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Home My WebLink AboutLand Use Case.620 E Hopkins Ave.A120-00Â» JW ab R / 1 ' M i .1 1 - 8 .i '. 1 . 2_737 x-= O/7 <32 *-- 030 L 'Ch.'99 CASE NUMBER A120-00 PARCEL ID # 2737-073-32030 CASE NAME AT& T Wireless Application PROJECT ADDRESS 620 E. Hopkins PLANNER Greg Woods/James Lindt CASE TYPE Telecom Installation OWNER/APPLICANT Robert Clark REPRESENTATIVE Liberty Star Wireless C/o RC Powell DATE OF FINAL ACTION 10/17/00 CITY COUNCIL ACTION PZ ACTION ADMIN ACTION Approved BOA ACTION DATE CLOSED 10/23/00 BY J. Lindt PARCEL ID: ~2737-073-32030 DATE RCVD: ~9/27/00 #COPIES:~ CASE NOjA120-00 CASE NAME:~AT& T Wireless Application PLNR: Ilii.d=@â‚¬0,/4Â§9+Weti PROJ ADDR:|620 E. Hopkins CASE TYP:~Telecom Installation STEPS:~ OWN/APP: Robert Clark ADR~620 E. Hopkins St. C/S/Z: ~ Aspen/CO/81611 PHN:~544-8080 REP: Liberty Star Wireless C/o RC ADR:~73017th St., ste 635 C/S/Z:]Denver/CO/80202 PHN~534-6991 FEESDUE:|480D 170E FEES RCVD:~480 (Bill 170 for Eng.) STAT: F REFERRALS~ REF:| BY< DUE:| MTG DATE REV BODY PH NOTICED 1.Â».4 1 -7 DATE OF FINAL ACTION:| JO~ 1*00 CITY COUNCIL: REMARKS~ PZ: BOA: CLOSED: |1 42720 BY: |j + 6.4 DRAC: PLAT SUBMITD: ~ PLAT (BK,PG):| ADMIN: E,~A=PADÂ¢bd -1 . DEVELOPMENT ORDER ofthe City of Aspen Community Development Department This Development Order, hereinafter "Order", is hereby issued pursuant to Section 26.304.070, "Development Orders", and Section 26.308.010, "Vested Property Rights", of the City of Aspen Municipal Code. This Order allows development of a site specific development plan pursuant to the provisions of the land use approvals, described herein. The effective date of this Order shall also be the initiation date of a three-year vested property right. The vested property right shall expire on the day after the third anniversary of the effective date of this Order, unless a building permit is approved pursuant to Section 26.304.075, or unless an exemption, extension, reinstatement, or a revocation is issued by City Council pursuant to Section 26.308.010. After Expiration of vested property rights, this Order shall remain in full force and effect, excluding any growth management allotments granted pursuant to Section 26.470, but shall be subject to any amendments to the Land Use Code adopted since the effective date of this Order. This Development Order is associated with the property noted below for the site specific development plan as described below. Robert Clark, 620 E. Hopkins St., Aspen, CO 81611 Property Owner's Name, Mailing Address and telephone number 620 E. Hopkins Avenue Legal Description and Street Address of Subject Property Wireless Telecom Facility Installation Approval Written Description of the Site Specific Plan and/or Attachment Describing Plan Administrative Decision, 10/17/00 Land Use Approval(s) Received and Dates (Attach Final Ordinances or Resolutions) October 28,2000 Effective Date of Development Order (Same as date of publication of notice of approval.) October 29,2003 Expiration Date of Development Order (The extension, reinstatement, exemption from expiration and revocation may be pursued in accordance with Section 26.308.010 of the City of Aspen Municipal Code.) Issued this 28th day of October, 2000, by the City of Aspen Community ~e~elopment Dire~or. 9 Ann Woods, Community Development Director PUBLIC NOTICE Of DEVELOPMENT APPROVAL Notice is hereby given to the general public of the approval of a site specific development plan, and the creation of a vested property right pursuant to the Land Use Code of the City of Aspen and Title 24, Article 68, Colorado Revised Statutes, pertaining to the following described property: 620 E. Hopkins Avenue, by Administrative Decision of the Community Development Director on October 18, 2000. For further information contact Julie Ann Woods, at the Aspen/Pitkin Community Development Dept., 130 S. Galena St, Aspen, Colorado (970) 920-5090. s/ City of Aspen Account Publish in The Aspen Times on October 28,2000 MEMORANDUM TO: Julie Ann Woods, Community Development Director FROM: Greg Woods, Planning Intern RE: Liberty Wirestar Telecommunication Facility DATE: October 3,2000 SUMMARY: Liberty Wirestar Inc. represented by R.C. Powell, has applied for the installation of telecommunication equipment to be installed on the roof o f the building located at 620 E. Hopkins. on behalf of AT&TWS and Robert Clark - a telecommunication service provider. The parcel is located outside o f the Commercial Core Historic District and is not within any of the Mountain View Planes. The application proposes the removal of 4 existing omni directional whip antennas that are currently mounted on the backside o f the building parapet walls. Twelve new panel antennas will be mounted on a new steel support frame at the center of the roof of the building. The steel frame will also support two new condensing units that will provide additional cooling for the communications equipment room located in the basement o f the building. The top o f the new antennas will not exceed the top o f the existing omni directional whip antennas. The application meets the standards for telecommunication equipment, pursuant to Section 26.575.130. Attached are the relevant criteria. Also attached is the application, containing a picture of the proposed equipment. Staff recommends The Community Development Director administratively approve this application, with eight conditions. APPLICANT: R.C. Powell, Site Acquisition for Liberty Wirestar Incorporated. Representing AT&TWS and Robert Clark LOCATION: 620 E. Hopkins (Roof). ZONING: C-1, Commercial CURRENT AND PROPOSED LAND USE: Mixed Use, Commercial 1 REVIEW PROCEDURE: Wireless Telecommunication Service Facilities: The Community Development Director may approve, approve with conditions. or disapprove an application pursuant to Section 26.575.130 of the Land Use Code. STAFF COMMENTS: Review criteria and Staff Findings have been included as Exhibit "A." Agency referral comments have been included as Exhibit "B." The application has been included as Exhibit "C." RECOMMENDATION: Staff recommends the Community Development Director approve the Liberty Wirestar Incorporated Telecommunication equipment proposed for the roof of St. 620 E. Hopkins St., with conditions: APPROVAL: I hereby approve the Liberty Wirestar Telecommunication Service equipment proposed for the roof of the 620 E. Hopkins with the following conditions: 1. A building permit shall be obtained by the applicant. A copy of this approval shall accompany the building permit application. i The applicant shall obtain a right-of-way permit if there is a disturbance of the public right- of-way during construction. 3. The applicant shall obtain a Temporary Encroachment License during construction if the public right-of-way is to be used for construction storage. 4. Tile applicant shall submit a traffic control plan if there is an encroachment on the public right- of-way that affects the normal traffic flow. 5. All material representations made by the applicant in the application shall be adhered to and considered conditions of approval, unless othenvise amended by other conditions. 6. The applicant shall paint all antennas a dark non-reflective color. 7. The applicant shall remove the four antennas proposed for their removal in their applications. 4024-1 , date , $ f /1 1 - _- Jutie Ann Woods. AICP Community Development Director 14 1 City of Aspen ' ~-CD 1-- r :; ATTACHMENTS: (34Â«. ,-,5- I - Exhibit A -- Review Criteria and Staff Comments 8,-34 -,. * dger Exhibit B -- Referral Agency Comments '~i l. ~70/R#(42,Â· -,54 r- - Exhibit C -- Development Application 2 Exhibit j~ Telecom. Equipment F. Review Standards. The following standards are designed to foster the City's safety and aesthetic interests without imposing unreasonable limitations on wireless telecommunication services facilities and equipment.: 1. Setbacks. At a minimum. all wireless telecommunication services facilities and equipment shall comply with the minimum setback requirements of the underlying zone district; if the following requirements are more restrictive than those of the underlying zone district, the more restrictive standard shall apply. a. All facilities shall be located at least fifty (50) feet from any property lines, except when roof-mounted (above the eave line of a building). Flat-roof mounted facilities visible from ground level within one-hundred (100) feet of said property shall be concealed to the extent possible within a compatible architectural element. such as a chimney or ventilation pipe. or behind architectural skirting of the type generally used to conceal HVAC equipment. Pitched-roof mounted facilities shall always be concealed within a compatible architectural element. such as chimneys or ventilation pipes. b. Monopole towers shall be set back from any residentially zoned properties a distance of at least three (3) times the monopole's height (i.e., a sixty (60) foot setback would be required for a twenty (20) foot monopole). and the setback from any public road, as measured from the right-of-way line, shall be at least equal to the height o f the monopole. c. No wireless communication facility may be established within one- hundred (100) feet of any existing, legally established wireless communication facility except when located on the same building or structure. d. No portion of any antenna array shall extend beyond the property lines or into any front yard area. Guy wires shall not be anchored within any front yard area, but may be attached to the building. Staff Finding: The 12 proposed Sprint Antennas that will extend above the highest roof point will not extend past the current height of the existing antennas. The proposed equipment platform will be fully screened from view. The proposed antennas will be attached to the same building. 1. Height. Wireless telecommunication services facilities and/or equipment shall not exceed thirty-five (35) feet in height or the maximum permissible height of the given zone district, whichever is more restrictive. In addition: a. Whenever a wireless telecommunication services antenna is attached to a building roof, the antenna and support system for panel antennas shall not exceed five (5) feet above the highest portion of that roof, including parapet walls, and the antenna and support system for whip antennas shall not exceed fifteen (15) feet above the highest portion of that roof, including parapet walls. b. If the building itself exceeds the height limitations of the zone. and such excess height was legally established (i.e., granted a variance, approved by PUD, etc.), then the combined height of the building and antenna shall not exceed the maximum height allowed by such approval unless determined by the Community Development Director to be suitably camouflaged. c. If the building is constructed at or above the zone district's height limit. or if combined height of the building and the antenna would exceed the applicable height limit, the additional height of the antenna must be reviewed pursuant to the process and standards (in addition to the standards of this Section) of conditional use review. Section 26.425.010. unless determined by the Community Development Director to be suitably camouflaged (in which case an administrative approval may be granted). d. Support and/or switching equipment shall be located inside the building, unless it can be fully screened from view as provided in the "Screening" standards (26.475.130(F)(5)) below. Staff Finding: The 12 antennas that extend four feet six inches over the highest point o f the building will be painted to blend into the building. Staff believes the proposed equipment meets these standards given that they are painted the same color as the building to camouflage them from sight. 3. Architectural Compatibility. W-hether manned or unmanned, wireless telecommunication services fucilities shall be consistent with the architectural style of the surrounding architectural environment (planned or existing) considering exterior materials, roof form, scale, mass, color, texture and character. In addition: a. If such facility is accessory to an existing use, the facility shall be constructed out of materials that are equal to or of better quality than the materials of the principal use. b. Wireless telecommunication services equipment shall be of the same color as the building or structure to which or on which such equipment is mounted, or as required by the appropriate decision- making authority (Community Development Director, Historic Preservation Commission. Planning and Zoning Commission, or City Council, as applicable). c. Whenever wireless telecommunication services equipment is mounted to the wall of a building or structure. the equipment shall be mounted in a configuration designed to blend with and be architecturally integrated into a building or other concealing structure, be as flush to the wall as technically possible, and shall not project above the wall on which it is mounted. d. Monopole support buildings, which house cellular switching devices and/or other equipment related to the use. operation or maintenance of the subj ect monopole. must be designed to match the architecture of adjacent buildings. If no recent and/or reasonable architectural theme is present, the Community Development Director may require a particular design that is deemed to be suitable to the subject location. e. All utilities associated with wireless communication facilities or equipment shall be underground (also see '-Screening" below) Staff Finding: To the extent practical, the antennas are compatible with the architecture of the building. No monopoles or significantly obtrusive equipment will be visible from the street and staff is not recommending any screening measures be implemented. 4. Compatibility With the Natural Environment. Wireless telecommunication services facilities and equipment shall be compatible with the surrounding natural environment considering land forms, topography. and other natural features. and shall not dominate the landscape or present a dominant silhouette on a ridge line. In addition: a. If a location at or near a mountain ridge line is selected. the applicant shall provide computerized, three dimensional, visual simulations of the facility or equipment and other appropriate graphics to demonstrate the visual impact on the view of the r '3 affected ridge(s) or ridge line(s); an 8040 Greenline Review. pursuant to the provisions of Section 26.435.030, may also be required. b. Site disturbances shall be minimized. and existing vegetation shall be preserved or improved to the extent possible. unless it can be demonstrated that such disturbance to vegetation and topography results in less visual impact to the surrounding area. c. Surrounding view planes shall be preserved to the extent possible. d. All wireless telecommunication services facilities and equipment shall comply with the Federal Communication Commission's regulations concerning maximum radio frequency and electromagnetic frequency emissions. Staff Finding: The proposed location is not affected by ridgeline. 8040, or mountain viewplane restrictions. The applicant has committed to meeting FCC regulations regarding the operation of wireless service facilities. 5. Screening. Roof and ground mounted wireless telecommunication services facilities and equipment, including accessory equipment, shall be screened from adjacent and nearby public rights-of-way and public or private properties by paint color selection, parapet walls. screen walls. fencing, landscaping and/or berming in a manner compatible with the building's and/or surrounding environment' s design, color, materials. texture, land forms and/or topography. as appropriate or applicable. In addition: a. Whenever possible. if monopoles are necessary for the support of antennas, they shall be located near existing utility poles, trees, or other similar objects; consistent of colors and materials that best blend with their background; and, have no individual antennas or climbing spikes on the pole other than those approved by the appropriate decision-making authority (Community Development Director. Historic Preservation Commission, Planning and Zoning Commission, or City Council, as applicable). b. For ground mounted facilities, landscaping may be required to achieve a total screening effect at the base of such facilities or equipment in order to screen the mechanical characteristics: a heavy emphasis on coniferous plants for year-round screening may be required. Landscaping shall be of a type and variety capable of growing within one (1) year to a landscape screen which satisfactorily obscures the visibility of the facility. '' B c. Unless otherwise expressly approved, all cables for a facility shall be fully concealed from view underground or inside of the screening or monopole structure supporting the antennas; any cables that cannot be buried or otherwise hidden from view shall be painted to match the color of the building or other existing structure. d. Chain link fencing shall be unacceptable to screen facilities, support structures, or accessory and related equipment (including HVAC or mechanical equipment present on support buildings); fencing material, if used, shall be six (6) feet in height or less and shall consist of wood, masonry, stucco, stone or other acceptable materials that are opaque. e. Notwithstanding the foregoing, the facility shall comply with all additional measures deemed necessary to mitigate the visual impact of the facility. Also. in lieu of these screening standards, the Community Development Director may allow use of an alternate detailed plan and specifications for landscape and screening, including plantings. fences. walls. sign and structural applications, manufactured devices and other features designed to screen. camouflage and buffer antennas, poles and accessory uses. For example, the antenna and supporting structure or monopole may be of such design and treated with an architectural material so that it is camoutlaged to resemble a tree with a single trun-k and branches on its upper part. The plan should accomplish the same degree of screening achieved by meeting the standards outlined above. Staff Finding: The proposed support equipment platform will be fully screened from view. No additional screening is recommended. The antennas will not be visible from the streetscape. The applicant shall paint the antennas to blend in with the building. 6. Lighting and Signage. In addition to other applicable sections o f the code regulating signage or outdoor lighting, the following standards shall apply to wireless telecommunication services facilities and equipment: a. The light source for security lighting shall feature down- directional, sharp cut-off luminaries to direct, control, screen or shade in such a manner as to ensure that there is no spillage of illumination off-site. b. Light fixtures, whether free-standing or tower-mounted. shall not exceed twelve (12) feet in height as measured from finished grade. I k c. The display of any sign or advertising device other than public safety warnings, certifications or other required seals on any wireless communication device or structure is prohibited. d. The telephone number(s) to contact in an emergency shall be posted on each facility in conformance with the provisions of Chapter 26.510 of the Aspen Municipal Code. Staff Finding: The equipment proposed does not require any lighting. 1. Access Wavs. In addition to ingress and egress requirements of the Building Code. access to and from wireless telecommunication services facilities and equipment shall be regulated as follows: a. No wireless communication device or facility shall be located in a required parking, maneuvering or vehicle/pedestrian circulation area such that it interferes with. or in any way impairs. the intent or functionality of the original design. b. The facility must be secured from access by the general public but access for emergency services must be ensured. Access roads . must be capable of supporting all potential emergency response vehicles and equipment. c. The proposed easement(s) for ingress and egress and for electrical and telephone shall be recorded at the Pitkin County Clerk and Recorder's Office prior to the issuance of building permits. Staff Finding: The equipment is not proposed in an area requiring vehicular circulation. MEMORANDUM To: James Lindt, Planner From: Ben Ludlow, Project Engineer~~ Date: October 13, 2000 Re: Liberty Wireless Telecom Facility Instalation 1 The applicant will be required to obtain a ROW permit if there is disturbance of the public ROW during construction. 2. The applicant will be required to obtain a Temporary Encroachment license during construction when the public ROW is used for construction storage. 3. Construction storage in the public ROW is to be maintained at a level that does not permit loose materials in the public ROW. 4. If necessary, a traffic control plan will be required if there is an encroachment on the public ROW that affects normal traffic flow. 9-27-200 2:54PM FROM SEYFERTH AND ASSOC. 3037977773 P. 3 NK #*.742--b. ., 1> & A: YAr- - q C.~ k All ./ I . -I;-P- 6 -- -I Liberty WireStar, Inc. 730 17 Suite 635, Denver, CO 80202 th Street, FAX & TRANSM[TTAL SHEET TO: James Lindt FAX: 970-920-5439 PHONE: 970-920-5104 FROM: R.C.Powell Fax: (303) 534-6992 720-320-2514 mobile Phone: (303) 534-6991 rcpowell@libertywire.com DATE: Oct.02,2000 RE: 620 East Hopkins Street AT&TWS Cell Site/Robert Clark Dear: James, This revised reply to your request for information concerning 620 East Hopkins Street, AT&1'WS cell Site on Robert Clark's building hopefully will be sufficient for the administrative review and approval for the permits needed to move forward with the upgrade as has been outlined with the attached answers in a timely manner. Please feel free to contact me on anything you may need to complete this approval. THANKS!! James, please let me know if these answers will be sufficient as soon as you can, I would appreciate that very much. THANKS!! ThankyÂ»u. in/\ I NUMBER OF PAGES INCLUDING THIS COVER PAGE: CONFIDENTIALITY STATEMENT The information contained in the following fax is confidentiat unless otherwise addressed, and is intended for the recipient(s) shown above only. Please notify us ifthere is any problem with this transmiuion. t/[ 'd 1919'ON 3*1638!AA X183811 Adlt:l 000E 9 '100 October 02,2000 James Lindt: Dear James, I hope the following will be what is necessary for your needs in this matter. Wireless Telco - Services Facilities and Equipment Review Standards: 1 = Setbacks = Not applicable (NA) roof top site a = N/A roo f mounted b -N/A c =N/A d = N/A 2 = Height: a = Please refer to Brian Seyferth *SA) Plan Drawings b = Please refer to BSA Drawings c = Please refer to BSA Plans d = Equipment room is in the basement e = We will comply with this 4 = Compatibility with the Natuy.1 Frivironment (we will comply) a=N/A b=N/A c = We will comply d = We will comply 8/1 'd 8609'ON 3Â¥1638!M A1U3811 MÂ¥32:[1 0002 3 -100 5 = Screening ( Parapet walls m place) a = NA b = N/A c = We will comply d = NA e = We will comply 6 = Lighting and signagc a = We will comply b = We will comply c = We will comply d = We will comply 7 = Access Ways: a=N/A b - We will comply c = We will comply James; Please feel free to contact me should you need further assistance on the answers I have given on these requirements. Thanks!! 41 R.L.roweli Liberty Wire Star/AT&TWS d 8609'ON 3Â¥1633!M *133911 MÂ¥33:11 0003 ' /, ra Liberty WireStar, Inc. 73017th Street, Suite 635, Denver, CO 80202 FAX & TRANSMITTAL SHEET TO: James Lindt FAX: 970-920-5439 PHONE: 970-920-5104 FROM: R.C.Powell Fax: (303) 534-6992 720-320-2514 mobile Phone: (303) 534-6991 repowell@libertywire.com DATE: Oct.02,2000 RE: 620 East Hopkins Street AT&TWS Cell Site/Robert Clark Dear: James, This reply to your request for information concerning 620 East Hopkins Street, AT&TWS cell Site on Robert Clark's building hopefully will be sufficient for the administrative review and approval for the permits needed to move forward with the upgrade as has been outlined with the attached answers in a timely manner. Please feel free to contact me on anything you may need to complete this approval. THANKS! ! James, please let me know if these answers will be sufficient as soon as you can, I would appreciate that very much. THANKS! ! Thank you. t R.C.Powell NUMBER OF PAGES INCLUDING THIS COVER PAGE; CONFIDENTIALITY STATEMENT The information contained in thefollowing fax is confidential, unless otherwise addressed, and u intended for the recipient@) shown above only. Please notify us if there is aity problem with this transmission. 8/1 'd 8609'ON 3Â¥1633IAA X183811 NVEE:11 0001 1 100 -28-200 10:53AM FROM SEYFERTH AND ASSOC. 3037977773 BRIAN SEYFERâ„¢ & ASSOCIATES, INC ~2.7 ~ Fax Transmittal ;7TF-TT 5583 South Prince Street Uttleton, Colorado 80120 Office: 303-797-7772 Fax: 303-797-7773 To: James Lindt From: Tom Brunn Company. City of Aspen - Planning Pages Incl 2 Transmitlal: Fax: 970-920-5439 Date: Thursday, September 28,2000 Phone: 970-920-5104 CC: Re: 620 East Hopkins Street, Aspen, CO Â¤ Urgent 0 For Review O Please Comment O Please Reply O Copy Sent by Mail â€¢ Comments: Attached is a protion of the North Elevation Drawing of 620 East Hopkins that was sent to you yesterday. On this drawing I have added the dimension from the top of the parapet to the top ofthe existing whip antennas for AT&T Wireless. The antennas were measured yesterday by R. C. Powell with Liberty Wirestar. -27-2ee 2:52PM FROM SEYFERTH AND ASSOC. 3037977773 BRIAN SEYFERTH & ASSOCIATES, INC. - Fax Transmittal 7r. m 5583 South Prince Street Littleton, Colorado 80120 Office. 303-797-7772 Fax: 303-797-7773 To: James Lindt From: Tom Brunn Company: City of Aspen - Planning Pages Incl. 3 Transmittal: Fax: 970-920-5439 Date: Wednesday, September 27,2000 Phone; 970-920-5104 CC: Re: 620 East Hopkins Street, Aspen, CO O Urgent 9 For Review O Please Comment Â£ Please Reply O Copy Sent by Mail â€¢ Comments: Attached is a portion ofthe North Elevation of 620 East Hopkins Street as shown on elevation 1/A-2 on Drawing A-2 dated 09/12/00. This part of the front elevation shows the existing whip antennas with dashed lines and keyed note #1. The whip antennas for AT&T Wireless are to be removed after the placement of the new panel antennas. The drawing notes that the top of the new panel antennas will not exceed the top of the existing whip antennas. Also attached is a copy ofa photograph that shows the existing whip antennas mounted to tile back ofthe parapet walls. F-TOP OF NEW PANEL ANTENNAS / NOT TO EXCEED TOP OF ~ EXISTING WHIP ANTENNAS. fi -//Â»> ll 11 11 11 1 1 il /1 11 11 . <r F ---9 i [ - i Ill Il : ...C A-4 1 1/ 1 . - -- --- ---- ---11 A-4 , ---XM~ Â·---irirf-fi-f--_i~-3----KikcnitfizI--_33-=-viff~,-----4--Mv~Kw~-L---- ru --KF)M---/53492Â·212--LXA-*- Af -- -1- --.- ------- -------- --- ..... ... --- ___ Ff< 7- v i , 1 .1 lii 44 9 2 //9, 4/1 39 11 1 1 + f 11 /1 il ir h . -0 \ 10 l ii '/31 -__r;- P-J V N .1 1 9-27-200 2:53PM FROM SEYFERTH AND ASSOC. 3037977773 (, f e, Recorded at o.clock .M. 43 Reception Recorder L RECORDING REQUESTED BY: m"2> WHEN RECORDED RETURN TO: 41 Robert D. Clark ~ 1330 Sandstone Drive, No. 5 D U 140 0 0 1 \ Vail, Colorado 81657 0 \ Y GENERAL WARRANTY DEED THIS DEED is made this of' day of July, 1999 between FORREST L. SMITH 02 Â« (hereinafter "Grantor"), and THE ROBERT CLARK TRUST DATED 9/22/93 (hereinafter â€¢24 -Grantee"), whose legal address is 1330 Sandstone Drive, No. 5, Vail, Colorado 81657. O h> WITNESSETH, that the Grantor, for and in consideration of the sum of Ten Dollars \ I310.00) and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, has granted, bargained, sold, and conveyed, and by these presents does grant, bargain, sell, convey and confirm, unto the Grantee, its successors and assigns forever, all the real property together with improvements, if any, situate, lying and being in the County o f Pitkin, State of Colorado, described as follows: Condominium Units 2 through 13, Inclusive, THE TOTEMS, a Condominium, Pitkin County, Colorado, according to the recorded Plat thereof recorded April 12, 1999 in Plat Book 49 at Page 14 as Reception No. 429812, and Condominium Declaration thereof recorded April 12, 1999 as Reception No. 429811, in the Pitkin County, Colorado records. COUNTY OF PITKIN, STATE OF COLORADO. TOGETHER with all and singular the hereditaments and appurtenances thereto belonging E i h or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof, and all the estate. right, title, interest, claim and demand whatsoever of the Grantor, either in law or equity, of, in and to the above bargained premises, with the hereditaments and appurtenances. Z 82 Q TO HAVE AND TO HOLD the said premises above bargained and described, with the 9 i ~ ~ appurtenances, unto the Grantee, its successors and assigns forever. And the Grantor for himself, 0..1 his heirs, successors and assigns, does covenant, grant, bargain and agree to and with the Grantee, successors and assigns, that at the time o f the ensealing and delivery o f these presents, he is well NÂ©1*ed of the premises above conveyed, has good, sure, perfect, absolute and indefeasible estate of -54:tinheritance, in law, in fee simple, and has good right, full power and lawful authority to grant, ri~ain, sell and convey the same in manner and form as aforesaid, and that the same is free and Xkclear from all former and other grants, bargains, sales, liens, taxes, assessments, encumbrances and \J\- restrictions o f whatever kind or nature whatsoever, except the following exceptions: 1. General taxes for 1999, due and payable in 2000. 2. Exceptions and reservations as set forth in the Act authorizing the issuance of the Patent for the City and Townsite of Aspen recorded March 1, 1897 in Book 139 at Page 216 as Reception No. 60156. 3. Any and all leases and tenancies. 4. Terms, conditions, obligations and provisions of License Agreement as set forth in instrument recorded May 17, 1996 as Reception No. 392783. 5. Terms, conditions, obligations and restrictions as set forth in Condominium Declaration for The Totems, a Condominium, recorded April 12,1999 as Reception No. 429811. 1111111111111111111111111111111111111111111111111111111 433978 08/02/1999 10:08A WD DAVIS SILVI 1 of 2 R 10.00 D 140.00 N 0.00 PITKIN COUNTY CO CI~YREOTFT 0 (c, 01 -7 CIT Y OF ASPEN J> If,/ 27 6. Easements, conditions and restrictions as set forth on the Condominium Map for The Totems recorded April 12, 1999 in Plat Book 49 at Page 14 as Reception No. 429812. 7. Subject to building and zoning regulations. All documents are recorded in the records ofPitkin County, Colorado. The Grantor shall and will WARRANT AND FOREVER DEFEND the above bargained premises in the quiet and peaceable possession ofthe Grantee, its successors and assigns, against all and every person or persons lawfully claiming the whole or any part thereof. The singular number shall include the plural, the plural the singular and the use of any gender shall be applicable to all genders. IN WITNESS WHEREOF, the Grantor has executed this General WarrantÂ¥ Deed on the date set forth above. ~0,1*1 '4Â·E ~â€ž ~, jtÂ»4 il u/4, f 01.1 P 4 143- rre~t Â¥. SI#ith bl~ Brodke A'. P&erhon, ~Iis Attorney lin Fact STATE OF COLORADO ) ) SS. COUNTY OF PITKIN ) The foregoing instrument was acknowledged and sworn to before me this ~~) day of July, 1999 by Brooke A. Peterson as Attorney in Fact for Forrest L. Smith. WITNESS my hand and official seal. My commission expires: /&-27-906)/ /42*04 L-fu~ & 0 4.Â»~u )96 Notary Public realestate\gwd-smith2 Ilit, 9Â¢4 j n j Y,-CKN- 47 Xi COLORâ‚¬35#' -2- 111111111111111111 lili 1111111 111111111111111111 lili lili 433978 08/02/1999 10:08A WD DAVIS SILVI 2 of 2 R 10.00 D 140.00 N 0.00 PITKIN COUNTY CO 0 STATE OF Colorado ) AFFIDAVIT ... 0-- ) (For Property of Trust) COUNTY OF Pitkin ) Robert GESKE Dean Clark , of lawful age. being first duly sworn, upon P oath, depose(s) and say(s) 1. Affiant(s) is/are (one of the) trustees ofthe hereinafter named trust and as such Â®D... has/have authority to execute and to record this affidavit. : 0- 7 The Robert Clark Trust Dated 9/22/93 go== -D- 2<=== is the name of a trust which may acquire, convey, encumber, lease and otherwise deal with 0 3,== interests in real property in said name. C In- 2.4-- 3. The names and addresses of all ofthe trustees who are represented by such trust name n - =I are NAME: ADDRESS: oil Robert EXIEN Dean Clark 144 3 L- \-%'50 S.Ao=Wat~t rb a..8 5 -- 9 AA- 1 (.0 81657 4 Any one (two, or three) of the above-named trustees or any ofthe following other persons or entities may convey, encumber, lease or otherwise deal with any interest in the property acquired or held in the name of said trust 5 This affidavit is executed and recorded pursuant to the provision of Title 38-30, Section 166 of Colorado Revised Statues, as amended Robert ***** Dean Clark ~ SUBSCRIBED AND SWORN to before me this 30th day of July , 1999 WITNESS my hand and official seal Mycommission expires 12/27/2001 LiÂ«UÂ« e-*Sipirt-/-~1 Notary Public seal f di' 41. iws ;kN '49211,4 1 11!1!f~!1/111 : 9 TRUS Plool -7 4 '41 Recorded at o'clock .M. FE Reception Recorder 10 r RECORDING REQUESTED BY: El: WHEN RECORDED RETURN TO: 900 Robert D. Clark D F.4 Â»boo \3 1330 Sandstone Drive, No. 5 2 1 f Vail, Colorado 81657 3Â£&?4 4 GENERAL WARRANTY DEED THIS DEED is made this A day of July, 1999 between FORREST L. SMITH ~~ "Grantee"), whose legal address is 1330 Sandstone Drive, No. 5, Vail, Colorado 81657. (hereinafter "Grantor"), and THE ROBERT CLARK TRUST DATED 9/22/93 (hereinafter WITNESSETH, that the Grantor, for and in consideration of the sum of Ten Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, has granted, bargained, sold, and conveyed, and by these presents does grant, bargain, sell, convey and confirm, unto the Grantee, its successors and assigns forever, all the real property together with improvements, i f any, situate, lying and being in the County of Pitkin, State o f Colorado, described as follows: Condominium Unit 1, THE TOTEMS, a Condominium, Pitkin County, Colorado, according to the recorded Plat thereof recorded April 12, 1999 in Plat Book 49 at Page 14 as Reception No. 429812, and Condominium Declaration thereof recorded April 12, 1999 as Reception No. 429811, in the Pitkin County, Colorado records. COUNTY OF PITKIN, STATE OF COLORADO. TOGETHER with all and singular the hereditaments and appurtenances thereto belonging \L or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues g and profits thereof, and all the estate, right, title, interest, claim and demand whatsoever of the -2 Grantor, either in law or equity, of, in and to the above bargained premises, with the hereditaments DZ Eld appurtenances. Â»Z G TO HAVE AND TO HOLD the said premises above bargained and described, with the -*4c Zi gppurtenances, unto the Grantee, its successors and assigns forever. And the Grantor for himself, # ~ mis heirs, successors and assigns, does covenant, grant, bargain and agree to and with the Grantee, its successors and assigns, that at the time o f the ensealing and delivery o f these presents, he is well <~~- ~ ~ ~#eized of the premises above conveyed, has good, sure, perfect, absolute and indefeasible estate of \*- 4nheritance, in law, in fee simple, and has good right, full power and lawful authority to grant, -kys~iI %argain, sell and convey the same in manner and form as aforesaid, and that the same is free and clear from all former and other grants, bargains, sales, liens, taxes, assessments, encumbrances and restrictions o f whatever kind or nature whatsoever, except the following exceptions: 1. General taxes for 1999, due and payable in 2000. 2. Exceptions and reservations as set forth in the Act authorizing the issuance of the Patent for the City and Townsite of Aspen recorded March 1, 1897 in Book 139 at Page 216 as Reception No. 60156. 3. Any and all leases and tenancies. 4. Terms, conditions, obligations and provisions of License Agreement as set forth in instrument recorded May 17, 1996 as Reception No. 392783. 5. Terms, conditions, obligations and restrictions as set forth in Condominium Declaration for The Totems, a Condominium, recorded April 12,1999 as Reception No. 429811. 1111111111111111111111111111111111111111111111111111111 433980 433980 08/02/1999 10:09A WD DAVIS SILVI TRANSFER DECLARATION RECEIVED 08/02/1999 1 of 2 R 10.00 D 200.00 N 0.00 PITKIN COUNTY CO ASPEN 24 60 1 -7 SPEN 6. Easements, conditions and restrictions as set forth on the Condominium Map for The Totems recorded April 12,1999 in Plat Book 49 at Page 14 as Reception No. 429812. 7. Subject to building and zoning regulations. All documents are recorded in the records of Pitkin County, Colorado. The Grantor shall and will WARRANT AND FOREVER DEFEND the above bargained premises in the quiet and peaceable possession ofthe Grantee, its successors and assigns, against all and every person or persons lawfully claiming the whole or any part thereof. The singular number shall include the plural, the plural the singular and the use of any gender shall be applicable to all genders. IN WITNESS WHEREOF, the Grantor has executed this General Warrantyfeed on the date set forth above. 639'Â« 4 60/ /7 1 Â» 1 4% 31, / f liorr~t 44 Sm#h bÂ¢ Brooke A) PAerson, His*ttorney in Facf STATE OF COLORADO ) ) SS. COUNTY OF PITKIN ) The foregoing instrument was acknowledged and sworn to before me this BO day ofJuly, 1999 by Brooke A. Peterson as Attorney in Fact for Forrest L. Smith. WITNESS my hand and official seal. Mycommission expires: /2-27-POD / Notary Public 0/â‚¬:FF-2% realestate\gwd-smith .- ~1.>,~--6.to,-,IA 'RE~ r. I Â· 11 A rl , n ..7 ./.'~~ ->- r -2- 1111111111111111111111111111111111111111111111111111111 433980 08/02/1999 10:09A WD DAVIS SILVI 2 of 2 R 10.00 D 200.00 N 0.00 PITKIN COUNTY CO 1 699 2. An,4 * ~Etrp---2-ev,-ae-- 53>+ F Ax: &03) 5-96 124-2 FRaM * Fbo~ C,U,1*,C RECORDATION REQUESTED BY: Alplne Bank 600 East Hopkins, Suite 001 Aspen, CO 81611 WHEN RECORDED MAIL TO: Alplne Bank 600 East Hopkins, Suite 001 Aspen, CO 81611 SEND TAX NOTICES TO: ROBERT CLARK TRUST DATED SEPTEMBER 22,1993 , Co SPACE ABOVE THIS LINE IS FOR RECORDER'S USE ONLY DEED OF TRUST THIS DEED OF TRUST IS among ROBERT CLARK TRUST DATED SEPTEMBER 22, 1993, whose address is, , CO (referred to below as "Grantor"); Alpine Bank, whose address is 600 East Hopkins, Suite 001, Aspen, CO 81611 (referred to below sometimes as "Lender" and sometimes as "Beneficiary"); and the Public Trustee of PITKIN County, Colorado (referred to below as "Trustee"). CONVEYANCE AND GRANT. For valuable consideration, Grantor hereby Irrevocably grants, transfers and assigns to Trustee for the benefit of Lender as Beneficiary all of Grantors right, title, and interest in and to the following described real property, together with all existing or subsequently erected or affixed buildings, Improvements and fixtures; all easements, rights of way, and appurtenances; all water, water rights and ditch Aghts (including stock in utilities with ditch or irrigation rights); and all other rights, royalties, and profits relating to the real property, including without limitation all minerals, oil, gas, geothermal and similar matters, located in PITKIN County, State of Colorado (the "Real Property"): CONDOMINIUM UNITS 1 THROUGH 13, THE TOTEMS, A CONDOMINIUM, PITKIN COUNTY COLORADO, ACCORDING TO THE RECORDED PLAT THEREOF RECORDED APRIL 12, 1999 IN PLAT BOOK 49 AT PAGE 14 AS RECEPTION NO. 429812, AND CONDOMINIUM DECLARATION THEREOF RECORDED APRIL 12, 1999 AS RECEPTION NO. 429811, IN THE PITKIN COUNTY, COLORADO RECORDS. COUNTY OF PITKIN, STATE OF COLORADO. The Real Property or its address is commonly known as 620 EAST HOPKINS AVE, ASPEN, CO 81611. Grantor presently assigns lo Lender (also known as Beneficiary in this Deed of Trust) all of Grantor's right, litle, and interest in and to all present and luture leases ol the Properly and all Rents trom the Property. In addition, Grantor grants Lender a Uniform Commercial Code security interest in the Rents and the Personal Property defined below. DEFINITIONS. The following words shall have the following meanings when used in this Deed of Trust. Terms not otherwise defined in this Deed of Trust shall have the meanings attributed to such terms in the Uniform Commercial Code. All references to dollar amounts shall mean amounts in lawful money 01 the United States of America. Beneficiary. The word 'Beneliciary' means Alpine Bank, its successors and assigns. Alplne Bank also is referred to as "Lender" in this Dead of Trust. Borrower. The word "Borrower means each and every person or entity signing the Note, including without limitation ROBERT D. CLARK. Deed of Trust. The words "Dead of Trust" mean this Deed of Trust among Grantor, Lender, and Trustee, and includes without limitation all assignment and security interest provisions relating to the Personal Property and Rents. Existing Indebtedness. The words "Existing Indebtedness- mean the indebtedness described below in the Existing Indebtedness section of this Deed ol Trust. Grantor. The word 'Grantor' means any and all persons and entities executing this Dead of Trust, including without limitation ROBERT CLARK TRUST DATED SEPTEMBER 22, 1993. Any Grantor who signs this Dead of Trust, but does not sign the Note, is signing this Deed of Trust only to grant and convey that Grantor's interest in the Real Properly and to grant a security interest in Grantor's interest in the Rents and Personal Property to Lender and is not personally liable under the Note except as otherwise provided by contract or law. Guarantor. The word "Guarantor" means and Includes without limitation any and all guarantors, sureties, and accommodation parties in connection with the Indebtedness. Improvements. The word "Improvements" means and Includes without limitation all existing and future improvements, buildings, structures, mobile homes affixed on Ihe Real Property, facilities, additions, replacements and other construction on the Real Property. Indebtedness. The word ~Indebledness" means all principal and Interest payable under the Note and any amounts expended or advanced by Lender to discharge obligations of Grantor or expenses incurred by Trustee or Lender to enforce obligations of Grantor under this Deed of Trust, together with interest on such amounts as provided in this Deed of Trust. The lien of this Deed of Trust shall not exceed at any one time $1,700,000.00. Lender. The word tendef means Alpine Bank, its successors and assigns. Note. The word "Note" means the Note dated July 23, 1999, in the principal amount of $1,700,000.00 from Borrower to Lender, together with all renewals, extensions, modifications, refinancings, and substitutions for the Note. The maturity date of this Dead of Trust is July 30, 2014. NOTICE TO GRANTOR: THE NOTE CONTAINS A VARIABLE INTEREST RATE. Personal Property. The words 'Personal ProperM mean all equipment, fixtures, and other articles of personal properly now or hereafter owned by Grantor, and now or hereafter attached or affixed to the Real Property; together with all accessions, parts, and additions to, all replacements of, and all substitutions for, any of such property; and together with all proceeds (including without limitation all insurance proceeds and refunds of premiums) from any sale or other disposition ot the Property. Property. The word "Propefty" means collectively the Real Properly and the Personal Property. Real Property. The words "Real Properly" mean the property, interests and rights described above in the "Conveyance and Grant" section. Related Documents. The words "Related Documents" mean and include without limitation all promissory notes, credit agreements, loan agreements, environmental agreements, guaranties, security agreements, mortgages, deeds of trust, and all other instruments, agreements 2$0 Â£ 7 07-23-1999 DEED OF TRUST Page 2 Loan No 02857424-01 (Continued) and documents, whether now or hereafter existing, executed in Connection with the Indebtedness. Rents. The word -Rents- means all present and future rents, revenues, income, issues, royalties, profits, and other benefits derived from the Property. Trustee. The word 1rustee" means the Public Trustee of PITKIN County, Colorado. THIS DEED OF TRUST, INCLUDING THE ASSIGNMENT OF RENTS AND THE SECURITY INTEREST IN THE RENTS AND PERSONAL PROPERTY, IS GIVEN TO SECURE (1) PAYMENT OF THE INDEBTEDNESS AND (2) PERFORMANCE OF ANY AND ALL OBLIGATIONS OF GRANTOR UNDER THE NOTE, THE RELATED DOCUMENTS, AND THIS DEED OF TRUST. THIS DEED OF TRUST IS GIVEN AND ACCEPTED ON THE FOLLOWING TERMS: GRANTOR'S REPRESENTATIONS AND WARRANTIES. GrafWor warrants thai: (a) this Deed of Trust is executed at Borrokees request and not at Ihe request of Lender; (b) Grantor has the full power, right, and authority to enter into this Deed of Trust and to hypolhecate the Property; (c) the provisions of this Deed of Trust do not conflict with, or result in a default under any agreement or other instrument binding upon Grantor and do not result in a violation of any law, regulation, court decree or order applicable to Grantor; (d) Grantor has established adequate means 01 obtaining from Borrower on a continuing basis information about Borrowefs financial condition; and (e) Lender has made no representatton to Grantor about Borrower (including without limitation the creditworthiness of Borrower). GRANTOR'S WAIVERS. Grantor waives all rights or defenses arising by reason of any "one action" or "anlk-deficiency" law, or any other law which may prevent Lender from bringing any action against Grantor, including a claim for deficiency to the extent Lender Is otherwise entitled to a claim for deficiency, before or after Lender's commencement or completion of any loreclosure action, either judicially or by exercise of a power of sale. PAYMENT AND PERFORMANCE. Except as otherwise provided in this Deed of Trust, Borrower shall pay to Lender all Indebtedness secured by this Deed of Trust as it becomes due, and Borrower and Grantor shall strictly perform all their respective obligations under the Note, this Deed of Trust, and the Related Documents. POSSESSION AND MAINTENANCE OF THE PROPERTY. Grantor and Borrower agree that Granlor's possession and use of the Property shall be governed by the following provisions: Possession and Use. Until the occurrence of an Event of Default, Grantor may (a) remain in possession and control of the Property, (b) use, operate or manage the Property, and (c) collect any Rents from the Property. Duty to Maintain. Grantor shall maintain the Property in tenantable condition and promptly perform all repairs, replacements, and maintenance necessary to preserve its value. Hazardous Substances. The terms "hazardous waste," 'hazardous substance," "disposal," "release," and "threatened release," as used in this Dead of Trust, shall have Ihe same meanings as set forth in the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et seq. ("CERCLA"), the Supertund Amendments and Reauthonzation Act of 1986, Pub. L. No. 99-499 CSARA'), the Hazardous Materials Transporiation Act, 49 U.S.C. Section 1801, et seq., the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., or other applicable state or Federal laws, rules, or regulations adopted pursuant to any 01 the foregoing. The terms "hazardous waste" and "hazardous substance" shall also include, without limitation, petroleum and petroleum by-products or any fraction Ihereof and asbestos. Grantor represents and warrants to Lender that: (a) Dunng the period of Grantor's ownership of the Property, there has been no use, generation, manufacture, storage, treatment, disposal, release or threatened release of any hazardous waste or substance by any person on, under, about or from the Properly; (b) Grantor has no knowledge of, or reason to believe that there has been, except as previously disclosed to and acknowledged by Lender in writing, (i) any use, generation, manufacture, storage, treatment, disposal, release, or threatened release of any hazardous waste or substance on, under, about or from the Property by any prior owner's or occupants of the Property or (ii) any actual or threatened litigation or claims of any kind by any person relating to such matters; and (c) Except as previously disclosed to and acknowledged by Lender in writing, (i) neither Grantor nor any tenant, contractor, agent or other authorized user of the Property shall use, generate, manufacture, store, treat, dispose of, or release any hazardous waste or substance on, under, about or from the Property and (ii) any such activity shall be conducted in compliance with all applicable federal, slate, and local laws, regulations and ordinances, including without limitation those laws, regulations, and ordinances described above. Grantor authorizes Lender and its agents to enter upon the Properly to make such inspections and tests, at Grantor's expense, as Lender may deem appropriate to determine compliance of the Property with this section of the Deed of Trust. Any inspections or tests made by Lender shall be for Lender's purposes only and shall not be construed to create any responsibility or liability on the part of Lender to Grantor or to any other person. The representations and warranties contained herein are based on Grantots due diligence in investigating the Property lor hazardous waste and hazardous substances. Grantor hereby (a) releases and waives any future claims against Lender for indemnity or contribution in the event Grantor becomes liable for cleanup or other costs under any such laws, and (b) agrees to indemnity and hold harmless Lender against any and all claims, losses, liabilities, damages, penalties, and expenses which Lender may directly or indirectly sustain or suffer resulting from a breach of this section of the Deed of Trust or as a consequence of any use, generation, manufacture, storage, disposal, release or threatened release of a hazardous waste or substance on the properties. The provisions of this section of the Deed of Trust, including the obligation lo Indemnify, shall survive the payment of the Indebledness and the satistachon and reconveyance of the lien of this Deed of Trust and shall not be affected by Lender's acquisition of any interest in the Property, whether by foreclosure or Otherwise. Nuisance, Waste. Grantor shall not cause, conduct or permit any nuisance nor commit, permit, or suHer any stripping of or waste on or to the Property or any portion of the Property. Without limiting the generality of the foregoing, Grantor will not remove, or grant to any other party the right to remove, any timber, minerals (including oil and gas), soil, gravel or rock products without the prior written consent of Lender. Removal of Improvements. Grantor shall not demolish or remove any Improvements from the Real Property without the prior wntlen consent of Lender. As a condition to the removal 01 any Improvements, Lender may require Grantor to make arrangements satisfactory to Lender to replace such Improvements with Improvements of at least equal value. Lender's Right to Enter. Lender and Its agents and representatives may enter upon the Real Property al all reasonable times to attend to Lender's interests and to inspect the Property for purposes of Grantofs compliance with the terms and conditions of this Deed of Trust. Compliance with Governmental Requirements. Grantor shall promptly comply with all laws, ordinances, and regulations, now or hereafter In effect, of all governmental authorities applicable to the use or occupancy of the Property, including without limitation, the Americans With Disabilities Act. Grantor may contest In good faith any such law, ordinance, or regulation and withhold compliance during any proceeding, including appropriate appeals, so long as Grantor has notified Lender In writing prior to doing so and so long as, in Lender's sole opinion, Lender's interests in the Property are not jeopardized. Lender may require Grantor to post adequate security or a surety bond, reasonably satisfactory to Lender, to protect Lender's interest. Duty to Protect. Grantor Bgrees neither to abandon nor leave unattended the Property. Grantor shall do all other acts, in addition to those acts set forth above in this section, which from the character and use of the Properly are reasonably necessary to protect and preserve the Property. DUE ON SALE - CONSENT BY LENDER. Lender may, at its option, declare immediately due and payable all sums secured by this Deed of Trust upon the sale or transfer, without the Lender's prior written consent, of all or any part of the Real Property, or any interest in the Real Property. A *sale or transfer" means the conveyance of Real Property or any right, title or interest therein; whether legal, beneficial or equitable; whether voluntary or involuntary; whether by ouinght sale, deed, installment sale contract, land contract, contract for deed, leasehold interest with a term greater than three (3) years, lease-option contract, or by sale, assignment, or transfer of any beneficial interest in or to any land trust holding title to the Real Properly, or by any other method of conveyance of Real Property interest. If any Grantor is a corporation, partnership or limited liability company, transter also includes any change in ownership of more than twenty-five percent (25%) of the voting stock, partnership interests or limited liability company interests, as the case may be, of Grantor. However, this option shall not be exercised by Lender if such exercise is prohibited by federal law or by Colorado law. TAXES AND LIENS. The following provisions relating to the taxes and liens on the Properly are a part of this Deed of Trust. Payment. Grantor shall pay when due (and in all events prior to delinquency) all taxes, special taxes, assessments, charges (including water 07-23-1999 DEED OF TRUST Page 3 Loan No 02857424-01 (Continued) and sewer), fines and impositions levied against or on account of the Property, and shall pay when due all claims for work done on or for services rendered or material furnished to the Property. Grantor shall maintain the Property free of all liens having pnonty over or equal to the interest of Lender under this Deed of Trust, except for the lien of taxes and assessments not due, except for the existing Indebtedness referred to below, and except as otherwise provided in this Deed of Trust. Right To Contest. Grantor may withhold payment of any tax, assessment, or claim in connection with a good faith dispute over the obligation to pay, so long as Lender's interest in the Property is not jeopardized. If a lien arises or is filed as a result of nonpayment Grantor shall within fifteen (15) days after the lien arises or, if a lien is filed, within fifteen (15) days after Grantor has notice of the filing, secure the discharge of the lien, or if requested by Lender, deposit with Lender cash or a sufficient corporate surety bond or other secunty satisfactory to Lender in an amount sufficient to discharge the lien plus any costs and attorneys' lees or other charges that could accrue as a result 01 a foreclosure or sale under the lien. In any contest, Grantor shall defend itself and Lender and shall satisfy any adverse judgment before enforcement against the Property. Grantor shall name Lender as an additional obligee under any surety bond furnished in the contest proceedings. Evidence of Payment. Grantor shall upon demand furnish to Lender satisfactory evidence of payment of the taxes or assessments and shall authonze the appropriate governmental official to deliver to Lender at any time a written statement of the taxes and assessments against the Properly. Notice of Construction. Grantor shall notify Lender at least fifteen (15) days before any work is commenced, any services are furnished, or any materials are supplied lo the Property, 11 any mechanic's lien, materialmen's lien, or other lien could be asserted on account of the work, services, or matenals. Granlor will upon request of Lender furnish to Lender advance assurances satisfactory to Lender thal Grantor can and will pay the cost of such improvements. PROPERTY DAMAGE INSURANCE. The following provisions relating to insuring the Property are a part of this Deed of Trust. Maintenance of Insurance. Grantor shall procure and maintain policies of fire insurance wMh standard extended coverage endorsements on a replacement basis for the full insurable value covering all Improvements on the Real Property in an amount sufficient to avoid application of any coinsurance clause, and with a standard mortgagee clause in favor of Lender. Grantor shall also procure and maintain comprehensive general liability insurance in such coverage amounts as Lender may request with trustee and Lender being named as additional insureds in such liability insurance policies. Additionally, Grantor shall maintain such other insurance, including but not limited to hazard, business interruption, and boiler insurance, as Lender may reasonably require. Policies shall be written in torm, amounts, coverages and basis reasonably acceptable to Lender and issued by a company or companies reasonably acceptable to Lender. Grantor, upon request of Lender, will deliver to Lender from time to time the policies or certificates of insurance in form satisfactory to Lender, including stipulations that coverages will not be cancelled or diminished without at least ten (10) days' prior written notice to Lender. Each insurance policy lalso shall include an endorsement providing thal coverage in favor of Lender will not be impaired in any way by any act, omission or default of Grantor or any other person. Should the Real Property at any time become located in an area designated by the Director of the Federal Emergency Management Agency as a special flood hazard area, Grantor agrees lo obtain and maintain Federal Flood Insurance for the full unpaid principal balance of the loan, up to the maximum policy limits set under the National Flood Insurance Program, or as otherwise required by Lender, and to maintain such insurance for the term of the loan. Application of Proceeds. Grantor shall promptly notify Lender of any loss or damage to the Property. Lender may make proof of loss 11 Grantor fails to do so within fifteen (15) days of Ihe casualty. Whether or not Lender's security is impaired, Lender may, at its election, receive and retain Ihe proceeds 01 any Insurance and apply the proceeds to the reduction of the Indebtedness, payment of any lien allecting the Property, or the restoration and repair 01 the Property. 11 Lender elects to apply the proceeds to restoration and repair, Grantor shall repair or replace the damaged or destroyed Improvements in a manner satisfactory to Lender. Lender shall, upon satisfactory proof of such expenditure, pay or reimburse Grantor from the proceeds for the reasonable cost of repair or restoration if Grantor is not in default under this Deed of Trust. Any proceeds which have not been disbursed within 180 days after their receipt and which Lender has not committed to the repair or restoration of the Property shall be used first to pay any amount owing to Lender under this Deed of Trust, then to pay accrued interest, and the remainder, if any, shall be applied to the pnncipal balance of the Indebtedness. If Lender holds any proceeds after payment in full of the Indebtedness, such proceeds shall be paid to Grantor as Grantor's interests may appear. Unexpired Insurance at Sale. Any unexpired insurance shall inure to the benefit of, and pass to, the purchaser of the Properly covered by this Deed of Trust at any trustee's sale or other sale held under the provisions of this Deed of Trust, or at any foreclosure sale of such Property. Compliance with Existing Indebledness. During the penod in which any Existing Indebtedness described below is in effect, compliance with the insurance provisions contained in the instrument evidencing such Existing Indebtedness shall constitute compliance with the insurance provisions under this Deed of Trust to the extent compliance with the terms of this Deed of Trust would constitute a duplication ol insurance requirement. 11 any proceeds from the insurance become payable on loss, the provisions in this Deed of Trust for division of proceeds shall apply only to that portion of the proceeds not payable to the holder of the Existing Indebtedness. Grantor's Report on Insurance. Upon request of Lender, however not more than once a year, Grantor shall furnish to Lender a report on each existing policy of insurance showing: (a) the name of the insurer; (b) the risks insured; (c) the amount of the policy; (d) the property insured, the then current replacement value of such property, and the manner of determining thal value; and (e) the expiration date of the policy. Grantor shall, upon request of Lender, have an independent appraiser satisfactory to Lender determine the cash value replacement cost of the Property. EXPENDITURES BY LENDER. If Grantor fails to comply with any provision of this Deed of Trust, including any obligation to maintain Existing Indebtedness in good standing as required below, or if any action or proceeding is commenced that would materially affect Lender's interests in the Property, Lender on Grantor's behalf may, but shall not be required to, take any action that Lender deems appropriate. Any amount that Lender expands In so doing will bear interest at the rate provided for in the Note from the date incurred or paid by Lender to the date of repayment by Grantor. All such expenses, at Lender's option, will (a) be payable on demand, (b) be added to the balance of the Note and be apportioned among and be payable with any installment payments to become due during either (i) the term of any applicable insurance policy or (Ii) the remaining term of the Note, or (c) be treated as a balloon payment which will be due and payable at the Note's maturity. This Deed ol Trust also will secure payment ol these amounts. The rights provided for In this paragraph shall be in addition to any other rights or any remedies to which Lender may be entitled on account of the default. Any such action by Lender shall not be construed as curing the default so as to bar Lender from any remedy that it otherwise would have had. WARRANTY; DEFENSE OF TITLE. The following provisions relating to ownership of the Property are a part of this Deed Â¢ Trust. Title. Grantor warrants thal: (a) Grantor holds good and marketable title 01 record to the Properly in fee simple, free and clear of all liens and encumbrances other than those set forth in the Real Property description or in the Existing Indebtedness section below or in any title Insurance policy, title report, or final tille opinion issued in favor of, and accepted by, Lender in connection with this Deed of Trust, and (b) Grantor has the full right, power, and authority to execute and deliver this Deed of Trust to Lender. Defense of Title. Subject to the exception in the paragraph above, Grantor warrants and will forever defend the title to the Property against Ihe lawful claims of all persons. In the event any action or proceeding is commenced that questions Grantofs title or the interest of Trustee or Lender under this Deed of Trust, Grantor shall defend the action at Grantor's expense. Grantor may be the nominal party in such proceeding, but Lender shall be entitled to participate in the proceeding and to be represented in the proceeding by counsel of Lender's own choice, and Grantor will deliver, or cause to be delivered, to Lender such instruments as Lender may request from time to time to permit such participation. Compliance With Laws. Grantor warrants that the Property and Grantor's use of the Property complies with all existing applicable laws, ordinances, and regulations of governmental authorities. EXISTING INDEBTEDNESS. The following provisions concerning existing indebtedness (the "Existing Indebtedness") are a part of this Deed of Trust. Existing Lien. The lien of this Deed of Trust securing the Indebtedness may be secondary and infenor to an existing lien. Grantor expressly covenants and agrees to pay, or see to the payment of, the Existing Indebtedness and to prevent any default on such indebtedness, any default under the instruments evidencing such indebtedness, or any default under any security documents for such indebtedness. 07-23-1999 DEED OF TRUST Page 4 Loan No 02857424-01 (Continued) Default. If the payment of any installment of principal or any interest on the Existing Indebtedness is not made within the time required by the note evidencing such indebledness, or should a default occur under the instrument secunng such indebtedness and not be cured dunng any applicable grace period therein, then, at the option of Lender, the Indebtedness secured by this Deed of Trust shall become immediately due and payable, and this Deed of Trust shall be in default. No Modification. Grantor shall not enter into any agreement with the holder of any mortgage, deed of trust, or other security agreement which has priority over this Deed of Trust by which that agreement is modified, amended, extended, or renewed without the pnor written consent of Lender. Grantor shall neither request nor accept any future advances under any such secunty agreement without the pnor written consent of Lender. CONDEMNATION. The following provisions relating to condemnation proceedings are a part of this Deed of Trust. Application of Net Proceeds. If all or any part of the Property is condemned by eminent domain proceedings or by any proceeding or purchase in lieu ofÂ·condemnation, Lender may at its election require that all or any portion of the net proceeds of the award be applied lo the Indebtedness or the repair or restoration of the Properly. The net proceeds of the award shall mean the award after payment of all reasonable costs, expenses, and attorneys' fees incurred by Trustee or Lender In connection with the condemnation. Proceedings. 11 any proceeding in condemnation is filed, Grantor shall promptly notify Lender in writing, and Grantor shall promptly take such steps as may be necessary to defend the action and obtain the award. Grantor may be the nominal party in such proceeding, but Lender shall be entitled to participate in the proceeding and to be represented in the proceeding by counsel of its own choice, and Grantor will deliver or cause to be delivered to Lender such Instruments as may be requested by it from time to time to permit such participation. IMPOSITION OF TAXES, FEES AND CHARGES BY GOVERNMENTAL AUTHORITIES. The following provisions relating to governmental taxes, fees and charges are a part of this Deed of Trust: Current Taxes, Fees and Charges. Upon request by Lender, Grantor shall execute such documents in addition to this Deed of Trust and take whatever other action is requested by Lender to perlect and continue Lendets lien on the Real Property. Grantor shall reimburse Lender for all taxes, as described below, together with all expenses incurred in recording, perfecting or continuing this Deed of Trust, including without limitation all taxes, fees, documentary stamps, and other charges tor recording or registering this Deed of Trust. Taxes. The following shall constitute taxes to which this section applies: (a) a specific tax upon this type of Deed of Trust or upon all or any part ot the Indebtedness secured by this Dead of Trust; (b) a specific tax on Borrower which Borrower is authorized or required to deduct from payments on Ihe Indebtedness secured by this type of Dead of Trust; (c) a tax on this type of Deed of Trust chargeable against the Lender or the holder of the Note; and (d) a specific tax on ali or any portion of the Indebtedness or on payments of principal and Interest made by Borrower. Subsequent Taxes. 11 any tax to which this section applies is enacted subsequent to the date of this Dead of Trust, this event shall have the same effect as an Event of Default (as defined below), and Lender may exercise any or all of its available remedies for an Event of Default as provided below unless Grantor either (a) pays the tax before it becomes delinquent, or (b) contests the tax as provided above in the Taxes and Liens section and deposits with Lender cash or a sufficient corporate surety bond or other security satisfactory to Lender. SECURITY AGREEMENT; FINANCING STATEMENTS. The following provisions relating to this Deed of Trust as a security agreement are a parl of this Deed of Trust. Security Agreement. This instrument shall constitute a secunty agreement to the extent any of the Property constitutes fixtures or other personal property, and Lender shall have all of the rights of a secured party under the Uniform Commercial Code as amended from time to hme. Security Interest. Upon request by Lender, Granlor shall execute financing statements and take whatever other action is requested by Lender to perfect and continue Lender's security interest In the Rents and Personal Property. In addition to recording this. Deed of Trust in the real property records, Lender may, at any time and without further authorization from Granlor, file executed counterparts, copies or reproductions of this Deed of Trust as a financing statement. Grantor shall reimburse Lender for all expenses incurred tri perfecting or continuing this security interest. Upon default, Grantor shall assemble the Personal Properly in a manner and at a place reasonably convenient to Grantor and Lender and make H available to Lender within three (3) days alter receipt of written demand from Lender. Addresses. The mailing addresses of Grantor (debtor) and Lender (secured party), from which information concerning the security interest granted by this Deed of Trust may be obtained (each as required by the Uniform Commercial Code), are as stated on the first page of this Deed of Trust. FURTHER ASSURANCES; ATTORNEY-IN-FACT. The following provisions relating to further assurances and attorney-4rh-fact are a part of this Deed of Trust. Funher Assurances. At any time, and from time to time, upon request of Lender, Granlor will make, execute and deliver, or will cause to be made, executed or delivered, to Lender or to Lender's designee, and when requested by Lender, cause to be filed, recorded, refiled, or rerecorded, as the case may be, at such times and in such offices and places as Lender may deem appropnate, any and all such mortgages, deeds of trust, security deeds, secunty agreements, financing statements, continuation statements, instruments of further assurance, certificates, and other documents as may, in the sole opinion of Lender, be necessary or desirable in order to effectuate, complete, perfect, continue, or preserve (a) the obligations ol Grantor and Borrower under the Note, this Deed of Trust, and the Related Documents, and (b) the liens and security interests created by this Deed of Trust on the Property, whether now owned or hereafter acquired by Grantor. Unless prohibited by law or agreed to the contrary by Lender in writing, Grantor shall reimburse Lender for all costs and expenses incurred in connection with the matters referred to in this paragraph. Attorney-IrÂ»Fact. If Grantor fails to do any of the things referred to in the preceding paragraph, Lender may do so for and in the name of Grantor and at Grantor's expense. For such purposes, Grantor hereby irrevocably appoints Lender as Grantor's attorney-in-lact lor the purpose of making, executing, delivering, filing, recording, and doing all other things as may be necessary or desirable, in Lender's sole opinion, to accomplish the matters referred to in the preceding paragraph. FULL PERFORMANCE. Trustee may, upon production of the Note duly cancelled, release this Deed of Trust, and such release shall constitute a release of the lien for all such additional sums and expenditures made pursuant to this Dead of Trust. Lender agrees to cooperate with Grantor In obtaining such release and releasing the other collateral securing the Indebledness. Any release fees required by law shall be paid by Grantor, if permitted by applicable law. DEFAULT. Each of the following, at the option of Lender, shall constitute an event of default ('Event of Default") under this D6ed of Trust: Default on indebtedness. Failure of Borrower to make any payment when due on the Indebtedness. Default on Other Payments. Failure of Grantor within the time required by this Deed of Trust to make any payment for taxes or insurance, or any other payment necessary to prevent filing of or to effect discharge ol any lien. Default In Favor of Third Parties. Should Borrower or any Grantor default under any loan, extension of credit, security agreement, purchase or sales agreement, or any other agreement, in favor of any other creditor or person that may materially affect any of Borrower's property or Borrowefs or any Grantor's ability to repay the Loans or perform their respective obligations under this Deed of Trust or any of the Related Documents. Compliance Default. Failure of Grantor or Borrower to comply with any other term, obligation, covenant or condition contained in this Deed of Trust, the Note or in any of the Related Documents. False Statements. Any warranty, representation or statement made or furnished to Lender by or on behalf of Grantor or Borrower under this Deed of Trust, the Note or the Related Documents is false or misleading in any material respect, either now or at the time made or furnished. Defective Collateralization. This Deed of Trust or any of the Related Documents ceases to be in full force and effect (including failure of any collateral documents to create a valid and perfected security interest or lien) at any time and for any reason. Death or Insolvency. The death of Grantor or Borrower or the dissolution or termination of Grantor or Borrower's existence as a going 1 . 07-23-1999 DEED OF TRUST Page 5 Loan No 02857424-01 (Continued) business, the insolvency 01 Grantor or Borrower, the appointment of a receiver for any part of Grantor or Borrower's properly, any assignment for the benefit of creditors, any type of creditor workout, or the commencement of any proceeding under any bankruptcy or insolvency laws by or against Grantor or Borrower. Foreclosure, Forfeiture, etc. Commencement of foreclosure or forfeiture proceedings, whether by judicial proceeding, self-help, repossession or any other method, by any creditor of Grantor or by any governmental agency against any of the Property. However, this subsection shall not apply in the event of a good faith dispute by Grantor as to Ihe validity or reasonableness of the claim which ts the basis of the foreclosure or forefeiture proceeding, provided that Grantor gives Lender written notice of such claim and furnishes reserves or a surety bond lor the claim satisfactory to Lender. Breach of Other Agreement. Any breach by Granlor or Borrower under the terms of any other agreement between Grantor or Borrower and Lender that is not remedied within any grace period provided therein, including without limitation any agreement concerning any indebledness or other obligabon of Granlor or Borrower to Lender, whether existing now or later. Events Affecting Guarantor. Any of the preceding events occurs with respect to any Guarantor of any of the Indebtedness or any Guarantor dies or becomes Incompetent, or revokes or disputes the validity of, or liability under, any Guaranty of the Indebtedness. Adverse Change. A material adverse change occurs in Borrower's financial condition, or Lender believes the prospect of payment or performance of the Indebledness is impaired. Insecurity. Lender in good lailh has reasonable cause to believe it is insecure or that its collateral is impaired. Existing Indebtedness. A default shall occur under any Exjsling Indebtedness or under any instrument on the Property securing any Existing Indebtedness, or commencement of any suit or other action to foreclose any existing lien on the Property. RIGHTS AND REMEDIES ON DEFAULT. Upon the occurrence of any Event of Default and at any time thereatter, Trustee or Lender, at its option, may exercise any one or more of the tollowing nghts and remedies, in addition to any other rights or remedies provided by law: Accelerate Indebtedness. Lender shall have the right at its option without notice to Grantor or Borrower to declare the entire Indebtedness immediately due and payable, including any prepayment penalty which Borrower would be required to pay. Foreclosure. Lender shall have the right to cause all or any part of the Real Properly, and Personal Property, if Lender decides to proceed against it as if It were real properly, to be sold by the Trustee according to the laws of the Slate of Colorado as respects foreclosures against real property. The Trustee shall give notice in accordance with the laws of Colorado. The Trustee shall apply the proceeds of the sate in the following order: (a) to all costs and expenses of the sale, including but not limited to Trustee's fees, attorneys' fees, and the cost of title evidence; (b) to all sums secured by this Dead of Trust; and (c) the excess, if any, to the person or persons legally entitled to the excess. UCC Remedies. With respect to all or any part of the Personal Property, Lender shall have all the rights and remedies of a secured party under the Uniform Commercial Code. Collect Rents. Lender shall have the right, without notice to Grantor or Borrower, to take possession of and manage the Property and collect the Rents, including amounts past due and unpaid, and apply the net proceeds, over and above Lender's costs, against the Indebtedness. In furtherance of this right, Lender may require any tenant or other user of the Property to make payments of rent or use fees directly to Lender. Il the Rents are collected by Lender, then Grantor irrevocably designates Lender as Grantor's attorney-in-fact to enoorse instruments received In payment thereof in the name of Grantor and to negotiate the same and collect the proceeds. Payments by tenants or other users to Lender in response to Lender's demand shall satisfy the obligations for which the payments are made, whether or not any proper grounds for the demand existed. Lender may exercise As nghts under this subparagraph either in person, by agent, or through a receiver. Appoint Receiver. Lender shall have the right to have a receiver appointed to take possession of all or any part of the Property, with the power to protect and preserve the Property, to operate the Property preceding loreclosure or sale, and to collect the Rents from the Properly and apply the proceeds, over and above the cost 01 the receivership, against the Indebtedness. The receiver may serve without bond if permitted by law. Lendets right lo the appointment of a receiver shall exist whether or not Ihe apparent value of the Property exceeds the Indebtedness by a substantial amount. Employment by Lender shall not disqualify a person from serving as a receiver. Receiver may be appointed by a court of competent jurisdiction upon ex parte application and without notice, notice being expressly waived. Tenancy at SuMerance. If Grantor remains in possession of the Property affer the Property is sold as provided above or Lender otherwise becomes entitled to possession of the Property upon default of Grantor, Grantor shall become a tenant at sufferance of Lender or the purchaser of the Property and shall at Lender's option, either (a) pay a reasonable rental for the use of the Property, or (b) vacate the Property immediately upon the demand of Lender. Other Remedies. Trustee or Lender shall have any other nght or remedy provided in this Deed of Trust or the Note or by law. Sale of the Property. In exercising its rights and remedies, Lender shall be free to designate on or before R files a notice of election and demand with the Trustee, that the Trustee sell ali or any part of the Property together or separately, in one sale or by separate sales. Lender shall be entitled to bid at 4ny public sale on all or any portion of the Property. Upon any sale of the Property, whether made under a power of sale granted in this Deed of Trust or pursuant to judicial proceedings, il the holder 01 the Note is a purchaser at such sale, it shall be entitled to use and apply all, or any portion of, the Indebledness for or in settlement or payment of all, or any portion of, the purchase pnce of the Property purchased, and, in such case, this Dead of Trust, the Note, and any documents evidencing expenditures secured by this Deed of Trust shall be presented to the person conducting the sale in order that the amount of Indebtedness so used or applied may be credited thereon as having been paid. Waiver; Election of Remedies. A waiver by any party of a breach of a provision of this Deed of Trust shall not constitute a waiver of or prejudice the party's rights otherwise to demand strict compliance with that provision or any other provision. Election by Lender to pursue any remedy provided in this Deed of Trust, the Note, in any Related Document, or provided by law shall not exclude pursuit of any other remedy, and an election to make expenditures or to take action to perform an obligation of Grantor or Borrower under this Deed of Trust after failure 01 Grantor or Borrower to perform shall not affect Lender's nght to declare a default and to exercise any of its remedies. Attorneys' Fees; Expenses. If Lender forecloses or institutes any suit or action to enforce any of the terms of this Deed of Trust, Lender shall be entitled to recover such sum as the court may adjudge reasonable as attorneys' tees at trial and on any appeal. Whether or not any court action is involved, all reasonable expenses incurred by Lender which in Lender's opinion are necessary at any time for the protection of its Interest or the enforcement of its rights shall become a part of the Indebtedness payable on demand and shall bear interest at the Note rate from the date of expenditure until repaid. Expenses covered by this paragraph include, without limitation, however subject to any limits under applicable law, Lender's attorneys' fees whether or not there is a lawsuit, including attorneys' fees for bankruptcy proceedings (including efforts to modify or vacate any automatic stay or injunction), appeals and any anticipated post-judgment collection services, the cost of searching records, obtaining tille reports (including foreclosure reports), surveyors' reports, appraisal fees, title insurance, and fees for the Trustee, to the extent permitted by applicable law. Grantor also will pay any court costs, in addition to all other sums provided by law. Rights of Trustee. Trustee shall have all of the rights and duties of Lender as set forth in this section. POWERS AND OBLIGATIONS OF TRUSTEE. The following provisions relating to the powers and obligations of Trustee are part of this Deed of Trust. Powers of Trustee. In addition to all powers of Trustee arising as a matter of law, Trustee shall have the power to take the following actions with respect to the Property upon the written request of Lender and Grantor: (a) join in preparing and filing a map or plat of the Real Property, including the dedication of streets or other rights to the public; (b) join in granting any easement or creating any restnction on the Real Properly; and (c) join in any subordination or other agreement affecting this Deed of Trust or the interest of Lender under this Deed of Trust. Obligations to Notify. Trustee shall not be obligated to notify any other party of a pending sale under any other trust deed or lien, or of any action or proceeding in which Grantor, Lender, or Trustee shall be a party, unless the action or proceeding is brought by Trustee. Trustee. Trustee shall meet all qualifications required for Trustee under applicable law. In addition to the rights and remedies set forth above, with respect to all or any part of the Property, the Trustee shall have the right to foreclose by notice and sale, and Lender shall have 07-23-1999 DEED OF TRUST Page 6 Loan No 02857424-01 (Continued) the right to foreclose by judicial foredosure, in either case in accordance with and to the full extent provided by applicable law, NOTICES TO GRANTOR AND OTHER PARTIES. Any notice under this Dead of Trust shall be in writing, may be sent by telefacsimile (unless otherwise required by law), and shall be effective when actually delivered, or when deposited with a nationally recognized overnight courier, or, tf mailed, shall be deemed effective when deposited in the United States mail first class, certified or registered mail, postage prepaid, directed to the addresses shown near the beginning of this Dead of Trust. Any party may change its address for notices under this Deed of Trust by giving formal written notice to the other parties, specifying that the purpose of the notice is to change the party's address. All copies of notices of loreclosure from the holder of any lien which has priority over this Deed of Trust shall be sent to Lender's address, as shown near the beginning of this Deed of Trust. For notice purposes, Grantor agrees to keep Lender and Trustee informed at all times of Grantor's current address. MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Dead of Trust: Amendments. This Deed of Trust, together with any Related Documents, constitutes the entire understanding and agreement of the parties as to the matters set forth in this Deed of Trust. No alteration of or amendment to this Deed of Trust shall be effective unless given In writing and signed by the party or parties sought to be charged or bound by the alteration or amendment. Annual Reports. It the Property is used for purposes other than Grantots residence, Grantor shall furnish to Lender, upon request, a certified statement of net operating income received from the Property during Grantor's previous fiscal year in such form and detail as Lender shall require. "Net operating income" shall mean all cash receipts from the Property less all cash expenditures made in connection with the operation of the Property. Applicable Law. This Deed of Trust has been delivered to Lender and accepted by Lender In the State of Colorado. This Deed of Trust shall be governed by and construed in accordance with the laws of the State of Colorado. Caption Headings. Caption headings in this Dead of Trust are for convenience purposes only and are not to be used to interpret or define the provisions of this Deed of Trust. Merger. There shall be no merger of the Interest or estate created by this Deed of Trust with any other interest or estate in the Property at any time held by or for the benefit of Lender in any capacity, without the written consent of Lender. Multiple Parties. All obligations of Grantor and Borrower under this Deed of Trust shall be joint and several, and all references to Borrower shall mean each and every Borrower, and all references to Grantor shall mean each and every Grantor. This means that each of the persons signing below is responsible for all obligations in this Deed of Trust. Severabllity. It a court of competent jurisdiction finds any provision of this Deed of Trust to be invalid or unenforceable as to any person or circumstance, such finding shall not render that provision invalid or unenforceable as to any other persons or circumstances. If feasible, any such offending provision shall be deemed to be modified to be within the limits of entorceability or validity; however, if the offending provision cannot be so modihed, it shall be stricken and all other provisions of this Deed of Trust in all other respects shall remain valid and enforceable. Successors and Assigns. Subject to the limitations stated in this Deed of Trust on transfer of Grantofs interest, this Deed of Trust shall be binding upon and inure to the benefit of the parties, their successors and assigns. If ownership of the Property becomes vested in a person other than Grantor, Lender, without notice to Grantor, may deal with Grantor's successors with reference to this Deed of Trust and the Indebtedness by way of lorbearance or extension without releasing Grantor from the obligations of this Deed of Trust or liability under the Indebtedness. Time Is of Ihe Essence. Time is of the essence in the perlormance of this Deed of Trust. Waivers and Consents. Lender shall not be deemed to have waived any rights under this Dead of Trust (or under the Related Documents) unless such waiver is in writing and signed by Lender. No delay or omission on the part of Lender in exercising any right shall operate as a waiver of such right or any olher right. A waiver by any party of a provision of this Deed of Trust shall not constitute a waiver of or prejudice the party's right otherwise to demand strict compliance with that provision or any other provision. No pnor waiver by Lender, nor any course 01 dealing between Lender and Grantor or Borrower, shall constitute a waiver of any of Lender's rights or any of Grantor or Borrowers obligations as to any future transactions. Whenever consent by Lender is required in this Deed of Trust, the granting of such consent by Lender in any instance shall not constitute continuing consent to subsequent instances where such consent is required. Waiver of Homestead Exemption. Grantor hereby releases and waives all rights and benefits of the homestead exemption laws of the State of Colorado as to all Indebledness secured by this Deed of Trust. EACH GRANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS DEED OF TRUST, AND EACH GRANTOR AGREES TO ITS TERMS. GRANTOR: ROBERT CLARK TRUST DATED SEPTEMBER 22,1993 By: Â»-~Db L.-~ ROBERT DEAN CLARK, SETTLOR-TRUS~FE~ INDIVIDUAL ACKNOWLEDGMENT STATE OF <_ A ~ 0Â»-6- /~ 0 )88 COUNTY OF ~,,4-k~ i ~ ) On this day before me, the undersigned Notary Public, personally appeared ROBERT DEAN CLARK, SETTLOR-TRUSTEE, to me known to be the individual described in and who executed the Deed of Trust, and acknowledged that he or she signed the Deed of Tiust as his or her free and voluntary act and deed, for the uses and purposes therein mentioned. Given-wider my hand and official seal this R A day ok /44/67 , 19 Â£/ ~ By ~tw# rh- a 'Ch .- Residing at D z./,07 /2-B ,/, ,-4 /9-- /Â¢.P ~ d~,sÂ·-1--4 -a.~ 1. 1 NotarÂ¥ Public In and for the Stale of / /1 C b -6 A b MY commismon exp\res / 1<P M / O 23 0 0 LASER PRO, Reg. U.S. Pat. & T.M. Off, Ver. 3.282 (C) 1999 CFI ProServices, Inc. Allrightsreserved. [CO-Gol F3.25 85742401.LN C5.OVL]