the then current owner of the Units if and when the Colorado legislature or a court of competent jurisdiction legalizes the imposition of rent restrictions on affordable housing units; and e) the APCHA Interest will be conveyed to the first Qualified Buyers of the Units if they Master Deed Restriction Page 1 are converted to sale units and sold by the Association to Qualified Buyers. In the event the Project is sold by the Declarant to a third party before the project is condominiumized, the Declarant shall assign the foregoing deed restriction and APCHA Interest obligations to the third party buyer. WHEREAS, the Units identified herein shall be classified as Category 2 employee housing units and will be deed restricted to rental and sales price terms within the Guidelines and to occupancy limitations within the housing income eligibility guidelines established by the Guidelines. Rentals and sales must be in accordance with the Guidelines as adopted and amended from time to time. Each Unit shall remain as a rental unit until such time as the Declarant wishes to sell that Unit, which must be done through the Aspen/Pitkin County Housing Authority, or until such time said Units are deemed to be out of compliance by APCHA with the rental occupancy requirements set forth in the Guidelines or this Agreement for a period of one year from the date on which APCHA gives the record owner of said Unit written notice of such noncompliance and such noncompliance has not been cured during said one-year period. Said noncompliance only has to occur in one (1) Unit for the requirement to sell all three (3) Units comes into play. WHEREAS, "Qualified Tenants/Buyers" are natural persons meeting the income, residency and all other qualifications set forth in the Guidelines, or its substitute, as adopted by the APCHA, or its successor, and in effect at the time of a lease to a Qualified Tenant or the closing of the sale to the Qualified Buyer, and who must represent and agree pursuant to this Agreement to occupy the Unit as his or her sole place of residence, not to engage in any business activity on the Property other than that permitted in that zone district or by applicable ordinance, not to sell or otherwise transfer the Units for use in a trade or business; and to continue meeting the employment, residency and other requirements as stated in this Agreement and the Guidelines. WHEREAS, "Units" are the Units 202, 203, and 204, 308 East Hopkins Condominiums located at 308 East Hopkins, Aspen, Colorado 81611. NOW, THEREFORE, for value received, the receipt and sufficiency of which are hereby acknowledged, Declarant hereby represents, covenants and agrees as follows: A. RENTAL UNIT REQUIREMENTS — USE AND OCCUPANCY For so long as the Units are rental units, the Declarant is obligated to keep the Units occupied by qualified residents. Only qualified residents, as deemed in the Guidelines, shall reside therein and all rental terms shall be for a period of not less than six (6) consecutive months. The Declarant shall maintain the first right to select the qualified tenants of its own choosing when renting the Units. APCHA shall have the right to place qualified tenants in the Units if the Declarant fails to keep the Units occupied by qualified tenants. An executed copy of all leases for the Units shall be submitted to the APCHA within the (10) days of the approval of a qualified tenant. All tenants shall be approved through the APCHA PRIOR to moving into said Units. 2. The maximum rental rate shall not exceed Category 2 rental rates as set forth in the Guidelines established by APCHA and may be adjusted annually as set forth in the Guidelines. The maximum permitted rental rate for each of the Units on the date of execution of this deed restriction is $ per month. Rent shall be verified and approved by APCHA upon submission and approval of each lease. 3. The Units shall not be occupied by the Declarant or members of the immediate family ("Immediate Family" shall mean a person related by blood or marriage who is a first cousin [or closer relative] and his or her children) nor shall the Units be used as a guesthouse or guest facility. If the owner is a Master Deed Restriction Page 2 corporation or limited liability company, this restriction applies to the directors, managers, shareholders, and/or members of such corporation or limited liability company. 4. Written verification of employment of the employee(s) proposed who are Qualified Tenants to reside in each Unit shall be completed and filed with the APCHA prior to occupancy thereof, and such verification must be acceptable to the APCHA. The Units shall each be required to be rented for periods of no less than six (6) consecutive months. Upon vacancy of the Unit, the Declarant is granted no more than forty-five (45) days in which to locate a Tenant or Tenants and to rent the Unit to such Qualified Tenant or Tenants. The Units must meet minimum occupancy requirements; i.e., at least one person per bedroom. If any of the Units are found by APCHA to be out of compliance as stipulated above for one-year, all of the Units shall be sold through the APCHA and under the requirements as stated below. B. SALES UNIT REQUIREMENTS — USE AND OCCUPANCY A "Qualified Buyer" is a person, other than the Declarant, who acquires an ownership interest in a Unit in compliance with the terms and provisions of this Agreement. It is understood that such person, persons or entity shall be deemed a "Qualified Buyer" hereunder only during the period of his, her, their or its ownership interest in the Unit and shall be obligated hereunder for the full and complete performance and observance of all covenants, conditions and restrictions contained herein during such period, including the Guidelines as amended from time to time. Upon conversion of a Unit to a sales unit, the use and occupancy of that Unit shall be limited exclusively to housing for natural persons who meet the definition of Qualified Buyers and their families, and the other requirements of this Agreement and the Aspen/Pitkin County Housing Authority Guidelines referred to above. A Qualified Buyer, in connection with the purchase of a Unit, must: a) occupy any Unit within this Property as his, her or their sole place of residence during the time that such Unit is owned; b) not own, directly or indirectly through a legal entity, any interest alone or in conjunction with others, in any developed property or dwelling units in accordance with the limitations established by the Guidelines as amended from time to time; c) not engage in any business activity on or in such Unit, other than permitted in that zone district or by applicable ordinance; d) sell or otherwise transfer such Unit only in accordance with this Agreement and the Guidelines; e) not sell or otherwise transfer such Unit for use in a trade or business; f) not permit any use or occupancy of such Unit except in compliance with this Agreement; g) continue to meet the residence and employment requirements of a Qualified Buyer established by the APCHA Guidelines and as they are amended from time to time; and h) continue to meet the other requirements of the applicable APCHA Guidelines and this Agreement. Recertification of employment, residency and the ownership of other property shall be required as stipulated in the APCHA Guidelines. C. DEFAULT ON LOAN 10. a. It shall be a breach of this Agreement for a Qualified Buyer to default in payments or other obligations due or to be performed under a promissory note secured by a fast deed of trust encumbering a Unit or to breach any of Qualified Buyer's duties or obligations under said deed of trust. It shall also be a breach of this Agreement for a Qualified Buyer to default in the payment of real property taxes or obligations to the Condominium Association for Master Deed Restriction Page 3 general or special assessments. A Qualified Buyer must notify the APCHA, in writing, of any such default, including notification received from a lender, or its assigns, of past due payments or default in payment or other obligations due or to be performed under a promissory note secured by a first deed of trust, as described herein, or of any breach of any of the Qualified Buyer's duties or obligations under said deed of trust, within five calendar days of the Qualified Buyer's notification from lender, or its assigns, or any other creditor specified herein, of said default or past due payments or breach. Upon notification of a default as provided above, the APCHA may offer loan counseling or distressed loan services to the Qualified Buyer, if any of these services are available, and is entitled to require the Qualified Buyer to sell a Unit to avoid the commencement of any foreclosure proceeding against a Unit. C. Upon receipt of notice as provided in paragraphs 10a and b, the APCHA shall have the right, in its sole discretion, to cure the default or any portion thereof. In such event, the Qualified Buyer shall be personally liable to APCHA for past due payments made by the APCHA together with interest thereon at the rate specified in the promissory note secured by the first deed of trust, plus one percent (1%), and all actual expenses of the APCHA incurred in curing the default. The Qualified Buyer shall be required by the APCHA to execute a promissory note secured by deed of trust encumbering the Unit in favor of the APCHA for the amounts expended by the APCHA as specified herein, including future advances made for such purposes. The Qualified Buyer may cure the default and satisfy it's obligation to the APCHA under this subparagraph at any time prior to execution of a contract for sale, upon such reasonable terms as specified by the APCHA. Otherwise, Qualified Buyer's indebtedness to the APCHA shall be satisfied from the Qualified Buyer's proceeds at closing. d. In addition, upon receipt of notice as provided in Paragraphs 10a and 10b, the APCHA shall have the option, exercisable in the APCHA's sole discretion, to purchase the Qualified Buyer's Unit for ninety-five percent (95%) of the Maximum Resale Price. If the APCHA desires to exercise said option, it shall give written notice thereof to the Owner within sixty (60) days following the APCHA's receipt of the notice as provided in Paragraphs 10a and I0b. In the event the APCHA timely exercises said option, the closing of the purchase of the Unit shall occur within sixty (60) days following the date of the APCHA's notice to the Qualified Buyer of the exercise of said option. D. DEFAULT ON CONDOMINIUM ASSESSMENTS 11. It shall be a violation of the Agreement for the Declarant, or a Qualified Buyer to default in the payment of general or special assessments to the Homeowner's Association, and such person shall be subject to enforcement as provided herein. In addition, upon sale of a Unit as to which the payment of such obligations is in default, the assessments shall be paid at closing. E. ENFORCEMENT —SALE UNITS 12. In the event that the APCHA determines that sale of the Unit is necessary as a result of breach of this Agreement, Qualified Buyer shall immediately execute a standard Listing Contract on forms approved by the Colorado Real Estate Commission with the APCHA, providing for a 30-day listing period. At that time, the Qualified Buyer shall deposit with the APCHA an amount equal to one percent (1 %) of the estimated value of the Unit. If a sales contract has not been executed within the initial 30-day period, Qualified Buyer shall extend the listing period for an additional 180 days, Master Deed Restriction Page 4 provided such extension does not conflict with the statutory rights of any secured creditors. The APCHA shall promptly advertise the Unit for sale by competitive bid to Qualified Buyers. At the time of closing, the Qualified Buyer shall pay to the APCHA an additional fee as stated in the Aspen/Pitkin County Employee Housing Guidelines. In the event of a listing of a Unit pursuant to this Paragraph 12, the APCHA is entitled to require the Qualified Buyer to accept the highest of any qualified bids that is equal to the lesser of (i) an amount that at least satisfies the Qualified Buyer's financial or other obligations due under the promissory note secured by a first deed of trust and any deed of trust in favor of the APCHA, as described herein, or (ii) the Maximum Resale Price (as hereinafter defined), and to sell the Unit to such qualified bidder. The listing and sale of the Unit shall be subject to such listing, sales and other fees and expenses as may be imposed by the APCHA from time to time as set forth in the Guidelines. F. AGREEMENT RUNS WITH THE LAND 13. This Agreement shall constitute covenants running with the Property and the Units, as a burden thereon, for the benefit of, and shall be specifically enforceable by the APCHA, the City Council for the City (the "City Council"), the Board of County Commissioners for Pitkin County (also referred to herein as the "County"), and their respective successors and assigns, as applicable, by any appropriate legal action including but not limited to specific performance, injunction, reversion, or eviction of non -complying owners and/or occupants. G. VOLUNTARY SALE 14. In the event that a Qualified Buyer desires to voluntarily sell a Unit, he/she/they shall execute a standard Listing Contract on forms approved by the Colorado Real Estate Commission with the APCHA providing for a 180-day listing period, or such other time period as required by the APCHA Guidelines in effect at time of listing. The APCHA shall promptly advertise the Unit for sale by competitive bid to Qualified Buyers. The listing and sale of the Unit shall be subject to such listing, sales and other fees and expenses as may be imposed by the APCHA from time to time as set forth in the Guidelines. H. APCHA'S RIGHT TO ACQUISITION 15. Notwithstanding any provision herein to the contrary, the APCHA shall have the right, in its sole discretion, (i) to acquire any Unit for the purpose of resale thereof to a Qualified Buyer; (ii) following its acquisition of any Unit, to repair, replace, redevelop, remove and maintain such Unit prior to resale to a Qualified Buyer; and/or (iii) amend this Deed Restriction Agreement following the acquisition. I. MAXIMUM RESALE PRICE 16. In no event shall each of the Units be sold for an amount ("Maximum Resale Price") in excess of the lesser of: a. $ plus an increase of three percent (3%) of such price per year from the date of purchase to the date of owner's notice of intent to sell (prorated at the rate of .25 percent for each whole month for any part of a year); or b. an amount (based upon the Consumer Price Index, All Items, U.S. City Average, Urban Wage Earners and Clerical Workers (Revised), published by the U.S. Department of Labor, Bureau of Labor Statistics) calculated as follows: the owner's purchase price divided by the Master Deed Restriction Page 5 Consumer Price Index published at the time of owner's purchase stated on the Settlement Statement, multiplied by the Consumer Price Index current at the date of intent to sell. In no event shall the multiplier be less than one (1). For purposes of this Agreement, "date of intent to sell" shall be the date of execution of a listing contract when required by this agreement, or if a listing contract is not otherwise necessary, the date shall be determined to be the date upon which a requirement for the owner to sell is first applicable. NOTHING HEREIN SHALL BE CONSTRUED TO CONSTITUTE A REPRESENTATION OR GUARANTEE BY THE APCHA OR THE CITY THAT ON RESALE THE OWNER SHALL OBTAIN THE MAXIMUM RESALE PRICE. 17. a. Subject to the limitations of this Section, for the purpose of determining the Maximum Resale Price in accordance with this Section, the owner may add to the amount specified in Paragraph 16 above, the cost of Permitted Capital Improvements, as set forth in Exhibit "B" attached hereto or otherwise allowed by the Guidelines and as they are amended from time to time, in a total amount not to exceed $ , which is ten percent (10%) of the listed purchase price set forth in paragraph 16a above. In calculating such amount, only those Permitted Capital Improvements identified in Exhibit "B" hereto or otherwise allowed by the Guidelines from time to time shall qualify for inclusion. All such Permitted Capital Improvements installed or constructed over the life of the unit shall qualify, and will be depreciated based on the Depreciation Schedule used by APCHA at the time of listing. b. Permitted Capital Improvements shall not include any changes or additions to the Property or Unit made by the owner during construction or thereafter, except in accordance with Paragraph 16a above. Permitted Capital Improvements shall not be included in the APCHA's listed purchase price, even if made or installed during original construction. In order to qualify as Permitted Capital Improvements, the owner of the Unit must furnish to the APCHA the following information with respect to the improvements that the owner seeks to include in the calculation of Maximum Resale Price: (1) Original or duplicate receipts to verify the actual costs expended by the owner for the Permitted Capital Improvements; (2) The owner's affidavit verifying that the receipts are valid and correct receipts tendered at the time of purchase; and (3) True and correct copies of any building permit or certificate of occupancy required to be issued by the Aspen/Pitkin County Building Department with respect to the Permitted Capital Improvements. All capital improvements will be depreciated. Certain capital improvements will not be counted towards the 10% cap. Each capital improvement will depreciate according to the depreciation schedule stated in an approved handbook. The current source is the Marshall Swift Residential Handbook. Any capital improvements associated with health and safety, energy efficiency, water conservation, and green building products will be exempt from the 10% capital improvement cap; however, such capital improvements shall be depreciated according to the depreciation schedule stated in an approved handbook. Any improvement to bring the Unit up to the Aspen Affordable Housing Building Guidelines will also be allowed as part of the 10% cap. Master Deed Restriction Page 6 d. For the purpose of determining the Maximum Resale Price in accordance with this Section, the owner may also add to the amounts specified in Paragraphs 16 and 17a, the cost of any permanent improvements constructed or installed as a result of any requirement imposed by any governmental agency, provided that written certification is provided to the APCHA of both the applicable requirement and the information required by Paragraph 17c, (1)— (3). e. In order to obtain maximum resale price, owner must ensure that the Unit meets APCHA's generally applicable minimum standards for a seller of a deed -restricted unit to receive full value as determined by APCHA in its discretion. This shall include requirements to clean the home, ensure that all fixtures are in working condition, and to repair damage to the unit beyond normal wear and tear and as stated in the Minimum Standards for Seller to Receive Full Value at Resale, Exhibit "C". If the Seller does not meet this requirement, APCHA may require that Seller escrow at closing a reasonable amount to achieve compliance by APCHA, or reduce the maximum resale price accordingly. J. GRIEVANCES 18. All disputes between the owner of a Unit or tenant in a Unit and APCHA shall be heard in accordance with the grievance procedures set forth in the Guidelines. K. CLOSING COSTS 19. A Qualified Buyer shall not permit any prospective buyer to assume any or all of the owner's customary closing costs (including, but not limited to, title insurance, sales fee, pro ration of taxes, homeowners dues, etc., as are customary in Aspen and Pitkin County) nor accept any other consideration which would cause an increase in the purchase price above the bid price so as to induce the owner to sell to such prospective buyer. L. MULTIPLE QUALIFIED BIDS 20. In the event that one qualified bid is received equal to the Maximum Resale Price herein established, the Unit shall be sold to such bidder at the Maximum Resale Price; and in the event owner receives two or more such bids equal to the Maximum Resale Price, the Qualified Buyer shall be selected according to the priority for Sale Units set forth in the Guidelines; and, in the event that more than one such qualified bidder is of equal priority pursuant to the Guidelines, the Qualified Buyer shall be selected by lottery among the qualified bidders of the highest priority, whereupon the Unit shall be sold to the winner of such lottery at the Maximum Resale Price. If the terms of the proposed purchase contract, other than price, as initially presented to the owner, are unacceptable to the owner, there shall be a mandatory negotiation period of three (3) business days to allow the owner and potential buyer to reach an agreement regarding said terms, including but not limited to, the closing date and financing contingencies. If, after the negotiation period is over, the owner and buyer have not reached an agreement, the next bidder's offer will then be presented to the owner for consideration and a three (3) business day negotiating period will begin again. The owner may reject any and all bids; however, the owner is subject to the provisions in the Guidelines pertaining to the listing fee. Bids in excess of the Maximum Resale Price shall be rejected. If all bids are below the Maximum Resale Price, the owner may accept the highest qualified bid. If all bids are below the Maximum Resale Price and two or more bids are for the same price, the Qualified Buyer shall be selected by lottery from among the highest qualified bidders. Master Deed Restriction - - -- Page 7 0 M. NON -QUALIFIED TRANSFEREES 21. Acquisition of any interest in the Units by someone other than the Declarant or a Qualified Buyer is a violation of this Agreement. In the event that title to the Unit vests by descent in, or is otherwise acquired by, any individual and/or entity who is a non -qualified transferee, the Unit shall immediately be listed for sale as provided in Paragraph 14 above (including the payment of the specified fee to the APCHA), and the highest bid by a Qualified Buyer, for not less than ninety-five percent (95%) of the Maximum Resale Price or the appraised market value, whichever is less, shall be accepted; if all bids are below ninety-five percent (95%) of the Maximum Resale Price or the appraised market value, the Unit shall continue to be listed for sale until a bid in accordance with this section is made, which bid must be accepted. The cost of the appraisal shall be paid by the Non -Qualified Transferee(s). a. Non -Qualified Transferee(s) shall join in any sale, conveyance or transfer of the Unit to a Qualified Buyer and shall execute any and all documents necessary to do so; and b. Non -Qualified Transferee(s) agree not to: (1) occupy the Unit; (2) rent all or any part of the Unit, except in strict compliance with Paragraph 21 hereof; (3) engage in any other business activity on or in the Unit; (4) sell or otherwise transfer the Unit except in accordance with this Agreement and the Guidelines; or (5) sell or otherwise transfer the Unit for use in a trade or business. C. The APCHA, the City, the County, or their respective successors, as applicable, shall have the right and option to purchase the Property or Unit, exercisable within a period of fifteen (15) calendar days after receipt of any sales offer submitted to the APCHA by a Non - Qualified Transferee(s), and in the event of exercising their right and option, shall purchase the Property or Unit from the Non -Qualified Transferee(s) for a price of ninety-five percent (95%) of the Maximum Resale Price, or the appraised market value, whichever is less. The offer to purchase shall be made by the Non -Qualified Transferee within fifteen (15) days of acquisition of the Property or Unit. d. Where the provisions of this Paragraph 21 apply, the APCHA may require the non - qualified transferee to rent the Units in accordance with the provisions of Paragraph 25, below. N. OWNER RESIDENCE, EMPLOYMENT AND CONTINUING COMPLIANCE 22. The Units are to be utilized only as the sole and exclusive place of residence of a Qualified Tenant/Buyer. 23. In the event a Qualified Tenant/Buyer changes place of residence or ceases to utilize the Unit as his or her sole and exclusive place of residence, ceases to be a full-time employee in accordance with the APCHA Guidelines as they are amended from time to time, or otherwise ceases to be in compliance as a Qualified Tenant/Buyer with the APCHA Guidelines as they are amended from time to time, or this Agreement, the Tenant must vacate the Unit and the Unit leased to a Qualified Tenant or the Unit MUST be offered for sale pursuant to the provisions of Paragraph 14 of this Agreement, as applicable. A Qualified Tenant/Buyer shall be deemed to have changed his or her place of residence by becoming a resident elsewhere or accepting employment outside Pitkin County, or residing in the Unit for fewer than nine (9) months per calendar year without the express written approval of the APCHA, or by ceasing to be a full-time employee as required by the Guidelines as amended from time to time. Where the provisions of this Paragraph 23 apply, the Master Deed Restriction Page 8 APCHA may require the owner to rent the Unit in accordance with the provisions of Paragraph 25, below pending a sale of the Unit. 24. If at any time the Qualified Tenant/Buyer of the Units at any time also owns directly or indirectly through a legal entity any interest alone or in conjunction with others in any developed residential property or dwelling unit(s) located in Eagle, Garfield, Gunnison or Pitkin Counties, within the Roaring Fork Valley as defined in the Guidelines as they are amended from time to time, the Qualified Tenant/Buyer agrees to immediately vacate the Unit or list said other property or unit for sale and to sell his or her interest in such property at fair market value to like units or properties in the area in which the property or dwelling unit(s) are located, as applicable. In the event said other property or unit has not been sold by Qualified Tenant/Buyer within one hundred eighty (180) days of its listing for any reason, then Qualified Tenant/Buyer hereby agrees to immediately vacate said Unit or list the Unit for sale pursuant to the provisions of Paragraph 14 of this Agreement, as applicable. O. RENTAL 25. A Qualified Buyer may, except with prior written approval of the APCHA, and subject to APCHA's conditions of approval, rent the Unit for any period of time. Prior to occupancy, each tenant must be approved by the 308 East Hopkins Condominiums Association, if applicable, and the APCHA in accordance with the income, occupancy and all other qualifications established by the APCHA in its Guidelines. The APCHA shall not approve any rental if such rental is being made by Qualified Buyer to utilize the Unit as an income producing asset, except as provided below, and shall not approve a lease with a rental term in excess of twelve (12) months. A signed copy of the lease must be provided to the APCHA prior to occupancy by each tenant Any such lease approved by the APCHA shall show the length of the lease and the monthly rent. The monthly rent cannot exceed the Qualified Buyer's costs, which include the monthly expenses for the cost of principal and interest payments, taxes, property insurance, condominium or homeowners assessments, utilities remaining in Qualified Buyer 's name, plus an additional amount as stated in the Guidelines and as they are amended from time to time, and a reasonable (refundable) security deposit. The requirements of this paragraph shall not preclude the Qualified Buyer from sharing occupancy of the Unit with non -Owners on a rental basis provided Qualified Buyer continues to meet the obligations contained in this Agreement, including Paragraph 22. 26. IN NO EVENT SHALL ANY OWNER OF UNIT DEED RESTRICTED HEREBY CREATE AN ADDITIONAL DWELLING UNIT, AS DEFINED IN THE PITKIN COUNTY OR CITY OF ASPEN LAND USE CODES, IN OR ON THE PROPERTY OR A UNIT. 27. NOTHING HEREIN SHALL BE CONSTRUED TO REQUIRE THE APCHA TO PROTECT OR INDEMNIFY ANY OWNER AGAINST ANY LOSSES ATTRIBUTABLE TO THE RENTAL, INCLUDING (NOT BY WAY OF LIMITATION) NON-PAYMENT OF RENT OR DAMAGE TO THE PREMISES; NOR TO REQUIRE THE APCHA TO OBTAIN A QUALIFIED TENANT FOR ANY OWNER IN THE EVENT THAT NONE IS FOUND BY ANY OWNER. P. COMPLIANCE REVIEW AND REMEDIES FOR BREACH 28. Declarant or a Qualified Buyer shall promptly provide to the APCHA all such information as the APCHA deems reasonably necessary at any time to verify compliance with this Agreement. The APCHA shall maintain the confidentiality of any financial data provided by any existing or potential Owner, except for such disclosures as are necessary with respect to any litigation, Master Deed Restriction Page 9 enforcement or other legal proceedings. In the event that APCHA has reasonable cause to believe that Declarant or any Owner is violating the provisions of this Agreement, the APCHA, by it's authorized representative, may inspect the Unit between the hours of 8:00 a.m. and 5:00 p.m., Monday through Friday, after providing such person with no less than 24 hours' written notice. 29. The APCHA, through its employees or agents, in the event a violation or potential violation of this Agreement is discovered, shall send a notice of violation to the Declarant, the Condominium Association, the Tenant and/or the Qualified Buyer describing the nature of the violation and allowing said person fifteen (15) days to cure. Said notice shall state that the violator may request a hearing before the APCHA Board of Directors within fifteen (15) days to dispute the merits of the allegations. If no hearing is requested and the violation is not cured within the fifteen (15) day period, the violation shall be considered final and the violator shall immediately list the Unit for sale in accordance with this Agreement. The failure to request a hearing shall constitute the failure to exhaust administrative remedies for the purpose of judicial review. If a hearing is held before the APCHA Board, (i) the decision of the APCHA Board based on the record of such hearing shall be final for the purpose of determining if a violation has occurred, and (ii) the APCHA Board shall have absolute discretion to determine the appropriate action to be taken to either remedy the violation or require the violator to vacate or to list the Unit for sale in accordance with this Agreement, and APCHA, in its discretion, shall identify the measures necessary to bring the Unit into compliance, which may include a requirement to vacate and/or sell the Unit 30. There is hereby reserved to the parties hereto any and all remedies provided by law for breach of this Agreement or any of its terms. In the event the parties resort to litigation with respect to any or all provisions of this Agreement, the prevailing party shall awarded damages and costs, including reasonable attorneys' fees. 31. In the event a Unit deed restricted hereby is used, occupied, leased, sold and/or conveyed without compliance herewith, such use, occupancy or sale and/or conveyance shall be wholly null and void and shall confer no title whatsoever upon the purported buyer, tenant or occupant. Each and every lease and conveyance of the Unit, for all purposes, shall be deemed to include and incorporate by this reference, the covenants herein contained, even without reference therein to this Agreement. The violator shall be liable for all APCHA's costs and reasonable attorneys' fees incurred in setting aside any such transaction. 32. In the event that the violator fails to cure any breach, the APCHA may resort to any and all available legal action, including, but not limited to, specific performance of this Agreement or a mandatory injunction requiring sale of the Unit by Owner as specified in Paragraphs 14, 21, 23, and 24, or vacating of the Unit, or termination of an unlawful lease. The costs of such sale, including reasonable attorneys' fees, shall be taxed against the proceeds of the sale with the balance being paid to the Owner. 33. In the event of a breach of any of the terms or conditions contained herein by the owner, his or her heirs, successors or assigns, the APCHA's initial listed purchase price of the Unit as set forth in Paragraph 16a of this Agreement shall, upon the date of such breach as determined by the APCHA, automatically cease to increase as set out in Paragraph 16 of this Agreement, and shall remain fixed until the date of cure of said breach. Q.FORECLOSURE 34. a. If any Unit is sold as a foreclosure sale or otherwise acquired by any person or entity in lieu of foreclosure, the APCHA and the Board, as the designee of the APCHA, shall have Master Deed Restriction Page 10 the option to acquire such Unit within thirty (30) days after (i) the issuance of a public trustee's deed to the purchaser, or (ii) receipt by the APCHA of written notice from such person or entity of the acquisition of such Unit in lieu of foreclosure, as applicable, for an option price not to exceed (a) in the event of a foreclosure, the redemption price on the last day of all statutory redemption periods and any additional reasonable costs incurred by the holder during the option period which are directly related to the foreclosure or (b) in the event of a transfer in lieu of foreclosure, the amount paid, or the amount of debt forgiven, by the transferee plus the reasonable costs incurred by the transferee with respect to its acquisition of such Unit. Notwithstanding any provision herein to the contrary, except for persons or entities having a valid lien on a Unit, only Qualified Buyers may acquire an interest in a Unit at a foreclosure sale or in lieu of foreclosure. If any person or entity having a lien on a Unit is not a Qualified Buyer and acquires an interest in such Unit in a foreclosure sale or in lieu of foreclosure, the provisions of Paragraph 21 shall apply. It is the APCHA's intent that the terms and provisions of this Agreement shall remain in full force and effect with respect to the Units until modified, amended or terminated in accordance with paragraph 47 hereof. b. In the event that APCHA or the Board, as the designee of the APCHA, exercises the option described above, the APCHA and/or its designee, may sell the Unit to Qualified Buyers as that term is defined herein, or rent the Unit to a Qualified Tenants or Tenants who meet the income, occupancy and all other qualifications, established by the APCHA in its Guidelines until a sale to a Qualified Buyer is effected. C. Notwithstanding the foregoing, in the event of foreclosure by the holder of the first deed of trust on such Unit, if the holder of such deed of trust is the grantee under the public trustee's deed and APCHA does not exercise its option to purchase as provided in paragraph 34, then APCHA agrees to release the Unit from the requirements of this Deed Restriction. R. ASSESSMENTS 35. Each owner shall have a non-exclusive right in common with all of the other Owners to the use of sidewalks, pathways, roads, areas provided for open space, utilities and streets within the project designated as common areas, and each such Owner may make such use without hindering or encroaching upon the lawful rights of the other Owners. The Deed Restricted Units' regular management/maintenance assessments shall be based on an allocation of 28.70% of the total amount of any such assessment to Commercial Unit LL1, 19.87% of the total amount of any such assessment to Commercial Unit 101, 13.32% of the total amount of such assessment to Free Market Unit 201, 24.83%, of the total amount of any such assessment to Free Market Unit 301, 4.32% of the total amount of any such assessment to Deed Restricted Unit 202, 4.82% of the total amount of any such assessment to Deed Restricted Unit 203, and 4.14% of the total amount of any such assessment to Deed Restricted Unit 204. For any special or capital assessment made in connection with the Project, each Units' pro rata share of any such assessment shall be an amount equal to the then current assessed valuation of such Unit divided by the total assessed valuation of all of the Units in the Project, with such "assessed valuation" being the assessed value of each Unit as determined by the Pitkin County Assessor from time to time. S. GENERAL PROVISIONS 36. Notices. Any notice, consent or approval which is required to be given hereunder shall be given by mailing the same, certified mail, return receipt requested, properly addressed and with postage fully Master Deed Restriction Page 11 prepaid, to any address provided herein or to any subsequent mailing address of the party as long as prior written notice of the change of address has been given to the other parties to this Agreement. Said notices, consents and approvals shall be sent to the parties hereto at the following addresses unless otherwise notified in writing: To APCHA: Aspen/Pitkin County Housing Authority 530 East Main, Lower Level, Aspen, Colorado 81611 To Declarant: J. W. Ventures, LLC c/o John R.Provine P.O. 8769 Aspen, CO 81612 To Owner: To be completed by a separate Memorandum of Acceptance when sold to a Qualified Buyer 37. Exhibits. All exhibits attached hereto (Exhibits "A", "B" and "C") are incorporated herein and by this reference made a part hereof. 38. Severability. Whenever possible, each provision of this Agreement and any other related document shall be interpreted in such a manner as to be valid under applicable law; but if any provision of any of the foregoing shall be invalid or prohibited under said applicable law, such provisions shall be ineffective to the extent of such invalidity or prohibition without invalidating the remaining provisions of such document. 39. Choice of Law. This Agreement and each and every related document are to be governed and construed in accordance with the laws of the State of Colorado. 40. Successors. Except as otherwise provided herein, the provisions and covenants contained herein shall inure to and be binding upon the heirs, successors and assigns of the parties. 41. Section Headings. Paragraph or section headings within this Agreement are inserted solely for convenience of reference, and are not intended to, and shall not govern, limit or aid in the construction of any terms or provisions contained herein. 42. Waiver. No claim of waiver, consent or acquiescence with respect to any provision of this Agreement shall be valid against any party hereto except on the basis of a written instrument executed by the parties to this Agreement. However, the party for whose benefit a condition is inserted herein shall have the unilateral right to waive such condition, provided that such waiver is in writing. 43. Gender and Number. Whenever the context so requires herein, the neuter gender shall include any or all genders and vice versa and the use of the singular shall include the plural and vice versa. 44. Personal Liability. The Owner agrees that he or she shall be personally liable for any of the transactions contemplated herein. 45. Further Actions. The parties to this Agreement agree to execute such further documents and take such further actions as may be reasonably required to carry out the provisions and intent of this Agreement or any agreement or document relating hereto or entered into in connection herewith. Master Deed Restriction Page 12 46. Modifications. The parties to this Agreement agree that any modifications of this Agreement shall be effective only when made by writings signed by both parties and recorded with the Clerk and Recorder of Pitkin County, Colorado. Notwithstanding the foregoing, the APCHA reserves the right to amend this Agreement unilaterally where deemed necessary to effectuate the purpose and intent of this Agreement, and where such unilateral action does not materially impair the Owner's rights under this Agreement. 47. Mortgagee Right to Cure. Nothing herein shall be deemed to impair any right of a mortgagee of a Unit from curing any default by an Owner of his or her financial obligations with respect to such Unit. IN WITNESS WHEREOF, the parties hereto have executed this instrument on the day and year above first written. DECLARANT: JW Ventures, LLC By: John R. Provine, Member STATE OF COLORADO ) ) ss. COUNTY OF PITKIN ) The foregoing instrument was acknowledged before me this day of , 2009 by John R. Provine as a member and authorized signatory of JW Ventures, LLC. Witness my hand and official seal; My commission expires: / / Notary Public ACCEPTANCE BY THE ASPEN/PITKIN COUNTY HOUSING AUTHORITY The foregoing Deed Restriction Agreement for the Occupancy and Resale of 308 East Hopkins Condominiums of the Aspen/Pitkin County Housing Authority and its terms are hereby adopted and declared by the Aspen/Pitkin County Housing Authority. THE ASPEN/PITKIN COUNTY HOUSING AUTHORITY IM Tom McCabe, Executive Director STATE OF COLORADO Master Deed Restriction Page 13 )SS. COUNTY OF PITKIN ) The foregoing instrument was acknowledged before me this day of 2009, by Tom McCabe, as Executive Director of the Aspen/Pitkin County Housing Authority. Witness my hand and official seal; My commission expires: Notary Public Master Deed Restriction Page 14 EXHIBIT "A" Legal Description Units 202, 203, and 204, 308 East Hopkins Condominiums according, to the Condominium Map thereof recorded in Plat Book at Page as Reception Number , subject to the Condominium Declaration therefor recorded as Reception No. , all of the records of Pitkin County, Colorado. EXHIBIT "B" Permitted Capital Improvements The term "Permitted Capital Improvement" as used in the Agreement shall only include the following: a. Improvements or fixtures erected, installed or attached as permanent, functional, non -decorative improvements to real property, excluding repair, replacement and/or maintenance improvements; b. Improvements for energy and water conservation; C. Improvements for the benefit of seniors and/or handicapped persons; d. Improvements for health and safety protection devices; e. Improvements to add and/or finish permanent/fixed storage space; f. Improvements to finish unfinished space. g. Landscaping; h. The cost of adding decks and balconies, and any extension thereto; and/or i. Improvements associated with health and safety, energy efficiency, water conservation, and green building products. 2. Permitted Capital Improvements as used in this Agreement shall NOT include the following: a. Jacuzzis, saunas, steam showers and other similar items; b. Upgrades or addition of decorative items, including lights, window coverings and other similar items; C. Upgrades of appliances, plumbing and mechanical fixtures, carpets and other similar items included as part of the original construction of a unit and/or improvements required to repair and maintain existing fixtures, appliances, plumbing and mechanical fixtures, painting, and other similar items, unless replacement is energy efficient or for safety and health reasons. All Permitted Capital Improvement items and costs shall be approved by the APCHA staff prior to being added to the Maximum Resale Price as defined herein. In order to get credit for an improvement where a building permit is required, the improvement will not be counted unless a Letter of Completion was obtained by the Building Department. 4. The Permitted Capital Improvements shown hereon shall be subject to such additions, deletions and modifications as may be set forth in the Guidelines from time to time; provided that if any improvement is made at a time when it would be deemed a Permitted Capital Improvement hereunder or under the Guidelines, such improvement shall be deemed a Permitted Capital Improvement at all times notwithstanding any modification of the Guidelines. Master Deed Restriction Page 15 EXHIBIT "C" MINIMUM STANDARDS FOR SELLER TO RECEIVE FULL VAL UE AT RESALE • Clean unit • Carpets steam -cleaned two or three days prior to closing • All scratches, holes, burned marks repaired in hardwood floors, linoleum, tile, counter tops etc. • No broken or foggy windows • All screens in windows (if screens were originally provided) • All doors will be in working order with no holes • All locks on doors will work • All keys will be provided; e.g., door, mail box, garage • All mechanical systems shall be in working order • Walls paint ready • Normal wear and tear on carpet; if carpet has holes, stains, etc., the carpet and padding shall be replaced or escrow funds at current market value per square foot for a comparable product shall be held at the time of closing to be used by the new buyer • No leaks from plumbing fixtures • No roof leaks • Any safety hazard remedied prior to closing • Satisfaction of radon issue if found at time of inspection • All light fixtures shall be in working order DEFINITIONS: Clean Unit: All rooms will be cleaned as stated below: Kitchen: o Range — Inner and outer services will be cleaned. o Range hood and Exhaust Fan o Refrigerator and Freezer — Inner and outer surfaces of refrigerator and freezer will be clean. Freezer will be defrosted. o Cabinets and Countertops — Exterior and interior surfaces of cabinets and drawers will be clean. Door and drawer handles, if provided, shall be clean and in place. o Sink and Garbage Disposal — Sink and plumbing fixtures will be clean. If garbage disposal provided, this must be in working order. o Dishwasher — If provided, must be in working order and inner and outer surfaces shall be clean. • Blinds, Windows, Screens: o Mini -blinds, Venetian Blinds, Vertical Blinds, Pull Shades — Will be clean. o Windows — All window surfaces, inside and outside of the window glass, shall be clean. o Screens — Screens will be clean and in place with no holes or tears. • Closets: Closets, including floors, walls, hanger rod, shelves and doors, shall be clean. • Light Fixtures: Light fixtures will be clean and shall have functioning bulbs/florescent tubes. • Bathrooms: o Bathtub, Shower Walls, Sinks — Bathtubs, shower walls and sinks shall be clean. o Toilet and Water Closet — Water closets, toilet bowls and toilet seats will be clean. If the toilet seat is broken or peeling, the seat shall be replaced. Master Deed Restriction Page 16 • • o Tile —All tile and grout will be clean. o Mirrors and Medicine Cabinets — Mirrors and medicine cabinets shall be cleaned inside and out. o Shelves and/or Other Cabinetry — All other shelving or cabinetry shall be cleaned inside and out. • Walls, Ceilines, Painted Doors and Baseboards: Painted surfaces must be cleaned with care to ensure the surface is clean without damaging the paint. • Floors: Floor cleaning includes sweeping and mopping and could include stripping, waxing and buffing. Types of floor surfaces include wood, wood parquet tiles, linoleum, asphalt tile, vinyl tile, mosaic tile, concrete and carpet. If carpet, all carpets shall be cleaned at least two days prior to closing. • Interior Storaee/Utility Rooms: Storage/utility rooms shall be cleaned. Properly cleaned storage/utility rooms will be free from odors, removable stains, grease marks or accumulations. Sakty Hazard: Any item that provides a safety hazard shall be fixed. This would include, but is not limited to, exposed electrical wiring, satisfaction of any radon issue found, ventilation for gas hot water system, etc. Walls Paint -Ready: All holes shall be patched; all posters, pictures, etc., shall be removed from all walls; all nails, tacks, tape, etc., shall be removed from all walls; and all walls shall be clean and ready for the new buyer to paint. If wallpaper has been placed on the wall and in good condition, the wallpaper can remain; if the wallpaper is peeling off, the wallpaper must be removed. Windows: If a window is broken, including the locking mechanism, the window shall be replaced. if the window has a fog residue in the inside, it shall be replaced. 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Y •.d J A+ 0 W O 1 r-, w �NI ..' _ • r O � �w FNt: ^o� ot, N e j m o CIO an r_� - cwl C) ram, d-s � • 0 J N .] - F.• � ? j � t.• F F r- w Apl- 5 a z Fil 1 t RECEPTION#: 577961, 02/28/2at 03:56:12 PM, 1 OF 17, R $91.00 DF $0.00 Janice K. Vos C W 11, Pitkin County, CO 0 MASTER DEED RESTRICTION AGREEMENT FOR THE OCCUPANCYAND RESALE OF 308 EAST HOPKINS CONDOMINIUMS THIS MASTER DEED RESTRICTION AGREEMENT FOR THE OCCUPANCY AND RESALE OF 308 EAST HOPKINS CONDOMINIUMS (the "Agreement") is made and entered into this day of 2011, by JW Ventures, LLC, a Colorado limited liability company hereinafter referred to as "D aft"), for the benefit of the parties and enforceable by the ASPENIPITKIN COUNTY HOUSING AUTHORITY (hereinafter referred to as "APCIIA"), a duly constituted multi - jurisdictional Housing Authority established pursuant to the THIRD AMENDED AND RESTATED INTERGOVERNMENTAL AGREEMENT by and between the City of Aspen, Colorado (the "City") and Pitkin County, Colorado (the "County"), dated October 28, 2002 and recorded at Reception No. 477066 on January 8, 2003, of the records of the Pitkin County Clerk and Recorder's Office. W ITNESSETH: WHEREAS, Declarant owns the real property described in Exhibit "A" attached hereto and incorporated herein and hereafter intends to own and hold the same for rental for the foreseeable future. For purposes of this Agreement, the real property and all dwellings, appurtenances, improvements and fixtures associated therewith shall hereinafter be referred to as the "Property"; and WHEREAS, as a condition of the approval granted by the Aspen City Council for subdivision approval of the Property and the mutual considerations contained therein, the Declarant is required to, and agrees to, restrict the rental use and/or sale of the three (3) condominium units (the "Units) described in "Exhibit A" to "Qualified Tenants/Buyers," as that term is defined in this Agreement, who fall within the Category 3 income range established and adopted by the APCHA from time to time in its Aspen/Pitkin County Employee Housing Guidelines (hereinafter the "Guidelines"). "Units" are the Units 202, 203, and 204, 308 East Hopkins Condominiums located at 308 East Hopkins, Aspen, Colorado 81611; and WHEREAS, On April 6, 2010 the Declarant, entered into the Temporary Master Deed Restriction Agreement for the Occupancy and Resale of Affordable Housing Units in 308 East Hopkins Subdivision to be Resubdivided into 308 Fast Hopkins Condominiums ("Temporary Deed Restriction") to satisfy the requirements of APCHA; and WHEREAS, the Declarant wishes to terminate the Temporary Deed Restriction in exchange for this Agreement. By execution of this Agreement, the Temporary Deed Restriction is terminated and no longer in effect and this Agreement supercedes it for all purposes as related to the requirements of APCHA; and WHEREAS, this Agreement shall set forth the terms and provisions controlling the resale of the Units, the maximum rental rates and sale prices for which the Units may be leased or sold ("Maximum Resale Price") and shall restrict the Units against use and occupancy inconsistent with this Agreement; and WHEREAS, the Units identified herein shall be classified as Category 3 employee housing units and will be deed restricted to rental and sales price terms within the Guidelines and to occupancy limitations within the housing income eligibility guidelines established by the Guidelines. Rentals and sales must be in accordance with the Guidelines as adopted and amended from time to time. Each Unit shall remain as a RECEPTION#: 577961, 02/28/2*at 03:56:12 PM, 2 OF 17, Janice K. Vos Caudill, Pitk. ounty, CO 0 rental unit until such time as the Declarant wishes to sell that Unit, which must be done through the Aspen/Pitkin County Housing Authority, or until such time said Units are deemed to be out of compliance by APCHA with the rental occupancy requirements set forth in the Guidelines or this Agreement for a period of one year from the date on which APCHA gives the record owner of said Unit written notice of such noncompliance and such noncompliance has not been cured during said one-year period. Said noncompliance only has to occur in one (I) Unit for the requirement to sell all three (3) Units comes into play; and WHEREAS, "Qualified Tenants/Buyers" are natural persons meeting the income, residency and all other qualifications set forth in the Guidelines, or its substitute, as adopted by the APCHA, or its successor, and in effect at the time of a lease to a Qualified Tenant or the closing of the sale to the Qualified Buyer, and who must represent and agree pursuant to this Agreement to occupy the Unit as his or her sole place of residence, not to engage in any business activity on the Property other than that permitted in that zone district or by applicable ordinance, not to sell or otherwise transfer the Units for use in a trade or business; and to continue meeting the employment, residency and other requirements as stated in this Agreement and the Guidelines; and WHEREAS, so long as the Units are rental units, they shall be owned by Declarant, subject to the foreclosure provisions of Section 34 below. NOW, THEREFORE, for value received, the receipt and sufficiency of which are hereby acknowledged, Declarant hereby represents, covenants and agrees as follows: A. RENTAL UNIT REQUIREMENTS — USE AND OCCUPANCY 1. For so long as the Units are rental units, the Declarant is obligated to keep the Units occupied by APCHA qualified residents. Only qualified residents, as defined in the Guidelines, shall reside therein and all rental terms shall be for a period of not less than six (6) consecutive months. The Declarant shall maintain the first right to select the qualified tenants of its own choosing when renting the Units. APCHA shall have the right to place qualified tenants in the Units if the Declarant fails to keep the Units occupied by qualified tenants. An executed copy of all leases for the Units shall be submitted to the APCHA within the (10) days of the approval of a qualified tenant. All tenants shall be approved through the APCHA PRIOR to moving into said Units. 2. The maximum rental rate shall not exceed Category 3 rental rates as set forth in the Guidelines established by APCHA and may be adjusted annually as set forth in the Guidelines. The maximum permitted rental rate for each of the Units on the date of execution of this deed restriction is $1,360.00 per month. Rent shall be verified and approved by APCHA upon submission and approval of each lease. 3. The Units shall not be occupied by the Declarant or members of the immediate family ("Immediate Family" shall mean a person related by blood or marriage who is a first cousin [or closer relative] and his or her children) nor shall the Units be used as a guesthouse or guest facility. If the owner is a corporation or limited liability company, this restriction applies to the directors, managers, shareholders, and/or members of such corporation or limited liability company. 4. Written verification of employment of the employee(s) proposed who are Qualified Tenants to reside in each Unit shall be completed and filed with the APCHA prior to occupancy thereof, and such verification must be acceptable to the APCHA. RECEPTION#: 577961, 02/28/20 1 at 03:56:12 PM, 3 OF 17, Janice K. Vos Caudill, Pit4County, CO 0 5. The Units shall each be required to be rented for periods of no less than six (6) consecutive months. Upon vacancy of the Unit, the Declarant is granted no more than forty-five (45) days in which to locate a Tenant or Tenants and to rent the Unit to such Qualified Tenant or Tenants. 6. The Units must meet minimum occupancy requirements; i.e., at least one person per bedroom. If any of the Units are found by APCHA to be out of compliance as stipulated above for one-year, all of the Units shall be sold through the APCHA and under the requirements as stated below. B. SALES UNIT REQUIREMENTS — USE AND OCCUPANCY 7. A "Qualified Buyer" is a person, other than the Declarant, who acquires an ownership interest in a Unit in compliance with the terms and provisions of this Agreement. It is understood that such person, persons or entity shall be deemed a "Qualified Buyer" hereunder only during the period of his, her, their or its ownership interest in the Unit and shall be obligated hereunder for the full and complete performance and observance of all covenants, conditions and restrictions contained herein during such period, including the Guidelines as amended from time to time. 8. Upon conversion of a Unit to a sales unit, the use and occupancy of that Unit shall be limited exclusively to housing for natural persons who meet the definition of Qualified Buyers and their families, and the other requirements of this Agreement and the Aspen/Pitkin County Housing Authority Guidelines referred to above. 9. A Qualified Buyer, in connection with the purchase of a Unit, must: a) occupy any Unit within this Property as his, her or their sole place of residence during the time that such Unit is owned; b) not own, directly or indirectly through a legal entity, any interest alone or in conjunction with others, in any developed property or dwelling units in accordance with the limitations established by the Guidelines as amended from time to time; c) not engage in any business activity on or in such Unit, other than permitted in that zone district or by applicable ordinance; d) sell or otherwise transfer such Unit only in accordance with this Agreement and the Guidelines; e) not sell or otherwise transfer such Unit for use in a trade or business; f) not permit any use or occupancy of such Unit except in compliance with this Agreement; g) continue to meet the residence and employment requirements of a Qualified Buyer established by the APCHA Guidelines and as they are amended from time to time; h) not use a Unit as collateral or security for a loan(s) totaling in excess of the Maximum Resale Price as determined in accordance with Article I below; and (i) continue to meet the other requirements of the applicable APCHA Guidelines and this Agreement. Recertification of employment, residency and the ownership of other property shall be required as stipulated in the APCHA Guidelines. C. DEFAULT ON LOAN 10. a. It shall be a breach of this Agreement for a Qualified Buyer to default in payments or other obligations due or to be performed under a promissory note secured by a first deed of trust encumbering a Unit or to breach any of Qualified Buyer's duties or obligations under said deed of trust. It shall also be a breach of this Agreement for a Qualified Buyer to default in the payment of real property taxes or obligations to the Condominium Association for general or special assessments. A Qualified Buyer must notify the APCIIA, in writing, of any such default, including notification received from a lender, or its assigns, of past due payments or default in payment or other obligations due or RECEPTION#: 577961, 02/28/20 1 at 03:56:12 PM, 4 OF 17, Janice K. Vos Caudill, Pit4lCounty, CO to be performed under a promissory note secured by a first deed of trust, as described herein, or of any breach of any of the Qualified Buyer's duties or obligations under said deed of trust, within five calendar days of the Qualified Buyer's notification from lender, or its assigns, or any other creditor specified herein, of said default or past due payments or breach. b. Upon notification of a default as provided above, the APCHA may offer loan counseling or distressed loan services to the Qualified Buyer, if any of these services are available, and is entitled to require the Qualified Buyer to sell a Unit to avoid the commencement of any foreclosure proceeding against a Unit. C. Upon receipt of notice as provided in paragraphs l0a and b, the APCHA shall have the right, in its sole discretion, to cure the default or any portion thereof. In such event, the Qualified Buyer shall be personally liable to APCHA for past due payments made by the APCHA together with interest thereon at the rate specified in the promissory note secured by the first deed of trust, plus one percent (1 %), and all actual expenses of the APCHA incurred in curing the default. The Qualified Buyer shall be required by the APCHA to execute a promissory note secured by deed of trust encumbering the Unit in favor of the APCHA for the amounts expended by the APCHA as specified herein, including future advances made for such purposes. The Qualified Buyer may cure the default and satisfy its obligation to the APCHA under this subparagraph at any time prior to execution of a contract for sale, upon such reasonable terms as specified by the APCHA. Otherwise, Qualified Buyer's indebtedness to the APCHA shall be satisfied from the Qualified Buyer's proceeds at closing. d. In addition, upon receipt of notice as provided in Paragraphs I Oa and 10b, the APCHA shall have the option, exercisable in the APCHA's sole discretion, to purchase the Qualified Buyer's Unit for ninety-five percent (95%) of the Maximum Resale Price. If the APCHA desires to exercise said option, it shall give written notice thereof to the Owner within sixty (60) days following the APCHA's receipt of the notice as provided in Paragraphs 10a and I Ob. In the event the APCHA timely exercises said option, the closing of the purchase of the Unit shall occur within sixty (60) days following the date of the APCHA's notice to the Qualified Buyer of the exercise of said option. D. DEFAULT ON CONDOMINIUM ASSESSMENTS H. It shall be a violation of the Agreement for the Declarant, or a Qualified Buyer to default in the payment of general or special assessments to the Homeowner's Association, and such person shall be subject to enforcement as provided herein. In addition, upon sale of a Unit as to which the payment of such obligations is in default, the assessments shall be paid at closing. E. ENFORCEMENT —SALE UNITS 12. In the event that the APCHA determines that sale of the Unit is necessary as a result of breach of this Agreement, Ower shall immediately execute a standard Listing Contract on forms approved by the Colorado Real Estate Commission with the APCHA, providing for a 30-day listing period. At that time, the Owner shall deposit with the APCHA an amount equal to one percent (1%) of the estimated value of the Unit. If a sales contract has not been executed within the initial 30-day period, Owner shall extend the listing period for an additional 180 days, provided such extension does not conflict with the statutory rights of any secured creditors. The APCHA shall promptly advertise the Unit for sale by competitive bid to Qualified Buyers. At the time of closing, RECEPTION#: 577961, 02/28/1 at 03:56:12 PM, 5 OF 17, Janice K. Vos Caudill, Pit*County, CO 40 the Qualified Buyer shall pay to the APCHA an additional fee as stated in the Aspen/pitkin County Employee Housing Guidelines. In the event of a listing of a Unit pursuant to this Paragraph 12, the APCHA is entitled to require the Qualified Buyer to accept the highest of any qualified bids that is equal to the lesser of (i) an amount that at least satisfies the Qualified Buyer 's financial or other obligations due under the promissory note secured by a first deed of trust and any deed of trust in favor of the APCHA, as described herein, or (ii) the Maximum Resale Price (as hereinafter defined), and to sell the Unit to such qualified bidder. The listing and sale of the Unit shall be subject to such listing, sales and other fees and expenses as may be imposed by the APCHA from time to time as set forth in the Guidelines. F. AGREEMENT RUNS WITH THE LAND 13. This Agreement shall constitute covenants running with the Property and the Units, as a burden thereon, for the benefit of, and shall be specifically enforceable by the APCHA, the City Council for the City (the "City Council"), the Board of County Commissioners for Pitkin County (also referred to herein as the "County"), and their respective successors and assigns, as applicable, by any appropriate legal action including but not limited to specific performance, injunction, reversion, or eviction of non- complying owners and/or occupants. G. VOLUNTARY SALE 14. In the event that a Qualified Buyer desires to voluntarily sell a Unit, he/she/they shall execute a standard Listing Contract on forms approved by the Colorado Real Estate Commission with the APCHA providing for a 180-day listing period, or such other time period as required by the APCHA Guidelines in effect at time of listing. The APCHA shall promptly advertise the Unit for sale by competitive bid to Qualified Buyers. The listing and sale of the Unit shall be subject to such listing, sales and other fees and expenses as may be imposed by the APCHA from time to time as set forth in the Guidelines. H. APCHA'S RIGHT TO ACQUISITION 15. Notwithstanding any provision herein to the contrary, the APCHA shall have the right, in its sole discretion, (i) to acquire any Unit for the purpose of resale thereof to a Qualified Buyer; (ii) following its acquisition of any Unit, to repair, replace, redevelop, remove and maintain such Unit prior to resale to a Qualified Buyer; and/or (iii) amend this Deed Restriction Agreement following the acquisition. 1. MAXIMUM RESALE PRICE 16. In no event shall each of the Units be sold for an amount ("Maximum Resale Price") in excess of the lesser of: a. $157,000 plus an increase of three percent (3%) of such price per year from the date of purchase to the date of owner's notice of intent to sell (prorated at the rate of .25 percent for each whole month for any part of a year); or b. an amount (based upon the Consumer Price Index, All Items, U.S. City Average, Urban Wage Earners and Clerical Workers (Revised), published by the U.S. Department of Labor, Bureau of Labor Statistics) calculated as follows: the owner's RECEPTION#: 577961, 02/28/ at 03:56:12 PM, 6 OF 17, Janice K. Vos Caudill, Pit County, CO 0 purchase price divided by the Consumer Price Index published at the time of owner's purchase stated on the Settlement Statement, multiplied by the Consumer Price Index current at the date of intent to sell. In no event shall the multiplier be less than one (1). For purposes of this Agreement, "date of intent to sell" shall be the date of execution of a listing contract when required by this agreement, or if a listing contract is not otherwise necessary, the date shall be determined to be the date upon which a requirement for the owner to sell is first applicable. NOTHING HEREIN SHALL BE CONSTRUED TO CONSTITUTE A REPRESENTATION OR GUARANTEE BY THE APCHA OR THE CITY THAT ON RESALE THE OWNER SHALL OBTAIN THE MAXIMUM RESALE PRICE. 17. a. Subject to the limitations of this Section, for the purpose of determining the Maximum Resale Price in accordance with this Section, the owner may add to the amount specified in Paragraph 16 above, the cost of Permitted Capital Improvements, as set forth in Exhibit "B" attached hereto or otherwise allowed by the Guidelines and as they are amended from time to time, in a total amount not to exceed $15,700, which is ten percent (10%) of the listed purchase price set forth in paragraph 16a above. In calculating such amount, only those Permitted Capital Improvements identified in Exhibit "B" hereto or otherwise allowed by the Guidelines from time to time shall qualify for inclusion. All such Permitted Capital Improvements installed or constructed over the life of the unit shall qualify, and will be depreciated based on the Depreciation Schedule used by APCHA at the time of listing. b. Permitted Capital Improvements shall not include any changes or additions to the Property or Unit made by the owner during construction or thereafter, except in accordance with Paragraph 17a above. Permitted Capital Improvements shall not be included in the APCHA's listed purchase price, even if made or installed during original construction. C. In order to qualify as Permitted Capital Improvements, the owner of the Unit must furnish to the APCIIA the following information with respect to the improvements that the owner seeks to include in the calculation of Maximum Resale Price: (1) Original or duplicate receipts to verify the actual costs expended by the owner for the Permitted Capital Improvements; (2) The owner's affidavit verifying that the receipts are valid and correct receipts tendered at the time of purchase; and (3) True and correct copies of any building permit or certificate of occupancy required to be issued by the Aspen/Pitkin County Building Department with respect to the Permitted Capital Improvements. All capital improvements will be depreciated. Certain capital improvements will not be counted towards the 10% cap. Each capital improvement will depreciate according to the depreciation schedule stated in an approved handbook. The current source is the Marshall Swift Residential Handbook. Any capital improvements associated with health and safety, energy efficiency, water conservation, and green building products will be exempt from the 10% capital improvement cap; however, such capital improvements shall be depreciated according to the depreciation schedule stated in an approved handbook. Any improvement to bring the Unit up to the Aspen Affordable Housing Building Guidelines will also be allowed as part of the 10% cap. RECEPTION#: 577961, 02/28/1 at 03:56:12 PM, 7 OF 17, Janice K. Vos Caudill, Pit*County, CO d. For the purpose of determining the Maximum Resale Price in accordance with this Section, the owner may also add to the amounts specified in Paragraphs 16 and 17a, the cost of any permanent improvements constructed or installed as a result of any requirement imposed by any governmental agency, provided that written certification is provided to the APCHA of both the applicable requirement and the information required by Paragraph 17c, (I) — (3). e. In order to obtain maximum resale price, owner must ensure that the Unit meets APCHA's generally applicable minimum standards for a seller of a deed -restricted unit to receive full value as determined by APCHA in its discretion. This shall include requirements to clean the home, ensure that all fixtures are in working condition, and to repair damage to the unit beyond normal wear and tear and as stated in the Minimum Standards for Seller to Receive Full Value at Resale, Exhibit "C". If the Seller does not meet this requirement, APCHA may require that Seller escrow at closing a reasonable amount to achieve compliance by APCHA, or reduce the maximum resale price accordingly. J. GRIEVANCES 18. All disputes between the owner of a Unit or tenant in a Unit and APCHA arising by virtue of this Agreement shall be heard in accordance with the grievance procedures set forth in the Guidelines. K. CLOSING COSTS 19. A Qualified Buyer shall not permit any prospective buyer to assume any or all of the owner's customary closing costs (including, but not limited to, title insurance, sales fee, pro ration of taxes, homeowners dues, etc., as are customary in Aspen and Pitkin County) nor accept any other consideration which would cause an increase in the purchase price above the bid price so as to induce the owner to sell to such prospective buyer. L. MULTIPLE QUALIFIED BIDS 20. In the event that one qualified bid is received equal to the Maximum Resale Price herein established, the Unit shall be sold to such bidder at the Maximum Resale Price; and in the event owner receives two or more such bids equal to the Maximum Resale Price, the Qualified Buyer shall be selected according to the priority for Sale Units set forth in the Guidelines; and, in the event that more than one such qualified bidder is of equal priority pursuant to the Guidelines, the Qualified Buyer shall be selected by lottery among the qualified bidders of the highest priority, whereupon the Unit shall be sold to the winner of such lottery at the Maximum Resale Price. If the terms of the proposed purchase contract, other than price, as initially presented to the owner, are unacceptable to the owner, there shall be a mandatory negotiation period of three (3) business days to allow the owner and potential buyer to reach an agreement regarding said terms, including but not limited to, the closing date and financing contingencies. If, after the negotiation period is over, the owner and buyer have not reached an agreement, the next bidder's offer will then be presented to the owner for consideration and a three (3) business day negotiating period will begin again. The owner may reject any and all bids; however, the owner is subject to the provisions in the Guidelines pertaining to the listing fee. Bids in excess of the Maximum Resale Price shall be rejected. If all bids are below the Maximum Resale Price, the owner may accept the highest qualified bid. If all RECEPTION#: 577961, 02/28/1 at 03:56:12 PM, 8 OF 17, Janice K. Vos Caudill, Pit*County, CO . bids are below the Maximum Resale Price and two or more bids are for the same price, the Qualified Buyer shall be selected by lottery from among the highest qualified bidders. M. NON -QUALIFIED TRANSFEREES 21. Except as provided in Section 34 below, acquisition of any interest in the Units by someone other than the Declarant or a Qualified Buyer is a violation of this Agreement. In the event that title to the Unit vests by descent in, or is otherwise acquired by, any individual and/or entity who is a non -qualified transferee, the Unit shall immediately be listed for sale as provided in Paragraph 14 above (including the payment of the specified tee to the APCHA), and the highest bid by a Qualified Buyer, for not less than ninety-five percent (95%) of the Maximum Resale Price or the appraised market value, whichever is less, shall be accepted; if all bids are below ninety-five percent (95%) of the Maximum Resale Price or the appraised market value, the Unit shall continue to be listed for sale until a bid in accordance with this section is made, which bid must be accepted. The cost of the appraisal shall be paid by the Non -Qualified Transferee(s). a. Non -Qualified Transferee(s) shall join in any sale, conveyance or transfer of the Unit to a Qualified Buyer and shall execute any and all documents necessary to do so; and b. Non -Qualified Transferee(s) agree not to: (1) occupy the Unit; (2) rent all or any part of the Unit, except in strict compliance with Paragraph 21 hereof; (3) engage in any other business activity on or in the Unit; (4) sell or otherwise transfer the Unit except in accordance with this Agreement and the Guidelines; or (5) sell or otherwise transfer the Unit for use in a trade or business. C. The APCHA, the City, the County, or their respective successors, as applicable, shall have the right and option to purchase the Property or Unit, exercisable within a period of fifteen (15) calendar days after receipt of any sales offer submitted to the APCHA by a Non -Qualified Transferee(s), and in the event of exercising their right and option, shall purchase the Property or Unit from the Non -Qualified Transferee(s) for a price of ninety-five percent (95%) of the Maximum Resale Price, or the appraised market value, whichever is less. The offer to purchase shall be made by the Non -Qualified Transferee within fifteen (15) days of acquisition of the Property or Unit. d. Where the provisions of this Paragraph 21 apply, the APCHA may require the non -qualified transferee to rent the Units in accordance with the provisions of Paragraph 25, below. N. OWNER RESIDENCE, EMPLOYMENT AND CONTINUING COMPLIANCE 22. The Units are to be utilized only as the sole and exclusive place of residence of a Qualified Tenant/Buyer. 23. In the event a Qualified Tenant/Buyer changes place of residence or ceases to utilize the Unit as his or her or their sole and exclusive place of residence, ceases to be a full-time employee in accordance with the APCHA Guidelines as they are amended from time to time, or otherwise ceases to be in compliance as a Qualified TenantfBuyer with the APCHA Guidelines as they are amended from time to time, or this Agreement, the Tenant must vacate the Unit and the Unit leased to a Qualified Tenant or the Unit MUST be offered for sale pursuant to the provisions of Paragraph RECEPTION#: 577961, 02/28/2 1 at 03:56:12 PM, 9 OF 17, Janice K. Vos Caudill, Pitl�County, CO 14 of this Agreement, as applicable. A Qualified Tenant/Buyer shall be deemed to have changed his or her place of residence by becoming a resident elsewhere or accepting employment outside Pitkin County, or residing in the Unit for fewer than nine (9) months per calendar year without the express written approval of the APCHA, or by ceasing to be a full-time employee as required by the Guidelines as amended from time to time. Where the provisions of this Paragraph 23 apply, the APCHA may require the owner to rent the Unit in accordance with the provisions of Paragraph 25, below pending a sale of the Unit. If at any time the Qualified Tenant/Buyer of the Units at any time also owns directly or indirectly through a legal entity any interest alone or in conjunction with others in any developed residential property or dwelling unit(s) located in Eagle, Garfield, Gunnison or Pitkin Counties, within the Roaring Fork Valley as defined in the Guidelines as they are amended from time to time, the Qualified Tenant/Buyer agrees to immediately vacate the Unit or list said other property or unit for sale and to sell his or her interest in such property at fair market value to like units or properties in the area in which the property or dwelling unit(s) are located, as applicable. In the event said other property or unit has not been sold by Qualified Tenant/Buyer within one hundred eighty (180) days of its listing for any reason, then Qualified Tenant/Buyer hereby agrees to immediately vacate said Unit or list the Unit for sale pursuant to the provisions of Paragraph 14 of this Agreement, as applicable. O. RENTAL 25. A Qualified Buyer may not, except with prior written approval of the APCHA, and subject to APCHA's conditions of approval, rent the Unit for any period of time. Prior to occupancy, each tenant must be approved by the 308 East Hopkins Condominiums Association, if applicable, and the APCHA in accordance with the income, occupancy and all other qualifications established by the APCHA in its Guidelines. The APCHA shall not approve any rental if such rental is being made by Qualified Buyer to utilize the Unit as an income producing asset, except as provided below, and shall not approve a lease with a rental term in excess of twelve (12) months. A signed copy of the lease must be provided to the APCHA prior to occupancy by each tenant. Any such lease approved by the APCHA shall show the length of the lease and the monthly rent. The monthly rent cannot exceed the Qualified Buyer's costs, which include the monthly expenses for the cost of principal and interest payments, taxes, property insurance, condominium or homeowners assessments, utilities remaining in Qualified Buyer's name, plus an additional amount as stated in the Guidelines and as they are amended from time to time, and a reasonable (refundable) security deposit. The requirements of this paragraph shall not preclude the Qualified Buyer from sharing occupancy of the Unit with non -Owners on a rental basis provided Qualified Buyer continues to meet the obligations contained in this Agreement, including Paragraph 22. 26. IN NO EVENT SHALL ANY OWNER OF UNIT DEED RESTRICTED HEREBY CREATE AN ADDITIONAL DWELLING UNIT, AS DEFINED IN THE PITKIN COUNTY OR CITY OF ASPEN LAND USE CODES, IN OR ON THE PROPERTY OR A UNIT. 27. NOTHING HEREIN SHALL, BE CONSTRUED 1'0 REQUIRE THE APCHA TO PROTECT OR INDEMNIFY ANY OWNER AGAINST ANY LOSSES ATTRIBUTABLE TO THE RENTAL, INCLUDING (NOT BY WAY OF LIMITATION) NON-PAYMENT OF RENT OR DAMAGE TO THE PREMISES; NOR TO REQUIRE THE APCHA TO OBTAIN A QUALIFIED TENANT FOR ANY OWNER IN THE EVENT THAT NONE IS FOUND BY ANY OWNER. RECEPTION#: 577961, 02/28/2 1 at 03:56:12 PM, 10 OF 17, Janice K. Vos Caudill, Pitl�County, CO • P. COMPLIANCE REVIEW AND REMEDIES FOR BREACH 28. Declarant or a Qualified Buyer shall promptly provide to the APCHA all such information as the APCI-IA deems reasonably necessary at any time to verify compliance with this Agreement. The APCHA shall maintain the confidentiality of any financial data provided by any existing or potential Owner, except for such disclosures as are necessary with respect to any litigation, enforcement or other legal proceedings. In the event that APCHA has reasonable cause to believe that Declarant or any Owner is violating the provisions of this Agreement, the APCHA, by it's authorized representative, may inspect the Unit between the hours of 8:00 a.m. and 5:00 p.m., Monday through Friday, after providing such person with no less than 24 hours' written notice. 29. The APCHA, through its employees or agents, in the event a violation or potential violation of this Agreement is discovered, shall send a notice of violation to the Declarant, the Condominium Association, the Tenant and/or the Qualified Buyer describing the nature of the violation and allowing said person fifteen (15) days to cure. This right to cure shall not apply in the event of a repeat violation. Said notice shall state that the violator may request a hearing before the APCHA Board of Directors within fifteen (15) days to dispute the merits of the allegations. If no hearing is requested and the violation is not cured within the fifteen (15) day period, the violation shall be considered final and the violator shall immediately list the Unit for sale in accordance with this Agreement. The failure to request a hearing shall constitute the failure to exhaust administrative remedies for the purpose of judicial review. If a hearing is held before the APCHA Board, (i) the decision of the APCHA Board based on the record of such hearing shall be final for the purpose of determining if a violation has occurred, and (ii) the APCHA Board shall have absolute discretion to determine the appropriate action to be taken to either remedy the violation or require the violator to vacate or to list the Unit for sale in accordance with this Agreement, and APCHA, in its discretion, shall identify the measures necessary to bring the Unit into compliance, which may include a requirement to vacate and/or sell the Unit. 30. There is hereby reserved to the parties hereto any and all remedies provided by law for breach of this Agreement or any of its terms. In the event the parties resort to litigation with respect to any or all provisions of this Agreement, the prevailing party shall be awarded damages and costs, including reasonable attorneys' fees. 31. In the event a Unit deed restricted hereby is used, occupied, leased, sold and/or conveyed without compliance herewith, such use, occupancy or sale and/or conveyance shall be wholly null and void and shall confer no title whatsoever upon the purported buyer, tenant or occupant. Each and every lease and conveyance of the Unit, for all purposes, shall be deemed to include and incorporate by this reference, the covenants herein contained, even without reference therein to this Agreement. The violator shall be liable for all APCHA's costs and reasonable attorneys' fees incurred in setting aside any such transaction. 32. In the event that the violator fails to cure any breach, the APCHA may resort to any and all available legal action, including, but not limited to, specific performance of this Agreement or a mandatory injunction requiring sale of the Unit by Owner as specified in Paragraphs 14, 21, 23, and 24, or vacating of the Unit, or termination of an unlawful lease. The costs of such sale, including reasonable attorneys' fees, shall be taxed against the proceeds of the sale with the balance being paid to the Owner. 33. In the event of a breach of any of the terms or conditions contained herein by the owner, his or her heirs, successors or assigns, the APCIIA's initial listed purchase price of the Unit as set forth RECEPTION#: 577961, 02/28/2 1 at 03:56:12 PM, it OF 17, Janice K. Vos Caudill, Pit) County, CO G in Paragraph 16a of this Agreement shall, upon the date of such breach as determined by the APCHA, automatically cease to increase as set out in Paragraph 16 of this Agreement, and shall remain fixed until the date of cure of said breach. Q. FORECLOSURE 34. a. If any Unit is sold as a foreclosure sale or otherwise acquired by any person or entity in lieu of foreclosure, the APCHA and the Board, as the designee of the APCHA, shall have the option to acquire such Unit within thirty (30) days after (i) the issuance of a public trustee's deed to the purchaser, or (ii) receipt by the APCHA of written notice from such person or entity of the acquisition of such Unit in lieu of foreclosure, as applicable, for an option price not to exceed (a) in the event of a foreclosure, the redemption price on the last day of all statutory redemption periods and any additional reasonable costs incurred by the holder during the option period which are directly related to the foreclosure or (b) in the event of a transfer in lieu of foreclosure, the amount paid, or the amount of debt forgiven, by the transferee plus the reasonable costs incurred by the transferee with respect to its acquisition of such Unit. Notwithstanding any provision herein to the contrary, except for persons or entities having a valid lien on a Unit, only Qualified Buyers may acquire an interest in a Unit at a foreclosure sale or in lieu of foreclosure. If any person or entity having a lien on a Unit is not a Qualified Buyer and acquires an interest in such Unit in a foreclosure sale or in lieu of foreclosure, the provisions of Paragraph 21 shall apply. It is the APCHA's intent that the terms and provisions of this Agreement shall remain in full force and effect with respect to the Units until modified, amended or terminated in accordance with paragraph 47 hereof. b. In the event that the APCHA or the Board, as the designee of the APCHA, exercises the option described above, the APCHA and/or its designee, may sell the Unit to Qualified Buyers as that term is defined herein, or rent the Unit to a Qualified Tenant or Tenants who meet the income, occupancy and all other qualifications, established by the APCHA in its Guidelines until a sale to a Qualified Buyer is effected. C. Notwithstanding the foregoing, in the event of foreclosure by the holder of the first deed of trust on such Unit, if the holder of such deed of trust is the grantee under the public trustee's deed and APCHA does not exercise its option to purchase as provided in paragraph 34, then APCHA agrees to release the Unit from the requirements of this Deed Restriction. R. ASSESSMENTS 35. Each owner shall have a non-exclusive right in common with all of the other Owners to the use of sidewalks, pathways, roads, areas provided for open space, utilities and streets within the project designated as common areas, and each such Owner may make such use without hindering or encroaching upon the lawful rights of the other Owners. The Deed Restricted Units' regular management/maintenance assessments shall be based on an allocation of 27.89% of the total amount of any such assessment to Commercial Unit I,L1, 19,32% of the total amount of any such assessment to Commercial Unit 101, 14.34% of the total amount of such assessment to Free Market Unit 201, 25.54%, of the total amount of any such assessment to Free Market Unit 301, 4.20% of the total amount of any such assessment to Deed Restricted Unit 202, 4.69% of the total amount of any such assessment to Deed Restricted Unit 203, and 4.02% of the total amount of any such assessment to Deed Restricted Unit 204. For any special or capital assessment made in connection with the Project, each Unit's pro rata share of any such assessment shall be an amount equal to the then current assessed valuation of such Unit divided by the total assessed valuation of all of the Units in the Project, with such "assessed valuation" being the assessed value of each Unit as RECEPTION#: 577961, 02/28/1 at 03:56:12 PM, 12 OF 17, Janice K. Vos Caudill, Pit*County, CO • determined by the Pitkin County Assessor from time to time, taking into account the Maximum Sales Price as determined pursuant to Article 1. above.. S. GENERAL PROVISIONS 36. Notices. Any notice, consent or approval which is required to be given hereunder shall be given by mailing the same, certified mail, return receipt requested, properly addressed and with postage fully prepaid, to any address provided herein or to any subsequent mailing address of the party as long as prior written notice of the change of address has been given to the other parties to this Agreement. Said notices, consents and approvals shall be sent to the parties hereto at the following addresses unless otherwise notified in writing: To APCHA: Aspen/Pitkin County Housing Authority 530 East Main, Lower Level, Aspen, Colorado 81611 To Declarant: J W Ventures, LLC c/o John R. Provine P.O. 8769 Aspen, CO 81612 To Owner: To be completed by a separate Memorandum of Acceptance when sold to a Qualified Buyer 37. Exhibits. All exhibits attached hereto (Exhibits "A", "B" and "C") are incorporated herein and by this reference made a part hereof. 38. Severability. Whenever possible, each provision of this Agreement and any other related document shall be interpreted in such a manner as to be valid under applicable law; but if any provision of any of the foregoing shall be invalid or prohibited under said applicable law, such provisions shall be ineffective to the extent of such invalidity or prohibition without invalidating the remaining provisions of such document. 39. Choice of Law. This Agreement and each and every related document are to be governed and construed in accordance with the laws of the State of Colorado. 40. Successors. Except as otherwise provided herein, the provisions and covenants contained herein shall inure to and be binding upon the heirs, successors and assigns of the parties. 41. Section Headings. Paragraph or section headings within this Agreement are inserted solely for convenience of reference, and are not intended to, and shall not govern, limit or aid in the construction of any terms or provisions contained herein. 42. Waiver. No claim of waiver, consent or acquiescence with respect to any provision of this Agreement shall be valid against any party hereto except on the basis of a written instrument executed by the parties to this Agreement. However, the party for whose benefit a condition is inserted herein shall have the unilateral right to waive such condition, provided that such waiver is in writing. RECEPTION#: 577961, 02/28/2 1 at 03:56:12 PM, 13 OF 17, Janice K. Vos Caudill, Pit* County, CO • 43. Gender and Number. Whenever the context so requires herein, the neuter gender shall include any or all genders and vice versa and the use of the singular shall include the plural and vice versa. 44. Personal Liability. The Owner agrees that he or she shall be personally liable for any of the transactions contemplated herein. 45. Further Actions. The parties to this Agreement agree to execute such further documents and take such further actions as may be reasonably required to carry out the provisions and intent of this Agreement or any agreement or document relating hereto or entered into in connection herewith. 46. Modifications. The parties to this Agreement agree that any modifications of this Agreement shall be effective only when made by writings signed by both parties and recorded with the Clerk and Recorder of Pitkin County, Colorado. Notwithstanding the foregoing, the APCHA reserves the right to amend this Agreement unilaterally where deemed necessary to effectuate the purpose and intent of this Agreement, and where such unilateral action does not materially impair the Owner's rights under this Agreement. 47. Mortgagee Right to Cure. Nothing herein shall be deemed to impair any right of a mortgagee of a Unit from curing any default by an Owner of his or her financial obligations with respect to such Unit. IN WITNESS WHEREOF, the parties hereto have executed this instrument on the day and year above first written. DECLARANT: JW Ventures, LLC B: Joh . Provine, Member and Authorized Signatory STATE OF COLORADO ) ) ss. COUNTY OF PITKIN ) /1 The foregoing instrument was acknowledged before me thisa 3—day of 57 1_Lj, 20+0 by John R. Provine as a member and authorized signatory of J W Ventures, LLC. Witness my hand and official seal; My commission expires: Notary Public cCOMM. 0112N12 v�nidt CN Cam►. EEC) rlgls RECEPTION#: 577961, 02/28/2 1 at 03:56:12 PM, 14 OF 17, Janice K. Vos Caudill, Pitl� County, CO • ACCEPTANCE BY THE ASPEN/PITKIN COUNTY HOUSING AUTHORITY The foregoing Deed Restriction Agreement for the Occupancy and Resale of 308 East Hopkins Condominiums of the Aspen/Pitkin County Housing Authority and its terms are hereby adopted and declared by the Aspen/Pitkin County Housing Authority. THE ASPEN/PITKIN COUNTY HOUSING AUTHORITY By. Tom McCabe, Executive Director STATE OF COLORADO ) ) ss. COUNTY OF PITKIN ) The foregoing instrument was acknowledged before me this day of (vim 2010, by Tom McCabe, as Executive Director of the Aspen/Pitkin County Housing Auth rity. Witness my hand and official seal; My commission expires: S I '' 1 Notary Public My i;i;i u, m 2, 12 RECEPTION#: 577961, 02/28/2011 at 03:56:12 PM, 15 OF 17, Janice K. Vos Caudill, Pit County, CO • EXHIBIT "A" Legal Description Units 202, 203, and 204, 308 East Hopkins Condominiums according, to the Condominium Map thereof recorded in Plat Book C1 Lo_ at Page yo Hlas Reception Number �} Hof the records subject tout ie Condominium Declaration therefor recorded as Reception No. 5 1EHlu1 County, Colorado. EXHIBIT "B" Permitted Capital Improvements The term "Permitted Capital Improvement" as used in the Agreement shall only include the following: a. Improvements or fixtures erected, installed or attached as permanent, functional, non -decorative improvements to real property, excluding repair, replacement and/or maintenance improvements; b. Improvements for energy and water conservation; C. Improvements for the benefit of seniors and/or handicapped persons; d. Improvements for health and safety protection devices; e. Improvements to add and/or finish permanent/fixed storage space; • Improvements to finish unfinished space. • Landscaping; • The cost of adding decks and balconies, and any extension thereto; and/or Improvements associated with health and safety, energy efficiency, water conservation, and green building products. 2. Permitted Capital Improvements as used in this Agreement shall NOT include the following: Jacuzzis, saunas, steam showers and other similar items; Upgrades or addition of decorative items, including lights, window coverings and other similar items; C. Upgrades of appliances, plumbing and mechanical fixtures, carpets and other similar items included as part of the original construction of a unit and/or improvements required to repair and maintain existing fixtures, appliances, plumbing and mechanical fixtures, painting, and other similar items, unless replacement is energy efficient or for safety and health reasons. All Permitted Capital Improvement items and costs shall be approved by the APCHA staff prior to being added to the Maximum Resale Price as defined herein. In order to get credit for an improvement where a building permit is required, the improvement will not be counted unless a Letter of Completion was obtained by the Building Department. The Permitted Capital Improvements shown hereon shall be subject to such additions, deletions and modifications as may be set forth in the Guidelines from time to time; provided that if any improvement is made at a time n it would be deemed a Permitted improvement der or under the Gu, nes such improvement shall be deemed a Capital PermittPermittedCapitalImprovement atrall ntimes notwithstand ng'any modification of the Guidelines. RECEPTION#: 577961, 02/28/2 1 at 03:56:12 PM, 16 OF 17, Janice K. Vos Caudill, Pitl�County, CO • EXHIBIT "C" MINIMUM STANDARDS FOR SELLER TO RECEIVE FULL VALUE AT RESALE Clean unit Carpets steam -cleaned two or three days prior to closing All scratches, holes, burned marks repaired in hardwood floors, linoleum, tile, counter tops etc. • No broken or foggy windows • All screens in windows (if screens were originally provided) • All doors will be in working order with no holes • All locks on doors will work • All keys will be provided; e.g., door, mail box, garage • All mechanical systems shall be in working order • Walls paint ready Normal wear and tear on carpet; if carpet has holes, stains, etc., the carpet and padding shall be replaced or escrow funds at current market value per square foot for a comparable product shall be held at the time of closing to be used by the new buyer • No leaks from plumbing fixtures • No roof leaks • Any safety hazard remedied prior to closing • Satisfaction of radon issue if found at time of inspection • All light fixtures shall be in working order DEFINITIONS: Clean Unit: All rooms will be cleaned as stated below: Kitchen: • Range - Inner and outer services will be cleaned. • Range hood and Exhaust Fan • Refrigerator and Freezer -- Inner and outer surfaces of refrigerator and freezer will be clean. Freezer will be defrosted. • Cabinets and Countertops - Exterior and interior surfaces of cabinets and drawers will be clean. Door and drawer handles, if provided, shall be clean and in place. • Sink and Garbage Disposal - Sink and plumbing fixtures will be clean. If garbage disposal provided, this must be in working order. • Dishwasher - If provided, must be in working order and inner and outer surfaces shall be clean. Blinds, Windows, Screens: • Mini -blinds, Venetian Blinds, Vertical Blinds, Pull Shades - Will be clean. • Windows - All window surfaces, inside and outside of the window glass, shall be clean. • Screens - Screens will be clean and in place with no holes or tears. Closets: Closets, including floors, walls, hanger rod, shelves and doors, shall be clean. Licht Fixtures: light fixtures will be clean and shall have functioning bulbs/florescent tubes. RECEPTION#: 577961, 02/28/2011 at 03:56:12 PM, 17 OF 17, Janice K. Vos Caudill, Pit* County, CO • Bathrooms: • Bathtub, Shower Walls, Sinks - Bathtubs, shower walls and sinks shall be clean. • Toilet and Water Closet - Water closets, toilet bowls and toilet seats will be clean. If the toilet seat is broken or peeling, the seat shall be replaced. • Tile All tile and grout will be clean. • Mirrors and Medicine Cabinets - Mirrors and medicine cabinets shall be cleaned inside and out. • Shelves and/or Other Cabinetry - All other shelving or cabinetry shall be cleaned inside and out. Walls, Ceilings, Painted Doors and Baseboards: Painted surfaces must be cleaned with care to ensure the surface is clean without damaging the paint. Floors: Floor cleaning includes sweeping and mopping and could include stripping, waxing and buffing. Types of floor surfaces include wood, wood parquet tiles, linoleum, asphalt tile, vinyl tile, mosaic tile, concrete and carpet. If carpet, all carpets shall be cleaned at least two days prior to closing. Interior Storage/Utility Rooms: Storage/utility rooms shall be cleaned. Properly cleaned storage/utility rooms will be free from odors, removable stains, grease marks or accumulations. Safety Hazard: Any item that provides a safety hazard shall be fixed. This would include, but is not limited to, exposed electrical wiring, satisfaction of any radon issue found, ventilation for gas hot water system, etc. Walls Paint -Ready: All holes shall be patched; all posters, pictures, etc., shall be removed from all walls; all nails, tacks, tape, etc., shall be removed from all walls; and all walls shall be clean and ready for the new buyer to paint. If wallpaper has been placed on the wall and in good condition, the wallpaper can remain; if the wallpaper is peeling off, the wallpaper must be removed. Windows: If a window is broken, including the locking mechanism, the window shall be replaced. If the window has a fog residue in the inside, it shall be replaced. C U.MO Forms & Docs\Data`,ChentsTrovine\306 S Garmisch Development Docs Subdmston\Master Deed Restr306 S Garmisch LMO Rev.dm RECEPTION#: 577962, 02/28/1 at 03:56:13 PM, 1 OF 35, R $181.00 Janide K. Vos Caudill, *kin County, CO CONDOMINIUM DECLARATION FOR 308 East Hopkins Condominiums Aspen, Colorado RECEPTION#: 577962, 02/28/ 11 at 03:56:13 PM, 2 OF 35, Janice IN. Vos Caudill, Pi4 County, CO W %W 1101 TABLE OF CONTENTS OF CONDOMINIUM DECLARATION FOR 308 EAST HOPE INS CONDOM KNRJMS ARTICLEI - RECITALS.............................................................................................................................. 7 Section1.1. The Declarant............................................................................................................................. 7 Section1.2. The Property .............................................................................................................................. 7 Section13. The Development......................................................................................................................... 7 Section1.4. The Community ........................................................................................................................... 7 Section1.5. The Name of the Community........................................................................................................ 7 Section 1.6. The Name of the Association......................................................................................................... 7 Section1.7. The Condominium Map............................................................................................................. is Section1.8. Maximum Number of Units........................................................................................................ 8 Section1.9. The Purpose................................................................................................................................ 8 ARTICLE11- DEFINITIONS....................................................................................................................... 8 Section2.1. Act.............................................................................................................................................. 8 Section 2.2. Affordable Housing Units....................................................................................................... 8 Section2.3. Association................................................................................................................................ 8 Section2.4. Building..................................................................................................................................... 8 Section2.5. Commercial Units....................................................................................................................... 8 Section2.6. Common Elements..................................................................................................................... 8 Section 2.7. Common Expenses...................................................................................................................... 9 Section2.8. Community ................................................................................................................................ 9 Section2.9. Condominium Map.................................................................................................................. 9 Section2.10. Executive Board....................................................................................................................... 9 Section2.11. Free Market Units................................................................................................................. v Section2.12. General Common Elements..................................................................................................... 9 Section2.13. Housing Authority ................................................................................................................... 9 Section2.14. Limited Common Elements.................................................................................................... 9 Section2.15. Mortgage................................................................................................................................... 9 Section2.16. Mortgagee................................................................................................................................ 9 Section2.17. Owner.................................................................................................................................... 9 Section2.18. Property ................................................................................................................................. 9 -2- RECEPTION#: 577962, 02/28/ 11 at 03:56:13 PM, 3 OF 35, Janice I<. Vos Caudill, Pit County, CO W Orr N' Section2.19. Residential Units.................................................................................................................... 9 Section2.20. Unit........................................................................................................................................ 9 ARTICLE III- CONDOMINIUM OWNERSHIP......................................................................................... 10 Section3.1. Separate Interests...................................................................................................................... 10 Section3.2. Title.......................................................................................................................................... 10 Section3.3. Enjoyment of Common Elements............................................................................................. 10 Section3.4. Inseparability........................................................................................................................... 10 Section3.5. No Partition.............................................................................................................................. 10 Section3.6. Separate Titles and Taxation.................................................................................................. 10 Section3.7. Mechanic's Lien Rights............................................................................................................ 10 Section3.8. Description of Units................................................................................................................... 11 ARTICLE IV- EASEMENTS; ENCROACHMENTS................................................................................... 11 Section 4.1. Condominium Map Dedications.............................................................................................. 11 Section4.2. Enjoyment and Access................................................................................................................ 11 Section43. Utilities....................................................................................................................................... 11 Section 4.4. Maintenance Easement............................................................................................................ 11 Section 4.5. Ventilation Chase Easements (Exhaust and Make -Up Air}........................................................... 11 Section4.6. Encroachments......................................................................................................................... 12 Section 4.7. Constructive Grant of Reciprocal Easements............................................................................ 12 Section 4.8. Service Elevator........................................................................................................................ 12 ARTICLE V - BOUNDARIES AND COMMON ELEMENTS, ...................................................................... 12 Section 5.1. Unit Boundaries......................................................................................................................... 12 Section 5.2. Allocation of Limited Common Elements................................................................................ 13 Section53. Reallocation of Limited Common Elements................................................................................. 13 ARTICLE VI - MAINTENANCE AND REPAIRS ......................................................................................... 14 Section 6.1.Owner's Duties - Units and Limited Common Elements........................................................... 14 Section 6.2. Association's Duties - Common Elements................................................................................ 14 Section 6.3. Maintenance Costs - Common Elements.................................................................................. 14 Section6.4. Parking...................................................................................................................................... 14 Section6.5. Association's Right of Access.................................................................................................... 15 Section6.6. Snow Removal........................................................................................................................... 15 Section 6.7.Owner Caused Damage........................................................................................................... 15 Section 6.8. Association's Right to Maintain............................................................................................... 15 Section6.9. Declarant's Right to Maintain.................................................................................................... 15 Section 6.10. Landscaping and Lawn Care.................................................................................................. 16 -3- RECEPTION#: 577962, 02/28/ 11 at 03:56:13 PM, 4 OF 35, Janice K. Vos Caudill, Pit County, CO 10, 'W m/ Section6.11.Owner Responsibility ............................................................................................................... 16 Section 6.12. Determination of Obligation and Supervision.................................................................. 16 ARTICLEVII - THE ASSOCIATION.......................................................................................................... 16 Section7.1. Purposes and Powers................................................................................................................ 16 Section7.2. Membership.............................................................................................................................. 16 Section 73. The Executive Board; Representation on Board....................................................................... 16 Section 7.4. Articles of Incorporation; Bylaws.............................................................................................. 17 Section7.5. Voting by Multiple Owners........................................................................................................ 17 Section 7.6. Exercise of Powers..................................................................................................................... 17 Section 7.7. Assessments.............................................................................................................................. 17 Section7.8. Special Assessments.................................................................................................................... 18 Section 7.9. Allocation of Assessments for Common Expenses........................................................................ 18 Section7.10. Payment of Assessments........................................................................................................ 19 Section7.11. Periodic Assessments.............................................................................................................. 19 Section7.12. Added Charges........................................................................................................................ 19 Section 7.13. Collection of Assessments....................................................................................................... 19 Section7.14. Assessment Liens..................................................................................................................... 19 Section 7.15. Budget Approval Process........................................................................................................ 19 Section7.16. Audits..................................................................................................................................... 19 Section 7.17. Rules and Regulations............................................................................................................. 20 ARTICLE VIII - ALLOCATED + STS.............................................................................................. 20 Section8.1. Common Elements.................................................................................................................... 20 Section 8.2. APCHA Interest in Affordable Housing Units.......................................................................... 20 Section 83. Liability For Common Expenses ................................................................................................ 20 Section8.4. Voting Rights............................................................................................................................ 21 Section8.5. Allocation of Interests................................................................................................................ 21 ARTICLE DZ - DECLARANT'S RESERVED DEVELOPMENT RIGHTS ................................................ 21 Section9.1. Rights Reserved......................................................................................................................... 21 Section 9.2. Exercise of Development Rights................................................................................................. 22 Section9.3. Reserved Construction Easement.............................................................................................. 22 Section9.4. Signs and Marketing................................................................................................................. 22 Section 9.5. Removal of Declarant's Property ............................................................................................... 22 Section9.6. No Interference......................................................................................................................... 22 Section 9.7. Promotional Activity of the Declarant...................................................................................... 22 Section 9.8. Time Limit. 22 -4- RECEPTION#: 577962, 02/28/ 11 at 03:56:13 PM, 5 OF 35, Janice it. Vos Caudill, Pi* County, CO 40, Section9.9. Release or Assignment of Declarant's Rights............................................................................. 23 Section 9.10. Controlling Authority .......................................................................................................... 23 ARTICLE X - DECLARANT'S RIGHTS TO CONTROL THE ASSOCIATION AND LIMITATIONS...... 23 Section10.1. This Article Controls.............................................................................................................. 23 Section 10.2. Period of Declarant Control................................................................................................. 23 Section 103. Voluntary Surrender................................................................................................................ 24 Section10.4. Association's Records................................................................................................................ 24 ARTICLE XI - USE RESTRICTIONS........................................................................................................ 24 Section11.1. Leases..................................................................................................................................... 24 Section 11.2. Affordable Housing Units........................................................................................................ 24 Section11.3. Animals................................................................................................................................... 24 Section 11.4 Restrictions on Floor Loads...................................................................................................... 25 Section I IS. No Nuisance or Hazard............................................................................................................. 25 Section 11.6. Use of Commercial Units.......................................................................................................... 25 Section 11.7. Use of Residential Units............................................................................................................ 25 Section11.8. Storage of Personal Property .................................................................................................. 26 Section11.9. Garbage and Trash............................................................................................................... 26 ARTICLE XII- NOTICE OF MIXED USE DEVELOPMENT.................................................................. 26 Section12.1. Notice of Mixed Use................................................................................................................ 26 Section 12.2. Annoying Light, Sound or Odor........................................................................................... 26 Section123. Commercial Deliveries............................................................................................................ 26 Section 12.4. Complaints.............................................................................................................................. 26 ARTICLEXIII - INSURANCE................................................................................................................... 27 Section13.1. Association to Maintain Insurance............................................................................................. 27 Section13.2. Non -Availability ..................................................................................................................... 27 Section 13.3. Additional Coverage Required.............................................................................................. 28 Section13.4. Adjustment of Property Loss............................................................................................... 28 Section 13.5. Procedures; Deductibles; Assessments.................................................................................... 28 Section 13.6: Owner's Insurance ...................................... Section 13.7.Officers and Directors .......................... ................................................................. 28 ..................................................................... 28 Section 13.8. Fidelity Bonds and Insurance................................................................................................. 28 Section 13.9. Managing Agent Insurance. ..................................................................................................... 29 Section 13.10. Worker's Compensation and Employer's Liability Insurance ................................................ 29 Section 13.11.Other Insurance..................................................................................................................... 29 Section13.12. Insurance Expense............................................................................................................... 29 -5- RECEPTION#: 577962, 02/28/ 11 at 03:56:13 PM, 6 OF 35, Janice K. Vos Caudill, Pi4l at ty, CO r0 Section13.13. Annual Review..................................................................................................................... 29 Section13.14. Duty to Repair....................................................................................................................... 29 ARTICLE XIV - ASSESSMENT CERTIFICATES AND NOTICES......................................................... 29 Section14.1. Assessment Certificates ........................................................................................................... 29 Section 14.2. Notice of Assessment Liens...................................................................................................... 29 ARTICLEXV - GENERAL PROVISIONS................................................................................................. 30 Section15.1. Notices to Owners................................................................................................................... 30 Section15.2. Recording Data..................................................................................................................... 30 Section 15.3. Covenants to Run with the Land............................................................................................ 30 Section15.4. Enforcement........................................................................................................................... 30 Section15.5. Amendments........................................................................................................................... 30 Section 15.6. Termination of Declaration.................................................................................................... 31 Section15.7. Restoration............................................................................................................................. 31 Section15.8. Duration..................................................................................................................................... 31 Section15.9. Interpretation and Conflicts......................................................................................................... 31 Section15.11. Severability ............................................................................................................................... 31 -6- RECEPTION#: 577962, 02/28/ 1 at 03:56:13 PM, 7 OF 35, Janice K. Vos Caudill, Pit County, CO CONDOMEgUM DECI ARATION FOR 308 EAST HOPKINS CONDOMINIUMS (Aspen, Colorado) KNOW ALL MEN BY THESE PRESENTS that JW Ventures, LLC, does hereby declare and adopt the following Condominium Declaration (the "Declaration"), which shall run with the land and be binding upon all parties acquiring any interest therein or thereto. ARTICLE I - RECITALS Section LL The Declarant. JW Ventures, LLC (the "Declarant") is a limited liability company duly organized and existing under and by virtue of the laws of the State of Colorado. Section 1.2. The Property. The real property submitted to this Declaration, including all easements, rights -of -way and appurtenances thereto and the buildings and improvements erected thereon, is owned by the Declarant, is located in the City of Aspen, County of Pitkin, State of Colorado, and is described, as follows: 308 EAST HOPKINS AVENUE SUBDIVISION (the "Property") Section 1.3. The Development. The Property shall be developed as a mixed -use condominium project, containing one (1) 3-story building, plus subgrade level (`Building"). The Building will consist of two (2) Commercial Units, one on the ground floor and the other on the subgrade level, and Residential Units on the second and third floors in the Building, pursuant to approvals granted by the City of Aspen Historic Preservation Commission Resolutions 18, (Series of 2006) and 19 (Series of 2007), City of Aspen Council Ordinance 27 (Series of 2007) the Subdivision Agreement for 308 East Hopkins Subdivision which resulted therefrom ("SIA') and the City of Aspen Growth Management Quota Allocation granted to Declarant in 2008 pemmitting Declarant to use the subgrade level of the Building for commercial purposes; and, this Declaration shall be subject to the terms, conditions and obligations of said Resolutions, Ordinance, SIA and Growth Management Quota Allocation. Section 1.4. The Community. The Development shall constitute a common interest community within the meaning of the Colorado Common Interest Ownership Act, §§38-33.3-101, et seq. of the Colorado Revised Statutes, as it may be amended from time to time (the "Act") The Development will constitute a "condominium," within the meaning of the Act. The Development shall be located, in its entirety, within Pitkin County, Colorado. Section 1.5. The Name of the Community. The name of the common interest community is 308 East Hopkins Condominiums. Section 1.6. The Name of the Association. The name of the Association that shall manage the Community in accordance with the provisions of this Declaration and the Act is 308 EAST HOPKINS -7- RECEPTION#: 577962, 02/28/ 11 at 03:56:13 PM, 8 OF 35, Janice K. Vos Caudill, Pitw'County, CO 4W V"W CONDOMINIUMS ASSOCIATION, a not for profit corporation organized under the Colorado Revised Non -Profit Corporation Act um map of Section 1.7. The Condominium Mau• The Development is depicted on the Ci nPlat Book_ at 308 East Hopkins Condominiums, recorded as Reception No. Page" of the Pitkin County, Colorado records. Section 1.8. Maximum Number of Units. The Community shall include two (2) Free Market Residential Units, three (3) Deed Restricted Employee Dwelling Residential Units and two (2) Commercial Units. Both Commercial Units shall be confined to the ground floor and subgrade level and all Residential Units shall be confined to the upper levels of the Buildings. The Unit designations are hereinafter set forth. Section 19 n e Puraose The purpose of this Declaration is to create a common interest community under the name of 308 East Hopkins Condominiums, in which portions of said Property will be designated for separate ownership and use by means of the condominium form of ownership, for ted for residential and commercial purposes and in which the remainder of said Property der the interests of common ownership solely by the owners of the separate ownership�ob Declarant! reserved development the Community, to protect and enhance the property rights and to otherwise effectuate the terms and provisions of the Act. ARTICLE II - DEFINITIONS The following terms shall have the following meanings when used herein unless the context otherwise requires: .Section 2.1. Act. The "Act" means the Colorado Common Interest Ownership Act, C.R.S. 38-33.3-101, et seq. Section Affordable Housing Units. "Affordable Housing Units" means the Deed Restricted Employee Dwelling Residential Units that are affordable housing units designated as such on the Condominium Map; and, which are subject to the Guidelines set forth in the Development Approvals. There are three (3) Affordable Housing Units, Units 202, 203 and 204. Section 2.3. Association. "Association" means and refers to 308 East Hopkins Condominiums Association, a Colorado not for profit corporation. Section 2.4. Building. "Building" means the building improvements in the single building in which the Units are located. Section 2.5. Commercial Units. "Commercial Unit" means and includes the two (2) Units located one on the main floor (ground level), Unit 101 and the other on subgrade level of the Building, Unit LLL Section 2.6. Common Elements. "Common Elements" means and includes all parts of the Property, grounds, improvements, installations and facilities which are not included within the Units. -8- RECEPTION#: 577962, 02/28/ 011 at 03:56:13 PM, 9 OF 35, Janice K. Vos Caudill, Pit %County, CO 0 VAW r"W Section 2.7. Common Expenses. "Common Expenses" means and refers to expenditures made or liabilities incurred by or on behalf of the Association, together with any allocations to reserves. Section 2.8. Community. "Community" means and includes all the Property submitted to this Declaration. Section 2.9. Condominium Map. "Condominium Map" means the Condominium Map of 308 East Hopkins Condominiums, referenced in Section 1.7. above, and any supplements thereto filed as phases of development thereof occur. Section 2.10. Executive Board. "Executive Board" means the Executive Board of the Association. Section 2.11, Free Market Unit. "Free Market Unit" means any Unit that is not an Affordable Housing Unit or a Commercial Unit. There are two Free Market Units, Units 201 and 301. Section 2.12. General Common Elements. "General Common Elements" means the Common Elements, exclusive of the Limited Common Elements. Section 2.13. Housing Authority. "Housing Authority" means the Aspen/Pitkin County Housing Authority ("APCHA"). Section 2.14. Limited Common Elements. "Limited Common Elements" means that portion of the Common Elements allocated by the Declaration or the Condominium Map for the exclusive use of one or more, but fewer than all of the Units. Section 2.15. MortQaae. "Mortgage" means and refers to any mortgage, deed of trust or other security instrument by which a Unit or any part thereof is encumbered. Section 2.16. Mortgagee. "Mortgagee" means and refers to any person or entity named as a mortgagee or beneficiary under any deed of trust or mortgage under which the interest of any Owner is encumbered. Section 2.17. Owner. "Owner" or "Unit Owner" means and refers to any person or entity, including the Declarant, at any time owning a Unit. Section 2.18. Property. "Property" means the property described in Section 1.2. above, all of which is submitted to this Declaration. Section 2.19. Residential Units. "Residential Units" means and includes all of the Units located above the main floor on the two (2) upper levels (the second and third floors) of a Building, consisting of both "Free Market Units" and three (3) "Affordable Housing Units." Section 2.20. Unit. "Unit" means a physical portion of the Property consisting of airspace designated for separate ownership and shall refer to any of the numbered Units shown on the Condominium Map, as the same may be amended from time to time. -9- RECEPTION#: 577962, 02/28/ 1 at 03:56:13 PM, 10 OF 35, Janice 1k. Vos Caudill, Pit County, CO 0 1%W %so ARTICLE III- CONDONIINIUM OWNERSHIP Section 3.1. Separate Interests. The Property shown on the Condominium Map is hereby divided into Common Elements and separate fee simple interests in the individual Units depicted thereon. The ownership of a Unit includes and is subject to the easements, rights, and obligations created by this Declaration and the Bylaws of the Association. Section 3.2. Title. Title to a Free Market Unit or Commercial Unit may be held or owned by any person or entity in any manner by which title to any other real property may be held or owned in the State of Colorado. Title to and use and occupancy of an Affordable Housing Unit upon the sale thereof by the Declarant is limited exclusively to natural persons. Each Affordable Housing Unit may only be used for Id and resold pursuant to the terms of the Master Deed Restriction residential purposes and may only be so Agreement recorded as Reception No. 5of the Pitkin County, Colorado records. Section 3.3. Enioyment of Common Elements. Subject to the limitations contained in this Declaration, every Owner shall have the nonexclusive right to use and enjoy the General Common Elements and the exclusive right to use and enjoy those Limited Common Elements designated by the Condominium Map or this Declaration as appurtenant to his Unit. Limited Common Elements designated by the Condominium Map or this Declaration as appurtenant to more than one, but fewer than all of the Units shall vest each of the Units so designated with the nonexclusive right to use and enjoy those Limited Common Elements. Section 3.4. Inseparability. Every conveyance, transfer, gift, devise, encumbrance, or other disposition of a Unit, or any part thereof (other than an undivided interest in the whole), shall be presumed to be a conveyance, transfer, gift, devise, encumbrance, or disposition, as the case may be, of the entire Unit, together with all appurtenant rights created by this Declaration. No part of a Unit or of the legal rights appurtenant thereto may be separated from any other part thereof. Section 3.5. No Partition. No Owner may bring any action for partition of the Common Elements. Section 3.6. Separate Titles and Taxation. Each Unit, together with its interest in the Common Elements, constitutes for all purposes a separate parcel of real estate and must be separately assessed and taxed. The value of the Common Elements shall be assessed proportionately to each Unit in accordance with such Unit's allocated interest in the Common Elements. Upon the filing for recordation of this Declaration and the Condominium Map, the Declarant shall deliver a copy of such filing to the Assessor of Pitkin County, Colorado. Thereafter, all taxes, assessments, and other charges of the State, or any political subdivision, or of any special improvement district, or of any other taxing or assessing authority shall be assessed against and collected on each Unit, each of which shall be carried on the tax rolls as a separate and distinct parcel for that purpose. No forfeiture or sale of any Unit for delinquent taxes, assessments, or other governmental charges shall divest or in any way affect the title of the other Units. Section 3.7. Mechanic's Lien Rights. No labor performed or materials famished for use in connection with any Unit with the consent or at the request of an Owner, an Owner's agent, or subcontractor shall create any Mechanic's Lien or right to file a statement of Mechanic's Lien against the Unit of any other Owner, or against any interest in the Common Elements. -10- RECEPTION#: 577962, 02/28/ 1 at 03:56:13 PM, 11 OF 35, Janice K. Vos Caudill, Pit* County, CO `r %no Section 3.8. Description of Units. Every deed for the conveyance of a Unit and every other instrument affecting title to a Unit shall identify the County in which the Unit is located and may describe that Unit by the number shown on the Condominium Map with appropriate reference to the Condominium Map and to this Declaration, as each shall appear in the records of Pitkin County, Colorado, in the following fashion: UNIT , 308 EAST HOPKINS CONDOMINIUMS, according to the Condominium Map recorded as Reception No. , and subject to the Condominium Declaration therefor recorded as Reception No. of the Pitkin County, Colorado, Records. ARTICLE IV - EASEMENTS: ENCROACDAIE VTS Section 4.1. Condominium Map Dedications. In addition to the easements described in this Article IV and elsewhere in this Declaration, all dedicated easements described in the attached Exhibit A and/or shown on the Condominium Map or provided herein are hereby dedicated or reserved for the purposes intended. Section 4.2. Enjoyment and Access. Every Owner shall have a non-exclusive right and an easement appurtenant to such Owner's Unit for the enjoyment and use of the Common Elements and for access to such Owner's Unit and the Limited Common Elements appurtenant to said Unit, including an easement for ingress and egress for pedestrian traffic over, through, and across sidewalks, paths, walks, and lanes as the same may from time to time exist upon the Common Elements and for pedestrian and vehicle traffic over, through, and across such areas and intended for such purposes. Section 4.3. Utilities. The Property shall be subject to a blanket easement in favor of the Association over, across, and through the Common Elements to install, repair, replace, and maintain all utilities, induding, without limitation, water, sewer, gas, telephone, electricity, telecommunications and intemet services and cable TV ("utility service lines"). The Units themselves shall be subject to easements in favor of the Association to maintain, repair, replace or reconstitute common utility service lines, fixtures, equipment and facilities serving the Units and/or the Common Elements. Section 4.4. Maintenance Easement. The Common Elements, and to the extent necessary, the Units themselves, shall be subject to a non-exclusive right and easement in the Association, including its agents, employees, contractors, and subcontractors, as may be necessary or appropriate for maintenance and repairs and the performance of such other duties and functions as the Association is permitted or obligated to perform under this Declaration. Section 4.5. Ventilation Chase Easements (Exhaust and Make -Up Air). Any portion of the Commercial Units located within twenty-five (25) feet of any existing ventilation chase forming a part of the General Common Elements shall cant' an easement to access, connect to and use such existing ventilation chase for exhaust and make-up air handling purposes, provided that, the Owner(s) of the Commercial Unit shall obtain all necessary permits and licenses, shall comply with all applicable laws, rules, regulations and codes, the connection shall not interfere with any easement or the structural integrity of RECEPTION#: 577962, 02/28/2011 at 03:56:13 PM, 12 OF 35, Janice K. Vos Caudill, Pit+County, CO 1W yaw any part of the Common Elements or impair any pre-existing use of the ventilation chase. Prior to any such connection, appropriate plans and specifications shall be submitted to the Association. No such connection shall be made without the prior written approval of the Association, which approval shall not be unreasonably withheld. Subject to Section 5.1(b) following, no right shall exist to encroach upon the airspace of any other Unit for purpose of such connection. Section 4.6. Encroachments. If a Unit shall encroach upon any other Unit by reason of original construction or by the non -purposeful or non -negligent act of the Owner, then an easement appurtenant to such encroaching Unit, to the extent of such encroachment, shall exist so long as such encroachment shall exist. If any Common Element shall encroach upon any Unit by reason of original construction, or the non -purposeful or non -negligent act of the Association, then an easement appurtenant to such Common Element to the extent of such encroachment shall exist so long as such encroachment shall exist. Section 4.7. Constructive Grant of Reciprocal Easements. All conveyances of Units hereafter made, whether by the Declarant or otherwise, shall be construed to grant and reserve such reciprocal easements as shall give effect to the preceding Sections of this Article, even though no specific reference to such easements appear in the conveyance. Such easements and covenants are intended and hereby are declared to run with the land and to be appurtenant to the respective Units, and each of them. Section 4.8. Service Elevator.. The service elevator shown on the Map is designated as and is a Limited Common Element for Units 101 and LL1 and all expenses relating to the repair, maintenance and replacement thereof shall be allocated between those Units, subject to the penultimate sentence of this Section 4.8. The Affordable Housing Units shall have an easement for the use of the said service elevator to move items into and out of the Affordable Housing Units which cannot or would be difficult to be moved otherwise, such as, by way of example, furniture, equipment and appliances. Any damage to the service elevator caused by the use thereof by an Affordable Housing Unit Owner, such Owner's agents and invitees shall be the responsibility of such Affordable Housing Unit Owner. The easement created by this Section 4.8 shall not be used for general access to the Affordable Housing Units, there being stairs provided for such purpose. ARTICLE V - BOUNDARIES AND COMMON ELEMENTS Section 5.1. Unit Boundaries. The boundaries of each Unit are shown on the Condominium Map. Unit boundaries of Residential Units and Commercial Units consist of the airspace within unfinished was, floors and ceilings provided that: (a) Unit boundaries of Residential Units consist of the airspace within unfinished interior walls, drywall to drywall, subflooring and to bottom (innermost element) of the Unit's lowest ceiling structural, provided that all lath, firming, wallboard, plasterboard, plaster, paneling, tiles, wallpaper, paint and finished flooring and any other materials constituting any part of the finished surfaces thereof are a part of the Unit, and all other portions of the walls, floors or ceilings are a part of the Comrrnn Elements. (b) The boundaries of the Commercial Units are the airspace areas bounded by unfinished surfaces of the exterior wall, unfinished lower and upper interior surfaces to the subfloor and bottom of each Commercial Unit's lowest ceiling structural element. -12- RECEPTION#: 577962, 02/28/20 1 at 03:56:13 PM, 13 OF 35, Janice K. Vos Caudill, Pit* County, CO 0 (c) If any chute, flue, duct, wire, cable, conduit, bearing wall, bearing column or other fixture lies partially within and partially outside the designated boundaries of a Unit, any portion thereof serving only that Unit is a Linuted Common Element allocated solely to that Unit, and any portion thereof serving more than one Unit, serving any other Unit or serving any portion of the Common Elements, is a part of the General Common Elements, except that heating, cooling and ventilating systems ("HVAC Systems") and other equipment, the use of which is limited to Residential Units, are Limited Common Elements allocated to the Residential Units served thereby, and provided further, that HVAC Systems and other equipment, the use of which is limited to the Commercial Units are Limited Common Elements allocated to the Commercial Units. (d) Subject to the provisions of paragraph (b) of this Section 5.1, all spaces, interior partitions and other fixtures and improvements within the boundaries of a Unit are a part of the Unit. (e) Any shutters, awnings, window boxes, doorsteps, stoops, porches, terraces, balconies and patios and all exterior doors and windows or other fixtures designed to serve a single Unit including storm windows and storm doors, are Limited Common Elements allocated exclusively to that Unit whether located inside or outside the Unit's boundaries Section 5.2. Allocation of Limited Common Elements. In addition to the Limited Common Elements identified in Sections 5.1(c) and 5.1(e) above, the following portions of the Common Elements are designated Limited Common Elements and assigned to the Unit or Units so designated: (a) The elevators (except the service elevator provided for in Section 4.8 hereof), stairs and stairwells extending from the main floor (ground level) to the upper levels and all upper floor stairways, stairwells, and hallways are designated Limited Common Elements and allocated to the Residential Units served thereby, provided however, that stairs and stairwells shall be subject to a general access easement appurtenant to of the Commercial Unit for the limited purpose of maintaining, servicing and repairing Limited Common Elements appurtenant to the Commercial Units. (b) Any utility areas, the use of which is limited to Residential Units are designated Limited Common Elements and allocated to the Residential Units served thereby. (c) Any utility areas, the use of which is limited to Commercial Units are designated Limited Common Elements and allocated to the Commercial Units served thereby. (d) Any balcony or other terrace designated a Limited Common Element is allocated to the particular Unit designated on the Condominium Map. Any other portion of the Common Elements, designated a Limited Common Element is allocated to the particular Unit or Units designated on the Condominium Map. Section 5.3. Reallocation of Limited Common Elements The Declarant may reallocate the Common Elements, including any Limited Common Element designated as appurtenant to a Unit or Units owned by the Declarant, in the exercise of Declarant's reserved development right to further subdivide a Unit. A Limited Common Element may be reallocated by the Association between or among Units only to the extent pernutted and in the manner authorized by the Act. Likewise, a Common Element not previously allocated as a Limited Common Element may be allocated as a Limited Common Element by the -13- RECEPTION#: 577962, 02/28/2011 at 03:56:13 PM, 14 OF 35, Janice K. Vos Caudill, Pit* County, CO L= Association only to the extent permitted and in the manner authorized by the Act. ARTICLE VI - MAINTENANCE AND REPAIRS Section 6.1. Owner's Duties - Units and Limited Common Elements. Each Owner shall be responsible for maintenance and repair of such Owner's Unit and all Limited Common Elements exclusively serving such Unit, including fixtures and improvements and all utility lines and equipment located within and serving only such Unit. Each Owner shall, at all times, maintain and keep in good condition and repair, said Owner's Unit and all Limited Common Elements serving such Unit. In performing such maintenance or repair, or in improving or altering a Unit, an Owner shall obtain all necessary permits and licenses, and shall comply with all applicable laws, rules and regulations, including the Rules and Regulations of the Association. Notwithstanding the foregoing, no Owner shall do any maintenance, repair or improvement work that impairs the structural soundness of the Building in which such Owner's Unit is located or that interferes with any easement. No Owner shall change or alter the appearance or the structural integrity of any Limited Common Element without the written permission of the Association. No Owner shall have the right to make or cause to be made any additions, alterations or repairs to the General Common Elements. Section 6.2. Association's Duties - Common Elements. The Association shall be responsible for the maintenance and repair of all the Common Elements, except for those Limited Common Elements appurtenant to a single Unit. Without limiting the generality of the foregoing, the Association shall provide lawn, grounds and landscaping care, shall water, trim, prune and winter wrap trees and shrubs, maintain and operate the raw water irrigation system for the benefit of the Community and otherwise maintain and keep in good repair and condition all sidewalks, yards, grounds, green areas, and signage, if any, and all other improvements and facilities which form a part of the General Common Elements. The Association shall provide for the removal of snow from steps, stairs, walkways and sidewalks which form a part of the General Common Elements. The Association shall provide for the removal of snow and ice from the roofs and gutters, as and when necessary or otherwise advisable. The Association shall maintain the Common Elements to substantially the same or better standards as originally installed. Section 6.3. Maintenance Costs - Common Elements. Except as provided in Section 6.1, the costs of the maintenance, repair and upkeep of the Common Elements shall be a Common Expense of all the Owners; provided that, any such costs attributable to any Limited Common Element allocated to the Residential Units shall be assessed exclusively to those Residential Units served thereby, and any such costs attributable to any Limited Common Element allocated to the Commercial Units shall be assessed exclusively to those Commercial Units served thereby; and provided further that, the cost of maintenance, repair and upkeep of any of the Common Elements necessitated by excessive wear or abuse caused by or attributable to the Owner or Owners of one or more of the Units, may by resolution adopted by the Executive Board, be assessed to the Owner or Owners responsible for the excessive wear or abuse in such proportions as the Executive Board reasonably determines to be proper. Section 6.4. Parkin&.. One (1) parking space is provided for each Free Market Unit located in a garage within the Building as shown on the Map. Those parking spaces shall be a part of the Free Market Units as designated on the Map. One parking space is provided to the Affordable Housing Units. The use thereof shall be as determined by the Declarant so long as any Affordable Housing Units shall be owned by it. At such time as all of the Affordable Housing Units shall be sold by the Declarant, then as determined by the Declarant by designation of such parking space as a Limited Common Element -14- RECEPTION#: 577962, 02/28/2011 at 03:56:13 PM, 15 OF 35, Janice K. Vos Caudill, Pit County, CO appurtenant to a specific Affordable Housing Unit. Such designation shall be in writing by a document executed by Declarant and recorded in the real property records of Pitkin County, Colorado. Section 6.5. Association's Right of Access. The Association shall have the right of access to any Unit, at any time, for the purpose of making emergency repairs necessary to prevent damage to the Common Elements or to another Unit or Units and the right of access to any Unit at reasonable times to perform routine maintenance and repairs upon the Common Elements. The costs of repairing any damage to a Unit resulting from entry therein for the purpose of repairing or maintaining the Common Elements or preventing damage to the Common Elements or another Unit, shall be a Common Expense of all the Owners. The costs of repairing any damage to a Unit resulting from entry therein for the purpose of repairing or maintaining a Limited Common Element shall be charged to the Owner of the Unit or Units served by such Limited Common Element. Section 6.6. Snow Removal. No Owner of any Unit shall allow any snow or ice to accumulate or remain upon any terrace or balcony located (other than on the ground floor), which constitutes a Limited Common Element appurtenant exclusively to an Owner's Unit for more than twenty-four (24) hours from the time the latest accumulation of snow has occurred. Should the Owner fail to remove the snow in compliance with the provisions of this Section, the Association shall have the right to access any such terrace or balcony at reasonable hours, through the Unit or otherwise, in order to perform the snow removal function mentioned. The costs of performing the snow removal function by reason of the Owner's neglect or failure to maintain the same, shall be charged to the Owner of the Unit to which the deck or balcony is allocated as a Limited Common Element. The Association may also levy a fine or successive fines in accordance with such Rules and Regulations as the Executive Board may adopt. (The purpose of this provision is to minimize or eliminate the discharge or release of waters from snow melt dripping from the upper terraces or balconies which may damage the Common Elements, pose a hazard by the buildup of ice on walkways below or inconvenience persons passing below). Snow removal shall be effected so as not to place snow on the Common Elements in a manner which will interfere with the use thereof. Section 6.7. Owner Caused Damage. Notwithstanding the foregoing, if damage to the Common Elements or to any Unit is caused by the negligence or intentional act of an Owner or if entry into a Unit is required because of any negligence or intentional act on the part of an Owner, such Owner shall pay, or reimburse the Association, for all costs of repairing such damage and shall be liable to the Association and the other Owners for all additional losses or expenses suffered as a result of his negligence or intentional acts, including without limitation, reasonable attorney's fees. Section 6.8. Association's Right to Maintain. If in the judgment of the Executive Board, any Owner has failed to keep and maintain such Owner's Unit, or any Limited Common Element serving such Owner's Unit exclusively, in good condition and repair, the Association may, after thirty (30) days notice to the Owner, perform all work necessary to maintain the Unit or the Limited Common Element in good condition and repair and the Association shall have access to the Unit for such purposes. The Owner shall reimburse the Association for the cost of such work, and such costs may be collected in the same manner as assessments under this Declaration and the Act Section 6.9. Declarant's Right to Maintain. So long as the Declarant shall own any Unit in the Community, if, in the judgment of Declarant, the Association has failed to keep and maintain the Common Elements in good condition and repair, the Declarant may, after thirty (30) days notice to the Association, perform all work necessary to maintain the Common Elements in good condition and repair and -15- RECEPTION#: 577962, 02/28/2011 at 03:56:13 PM, 16 OF 35, Janice k. Vos Caudill, Pie County, CO *%W rr/ Declarant shall have access to any Unit and the Common Elements for such purposes. The Association shall reimburse Declarant for the cost of such work, which shall be a Common Expense of all Owners. Section 6.10. Landscaping and Lawn Care. Any landscaping, in addition to that provided by the Declarant in connection with the initial construction of the Building, shall be at the discretion of the Executive Board. Section 6.11.Owner Responsibility. Any maintenance or repair required by reason of the willful or negligent act of the Owner, members of his family or guests, tenants or occupants of the Owner's Unit, shall be attributed to the Owner and shall be the responsibility and obligation of such Owner. The Association shall have the right to perform any such maintenance or repairs and recover the costs incurred from the Owner responsible. Section 6.12. Determination of Obligation and Supervision. The responsibility for the performance of any maintenance, repair, lawn care, snow removal or other work not expressly delineated above shall be determined by the Association. In the event any dispute should arise as to the construction or interpretation of the foregoing Sections, the determination with regard thereto made by the Association shall be conclusive. The Association shall have the right to prescribe minimum standards with regard to an Owner's performance of any maintenance for which the Owner is responsible. The Owners shall comply with all guidelines and requirements prescribed by the Association in this connection, and in furtherance hereof, the Association shall have the right to require any Owner at any time, to forthwith correct any repair or any maintenance deficiency then existing. ARTICLE VU - THE ASSOCIATION Section 7.1. Purposes and Powers. The Association through the Executive Board or a Managing Agent engaged by the Executive Board shall perform the functions and hold and manage property as provided in this Declaration so as to further the interests of the Unit Owners in the Community. The Association shall have all the powers necessary or desirable to effectuate such purposes. Section 7.2. Membership. Every Owner shall be entitled and required to be a member of the Association. An Owner shall be entitled to one (1) membership for each Unit owned by such Owner. Each such membership shall be appurtenant to and inseparable from the Unit upon which it is based, and shall be transferred automatically by the transfer (in whatsoever form) of that Unit. Ownership of a Unit shall be the sole qualification for membership. No person or entity other than an Owner may be a member of the Association. Voting however, shall be determined pursuant to Section 8.4 by this Declaration. Section 7.3. The Executive Board; Representation on Board The affairs of the Association shall be managed by an Executive Board which may by resolution delegate any portion of its authority to an Executive Committee or to a Managing Agent for the Association. There shall be no fewer than three members of the Executive Board, during the period of Declarant control, at least one of which shall be an Owner of a Commercial Unit. After the period of Declarant control, the Executive Board shall be composed of three (3) persons. At least one (1) Member of the Executive Board shall be elected by the Owners of the Commercial Units. At least one member of the Executive Board shall be elected from among the Free Market Unit Owners or from among candidates nominated and approved by the Free Market Unit Owners. Subject to the provisions contained herein for Declarant control, for so long as -16- RECEPTION#: 577962, 02/2B/2011 at 03:56:13 PM, 17 OF 35, Janice k. Vos Caudill, Pit County, CO of V/ `"0 the Declarant shall own any of the Affordable Housing Units, it shall designate one (1) member of the Executive Board. Section 7.4. Articles of Incorporation•, B• ly aws. The purposes and powers of the Association and the rights and obligations with respect to Owners set forth in this Declaration may be amplified under the provisions of the Association's Bylaws and reasonable Rules and Regulations adopted by the Association pursuant to the Association's policy on adoption of Rules and Regulations. Section 7.5. Voting by Multiple Owners. Owners of one (1) or more Units shall have the right to cast the aggregate number of votes that the Unit or Units which such Owner owns, which is the Unit's or Units' undivided percentage interest in the Common Elements. If any Unit is owned by multiple parties, all such parties shall be Members. If only one (1) of the multiple Owners of a Unit is present at a meeting of the Association, such Owner is entitled to cast all the votes allocated to that Unit. If more than one (1) of the multiple Owners are present, the votes allocated to that Unit may be cast only in accordance with the agreement of a majority in interest of the Owners. There is majority agreement, if any one (1) of the multiple Owners casts the votes allocated to that Unit without protest being made promptly to the person presiding over the meeting by any of the other Owners of the Unit. In no event shall more votes be cast with respect to any Unit than the total number of votes allocated to that Unit. No vote(s) allocated to a Unit owned by the Association may be cast. Cumulative voting shall not be permitted in the election of the Executive Board or for any other purpose. Section 7.6. Exercise of Powers. The Association may exercise any right or privilege given it expressly by this Declaration, by the Act or otherwise by law, and every other right, privilege and power reasonably to be implied from this Declaration or reasonably necessary to effectuate its function and purposes. Section 7.7. Assessments. The Association shall have the right to levy and make regular assessments for Common Expenses, in accordance with this Declaration and its Bylaws, for the following purposes: (a) To promote the recreation, health, safety, and welfare of the Owners and the residents of the property; (b) To pay the costs and expenses of maintaining the Common Elements as set forth in this Declaration; (c) To pay the premiums for all insurance which the Association is required or permitted to maintain; (d) To pay taxes and special assessments levied against any property ofthe Association, whether real or personal; (e) To provide lawn, grounds and landscaping care for the Common Elements, maintain and operate the raw water irrigation system for the benefit of the Common Elements, and to otherwise maintain the Common Elements; (f) To provide for the removal of snow from sidewalks, trails, roadways, driveways, and -17- RECEPTION#: 577962, 02/28/2011 at 03:56:13 PM, 18 OF 35, Jariice K. Vos Caudill, Pit* County, CO to parking lots which form a part of or adjoin the Common Elements and from the roofs and gutters as needed; (g) To pay all charges for lighting, utilities, irrigation water, trash removal and other services attributable to the Common Elements; (h) To pay wages for Association employees, Association management expenses, legal and accounting fees; (i) To pay any deficit remaining from any previous assessment period; 0) To pay any other expenses and liabilities which may be incurred by the Association for the benefit of the Owners under or by reason of this Declaration, its Articles of Incorporation or Bylaws or the Act; and (k) For any other purpose permitted by the Act. Section 7.8. SMial Assessments In addition to the annual or regular Common Expense assessments, the Association may establish at any time a special assessment for the purpose of paying or creating a reserve, surplus and/or sinking fund for, in whole or in part, the cost of any expense which the Association is entitled to incur pursuant to the provisions of the Declaration, the Articles or the Bylaws and which is not scheduled to be paid in a budget adopted by the Association. No special assessment may be levied by the Association unless such special assessment has been approved by the Executive Board and by the Owners holding a majority of the votes in the Association that are present in person or by proxy at a meeting called for such purpose at which a quorum was present. Section 7.9 Allocation of Assessments for Common Expenses Each Owner shall pay such Owner's prorata share of the Common Expenses. Such proration shall be made in accordance with each Unit's undivided interest of the Common Elements, except as follows: (a) For any special assessments pursuant to Section 7.8 and assessments for capital improvements ("Special Assessments', each Unit's share of any such assessment shall be an amount equal to the then current assessed valuation of such Unit divided by the then current total assessed valuation of all of the Units, with such "assessed valuation" being the assessed value of each Unit as determined by the Pitkin County Assessor from time to time. (b) The Association shall allocate expenses that inherently relate only to residential uses only to the Owners of the Residential Units and allocate expenses that inherently relate only to commercial uses only to the Owners of the Commercial Units; and the utility, maintenance and repair costs associated with any Limited Common Element serving more than one Unit shall be apportioned and assessed among the Units served thereby on a proportionate square foot basis; and (c) as a part of its maintenance duties, the Association shall periodically clean fireplace flues and the clothes dryer exhaust vents. Such elements serve the Units within which they are situated exclusively and the Association shall allocate those expenses to those Units, respectively; and -18- RECEPTION#: 577962, 02/28/2011 at 03:56:13 PM, 19 OF 35, Janice K. Vos Caudill, Pit* County, CO . `► (d) Nothing contained herein shall prohibit certain Common Expenses from being apportioned to a particular Unit or Units as provided elsewhere in this Declaration or as determined appropriate by the Executive Board. Section 7.10. Payment of Assessments. Each Owner shall pay to the Association, such assessments as may be periodically made by the Association. Estimated assessments shall be made upon the original sale of each Unit by Declarant. Declarant shall pay assessments on all Units owned by it. Section 7.11. Periodic Assessments. After any assessment for Common Expenses has been made by the Association, assessments for Common Expenses shall thereafter be made monthly or on such other periodic basis as the Executive Board shall determine, but no less frequently than annually, and shall be based on a budget adopted no less frequently than annually. Section 7.12. Added Charges. The Association may impose charges for late payment of assessments, recover reasonable attorney's fees and other costs of collection and levy fines for violations of the Declaration, the Bylaws or the Rules and Regulations of the Association. All such charges shall be enforceable as assessments. Any assessment or portion thereof which is not paid when due shall bear interest from and after the date the same becomes due at the rate of eight percent (8%) per annum or at such greater rate as may be established by the Executive Board, but not exceeding twenty-one percent (21 %) per year. Section 7.13. Collection of Assessments. The Association shall have the right to bring an action at law against the Owner personally obligated to pay any delinquent assessment or fines. Section 7.14. Assessment Liens. The Association shall also have a statutory lien on any Unit for any assessment levied against that Unit or fines imposed against the Unit Owner. The amount of the lien shall include any fees, charges, late charges, attorney's fees, fines and interest. This Declaration constitutes record notice and perfection of the statutory lien. No further recordation of any claim of lien or assessment is required. The statutory lien for unpaid assessments is extinguished unless proceedings to enforce the lien are instituted within six (6) years after the full amount of assessments become due. The Association's lien for assessments and enforcement rights in respect thereto shall be governed by the applicable provisions of the Act, as now in effect or hereafter amended. Section 7.15. Budget Approval Process. It shall be the duty of the Executive Board to formulate and propose a budget of expenses, not less frequently than annually. Within ninety (90) days after adoption of any proposed budget for the Common Interest Community, the Executive Board shall mail, by ordinary first-class mail, or otherwise deliver a summary of the budget to all the Unit Owners and shall set a date for a meeting of the Unit Owners to consider the budget. Such meeting shall occur within forty-five (45) days after mailing or other delivery of the summary. The Executive Board shall give notice to the Unit Owners of the meeting in accordance with the Bylaws. The budget proposed by the Executive Board shall not require approval from the Unit Owners and it will be deemed approved by the Unit Owners in the absence of a veto at the noticed meeting by a majority in interest of all Unit Owners, whether or not a quorum is present. In the event that the proposed budget is vetoed, the periodic budget last proposed by the Executive Board and not vetoed by the Unit Owners must be continued until a subsequent budget proposed by the Executive Board is not vetoed by the Unit Owners. Section 7.16. Audits. The books and records of the Association shall be subject to an audit in -19- RECEPTION#: 577962, 02/28/2011 at 03:56:13 PM, 20 OF 35, . Janice K. Vos Caudill, Pit* County, CO accordance with the requirements of the Act. Section 7.17. Rules and Regulations. In furtherance of the intent, purposes and provisions of this Declaration, rules and regulations may be adopted, amended or repealed from time to time by the Executive Board if approved by Owners holding a majority of the votes in the Association present in person or by proxy at a meeting at which a quorum is present. Notwithstanding the above, if the change to the Rules and Regulations would only affect one type of Unit Owner, i.e. Residential or Commercial Unit Owners, a majority of the affected Unit Owners, in addition to a majority of all Owners at a meeting at which a quorum is present, must approve the change. All rules and regulations adopted by the Association shall be applied uniformly in a non-discriminatory manner. The Executive Board may also establish and enforce reasonable penalties and fines for the infraction of any rule or regulation, which fines shall be collectable as assessments in the manner provided above. In addition, after notice and an opportunity to be heard, the Board shall be allowed to take any action that the Owner has failed to take in order to comply with these Rules and Regulations, and to assess the Owner any costs reasonably incurred to take such action. ARTICLE VIII - ALLOCATED INTERESTS Section 8.1. Common Elements. The Common Elements are allocated among the Residential Units and the Commercial Units on a proportionate square foot basis. A table describing each Unit's square footage and corresponding percentage interest in the Common Elements is attached and incorporated herein as Exhibit A. The allocated interests shall be final and not subject to reallocation, except as may otherwise be provided herein. Section 8.2 APCHA Interest in Affordable Housing Units. Unless a different arrangement is worked out with the City, and only to the extent required to comply with applicable Colorado law, a one -tenth of one percent interest in each of the Affordable Housing will be conveyed to APCHA. Said one -tenth of one percent interest is hereinafter referred to as the "APCHA Interest." The conveyance of the APCHA Interest shall be expressly subject to the understanding and agreement that (a) ownership of the APCHA Interest only gives APCHA the right to enforce the deed restrictions on the Affordable Housing Units, and does not give APCHA any authority or rights that are not specifically set forth in the deed restriction, (b) in all other respects, APCHA shall be deemed to have no ownership rights or responsibilities in connection with the Affordable Housing Units and the Declarant, as the Owner of the remaining interest in Affordable Housing Units shall have full right and authority to lease, encumber, or otherwise deal with the Affordable Housing Units as if such Owner held a 100 percent interest therein, (c) APCHA shall have no liability to third persons arising solely out of its ownership of the APCHA Interest, and the party conveying the APCHA Interest shall indemnify APCHA from and against any losses or liabilities arising solely out of its ownership of the APCHA Interest, (d) the APCHA Interest will be conveyed to the then current owners of the Affordable Housing Units if and when the Colorado legislature or a court of competent jurisdiction legalizes the imposition of rent restrictions on affordable housing dwelling units, and (e) the APCHA Interest will be conveyed to the buyers of the Affordable Housing Units, respectively, upon the sale thereof by the Declarant subject, however, to the deed restriction in place for the benefit of APCHA. Section 8.3. Liability For Common Expenses. Except as otherwise provided in Article VII above, each Unit's share of liability for Common Expenses shall be in the same percentage as that Unit's percentage interest in the Common Elements. -20- RECEPTION#: 577962, 02/28/2011 at 03:56:13 PM, 21 OF 35, Janice K. Vos Caudill, Pit,* County, CO 'W .r Section 8.4. Voting Rights. The aggregate number of votes authorized and allocated among the Units shall total one hundred (100) votes. The number of votes allocated to each Unit is determined by multiplying the Unit's percentage interest in the Common Elements by one hundred (100). Section 8.5. Allocation of Interests. With reference to the foregoing criteria, the interests of each Unit have been determined and are hereby allocated as provided in Exhibit A attached. The allocation of interests reflected in Exhibit A attached shall be deemed binding and conclusive. ARTICLE IX - DECLARANT'S RESERVED DEVELOPMENT RIGH'IS Section 9.1. Rights Reserved. The Declarant hereby reserves, to the fullest extent permitted by law, subject always to the applicable requirements of the City of Aspen Land Use Code, the following development rights and the right to supplement and amend this Declaration in the exercise of any or all of the following development rights: (a) The right to construct and complete the Units and Common Elements shown on the Condominium Map, in any sequence and order that the Declarant shall determine; (b) The right to construct underground utility lines, pipes, wires, ducts conduits and other facilities across any portion of the Property for the purpose of furnishing utilities and other services to the Building and improvements constructed or to be constructed in the Community; (c) The right to withdraw and grant easements and licenses to public utility companies and to convey improvements within those easements anywhere in the Community not occupied by the Building for the purposes mentioned; (d) The right to amend the Condominium Map to reconfigure the Residential Units so that the boundaries of the Residential Units are defined by the interior unfinished walls; (e) The right to amend the Condominium Map to reconfigure the Commercial Units so that the boundaries of Commercial Units are defined as provided herein; (f) The right to reconfigure any or all of the Units and the Common Elements to accommodate such reconfigurations and to construct and complete the Units as reconfigured, together with the Common Elements, provided that the Declarant shall have no right to reconfigure a Unit the Declarant does not own and subject to the terms of any contractual agreements between Declarant and potential purchasers, and the right to file a supplement to this Declaration and the Condominium Map that shall defined and describe common obligations and assessments and shall show the locations and dimensions of such reconfigured dimensions of the Units; (g) The right to use so much of the Common Elements as it may deem necessary or convenient for the purpose of the construction and development of the improvements on the Property; provided, however, that such use shall not unreasonably interfere with an Owner's access to his Unit; (h) To exercise the "Special Declarant Rights" defined in the Act, including the rights to construct and complete the improvements, to exercise any development right, including those expressly reserved in this Declaration, to maintain sales offices, management offices, model Units and signs advertising the Development, to use easements through the Common Elements for the purpose of making -21- RECEPTION#: 577962, 02/28/2011 at 03:56:13 PM, 22 OF 35, Janice K. Vos Caudill, Pit* County, CO • %W VMW improvements within the Property and to appoint and to remove any officer of the Association or any Executive Board member during the period of Declarant controls herein set forth; and (i) To amend the Declaration, Association Articles and Bylaws to correct technical errors contained therein and/or to conform the same to requirements of the Act or the Colorado Revised Non -Profit Corporation Act. Section 9.2. Exercise of Development Rights Any development right may be exercised with respect to different portions of the Property, at different times and in such sequence as the Declarant may determine. No assurances are made as to which portions of the Property may be subjected to the exercise of each development right, or in which order each development right may be exercised or applied to any portion of the Property. If any development right is exercised in any portion of the Property that development right need not be exercised in all or any portion of the remainder of the Property. The exercise of development rights with respect to some portions of the Property will not obligate the Declarant to exercise any development rights as to other portions. Section 9.3. Reserved Construction Easement. Declarant reserves the right to perform warranty work, repairs and construction work in the Units and Common Elements, to store materials in secure areas, and to control and have the right of access to work and make repairs until completion of the entire project. All work may be performed by the Declarant without the consent or approval of the Executive Board or the Association. The Declarant reserves an easement through the Common Elements as may be reasonably necessary for the purpose of discharging the Declaranfs obligations or exercising Declarant's rights, whether arising under the Act or reserved in this Declaration. This easement and the reserved rights attendant thereto includes the right to convey access, utility and drainage easements to the City of Aspen or any other special district, governmental authority, public utility or the State of Colorado. Section 9.4. Signs and Marketing. Declarant reserves the right to post and maintain signs and displays in Units owned by the Declarant and in the Common Elements in order to promote sales of Units. Declarant also reserves the right to conduct general sales activities in a manner which will not unreasonably disturb the rights of Owners. Section 9.5. Removal of Declarant's Property. Declarant reserves the right to remove and retain all of its property and equipment used in the sales, management, construction and maintenance of the property whether or not the same have become fixtures. Section 9.6. No Interference. Neither the Association nor any Owner may take any action or adopt any rule that will interfere with or diminish any reserved rights of the Declarant, without the prior written consent of the Declarant. Section 9.7. Promotional Activity of the Declarant. The Declarant may maintain a sales office or management office within any Unit or Units located on the Property. Any Unit or Units may be used as a model for promotional purposes. The Declarant reserves the right to maintain signs on the Common Elements, so long as the Declarant owns any Unit held for sale within the Community. Section 9.8. Time Limit. The development rights reserved to the Declarant must be exercised within seven (7) years from the date of this Declaration. -22- RECEPTION#: 577962, 02/28/2011 at 03:56:13 PM, 23 OF 35, Janice K. Vos Caudill, Pit* County, CO • on ,NO Section 9.9. Release or Assignment of Declarant's Rights. Declarant may release or transfer any or all the Declarant's rights reserved under this Article or elsewhere in this Declaration, but only by instrument acknowledged in the manner of a Deed and recorded in the records of the Clerk and Recorder of Pitkin County, Colorado. Declarant may restrict or limit the exercise of any rights and interests so assigned. Any successor in interest to Declarant, in respect to any portion of the Declarant's rights hereunder, may further assign and transfer such rights and interests in like manner, but only to the extent expressly permitted in the assignment from the Declarant. Section 9.10. Controlling Authority. The provisions of this Article supersede and control all conflicting provisions contained elsewhere in this Declaration or in the Bylaws of the Association, including those provisions which otherwise apply to the Declarant as an Owner. ARTICLE X - DECLARANTS RIGHTS TO CONTROL THE ASSOCIATION AND LU"HATIONS Section 10.1. This Article Controls. The provisions of this Article shall control all inconsistent and conflicting provisions contained elsewhere in this Declaration or in the Bylaws of the Association. Section 10.2. Period of Declarant Control, There shall be a period of Declarant control of the Association, during which a Declarant, or persons designated by the Declarant, may appoint and remove the officers of the Association and members of the Executive Board, (a) The period of Declarant control shall terminate no later than the earlier of (i) sixty (60) days after conveyance of seventy-five percent (751/o) in number of the Units that may be created in the Community to Owners other than a Declarant; or (ii) two years after the last conveyance of a Unit by the Declarant in the ordinary course of business; or (iii) two years after any right to add new Units was last exercised. ` (b) Not later than sixty (60) days after conveyance of twenty-five percent (25%) in number of the Units that may be created to Owners other than a Declarant, at least one member and not less than twenty-five percent (25%) of the members of the Executive Board shall be elected by Unit Owners other than the Declarant. Not later than sixty (60) days after conveyance of fifty percent (501/o) in number of the Units that may be created to Owners other than a Declarant, not less than thirty-three and one-third percent (33 1/31/o) of the members of the Executive Board must be elected by Owners other than the Declarant. (c) Except as otherwise provided in C.R.S. §38-33.3-220(5), not later than the termination of any period of Declarant control, the Owners shall elect an Executive Board of three (3) members, at least a majority of whom must be Owners other than the Declarant or designated representatives of Unit Owners other than the Declarant; and the Executive Board shall elect the officers and the Executive Board members and officers shall take office upon election. (d) Notwithstanding any provision of this Declaration or the Bylaws to the contrary, following notice under C.R.S. § 38-33.3-308, the Owners, by a vote of sixty-seven percent (67%) in interest of all Owners present and entitled to vote at a meeting of the Unit Owners at which a quonun is present may remove a member of the Executive Board with or without cause other than a member appointed by the Declarant. -23- RECEPTION#: 577962, 02/28/211 at 03:56:13 PM, 24 OF 35, Janice K. Vos Caudill, Pit County, CO • %W r/ Section 10.3. Voluntary Surrender. The Declarant may voluntarily surrender the right to appoint and remove officers and members of the Executive Board before temunation of the period of Declarant control set forth above. In that event, the Declarant may require that, for the duration of the period of Declarant control, specified actions of the Association or Executive Board as described in a recorded instrument executed by the Declarant, be approved by the Declarant before becoming effective. Section 10.4. Association's Records. Within sixty (60) days after termination of Declarants control and the election of a new Executive Board by the members, the Declarant shall deliver to the Association all records and property of the Association held or controlled by the Declarant as prescribed by the Act. ARTICLE XI - USE RESTRICTIONS Section 11.1. Leases. Any lease agreement shall provide that the tears of the lease shall be subject in all respects to the provisions of this Declaration, the Articles of Incorporation, Bylaws and duly promulgated Rules and Regulations of the Association, and that any failure by the tenant to comply with the terms of such documents shall be a default under the lease. All leases shall be in writing. Other than as provided in this Section, there is no restriction on the right of any Owner of a Free Market Unit or Commercial Unit to lease such Owner's property. Section 11.2 Affordable Housing Units. The following restrictions shall apply to the Affordable Housing Units: (a) Affordable Housing. No Affordable Housing Unit shall be occupied for living or sleeping purposes by more persons than the Unit was designed to safely accommodate. Units shall be used and occupied primarily for a residence and secondarily for a home office if the home office complies with the following criteria: (i) no goods or merchandise may be produced, stored, displayed or sold as a part of the business conducted at the home office; (ii) only one other person not a resident in the Unit may be employed or associated with the business conducted at the home office; (iii) no separate entrance to the home office shall be permitted; (iv) no signs identifying the home office shall be permitted; and (v) such use complies with the land use regulation of the City of Aspen, Colorado. (b) APCHA/Governance of Affordable Housing Under Subdivision Improvements A ear ement. Affordable Housing Units shall be owned, sold, conveyed, leased and occupied under the rules, regulations, requirements and guidelines of APCHA and the provisions of the SIA. Pursuant to the SIA, the Affordable Housing Units shall be owned initially by the Declarant. Section 11.3. Animals. No animals of any kind shall be raised, bred or kept in the Community, except that dogs and cats may be kept in the Free Market Units, provided that they are not kept, bred or maintained for any commercial purpose and that such pets are at all times under the control of their Owner, well-mannered and behaved; and provided further that, in no event shall any Owner or occupant of any Free Market Unit keep more than a total of two (2) such animals, in any combination, at any time. Any Owner or occupant of a Unit harboring an animal upon the Property shall at all such times keep and maintain, in full force and effect, a homeowners insurance policy or other liability insurance coverage, with limits of not less than $500,000, the covered risks of which shall include bodily injury, death and property damages caused by such animal. Notwithstanding the foregoing, the Executive Board -24- RECEPTION#: 577962, 02/28/2011 at 03:56:13 PM, 25 OF 35, Janice K. Vos Caudill, Pit* County, CO 0 %W 7/ may promulgate rules and regulations concerning the keeping of dogs and cats within the Community, which are more restrictive than those limitations set forth above. By way of example and not by way of limitation, the Executive Board shall have the right to absolutely prohibit the keeping of dogs or cats, or to implement a plan of special pet assessment dues which shall be payable by any Owner who keeps a dog or cat upon the Property. Section 11.4. Restrictions on Floor Loads, No Owner may place a load on any floor which exceeds the load for which the floor was designed No Owner shall install or maintain any item of heavy furniture or equipment or make any other installation, except in a manner designed to achieve a proper distribution of weight. Section 11.5. No Nuisance or Hazard. No nuisance shall be pemutted within the Unit or upon the Property, nor any use, activity or practice which would reasonably constitute an annoyance or hazard or which otherwise would tend to disturb or offend any Owner or interfere with another Owner's peacefW possession or enjoyment of his Unit or any part of the Common Elements shall be permitted. No unsafe, hazardous or unlawful use shall be permitted upon the Property or any portion thereof. All applicable laws, ordinances and governmental regulations shall, at all times, be observed. The discharge of firearms upon or within any part of the Community, including the Units, is expressly prohibited. Section 11.6. Use of Commercial Units. Subject to the other provisions of this Section 11, the Commercial Units shall be used for perntted business and commercial purposes allowed by the City of Aspen Land Use Code. No action shall be taken by the Association, any Member or any group of Members that would operate to prevent, hinder or compromise the use of the Commercial Units or the conduct of any business from the Commercial Units which is otherwise in compliance with the applicable land use regulations and this Declaration. The Commercial Units may be used for any purpose (other than residential) permitted by the applicable land use regulations and this Declaration Neither the Association nor its Members shall circumvent such entitlement through the adoption of rules or regulations or the amendment of this Declaration or the Bylaws, whether by vote or otherwise. Any restrictions on the use of the Commercial Units beyond those contained in this Declaration and the applicable land use regulations shall require the written agreement of the Owners of all the Commercial Units. The following restrictions and requirements shall, however, apply to the Commercial Units: (a) The Commercial Unit shall not be used for residential purposes. (b) The Commercial Units shall not be used for the operation of a contractor construction yard, commercial laundry or dry cleaning business; cold storage plants; electric, satellite or microwave receiving stations (not to be construed to prohibit satellite receivers for the in Unit reception of television and communication devices); motion picture or music recording studio; facilities such as athletic clubs, lodges for fraternal orders, video arcade whether as a primary use or as an accessory use in association with permitted uses; or food processing plants (except in connection with restaurant use). Section 11.7. Use of Residential Units. Residential Units shall be used for single family residential purposes only, provided that, in -home businesses or occupations which do not involve employees other than the Owner(s), the solicitation or invitation of the general public, or the servicing of customers shall be permitted, so long as activities are conducted entirely within the Residential Unit and do not cause additional traffic, increase the parking burden within the development or otherwise create a nuisance. -25- RECEPTION#: 577962, 02/28/2011 at 03:56:13 PM, 26 OF 35, Janice K. Vos Caudill, Pit* County, CO 0 *MW r/ Any in -home business or occupation must also fully comply with all applicable requirements of the City of Aspen Land Use Code. Section 11.8. Storage of Personal Property. Decks, patios, balconies, porches and General and Limited Common Elements shall not be used for the storage of personal property of any kind. Nothing shall be placed on or in windows or doors or otherwise on the exterior of any Residential Unit or on the Common Elements, which creates an unsightly appearance. Skis, snowboards, bikes, mountain bikes, kayaks and other items of personal property shall not be allowed to remain outside except when in actual use. No laundry shall be dried or hung outside. Section 11.9. Garbage and Trash. With the exception of dumpsters or other trash receptacles provided by the Association on Common Elements, no refuse, garbage, trash, grass, shrub or tree clippings, plant waste, scrap, rubbish or debris of any kind shall be kept, stored, maintained or allowed to accumulate or remain anywhere within the Project. No garbage containers, trash cans or receptacles shall be maintained in an unsanitary or unsightly condition, and except when being carried to and from the dumpsters, such shall be kept completely within a Unit. ARTICLE XII — NOTICE OF MIXED USE DEVELOPMENT Section 12.1. Notice of Mixed Use The Community contains both Residential and Commercial Units and there will be activities, noises and odors at the Community that might not be encountered in a purely residential or purely commercial development. All Owners and their occupants shall take title to and be subject to the rights of Commercial Unit Owners to conduct their business operations and Residential Unit Owners to use and enjoy their Residential Units. Section 12.2. Annoying_ Light, Sound or Odor. The Commercial Unit uses may produce noise, vibration, odor, fumes, pedestrian and vehicular traffic at variable levels and at variable times throughout the day or night. Although all Commercial Unit Owners and their occupants shall conduct commercial uses in accordance with applicable building, land use regulations and health and safety codes, all Residential Unit Owners and their occupants shall take title to and be subject to the rights of commercial users to conduct their business operations. All exterior lights installed or maintained on any Unit shall be placed so that the light source is screened or shielded from any other Unit, and shall require the prior written approval of the Executive Board in each instance. No light shall be emitted from any part of the Community (including any Unit) which is unreasonably bright or causes unreasonable glare. Without limiting the generality of the foregoing, no spotlights, floodlights or other high -intensity lights shall be permitted within the Community without the prior written approval of the Executive Board. Without limiting the foregoing, all lighting must comply with applicable rules and regulations of the City of Aspen. Section 12.3. Commercial Deliveries. Parking for commercial deliveries shall be limited to a maximum of thirty (30) minutes. No deliveries shall be made between the hours of 9:00 p.m. and 7:00 a.m. Deliveries shall be made at the back of the Commercial Unit which is receiving said delivery. Section 12.4. Complaints Complaints regarding violations of any applicable covenants, conditions, restrictions, rules and regulations, including but not limited to those between Commercial and Residential Units, shall be addressed pursuant to the Association's Policies and -26- RECEPTION#: 577962, 02/28/2011 at 03:56:13 PM, 27 OF 35, Janice K. Vos Caudill, Pith County, CO • Procedures Regarding Enforcement of Covenants and Rules and Consideration of Complaints. ARTICLE MH - INSURANCE Section 13.1. Association to Maintain Insurance. The Association shall maintain to the extent reasonably available: (a) Property insurance on the Common Elements for broad form covered causes of loss. Such coverage shall afford protection against loss or damage by fire and other hazards covered by a standard extended coverage endorsement and such other risks as from time to time shall be customarily covered with respect to buildings similar in construction, location and use, as the buildings on the Property, including, but not limited to vandalism and malicious mischief. The amount of insurance must be not less than the full insurable replacement cost of the insured property, less applicable deductibles at the time the insurance is purchased and at each renewal date, exclusive of land, excavations, foundations and other items normally excluded from property policies; provided that the casualty protection on the buildings and improvements maintained by the Association shall insure the improvement only to the interior bare walls as initially constructed and installed by the Declarant. It shall be the responsibility of each Owner to insure the finish of the interior walls and all cabinets, furnishings, fixtures, appliances, personal property, and other contents of such Owner's Unit. The named insured shall be the Association, individually, and as agent for the Owners and their Mortgagees, without naming them. Provisions shall be made for the issuance for mortgagee endorsements and memoranda of insurance to the Mortgagees of the Owners. Such insurance policy shall provide that payments by the insurer for losses shall be made to the Association or to an insurance trustee in the State of Colorado designated by the Association for that purpose. Such insurance policy shall contain a "severability of interest" clause or endorsement which shall preclude the insurer from denying the claim of an Owner because of negligent acts of the Association or other Owners. The scope of coverage must include all other coverage in the kinds and amounts commonly required by private institutional mortgage investors for projects similar in construction, location, and use. (b) Commercial general liability insurance against claims and liabilities arising in connection with the ownership, existence, use or management of the Common Elements with coverage limits as deemed sufficient in the judgment of the Executive Board, but in no event less than $1,000,000 per occurrence and $2,000,000 aggregate, insuring the Executive Board, the Association, the management agent, if any, and their respective employees, agents, and all persons acting as agents. The Declarant shall be included as an additional insured in Declarant's capacity as an Owner and Executive Board member. The Owners shall be included as additional insureds, but only for claims and liabilities arising in connection with the ownership, existence, use or management of the Common Elements. The insurance shall cover claims of one (1) or more insured parties against other insured parties. Section 13.2. Non -Availability. If the insurance described above is not reasonably available, or if any policy of such insurance is canceled or not renewed, without a replacement policy therefore having been obtained, the Association promptly shall cause notice of that fact to be hand delivered, or sent prepaid, U.S. mail, to all Owners and the Association shall obtain such property and commercial general liability insurance as shall be as close as possible to the coverage provided for in Section 13.1 above and 13.3 and 13.4 below. -27- RECEPTION#: 577962, 02/28/2Q11 at 03:56:13 PM, 28 OF 35, Janice K. Vos Caudill, Pit* County, CO 0 Section 13.3. Additional Coverage Reguired. Pursuant to the Act, the property insurance and the Commercial General Liability Insurance required above, must provide that: (a) Each Owner is an insured person under the policy with respect to liability arising out of such Unit Owner's interest in the Common Elements or membership in the Association; (b) The insurer waives its rights to subrogation under the policy against any Unit Owner or member of such Owner's household; (c) No act or omission by any Unit Owner, unless acting within the scope of such Unit Owner's authority on behalf of the Association, will void the policy or be condition to recovery under the policy; and (d) If, at the time of a loss under the policy, there is other insurance in the name of a Unit Owner covering the same risk covered by the policy, the Association's policy provides primary insurance. Section 13.4. Adiustment of Property Loss. Any loss covered by the property insurance described above, must be adjusted with the Association, but shall be held, administered and applied in the manner provided by the Act, C.R.S. §38-33.3-313(5) - (9). Section 13.5. Procedures; Deductibles, Assessments. The Association may adopt and establish written nondiscriminatory policies and procedures relating to the submittal of claims, responsibility for deductibles, and any other matters of claims adjustment. To the extent the Association settles claims for damages to real property, it shall have the authority to assess negligent Owners causing such loss or benefitting from such repair or restoration, all deductibles paid by the Association. In the event that more than one (1) Unit is damaged by a loss, the Association, in its reasonable discretion, may assess each Owner a pro rata share of any deductible paid by the Association. Section 13.6: Owner's Insurance. An insurance policy issued to the Association does not obviate the need for Owners to obtain insurance for their own benefit for such coverage as each shall determine appropriate, such as by way of example and not limitation contents insurance, premises, liability and business interruption. Section 13.7. Officers and Directors. The Association shall keep and maintain Officers and Directors errors and omissions and personal liability coverage, with coverage limits of not less than $1,000,000 per occurrence and $2,000,000 aggregate, to protect the Association's officers and Executive Board Members from personal liability in relation to or arising out of their duties on behalf of the Association. Section 13.8. Fidelity Bonds and Insurance. The Association may obtain adequate fidelity bonds or insurance coverage to protect against dishonest acts of any Owner, Executive Board member, Officer, employee or Manager of the Association handling or responsible for Association funds. Such fidelity bonds or insurance coverage shall not be less than the aggregate amount of two (2) months current assessments for the entire Property, plus reserves as calculated from the current budget of the Association, or $50,000, whichever is greater. The Association may carry fidelity bonds or insurance and such greater amount as the Executive Board deems prudent. -28- RECEPTION#: 577962, 02/28/2 1 at 03:56:13 PM, 29 OF 35, Jafiice K. Vos Caudill, Pit1County, CO • ,%W 40W Section 13.9. Mfg Agent Insurance. The Association shall require any independent contractor employed for purposes of managing the Community to cant' fidelity bonds or insurance for the benefit of the Association to the same extent as the Association or with such greater coverage limits as the Association or the Act may require, for the benefit of the Association and any such Manager shall maintain and submit evidence of such coverage to the Association. Section 13.10. Worker's Compensation and Employer's Liability Insurance. The Association shall obtain worker's compensation and employer's liability insurance and all other similar insurance with respect to its employees in the amounts and forms as may now or hereafter be required by law. Section 13.11. Other Insurance. The Association may also obtain insurance coverage against any such other risks of a similar or dissimilar nature, as deemed appropriate. Section 13.12. Insurance Expense. The cost of all insurance which the Association is required or permitted to maintain, shall be assessed to the Owners as a Common Expense; PROVIDED, HOWEVER, any cost of insurance for the Commercial Units and the Residential Units shall be allocated so that the cost therefore is paid by the respective Owners of each of those Units. Section 13.13. Annual Review. The Executive Board shall review the insurance coverage for the Association at least annually for the purpose of determining the amount of insurance required. Section 13.14. Duty to Repair. Any portion of the Community for which insurance is required under this Article which is damaged or destroyed must be repaired or replaced promptly by the Association unless: the Community is terminated in accordance with the Act; the repair or replacement would be illegal; sixty-seven percent (67%) in interest of the Owners, including every Owner of a Unit or assigned Limited Common Element that will not be rebuilt, vote not to rebuild; or, prior to the conveyance of any Unit to a person other than the Declarant, the holder of a Mortgage on the damaged portion of the Community rightfully demands all or a substantial part of the insurance proceeds. ARTICLE XIV - ASSESSMENT CERTIFICATES AND NOTICES Section 14. L Assessment Certificates. Upon request, the Association shall provide any Owner, prospective purchaser, Mortgagee or prospective Mortgagee, of any Unit in the Community a certificate in writing signed by an officer of the Association setting forth the amount of any assessments, interest or late charges due in connection with any specified Unit. A reasonable charge may be made by the Association for the issuance of such certificates. Section 14.2. Notice of Assessment Liens. Upon written request, delivered personally or by certified mail, first-class postage prepaid, return receipt requested, to the Association's registered agent, the Association shall furnish to an Owner or his designee, or to any Mortgagee, or its designees, a written statement setting forth the amount of unpaid assessments currently levied against such Owner's Unit. This statement shall be furnished within fourteen (14) days after receipt of the request, and is binding on the Association, the Executive Board and every Owner. If no statement is furnished to the Owner or Mortgagee, or to a designee of the foregoing, delivered personally or by certified mail, first-class postage prepaid, return receipt requested, to the inquiring party, then the Association shall have no right to assert alien upon the Unit for unpaid assessments which were due as of the date of the request. -29- RECEPTION#: 577962, 02/28/1 at 03:56:13 PM, 30 OF 35, Janice K. Vos Caudill, Pit* it County, CO 0 '`' Now ARTICLE XV - GENERAL PROVISIONS Section 15.1. Notices to Owners. Notice to an Owner of matters affecting the Community by the Association or by another Owner, shall be sufficiently given if such notice is in writing and is delivered personally, by courier or private service delivery, or by deposit in the U.S. mail, postage prepaid, addressed to such Owner at the registered mailing address furnished by the Owner to the Association in accordance with the Bylaws. Such mailing shall be deemed adequate, whether mailed ordinary mail, certified mail or registered mail. Section 15.2. Recording Data. All recorded easements and licenses appurtenant or included in the Community, are set forth on Exhibit B and the Subdivision Plat for 308 East Hopkins Avenue Subdivision recorded as Reception No. 543921 in Plat Book 85 at Page 54 of the Pitkin County, Colorado records. In addition, the Community will be subject to the easements and licenses granted or reserved pursuant to this Declaration and the Condominium Map and to the provisions of the Approval Resolutions and Ordinance ("Approvals") (All Reception Nos. and Book and Page refer to the records of Pitkin County, Colorado). Section 15.3. Covenants to Run with the Land. This Declaration shall run with the land and be a burden and a benefit to the Units within the Community. Section 15.4. Enforcement. The failure of any Owner to comply with the provisions of this Declaration or with the Articles of Incorporation, Bylaws or the duly promulgated Rules and Regulations of the Association, shall give rise to a cause of action in the Association, as well as any aggrieved Unit Owner for the recovery of damages or injunctive relief, or both. In any action brought to enforce the provisions of this Declaration, the Articles of Incorporation, the Bylaws or the duly promulgated Rules and Regulations of the Association, between or among (in any combination) the Association, the Declarant and/or any Owner(s), the prevailing party or parties shall be entitled to recover from the non -prevailing party or parties all reasonable costs and expenses, including attorney's fees incurred in connection with any such action. The failure of the Association, the Declarant or any Owner to enforce any such rights, shall in no event be deemed a waiver of the right to do so in the future. The City of Aspen is recognized as a third -party beneficiary with respect to the use restrictions relating to the Affordable Housing Units described in Article 11 and matters contained in the Approvals, and may enforce the same in its own right, including enforcement of any terms in the Approvals as to the Affordable Housing Units. Section 15.5. Amendments. The Declarant may amend the Declaration and the Condominium Map to correct clerical, typographical or technical errors or to comply with the requirements of the Act, requirements, standards or guidelines of recognized secondary mortgage markets, the Department of Housing and Urban Development, the Federal Housing Administration, the Veterans Administration, the Federal Home Loan Mortgage Corporation, the Government National Mortgage Association or the Federal National Mortgage Association. The Declarant may also amend this Declaration in the exercise of Declarant's reserved rights and as otherwise permitted by the Act. The Association may amend this Declaration with respect to those matters expressly permitted by the Act. Except as provided above, this Declaration may be amended only by the vote or agreement of Owners representing at least sixty-seven percent (67%) in interest of the Units within the Community, the consent of (a) Mortgagees holding first liens on any Commercial Unit; and (b) any other mortgagee otherwise only with respect to amendments which could reasonably be construed to adversely impact the Mortgagee's collateral and the consent of the -30- RECEPTION#: 577962, 02/28/2 -1 at 03:56:13 PM, 31 OF 35, Janice K. Vos Caudill, Pith County, CO • �w r+ APCHA regarding amendments which affect the use or ownership of the Affordable Housing Units, and by the recordation of a certified copy of the Resolution of Amendment, signed and acknowledged by the President and Secretary of the Association, recorded in the records of the Clerk and Recorder of Pitkin County, Colorado, Section 15.6. Termination of Declaration. This Declaration shall not be terminated except in accordance with the Act. Section 15.7. Restoration. If at any time sixty seven percent (67%) in interest of the Owners and all Mortgagees holding first priority Mortgages on the Commercial Units and the Free Market Units shall agree that the Community has become obsolete and shall approve a plan for its renovation or restoration, the Association shall promptly cause such renovation or restoration to be made according to such plan. All Owners shall be bound by the terms of such plan and the cost of the work shall be a Common Expense. Section 15.8• Duration. This Declaration shall continue in effect until revoked or terminated in the manner provided above. Section 15.9. Interpretation and Conflicts. Any provision of this Declaration in conflict with the Act shall not be deemed invalid in its entirety, but shall be deemed amended to the minimum extent necessary to comply with the Act. In the event of any conflict between the provisions of this Declaration and the Association Articles of Incorporation, Bylaws, Rules and Regulations or Policies and Procedures, this Declaration shall prevail, and the remainder in the order set forth above. Section 15.11. Severability. If any clause or provision of this Declaration is determined to be illegal, invalid or unenforceable under present or future laws, all other terms and provisions hereof shall nevertheless remain in full force and effect. JW VENTURES, LL R. Provine, Member STATE OF COLORADO COUNTY OF I{ kt� )S5. The foregoing instrument was acknowledged before me this till' —day of �, 2010, by John R. Provine, as a Member of JW Ventures, LLC. Witness my hand and official seal. My commission expires: �BETH BRANDON NO.1'AItY 1113BLIC STATE 01' COLOItADO -31- Publi RECEPTION#: 577962, 02/28/1 at 03:56:13 PM, 32 OF 35, • Janice K. Vos Caudill, Pit* it County, CO CERTIFICATE OF COMPLETION The undersigned, an independent licensed surveyor, hereby certifies to the best of my knowledge, information and belief that all structural components of the 308 East Hopkins Condominium located in Aspen, Colorado, as more particularly described in the Condominium Declaration for 308 East Hopkins Condominiums to which this Certificate is attached, are substantially complete as required by Sectiop I38-33.3-201 of the Colorado Common Interest Ownership Act. ,� �� Date: l l 2010 l Name: fOHN HOWORTH Aspen Survey Engineers, Inc. -32- RECEPTION#: 577962, 02/28/2 1 at 03:56:13 PM, 33 OF 35, Janice K. Vos Caudill, Pit* County, CO 0 'Ar '%W EXHIBIT A To Condominium Declaration for 308 East Hopkins Condominiums Table of Interests Square Percentage Percentage Percentage Votes in Footage Share of Share of Share of Affairs of of Units Ownership Common Special Association [net in the Expenses Assessments floor Common area Elements Unit Unit Tvpe calc LL1 Commercial 3,868 27.89% 27.89% 27.89 101 Commercial 2,679 19.32% 1 .32% 19.32 202 Affordable 582 4.20% 4.20% 4.20 Housing Residential 203 Affordable 650 4.69% 4.69% 4.69 Housing Allocated Residential Based on Assessed 204 Affordable 558 4.02% 4.02% 4.02 Housing Valuation Residential 201 Free 1,988 14.34% 14.34° 0 14.34 Market Residential 301 Free 3,542 25.54% 25.54% 25.5 Market Residential Totals 13,867 100% 100% 100 RECEPTION#: 577962, 02/28/ at 03:56:13 PM, 34 OF 35, Janice K. Vos Caudill, Pit County, CO 0 Eii; EXHIBIT r. Rights or claims of parties in possession not shown by the public records. Easements, or claims of easements, not shown by the public records. Discrepancies, conflicts in boundary lines, shortage in area, encroachments, any facts which a correct survey and inspealon of the premises would disclose and which are not shown by the public records. Any lien, or right to a lion, for services, labor, or material heretofore or hereafter furnished, imposed by law and not shown by the public records. Dafects, liens, encumbrances, adverse claims or other mattars, if any, created, first appearing In the public records or attaching subsequent to the effective date hereof but prior to the date the proposed insured acquires of record for value the estate or interest or mortgage thereon covered by this Commitment. Taxes due and payable; and any tax, special assessment, charge or lien imposed for water or sewer service or for any other special taxing district. The premises hereby conveyed may be entered by the proprietor of any vein or lode of quartz or other rock in place, bearing gold, siver, cinnabar, lead, tin, copper or other valuable deposits, for the purpose of extracting and removing the ore from such vein or lode, should this same, or any part thereof, be found to penetrate, Intersect, pass through, or dip into the mining ground or promises, as reserved In United States Patent recorded February 18, I M In Book 59 at Page 349. The premises hereby conveyed may be entered by the proprietor of sny.vein or lode of quartz or other rock in pace, bearing gold, silver, cinnabar, lead, tin, copper or other valuable deposits, for the purpose of extracting and removing the ore from such vein or lode, should the same, or any part thereof, be found to penetrate, intsrsect, pass through, or dip into the mining ground or premises, as reserved in United States Patent recorded November 28, 1880 in Book 59 at Page 510, Terms, conditions, provisions and obligations as set forth in Multipurpose Easement Agreement recorded September 16, 1976 in Book 316 at Page 705. Terms, conditions, provisions and obligations as set forth in Ucanse Agreement recorded November 20, 1991 in Book 882 at Page 965. Terns, condition, provisions, obligations and all matters as set forth In Resolution of the Aspen Historic Preservation Commission recorded March 25, 2001 as Reception No. 452717 as Resolution No. 8. Terms, conditions, provisions, obligations and all matters as set forth in Resolution of the Aspen Historic Preservation Commission recorded July 28, 2008 as Receptlon No. 526959 as Resolution No. 18, Swiss o12008. Terms, conditions, provisions, obligations and all mattars as set forth In Resolution of the Aspen Historic Preservation Commission recorded July 30, 2007 as Reception No. 540463 so Resolution No. 07-19. Terms, conditions, provisions, obligations and as matters as set forth in Ordinance No. 27, Series of 2007 by City of Aspen recorded August 8, 2007 as Reception No. 540781. (Continued) RECEPTION#: 577962, 02/28/ at 03:56:13 PM, 35 OF 35, Janice K. Vos Caudill, Pit County, CO i EXHIBIT Terms, conditions, provisions, obligations and all matters as W forth In Subdivision Agreement recorded November 8, 2007 as Reception No. 543922. Easements, rights of way and all matters as disclosed on Plat of subject property recorded November 8, 2007 in Plat Book 85 at 54 as Reception No. 543921. Terms, conditions, provisions, obligations and aft matters as set Rath In Resolution of the Aspen Historic Preservation Commission recorded December 11, 2008 as Reception No. 554947 as Resolution No. 28, Swiss of 2008. Easements, rights of vray and all matters tee disclosed on Plat of 308 East Hopkins Condominiums recorded 2000 In Plat Book _ at Page Terms, conditions, provisions, obligations, easements, etsbtctions and assessments as set forth in the Condominium Osdar"on for 308 East Hopkins Condominiums recorded , 2009 as Reception No. , deleting therefrom any restrictions Indicating preference, limitation or discrlminadon based on race, color, rob&n, sex, handicap, famlllal status or riatlonal origin. Construction Deed of Trust from : JW VENTURES, LLC, A COLORADO LIMITED LIABILITY COMPANY To the Public Trusts* of the County of PITKIN For the use of ALPINE BANK, A COLORADO BANKING CORPORATION OropV Amount $9,000,000.00 Dated March 31, 2008 Recorded April9, 2008 Reception No. : 54821a Disbursers Notice given In connection with the above Deed of Trust recorded April 9, 2008 as Reception No. 546217. Construction Dead of Trust from : JW VENTURES, LLC, A COLORADO LIMITED LIABILITY COMPANY To the Public Trustee of the County of PITKIN For the use of : ALPINE BANK Original Amount $1.920.000.00 Dated : April 20, 2009 Recorded : May 22, 2009 Recepdw No. : 559263 Olsbursees Notice given In connection with the above Deed of Trust recorded May 22. 2009 as Reception No. 559264. Mechanics Lien, as evidenced by Statement of Lien, flied by Myers A Co. Architectural Metals, in the amount of $43,025.50. recorded October 21. 2009 as Reception No. 563768. 10' 0 10 20 CL L.C.E. G.C.E. V HCRNRTY MAP I' - 400' 8' X 5.5' MULTIPURPOSE EASEMENT BOOK `16 PAGE 705 LEGEND AND NOTES SET SURVEY MONUMENT LS 25947 MANHOLE TITLE INFORMATION FURNISHED BY: J BAOK PITKIN COUNTY TITLE. INC. CASE NO. PCT215621_2 DATED: AUGUST 17. 2009 SURVEY CONTROL POSTED ADDRESS: "308' S. . ®p l� r; LIMITED COMMON ELEMENT Op R'O.W GENERAL COMMON ELEMENTS RE�,ORDJ SEWER CLEAN OUT WATER METER STAND PIPE FENCE THIS PROPERTY IS SITUATED IN ZONE 'X' (AREAS DETERMINED TO BE OUTSIDE 500-YEAP FLOOD PLAIN) AS SHOWN ON FLOOD INSURANCE RATE MAP PREPARED BY F.E.M.A.. FOR PITKIN COUNTY COLORADO. COMMUNITY -PANEL NUMBER 08097CO204 C. EFFECTIVE DATE: JUNE 4. 1987 THIS PROPERTY LIES ENTIRELY INSIDE OF THE CITY OF ASPEN MUDFLOW HAZARD AREA AS DEFINED BY THE CITY OF ASPEN MASTER DRAINAGE PLAN. PROJECT NUMBER 1963 FIGURE ES-15. ABOVE GRADE LIVING SPACE. PARKING . UTILITIES AND ENTRIES AT GRADE BEARINGS BASED ON FOUND ALUM. DISKS LS 25947 ON THE EAST LINE OF LOT 0: N 14'S0 49•E J CALLS IN ( ) BASED ON THE OFFICIAL MAP OF THE CITY OF ASPEN. DATED 1959 AN EASEMENT EXISTS THROUGH UNIT LLI TO ACCESS GCE'S LOCATED ON THE LOWER LEVE_ NOTICE: ACCORDING TO COLORADO LAW YOU MUST COMMENCE ANY LEGAL ACTION BASED UPON ANY DEFECT ON THIS PLAT WITHIN THREE YEARS AFTER YOU FIRST DISCOVER SUCH DEFECT. IN NO EVENT MAY ANY ACTION BASED UPON ANY DEFECT IN THIS PLAT BE COMMENCED MORE THAN TEN YEARS FROM THE DATE OF THE CERTIFICATION SHOWN HEREON. THE CERTIFICATION IS VOID IF NOT WET STAMPED WITH THE SEAL OF THE SURVEYOR. OF 308 EAST HOP K� N S LEGAL DESCRIPTION 308 EAST HOPKINS AVENUE SUBDIVISION. ACCORDING TO THE SUBDIVISION PLAT THEREOF RECORDED NOVEMBER 8. 2007 IN PLAT BOOK 85 AT PAGE 54. AS RECEPTION NO. 543921. CITY OF ASPEN. COUNTY OF PITKIN. STATE OF COLORADO. CONTAINING: 6.032 SO. FT. •/- (0.138 ACRES) THE PURPOSE OF THIS MAP IS TO CONDOMINIUMIZE THE PROPERTY SHOWN HEREON".! Z L z y (21.01.Rs z ®ct O W RECOR6) A 1/.EIVus LICENSE AGREEMENT BOOK 662 PAGE 968 S 70.3 J 9 •F 504 63 r iE r 0 GPS A1pA'U 4r, p 5 AL PLAT NOTES BASIS OF SURVEY: THE FINAL PLAT OF 308 EAST HOPKINS AVENUE SUBDIVISION RECORDED IN PITKIN COUNTY AS RECEPTION NO. 543921. THE CITY OF ASPEN OFFICIAL MAP PREPARED BY G.E. BUCHANAN DATED 12/12/59, VARIOUS DOCUMENTS OF RECORD, AND THE FOUND MONUMENTS AS NOTED. CALLS IN ( ) BASED ON ABOVE. THIS SURVEY DOES NOT CONSTITUTE A TITLE SEARCH BY ASPEN SURVEY ENGINEERS. INC. (ASE) TO DETERMINE OWNERSHIP OR EASEMENTS OF RECORD. FOR ALL INFORMATION REGARDING EASEMENTS. RIGHT-OF-WAY AND/OR TITLE OF RECORD ASE RELIED UPON THE ABOVE SAID PLATS AND THE TITLE COMMITMENT PREPARED BY PITKIN COUNTY TITLE. INC.. UNDER CASE NO. PCT21562L2. EFFECTIVE DATE OF AUGUST 17, 2009. 308 EAST HOPKINS CONDOMINIUMS IS SUBJECT TO THE SUBDIVISION AGREEMENT RECORDED ON THE 8TH DAY OF NOVEMBER. 2007 AS RECEPTION NO. 543922 OF THE PITKIN COUNTY RECORDS AND BY THE CCIOA CONDOMINIUM DECLARATION FOR 308 EAST HOPKINS CONDOMINIUMS RECORDED ON THE DAY OF 20_ AS RECEPTION NO. OF THE PITKIN COUNTY RECORDS. THE USE AND OCCUPANCY OF UNITS 202. 203 AND 204. 308 EAST HOPKINS CONDOMINIUMS. IS SUBJECT TO THE TERMS AND CONDITIONS OF THE MASTER DEED RESTRICTION AGREEMENT FOR THE OCCUPANCY AND RESALE OF 308 EAST HOPKINS CONDOMINIUMS RECORDED AT RECEPTION NO. OF THE PITKIN COUNTY RECORDS. COURTYARD LCE FOR UNIT 101 MAY BE HEREAFTER COVERED IF PERMITTED BY CITY OF ASPEN LAND USE CODE CITY OF ASPEN COMMUNITY DEVELOPMENT DEPARTMENT APPROVAL THIS CONDOMINIUM MAP OF 308 EAST HOPKINS CONDOMINIUMS WAS APPROVED BY THE CITY OF ASPEN COMMUNITY DEVELOPMENT DEPARTMENT THIS _ DAY OF . 20_. SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN HISTORIC PRESERVATION COMMISSION RESOLUTION NO. 18 (SERIES OF 2006) ORDINANCE NO. 27 (SERIES OF 2007) RECORDED AT RECEPTION NO. 540761 AND THE SUBDIVISION AGREEMENT FOR 308 EAST HOPKINS AVENUE. PLANNING AND ZONING COMMISSION RESOLUTION NO. 18 (SERIES OF 2007). HISTORIC PRESERVATION COMMISSION RESOLUTION NO. 19 (SERIES OF 2007) SUBDIVISION RECORDED AS �&ECEPL.L, NNO 543922. PLANNING AND ZONING COMMISSION RESOLUTION NO. 30 (SERIES OF 2007) TKIN COUNTY ICOLORADO. COMMUNITY DEVELOPMENT DIRECTOR CITY ENGINEER APPROVAL THIS CONDOMINIUM MAP OF 308 EAST HOPKINS CONDOMINIUMS. SHOWN HEREON. WAS APPROVED BY THE CITY ENGINEER OF THE CITY OF ASPEN THIS _ DAY OF 20_. CITY ENGINEER SURVEYOR'S CERTIFICATE I. JOHN HOWORTH. A REGSTERED COLORAD0 LAND SURVEYOR. DO HEREBY CERTIFY THAT 1 HAVE PREPARED THIS CONDOI MINUM MAP OF 308 EAST HOPKINS CONDOMINIUMS: THAT THE LOCATION AND DIMENSIONS OF THE VERTICAL BOUNDARIES OF EACH UNIT AND THAT UNIT'S IDENTIFYING NUMBER. THE LOCATION (WITH REFERENCE TO ESTABLISHED DATUM) OF THE HORIZONTAL BOUNDARIES OF EACH UNIT. THE APPROXIMATE LOCATION AND SCALE OF LIMITED COMMON ELEMENTS. AND THE LOCATION OF OTHER FEATURES, ARE ACCURATELY AND CORRECTLY SHOWN HEREON: THAT THE SAME ARE BASED ON A FIELD SURVEY PERFORMED UNDER MY SUPERVISION IN DECEMBER. 2009: THAT THIS CONDOMINIUM MAP MEETS THE REQUIREMENTS OF A LAND SURVEY PLAT AS SET FORTH IN C.R.S. SECTION 38-51-106: THAT THIS CONDOMINIUM MAP CONTAINS ALL OF THE INFORMATION REQUIRED BY C.R.S. SECTION 38-33.3-209 OF THE COLORADO COMMON INTEREST OWNERSHIP ACT: AND THE CONDOMINIUM MAP (i) CONTAINS ALL OF THE INFORMATION REQUIRED BY SECTION 38-33.3-209 OF THE ACT. AND hi) THAT ALL STRUCTURAL COMPONENTS OF THE BUILDINGS CONTINUING OR COMPRISING ALL UNITS CREATED BY THE CONDOMINIUM DECLARATION AND THIS CONDOMINIUM MAP ARE SUBSTANTIALLY COMPLETED IN INTERPRETING THE CONDOMINIUM MAP. THE EXISTING PHYSICAL BOUNDARIES OF EACH UNIT AS CONSTRUCTED SHALL BE CONCLUSIVELY PRESUMED TO BE ITS BOUNDARIES. THE CONTROL PRECISION IS GREATER THAN 1 IN 10.000. RECORDED EASEMENTS. RIGHTS OF WAY AND RESTRICTIONS ARE SHOWN HEREON AND ARE THE SAME AS THOSE SET FORTH IN THE TITLE COMMITMENT PREPARED BY PITKIN COUNTY TITLE, INC. OF COLORADO UNDER ORDER NO. PCT21562L2. EFFECTIVE DATE OF AUGUST 17. 2009. JOHN HOWORTH. PLS 25947 DATED . 20_ CLERK AND RECORDER'S ACCEPTANCE THIS CONDOMINIUM MAP OF 308 EAST HOPKINS CONDOMINIUMS IS ACCEPTED FOR FILING IN THE OFFICE OF THE CLERK AND RECORDER OF PITKIN COUNTY. COLORADO AT O'CLOCK _.M.. THIS _ DAY OF . 20_. IN PLAT BOOK _. AT PAGES . RECEPTION NO. PITKIN COUNTY CLERK AND RECORDER CERTIFICATE OF DEDICATION AND OWNERSHIP KNOW ALL PERSONS BY THESE PRESENTS THAT THE UNDERSIGNED. JW VENTURES. LLC. A COLORADO LIMITED LIABILITY COMPANY l"COMPANY'). ACTING AND THROUGH ITS MEMBERS, BEING THE OWNER OF THAT REAL PROPERTY DESCRIBED AS FOLLOWS: 308 EAST HOPKINS AVENUE SUBDIVISION. A RESUBDIVISION OF LOTS M AND N. BLOCK 80, CITY A TOWNSITE OF ASPEN. ACCORDING TO THE PLAT THEREOF RECORDED NOVEMBER 8. 2007 IN PLAT BOOK 85 AT PAGE 54 AS RECEPTION No. 543921 COUNTY OF PITKIN STATE OF COLORADO HAS BY THESE PRESENTS SUBDIVIDED SAID PROPERTY INTO TWO (2) COMMERCIAL UNITS. TWO (2) FREE MARKET RESIDENTIAL UNITS. THREE (3) AFFORDABLE HOUSING UNITS AND COMMON ELEMENTS APPURTENANT TO EACH. AS DEPICTED AND DESCRIBED HEREON. PURSUANT TO AND FOR THE PURPOSES SET FORTH IN THE CONDOMINIUM DECLARATION OF 308 EAST HOPKINS CONDOMINIUMS ('CONDOMINIUM DECLARATION'). RECORDED 20_ AS RECEPTION NO. IN THE OFFICE OF THE CLERK AND RECORDER OF PITKIN COUNTY. COLORADO: EXECUTED THIS DAY OF _ 20_ . OWNER: JW VENTURES. LLC. A COLORADO LIMITED LIABILITY COMPANY BY: ROBERT L. EISEL. TRUSTEE OF THE JAMES PELHAM FARMER IRREVOCABLE TRUST. THE CHRISTOPHER GUEEN FARMER IRREVOCABLE TRUST AND THE JENNIFER GRACE FARMER IRREVOCABLE TRUST, EACH U/T/A DATED 6/22/99. MEMBER BY: GEORGE WALTER HARRIS. MEMBER BY: JOHN R. PROVINE, MEMBER BY: CHARLES CUNNIFFE. MEMBER STATE OF )SS. COUNTY OF ) THE ABOVE AND FOREGOING DOCUMENT WAS ACKNOWLEDGED BEFORE ME THIS DAY OF 2009. BY ROBERT L. EISEL. TRUSTEE OF THE JAMES PELHAM FARMER IRREVOCABLE TRUST, THE CHRISTOPHER GUEEN FARMER IRREVOCABLE TRUST AND THE JENNIFER GRACE FARMER IRREVOCABLE TRUST. EACH U/T/A DATED 6/22/99. AS A MEMBER OF JW VENTURES. LLC. WITNESS MY HAND AND OFFICIAL SEAL NOTARY PUBLIC MY COMMISSION EXPIRES: MY ADDRESS IS: STATE OF COLORADO ) )ss. COUNTY OF PITKIN ) THE ABOVE AND FOREGOING DOCUMENT WAS ACKNOWLEDGED BEFORE ME THIS DAY OF . 2009. BY GEORGE WALTER HARRiS. AS A MEMBER OF JW VENTURES. LLC. WITNESS MY HAND AND OFFICIAL SEAL NOTARY PUBLIC MY COMMISSION EXPIRES: MY ADDRESS IS: STATE OF-COLORADO ) )SS. COUNTY OF PITKIN ) THE ABOVE AND FOREGOING DOCUMENT WAS ACKNOWLEDGED BEFORE ME THIS DAY OF 2009, BY JOHN R. PROVINE. AS A MEMBER OF JW VENTURES. LLC. WITNESS MY HAND AND OFFICIAL SEAL MOTARY DUDLIC MY COMMISSION EXPIRES: MY ADDRESS IS: STATE OF COLORADO ) )SS. COUNTY OF PITKIN ) THE ABOVE AND FOREGOING DOCUMENT WAS ACKNOWLEDGED BEFORE ME THIS DAY OF . 2009. BY CHAR -ES CUNNIFFE. AS A MEMBER OF JW VENTURES. LLC. ' WITNESS MY HAND AND OFFICIAL SEAL NOTARY PUBLIC MY COMMISSION EXPIRES: MY ADDRESS IS: MORTGAGEE'S CONSENT THE UNDERSIGNED, BEING THE HOLDER OOF TWO DEED OF TRUST LIENS ENCUMBERING THE HEREIN DESCRIBED PROPERTY PURSUANT TO DEEDS OF TRUSTT RECORDED AS RECEPTION No. 548216 AND RECEPTION No. 559263 IN THE OFFICE OF THE CLEERK AND RECORDER OF PITKIN COUNTY. COLORADO. HEREBY CONSENTS AND APPROVES THIS CONDOMINgIUM MAP OF 308 EAST HOPKINS CONDOMINIUMS AND HEREBY SUBORDINATES THE LIEN OF SAIID DEED OF TRUST TO THE MATTERS SET FORTH HEREIN. DATED THIS DAY OF 20_ . ALPINE BANK BY: NAME ITS: TITLE STATE OF COLORADO ) )SS. COUNTY OF PITKIN ) THE FOREGOING INSTRUMENT WAS ACKNOWLEDGED BEFORE ME THIS _ DAY OF 20_ BY AS OF ALPINE BANK. WITNESS MY HAND AND OFFICIAL SEAL. MY COMMISSION EXPIRES: NOTARY PUBLIC TITLE COMPANY CERTIFICATE PITKIN COUNTY TITLE. INC.. HEREBY CERTIFIES THAT JW VENTURES. LLC. IS THE RECORD OWNER OF THE HEREIN DESCRIBED PROPERTY. IN FEE SIMPLE. FREE AND CLEAR OF ALL LIENS AND ENCUMBRANCES EXCEPT THE LIENS OF DEEDS OF TRUST FOR THE BENEFIT OF ALPINE BANK RECORDED AS RECEPTION NOS. 548216 AND 559263. PITKIN COUNTY TITLE. INC BY: - NAME TITLE STATE OF COLORADO ) )SS. COUNTY OF PITKIN ) THE FOREGOING WAS ACKNOWLEDGED BEFORE ME THIS AS WITNESS MY HAND AND OFFICIAL SEAL. MY COMMISSION EXPIRES: NOTARY PUBLIC SHEET I. SITE SURVEY. MAP LANGUAGE SHEET 2: PLAN AND ELEVATION VIEWS SHEET 1 OF B _ DAY OF . 20_ BY OF PITKIN COUNTY TITLE. INC. PREPARED RV ASPEN SURVEY ENGINEERS, INC. 210 SOUTH GALENA STREET ASPEN. COLORADO 81611 PHONE/FAX (970) 925-3816 DATE JOB 12/09 39232 a • • • L� • C O' D O M I I U M M A I' OF 3C8 EAST I O I' I< I N S C O N D O M I NM S I -10' 10 20 ENTRY FLOOR 7904.3 - GRADE 21 7 - -C 1.3 PARKING PARKING LCE UNIT 301 LCE UNIT 201 N O LCE UNITS 301 d 201 5.7 0 1_4 6 14.5 .�I .Ih 14 5 f0 6.9 o 0 0 0 3.4 ti 5.4 0 6.1 r LOBBY GCE 2.9 N - - o H ELEVATOR - �'6 z LCE UNITSri - LLI. 101. - �,o., - 202. 203 0 d 204 2.4 <z 0 yyII f V 0 f vi 1.9 3.0 ' r f 10, 0.9 UNIT 1 ® 1 2.679 SF •/- 0.8� ELEVATOR LCE UNITS 201 U 301 = 9.3 3.0 r> 2.0 4.7 14.8 0 i 3.5 w w 0.2 0 4.7 0.5a, 6.9 3" f 14.9 14.9 14.0 0.3 N DECK DECK LCE - UNIT `_ o,a n UNIT 202 - 204 0 0 4.6 UNIT UNIT UNIT 202 203 234 582 SF •/- 650 SF •/- 558 SF •/- o 0.2 0.3 o 0.3 m? 0.2- 0.3 2.6 4, 0 0.2- 0.3 a 4. 0.6 8.2 f a 2.6 0 10.9 r 0.8 c 6.1 6 r-a 8.4 §a w 0.6 _ - i ° 5.0 `J no LCEVUNITS 1'^ 0.8 - o 202. 203 d f 204 4.1 4.7 w e 4.3 to 2 3 wz - � HALLWAY LCE 202. 203 d 204 0.5 14.3 - - 0 0. 7 o 15.0 MECH. GC Y ELEVATOR 6.0 LCE UNITS 1° o 2.0 201 d 301 9.5 2.0 2.0n UN IT 2 ® 11 1.795 SF •/- - N e 20.0 0 35.1 DECK LCE UNIT 201 LOWER LEVEL M A E N LEVEL SECOND LEVEL ELEIAT R PARAPET 7940.1 U N H T 3 IUD 1 UNET 2® 1 0 n _ J •d UN IT 131 LU U J UNIT 1L L I NORTH ELEVATION NOTICE: ACCORDING TO COLORADO LAW YOU MUST COMMENCE ANY LEGAL ACT ON BASED UPON ANY DEFECT ON THIS PLAT WITHIN THREE YEARS AFTER YOU FIRST DISCOVER SUCH DEFECT. IN NO EVENT MAY ANY ACTION BASED UPON ANY DEFECT IN THIS PLAT BE COMMENCED MORE THAN TEN YEARS FROM THE DATE OF THE CERTIFICATION SHOWN HEREON. THE CERTIFICATION IS VOID IF NOT WET STAMPED WITH THE SEAL OF THE SURVEYOR. THIRD FLOOR 7929.2 ELEVATOR NNHT 33 1 THIRD FLOOR 7925.2 N� I � " 1U 1�! � � � ® 1 � q SECOND FLOOR 7918.E UNITS 202 - 204 SECOND FLOOR 7915.6 GRADE - FIRST FLOOR 7904.9 13RADEI L- LOWER FLOOR 7889.8 6e 1` V I T 1 0 1 PARK I NG LCE UNIT 201 GRADE UNIT )L IL I EAST ELEVATION MECH. GCE THIRD LEVEL TABLE OF INTERESTS SQUARE PERCENTAGE PERCENTAGE PERCENTAGE VOTES IN FOOTAGE SHARE OF SHARE OF SHARE OF AFFAIRS OF OF UNITSI OWNERSHIP REGULAR OR SPECIAL ASSOCIATION [NET IN THE ANNUAL COMMON FLOOR COMMON COMMON INTEREST AREA ELEMENTS EXPENSES EXPENSES UNIT UNIT TYPE CALCI LLI COMMERCIAL 3.868 28.70 28.70 28.70 101 COMMERCIAL 2.679 19.87 19.87 19.87 202 AFFORDABLE HOUSING 582 4.32 4.32 4.32 RESIDENTIAL 203 AFFORDABLE HOUSING 650 4.82 4.82 ALLOCATED 4.82 RESIDENTIAL BASED ON 204 AFFORDABLE HOUSING 558 4.i4 4.14 ASSESSED 4.14 RESIDENTIAL VALUATION 201 FREE MARKET 1.795 13.32 13.32 13.32 RESIDENTIAL 301 FREE MARKET 3.347 24.83 24.83 24.83 RESIDENTIAL TOTALS 13.479 100 100 100 SHEET 2 OF 2 PREPARED BY ASPEN SURVEY ENGINEERS. INC. 210 SOUTH GALENA STREET ASPEN. COLORADO 81611 PHONE/FAX (970) 925-3816 DATE JOB 12/09 39232BB 0 0 0 • d • •