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HomeMy WebLinkAboutLand Use Case.229 W Smuggler St.0040.2018.ASLUrl 0040. 2018.ASLU 229 WEST SMUGGLER, LLC PID273512417032 426 NORTH SECOND LLC PID273512417031 CONDOMINIUMIZATION `l c� i 1i PATH: G/DRIVE / MASTER FILES/ADMINISTRATIVE/ADMIN/LANDUSE CASE DOCS THE CITY OF ASPEN City of Aspen Community Development Department CASE NUMBER 0040.2018.ASLU PARCEL ID NUMBERS 273512417031 PROJECT ADDRESS 229 W SMUGGLER & 426 N SECOND PLANNER BOB NARACCI CASE DESCRIPTION SL4WV45,tON-EXEIYIPT9AL-- REPRESENTATIVE SHERMAN HOWARD DATE OF FINAL ACTION 2.19. 2019 CLOSED BY ANGIE SCOREY 2/25/2019 - ---- ----- -- -- Permits 21351 24, t 70 '�% 2'73 1 7-44IC31 $ A,c.�c�t Elie Edit $ecord Navigate Form Reports Format Tab Help J ►x - 3 �-] I Jump Clear Q Main Custom Fields Routing Status Fee Summary Actions Routing History o (Permit type spen Land Use P7State Address 229 IN SLIUCCLER S-�1dC »2E N SECOHC S` ApCity ASPEN Permit Information Master permit Routing queue aslu 1 n' z Project Status �cndding Description APPLICATION FOR CONDOMINIUM].ZATION - SUBDIVISION EXEMPTION 229VVEST smUGGLER PID 27351241703 126 NORTH SECOND STREET PID 273512417031 11 Applied CcJC 7 r'2018 Approved Issued ClosedlFinal I I - Submitted SHERMAN & HOINARD 925 1181 Clods Running Days Expires C£JC212C19 Submitted via IF -- Owner Last name GGLER, LLC First name IDAVID DOWLER 3509 CRESCENTAVE DALLAS TX 75205 Phone i - Address Applicant ❑� Owner is applicant? ❑ Contractor is applicant? Last name 1229 YvEST SMUGGLER, LLC First name IDAVID COINLER 3509 CRESCENTAVE DALLAS TX 75205 Phone i Cust T 2C'_28 Address Email I - Lender Last name First name Phone i Address -near fkp narm4 h-P nnrla 6manf;nlrl�i �oAtwr�l-i+nnolac 1 L r� � File Edit Record Navigate ' a Form Reports Format Tab Help u4 4 fi0 Jump 1 .J a-J Main Custom Fields Routing Sixtus Fee Summary Actions Routing History i) -- v0 Permit type aslu seen Land Use Address 229'iv SMUGGLER S7 NC N SECOND ST IF02 City ASPEN Permit Information A Master permit 10 7- Z Project DescTiption Permit - 0040 4-013..A%.SLU Apt/Suite State CO Zip C811 Routing queue aslu1E Status pending 1PPLIC.ATION FOR COND01.11NIU1.1lZATION - SUBUASION EXEMPTION _29 ;JEST S1.IUGGLER PID 273`1241703 20 NORTH SECOND STREET PID 273512417031 Submitted SHER1.1:41d & HOIA'.A.RD 92E 11S1 Clock Running Days 21-` Submitted via O,nvner Applied 0'E 07.,2C 1 Approved Issued Closed/Final C� Expires OE.02.2019 Last name 2291,VEST Sl.1LIGGLER, LLC� First name CAVID C01,VLEE l 3E09 CRESCENTAVE DALLAS TX 75205 Phone ( - Address Applicant n Owner is applicant? ❑ Contractor is applicant? Last name 229 VJEST St.1000LER. LLC First name DAVID DOV, LER 3`O9 CRESCENTAVE C.+.LLAS TX 7520E Phone is - Cust 30329 Address Email Lender Last name First name Phone ( :> - Address RECEPTION#: 654048, R: $133.00, D: $0.00 DOC CODE: AMEND DEC �� '(`F Er Pg 1 of 25, 02/19/2019 at 12:11:16 PM r ..... Janice K. Vos Caudill, Pitkin County, CO FEB 19 RICO 6I1 Y yr. F%OtItrq AMENDED AND RESTATED CONDONUNIUM DECLARATIMM')N1TY O NFLOP il" OF THE SECOND AND SMUGGLER CONDOMIlgUMS THIS AMENDED AND RESTATED CONDOMINIUM DECLARATION OF SECOND AND SMUGGLER CONDOMINIUMS ("Declaration") is made by 229 West Smuggler, LLC, a Colorado limited liability company, and 426 North Second, LLC, a Colorado limited liability company (collectively, "Owners" and "Declarant") to be effective as of the 3 ti day of January, 2019. � WHEREAS, the Owners own certain real property located in Pitkin County, Colorado, legally described as Condominium Units A and B, SECOND AND SMUGGLER CONDOMINIUMS (the "Pro e " or "Community"), according to the Condominium Map of Second and Smuggler Condominiums recorded March 14, 1979 in Plat Book 7 at Page 66, Pitkin County, Colorado ("Prior Plat"), and as defined and described by the Condominium Declaration of Second and Smuggler Condominiums recorded March 14, 1979 in Book 364 at Page 771, Pitkin County, Colorado and First Amendment to the Condominium Declaration for Second and Smuggler Condominiums recorded April 15, 1980 as Reception No. 223333, Pitkin County, Colorado (collectively, the "Prior Declaration"); WHEREAS, the Owners have redeveloped the Property with two single family residences (the "Improvements") and have provided for approval, adoption, and the recordation of the Amended and Restated Condominium Map of Second and Smuggler Condominiums on '&,rt MM , 2019 as Reception No. 65Ro!n, (the "Plat") which Plat supersedes and replaces in its entirety the Prior Plat; WHEREAS, by this Declaration, the Owners desire to further provide for the approval and adoption of this Declaration, which shall supersede and replace in their entirety the Prior Declaration; and NOW THEREFORE, the Owners hereby declare that all of the Property shall be held, sold and conveyed subject to the following covenants, conditions, and obligations, all of which are declared and agreed to be for the protection of the value of the Property, and for the benefit of any persons having any right, title, or interest in the Property and which shall be deemed to run with the land and shall be a burden and a benefit to any persons acquiring any interest in the Property, their grantees, heirs, legal representatives, successors, and assigns. 49451461.1 ARTICLE I SUBMISSION; DEFINED TERMS Section 1.1. Submission of Property. Declarant hereby declares that all of the Property is hereby made subject to the following easements, restrictions, covenants and conditions which shall run with the Property and be binding on all parties having any right, title or interest in the Property or any part thereof, their heirs, legal representatives, successors and assigns, and shall inure to the benefit of each owner thereof. The Property shall be subject to the provisions of the Colorado Common Interest Ownership Act, C.R.S. § 38-33.3-101, et seq., as amended from time to time ("CCIOA"). Section 1.2. Defined Terms. Each capitalized term not otherwise defined in this Declaration or on the Plat (the "Records") and used herein or on the Plat shall have the meanings specified or used in CCIOA. (a) Allocated Interests means the percentage ownership interest in the Common Elements, the Common Expense Assessment Liability, and the votes in the Association that are allocated to each of the Units in the Condominium Community. The formulas used to establish the Allocated Interests are as follows: Unit A: Elements Unit B: (i) Interest in the Common Elements. 2,284 square feet 34% interest in the Common 4,414 square feet 66% interest in the Common Elements (ii) Common Expense Assessment Liability. Common Expenses shall be assessed against the Units on the basis of thirty four percent (34%) to the Unit A and sixty six percent (661/o) to the Unit B (the "Common Expense Allocation") (subject to the other terms of this Declaration). (iii) Votes. Each Unit within the Condominium Community is entitled to one (1) vote. (b) "General Common Elements" means: (i) those areas identified on the Plat as being General Common Elements for the use and enjoyment of both the Unit A and Unit B; (ii) any common gas, electric, water, sewer and other utility lines, pipes, wires, conduits, snow melt equipment or snowmelt boiler, or other systems (collectively herein "Infrastructure") running through or outside either Owner's Unit, but which serve both Units; (iii) irrigated common areas as shown on the Plat and any irrigation system within these areas; (iv) common vegetation within the irrigated common areas; (v) the roofs of both Units; (vi) the exterior finish, trim and siding of both Units; (vii) the common walls, ceilings and floors between the Units as shown on the Plat; (viii) any portion of the yard, landscaping, hardscaping and fencing that is not designated as a Limited Common Element below; (ix) all structural components of the building 2 49451461.1 located on the Property, including roof trusses, framing, foundation, window wells and exterior walls to the drywall; (x) drywells, downspouts and other drainage features; and (xi) the land comprising any portion of the Real Property (c) "Limited Common Elements" means: (i) those areas identified on the Plat as being Limited Common Elements; (ii) the window wells, walkway, entry porch, decks, and patio serving Unit A; (iii) the windows, skylights, exterior doors serving an individual unit. The Limited Common Elements shall be for the sole use and enjoyment of the Unit to which any such Limited Common Elements are appurtenant, as shown on the Plat and as provided herein. (d) "Unit A" shall mean all portions of the residence located at 426 North Second Street, Aspen, Colorado, 81611 (but excluding therefrom any Common Elements or Limited Common Elements), together with a thirty four (34%) percent interest in the Common Elements. Unit A includes, but is not limited to, the individual airspace which is contained within the perimeter windows, doors and unfinished surfaces of perimeter walls, floors and ceilings and all interior finishes from the surface of the drywall in, including but not limited to paint, cabinets, fixtures, flooring, appliances, internal doors and trim. The boundaries of the Unit are depicted on the Plat. The Unit shall include any heating, refrigerating, ventilation elements or related equipment, utility lines and outlets, electrical and plumbing fixtures, pipes and all other related equipment required to provide heating, air conditioning, hot and cold water, electrical or other utility services to the Unit and located within the unfinished walls, ceilings, and floors. (e) "Unit B" shall mean all portions of the residence located at 229 West Smuggler, Aspen, Colorado, 81611 (but excluding therefrom any Common Elements or Limited Common Elements), together with a sixty six (66%) percent interest in the Common Elements. Unit B includes, but is not limited to the individual airspace which is contained within the perimeter windows, doors and unfinished surfaces of perimeter walls, floors and ceilings and all interior finishes from the surface of the drywall in, including but not limited to paint, cabinets, fixtures, flooring, appliances, internal doors and trim. The boundaries of the Unit are depicted on the Plat. The Unit shall include any heating, refrigerating, ventilation elements or related equipment, utility lines and outlets, electrical and plumbing fixtures, pipes and all other related equipment required to provide heating, air conditioning, hot and cold water, electrical or other utility services to the Unit and located within the unfinished walls, ceilings, and floors. Unit B shall also include the automobile lift system located in the garage. ARTICLE 2 NAMES; DESCRIPTION OF PROPERTY Section 2.1. Names. (a) Common Interest Community. The name of the Common Interest Community is the Second and Smuggler Condominiums. (b) Association. The name of the homeowners association for the Common 49451461.1 3 Interest Community is the Second and Smuggler Condominium Association, Inc. a Colorado nonprofit corporation (the "Association"). The Members of the Association shall be all of the Owners of the Units within the Common Interest Community. ARTICLE 3 THE ASSOCIATION Section 3. 1. Authority. The business affairs of the Condominium shall be managed by the Association. Section 3.2. Powers. The Association acting through the Board serves as the governing body for the Condominium and has the powers and responsibilities set forth in the Declaration and the Act Section 38-33.3-302, specially including the authority and power to: (a) adopt and amend the Bylaws and Rules and Regulations; (b) adopt and amend budgets for revenues, expenditures and reserves and assess and collect any Assessments or any other amounts due from Owners or others to the Association; (c) hire and terminate managing agents and other employees, agents and independent contractors; (d) subject to the terms of this Declaration, institute, defend or intervene in litigation or administrative proceedings in its own name on behalf of itself (but not individual owners) on matters affecting the Condominium; (e) make contracts and incur liabilities; (f) borrow funds to cover Association expenditures and pledge Association assets as security therefor; (g) regulate the use, maintenance, repair, replacement and modification of the Common Elements; (h) cause additional improvements to be made as a part of the Common Elements; (i) acquire, hold, encumber and convey in its own name any right, title or interest to real or personal property; 0) grant easements, leases, licenses, and concessions through or over the Common Elements; (k) impose and receive any payments, fees or charges for any services provided to Owners; 49451461.I 4 0 (1) impose charges for late payment of Assessments, recover reasonable attorneys' fees and other legal costs for collection of Assessments and other actions to enforce the power of the Association, regardless of whether or not suit was initiated, and, after notice and an opportunity to be heard, levy reasonable fines for violations of the Condominium Instruments; (m) impose reasonable charges for the preparation and recording of amendments to this Declaration or statements of unpaid Assessments; (n) provide for the indemnification of its officers and members of the Board and maintain directors' and officers' liability insurance; (o) assign its right to future income, including the right to receive Assessments, provided that the Association must continue to have sufficient revenues to meet its obligations under this Declaration; (p) exercise any other powers conferred by this Declaration, the Articles, the Bylaws or the Act; (q) exercise all other powers that may be exercised in the State of Colorado by legal entities of the same type as the Association; and (r) exercise any other powers necessary and proper for the governance and operation of the Association. Section 3.3. Member Groups. The Association shall have two (2) member groups, the Unit A Member Group, which is attached to Unit A and the Unit B Member Group, which is attached to Unit B. Membership in the Association shall be automatic on the part of any individual(s) or entity(ies) acquiring an ownership interest in a Unit (each an "Owner" or "Unit Owner') and shall automatically pass from any individual(s) or entity(ies) no longer holding an ownership interest therein. Section 3.4. Executive Board. Except as otherwise provided in this Declaration or as required by the provisions of CCIOA or the Association Act, the Association shall act through its Executive Board. The Executive Board will consist of two directors, and the directors shall appoint the officers of the Association. The Unit A Member Group and the Unit B Member Group shall each appoint one director. Except as otherwise provided in this Declaration, the Executive Board may only act by unanimous decision, subject to the terms set forth in Section 3.6 below. Directors and officers of the Association may, but need not be, Owners of Units. The Executive Board may promulgate Bylaws and Rules and Regulations for the Common Interest Community. Section 3.5. Notice to Owners. Any notice to an Owner of matters affecting the Common Interest Community by the Association or by another Owner shall be sufficiently given 5 49451461.1 if such notice is in writing and is delivered personally, by courier or private service delivery or the third business day after deposit in the U.S. mail, by certified or registered mail, first-class postage prepaid and return receipt requested, at the address of record for real property tax assessment notices with respect to that Owner's Unit. Section 3.6. Deadlock. (a) Definition. "Deadlock" shall mean a written statement that there is a deadlock (the "Claim") served by either Director upon the other Director within a reasonable period of time after a formal vote in which one member of the Executive Board votes for or against a proposition and the other member votes differently or refuses to attend a duly called meeting or refuses to vote, concerning (i) the amount of insurance to be provided by the Association, (ii) the insurance company to provide the Association's insurance or the budget therefor, (iii) the required degree or performance of Maintenance, or the use of, any General Common Elements, (iv) the manner in which Maintenance will be accomplished, including without limitation the selection of a maintenance company (if there is to be one) to provide or manage the Maintenance, (v) the budget for Maintenance, or (vi) any other decision where the members of the Executive Board are unable to reach a unanimous decision. All Claims must state plainly and concisely the nature of and basis for the Claim and the specific relief or remedy sought. In the event of a Deadlock relating to adoption of a proposed budget, the periodic budget last proposed by the Executive Board must be continued until the Deadlock is broken. (b) Breaking a Deadlock. In the event of a Deadlock, the Executive Board shall take a second vote on the proposition within thirty (30) days of service of the Claim. If that vote is not unanimous, or if either Director refuses by words or action to attend a duly called meeting or refuses to vote, then a decision that resolves the Deadlock issue shall be made in final, binding arbitration in accordance with pursuant to Article 10, herein. ARTICLE 4 UNITS Section 4.1. Number of Units. The number of Units in the Common Interest Community is two (2), namely Unit A, at 426 North Second Street, Aspen, Colorado, 81611 and Unit B, at 229 West Smuggler, Aspen, Colorado, 81611. No more than two Units may be created within the Common Interest Community. Section 4.2. Use and Enioyment. Each Unit Owner shall have the sole use and enjoyment of all areas marked on the Plat as being part of, or appurtenant to, such Unit, including, without limitation, all Limited Common Elements shown on the Plat or described herein as being appurtenant to such Unit. Furthermore, each Unit Owner shall have the sole responsibility to maintain each Unit (and the Limited Common Elements appurtenant to such Unit except as otherwise specifically provided herein), at such Unit Owner's cost, and in a first class condition. Section 4.3. Boundaries. The boundaries of each Unit, and the boundaries of all 49451461.1 6 Limited Common Elements and General Common Elements that can be depicted, are as shown on the Plat. ARTICLE 5 COVENANT FOR COMMON EXPENSE ASSESSMENTS Section 5.1. Common Expenses. The "Common Expenses" of the Association are for (a) Maintenance, as defined in Article 6 below, (b) Insurance, as defined in Article 6 below, (c) Water for Irrigation, as defined below; (d) trash removal, and (e) any and all other costs and expenses that are necessary to the proper maintenance, repair, replacement and condition of any of the General Common Elements. (a) The water supply for the irrigation system in the Common Areas is a Common Expense, but if the water supply for the irrigation system is metered through one but not both Units, then any overage from the average amount of water consumed by the other Unit will be considered a Common Expense, unless the water overage is caused by a water line break that is unrelated to the irrigation system. (b) Both the Limited Common Element walkways shall be maintained, resurfaced/sealed and snowplowed by the Association and the expense for such maintenance shall be a Common Expense in order to maintain the integrity of the visual design of the community. (c) The costs of maintaining in good order and repair the equipment and Infrastructure (including, without limitation, the roof system and snowmelt system), which does not serve either Unit exclusively shall be a Common Expense borne by the Owners in accordance with the Common Expense Allocation. Section 5.2. Creation of Association Lien and Personal Obligation to Pay Assessments. Each person or entity owning any interest in a Unit (other than a bona fide mortgagee), by acceptance of any conveyance of such interest in the Unit, shall be deemed to covenant and agree to pay to the Association annual Common Expense Assessments and Special Assessments (collectively, the "Assessments"). Such Assessments shall also include late charges, attorney fees and costs of collection charged by the Association. All Assessments shall be the personal obligation of the Owner(s) at the time when the Assessment becomes due. No Unit Owner(s) shall convey any interest in the Unit unless and until all sums due the Association and not assumed by the transferee are currently paid. All Assessments shall be a continuing lien upon the Unit and is subject to the Association's right to foreclose as provided by CCIOA. Notice of such lien may be given by filing in the records of Pitkin County, Colorado by any Owner in the name of the Association. Acceleration of any installment of the Assessments shall be in the Association's sole discretion on a case by case basis. Section 5.3. Apportionment of Common Expenses. Except for expenses related to Limited Common Elements, which except as set forth in Section 5.1(b) shall be apportioned to 4945I461.1 7 :7 • the Unit beneftted thereby when paid for by the Association, Common Expenses shall be assessed against the Units on the basis of thirty four percent (34%) to Unit A and sixty six percent (66%) to Unit B (the "Common Expense Allocation"). The Common Expense Allocation may only be changed upon the unanimous written consent of the Unit A Member Group and the Unit B Member Group. Section 5.4. Annual Assessment/Commencement of Common Expense Assessments. The Common Expense Assessments shall be based upon the Association's advance budget of the cash requirements needed by it to fund payment of Common Expenses during such assessment year. Section 5.5. Special Assessments. A Special Assessment is any assessment that is not levied pursuant to an approved budget. The Association may levy one or more Special Assessments only to provide, with respect to the General Common Elements or Limited Common Elements, which the Association maintains, for liability claims or for unbudgeted repairs or replacement, to the extent not covered by Insurance, or to provide for extraordinary Maintenance, if the Executive Board so determines. Section 5.6. Effect of Non -Payment of Assessments. Any Assessment provided for in this Declaration, or any installment thereof, which is not fully paid within fifteen days after the due date thereof, shall bear interest at the rate of twenty-one percent (21 %) per annum. Further, following 'written notice to the non-paying Owner(s) complying with the Association's Collection Policy pursuant to C.R.S, § 38-33.3-209.5 and the provisions of C.R.S. § 38-33.3- 316.3, the Association may bring an action at law or in equity, or both, against any non-paying Owner(s) to pay such overdue Assessment, or installments thereof, and may accelerate the due date for payments of all installments remaining for the budget year, and may also proceed to foreclose its lien against such Owner's Unit, provided that the Owner(s) shall have the right, until the date of sale in the foreclosure proceeding, to cure the delinquency upon payment to the Association of the amount due, including attorney's fees, interest and costs. An action at law or in equity by the Association against any Owner(s) to recover a money judgment for unpaid Assessments or installments thereof, may be commenced and pursued by the Association enforcing the provisions of this Section 5.6 without foreclosing, or in any way waiving, the Association's lien therefor. For the purposes of collecting upon an unpaid Assessment, the provisions of Sections 3.4, 3.6 and Article 9 herein need not apply and the non -delinquent Owner, acting alone, shall have the right in the name of the Association and on its behalf or, as may be necessary, in the name of such non -delinquent Owner, to do and pursue all things that the Association is authorized to do under this Declaration in the case of a delinquent Assessment, in addition to any rights of the non -delinquent Owner under the provisions of Section 10.4 hereof. ARTICLE 6 MAINTENANCE, ALTERATIONS AND INSURANCE Section 6.1. Maintenance. 49451461.1 8 (a) Association's Responsibility. The Association shall be responsible for the maintenance, repair and replacement (including, without limitation, structural and exterior building and roof improvements, irrigation, driveway and landscaping maintenance and removal of snow, leaves and debris, collectively "Maintenance") of all those areas defined herein or marked on the Plat as "General Common Elements" and of all those portions of the Common Interest Community whose maintenance and repair has not been assigned to the Owners by the remaining provisions of this Section 6.1. Notwithstanding the foregoing, in the event an Owner neglects to maintain, repair or replace Limited Common Elements appurtenant to its unit, the Association may conduct such maintenance, repairs or replacement as is necessary to maintain the community in a first class condition and appearance and may bill the other Owner for the costs therefore. (b) Owner's Responsibility. Except as set forth in Section 5.1(b) herein, for purposes of maintenance, repair, alteration and remodeling, an Owner shall be deemed to own, and shall have the right and the obligation to maintain, repair, alter and remodel the interior non- structural walls, the materials making up the finished surfaces of the perimeter walls, ceilings and floors within the Unit, as well as the doors and windows of the Unit, any and all new additions to a Unit hereafter made by the Owner thereof, the Limited Common Elements reserved for the exclusive use of the Owner of the Unit (as shown on the Plat or defined herein) and any new fence or other structure enclosing a Limited Common Element patio, balcony or deck area. Each Owner shall, at such Owner's sole cost and expense: (i) keep and maintain in good order and repair the equipment and that portion of the Infrastructure located in such Owner's Unit, which serve that Unit exclusively; (ii) replace any finishing or other materials removed from any Unit with materials of as near as practicable type, kind, color, and quality; (iii) maintain in a "like new" clean, safe and attractive condition and in good repair the interior of such Owner's Unit, including the fixtures, doors and windows thereof, and the improvements affixed thereto; and (iv) maintain in a neat and clean condition all the decks, yard, porches, roof, balconies or patio areas, which have elsewhere in this Declaration been reserved to and for the exclusive use of such Owner, including the Limited Common Elements that have been so reserved. (c) Owner Alterations. Notwithstanding the provisions of Section 6.1(b) above, without the prior written consent of all Owners, no Owner shall (i) make any changes or alterations of any type or kind to the exterior surfaces of any doors or windows, (ii) modify or alter the appearance, materials, or color scheme of the exterior improvements as they may exist from time to time by agreement of the Owners, or (iii) modify or alter any landscaping now or hereafter installed within the Common Interest Community, with the exception of any such landscaping contained entirely within any fenced -in portion or deck of any Limited Common Elements appurtenant to a given Unit. Section 6.2. Insurance. (a) Association's Insurance. The Association shall maintain, as a Common Expense item, property insurance for the Common Elements and Limited Common Elements in a 49451461.1 9 policy amount that is not less than the full insurable replacement cost thereof and commercial general liability insurance in such minimum amounts as the Executive Board may establish from time to time, as provided by C.R.S. § 38-33.3-313 of CCIOA, the provisions of which Section are incorporated herein by this reference. Each such insurance policy shall be written with an insurance company licensed to do the business of insurance in the State of Colorado and shall have a rating of "A" or better as shown in the published rating of AM Best Company. (b) Owner's Insurance. Each Owner shall maintain such personal property and liability insurance with respect to its Unit (and the contents thereof) as such Owner may establish from time to time. The Owners shall endeavor to use the same insurance company as the Association uses for its insurance under Section 6.2(a) hereof. (c) Waiver. Subject to obtaining the waiver of subrogation endorsement required by CCIOA, the Owners release each other and the Association, and their respective authorized representatives, from any claims for damage to any person or to the Units or Common Elements that are caused by or result from risks insured against under any insurance policies carried by the Owners or the Association and in force at the time of any such damage. (d) Obligation to Repair or Replace. In the event of a casualty with respect to the General Common Elements, the Association shall repair or replace the improvements as necessary to restore them to their condition before the casualty event. As provided by CCIOA, the proceeds of the insurance carried by the Association shall be used for such purpose and the Association shall be the trustee to receive the insurance awards and cause the repair or replacement to be accomplished. If the cost of repair or replacement exceeds the amount of insurance proceeds, the amount necessary to effect such restoration as determined by the Executive Board shall be a Common Expense assessed against the Owners as set forth in Section 5.3 above; provided, however, that the Executive Board shall reallocate such assessment between Unit A and Unit B Member Groups to the extent that the restoration benefits do not benefit both Units substantially proportionately to their Allocated Interests. Notwithstanding the foregoing, if the casualty was caused by the gross negligence or misconduct of an Owner, the amount needed to effect the restoration after use of the Association's and such Owner's insurance proceeds shall be assessed exclusively against such Owner's Unit. Section 6.4 Restoration Upon Condemnation. (a) Total Taking. In the event of a taking of the total Property by eminent domain, each Owner shall be entitled to receive the award of such taking for that Owner's Unit, after all mortgages and liens on the Unit have been satisfied or otherwise discharged. After acceptance of the award of the taking by the Owners and their mortgagees and lienholders, the Owners, their mortgagees and lienholders shall be divested of all interest in the Units and the Owners shall vacate the Units as a result of such taking. (b) Partial Taking. In the event of a partial taking of the Property by eminent domain, the Owner of any affected Unit or its mortgagees or lienholders, as applicable, shall be 10 49451461.1 entitled to receive the award of such taking and after acceptance of the award of the taking by the Owner and its mortgagees and lienholders, the Owner, its mortgagee and lienholders shall be divested of all interest in the Unit or portion of the Unit, as applicable, and such Owner shall vacate the Unit or said portion thereof as a result of such taking. The remaining portion of the Unit shall be re -surveyed and, if necessary, the Declaration and/or the Plat shall be amended to reflect such taking. If the taking includes all or a portion of the General Common Elements then, unless the Owners decide not to rebuild, the remaining General Common Elements shall be restored by the Association using the condemnation proceeds. If the cost of restoration exceeds the amount of condemnation proceeds, the amount necessary to effect such restoration as determined by the Executive Board shall be a Common Expense assessed against the Owners as set forth in Section 5.3 above; provided, however, that the Executive Board shall reallocate such assessment between Unit A and Unit B Member Groups to the extent that the restoration benefits do not benefit both Units substantially proportionately to their Allocated Interests. ARTICLE 7 RESTRICTIONS ON USE Section 7.1. Nuisances and Negligence: Environmental Conditions. There shall be no noxious or offensive activities carried on, in or upon any Unit or any General or Limited Common Element, and no loud noises or noxious odors shall be permitted anywhere in the Common Interest Community such that sounds are heard or noxious odors can be smelled outside of any Unit. Nothing shall be done in the Common Interest Community that may be or become an unreasonable annoyance or a nuisance to any other Owner or any occupant of any Unit. Any Owner shall have the right to enforce the provisions of this Article by bringing suit or otherwise. No Owner or occupant of any Unit shall permit or cause anything to be done or kept on the Common Interest Community which will increase the rate of insurance or which will result in the cancellation of such insurance. Any rate increases and related costs that are due to the acts of either Member Group, acting alone, will be paid by the Owner of the corresponding Unit. Each Owner shall be accountable to the Association and the other Owner for the uses and behavior of its tenants or guests. Section 7.2. Structural integity. Nothing shall be done to any Unit or the General or Limited Common Elements that will impair the structural integrity of any improvements on the other Unit or the General or Limited Common Elements unless prior written unanimous authorization is obtained from the Executive Board or from the other Owner, as appropriate. Section 7.3. Restriction Upon Occupancy. Except as the Owners might otherwise agree, each Unit shall be used and occupied solely for single-family residential purposes, meaning that all occupants of a Unit shall be related by marriage, civil union, adoption or descent or not more than two (2) unrelated persons occupying the same Unit, and except as provided in this section, no trade or business of any kind may be carried on therein. Short-term lease or rental of a Unit for lodging or residential purposes for single-family residential purposes shall not be considered to be a violation of this covenant. Similarly, the maintenance of a home office shall not be considered to be a violation of this restriction so long as the nature of the 49451461.1 11 • �J business involved is such that for all outward intents and purposes no business or commercial activity is being conducted within the Unit. Section 7.4. Usage of Common Elements. The Plat shall show the portions of the Limited Common Elements that are appurtenant to each Unit, and such portions shall be for the exclusive use and enjoyment of each such Unit as shown on the PIat. Except as otherwise provided in this Section 7.4, no Owner shall be entitled to use the exclusive areas set aside for the other Owner as shown on the Plat without the express written consent of the other Owner, anything in this Declaration or shown on the Plat to the contrary notwithstanding; provided, however, that a valid easement over and under each Limited Common Element area of exclusive use shall and does exist for the benefit of the Owners otherwise not entitled to use such area for purposes of the installation and maintenance of below -ground utility and Infrastructure systems now or hereafter serving either or both Units. Subject to the provisions of Section 7.1 herein, each Owner shall have the right to use and enjoy all areas on the Plat marked as General Common Elements. Section 7.5. No Unsightliness. No unsightliness or waste shall be permitted on or in any part of the Common Interest Community. Without limiting the generality of the foregoing, no Owner shall keep or store anything on or in any of the General Common Elements. No Owner shall have, erect, affix or place anything on any of the General Common Elements (except for small satellite receiver dishes and decorative items within the Owner's Unit), and nothing shall be placed on or in windows or doors of Units which would or might create an unsightly appearance. All trash shall be collected in each Owner's garage, or as may be otherwise designated by the Association and shall only be set out on the street on the day of collection. Section 7.6. Other Caused Damages. If, due to the act or neglect of an Owner or such Owner's tenants, guests or invitees, loss or damage shall be caused to any person or property, including the Common Interest Community or any Unit thereon, such Owner shall be liable or responsible for the same, except to the extent that such damage or loss is covered by insurance obtained by the Association or the other Owner, and the carrier of the insurance has waived rights of subrogation against such Owner. The amount of such loss or damage may be collected by the Association from such Owner as an assessment against such Owner by legal proceedings or otherwise, and such amount (including reasonable attorneys' fees) shall be secured by a lien on the Unit of such Owner, as provided hereinabove, for assessments or other charges. Any increase in the cost of any insurance maintained by the Association caused by such Owner caused damage shall be paid by the Owner causing such damage. Section 7.7. Parking of Vehicles. Parking of any and all vehicles on the Common Interest Community shall be only on the areas designated for parking on the Plat and subject to the rules and regulations of the Association as may be adopted from time to time. The Association shall have no responsibility for damage done to automobiles parked on the Common Interest Community. Section 7.8. Restrictions on Parking and Storage. No part of the Common Interest 49451461.1 12 Community, including the public streets, unless specifically designated on the Plat or by the Association, shall be used as a parking, storage display or accommodation area for any type of trailer, camping trailer, boat trailer, hauling trailer, boat or accessories thereto, truck or recreational vehicle for in excess of three (3) hours, except as a temporary expedience for loading, delivery, emergency, etc., provided this restriction shall not restrict trucks or other commercial vehicles which are necessary for the construction or maintenance of the Common Interest Community. Section 7.9. Leases. No Owner may lease less than that Owner's entire Unit, and all leases shall be in writing. All leases shall provide that the terms of the lease are subject, in all respects, to the provisions of this Declaration, and to the provisions of any rules and regulations, decisions or resolutions of the Association or the Executive Board. All Leases shall be subject to the requirement of single-family occupancy described in Section 7.3 herein. Section 7.10. Animal Restrictions. No animals, horses, livestock, birds, poultry, reptiles or insects of any kind shall be raised, bred, kept or boarded in the Common Interest Community; provided, however, that the Owners of each Unit may keep not more than three (3) bona fide household pets (including cats, dogs and other domestic animals approved by the Executive Board), so long as such pets are not kept for any commercial purpose and are not kept in such number or in such manner as to create a nuisance to any resident of the Association. An Owner shall be absolutely liable to the other Owner and their families and guests for any unreasonable noise or damage to any person or property caused by any animal brought or kept on the Property by such Owner or by members of the Owner's family, invitees or guests. Section 7.11. Enforcement. The Association, any member of the Executive Board and any Owner shall have the right to enforce this Declaration and the right to collect costs and expenses (including without limitation attorney fees) incurred in any enforcement action. ARTICLE 8 EASEMENTS Section 8 1. General Common Elements Easement. Each Unit Owner has a right and easement of use and enjoyment in and to the General Common Elements, which shall be appurtenant to and shall pass with the title to every Unit, subject to the provisions contained herein. Every Owner shall have a non-exclusive easement over, under and across the General Common Elements. Section 8.2. Easements for Improvements, Maintenance and Utilities. Reciprocal Easements (among all Units and all Common Elements) are hereby created, granted and reserved for the use and benefit of the Owners perpetual, non-exclusive reciprocal easements over and under the Property and all areas thereof for the continued existence of the Common Elements, in their present location, and for the use, enjoyment, maintenance, repair, preservation, restoration and replacement of the Common Elements when necessary, together with and including a right of reasonable access, ingress and egress over, upon and across both Units and the improvements 49451461.1 13 thereon for such purposes and for the existing electric, telephone, water, gas, and sanitary and storm sewer lines and facilities, exhaust, heating and air conditioning facilities, snowmelt boiler and snowmelt equipment, plumbing vent pipes, cable or master television antenna lines, drainage facilities, garbage chutes, stairs, walkways, and landscaping, and for the repair, replacement and maintenance of the same, as needed to service the Property and/or the individual Units. Each Owner has the right, at such Owner's sole expense and after giving written notice of at least ten (10) business days to the other Owner, to relocate such lines and facilities within such Owner's Unit; provided, however, that such relocation shall be accomplished without interrupting the need of the other Owner for the use of such lines or facilities (including the providing of temporary service, if necessary), except as such other Owner specifically permits. Any Unit Owner relocating utility lines and facilities (i) has a duty to immediately repair any damage to the other Owner's Unit or utilities caused by such relocation and (ii) shall indemnify and protect the other Unit Owner against any and all claims, losses, damages and injuries caused by such relocation, including reasonable attorney fees and costs of litigation. Section 8.3. Encroachment Easements. Each Owner has an easement over the adjoining Unit for the purpose of accommodating any encroachment due to engineering errors, errors in original construction, reconstruction, repair, settlement or shifting or movement of the building, or any other similar cause. There shall be valid easements for the maintenance of said encroachments so long as they shall exist, and the rights and obligations of Owners shall not be altered in any way by said encroachment, settlement or shifting; provided, however, that in no event shall a valid easement for encroachment occur due to the willful misconduct of an Owner or Owners. In the event a structure is partially or totally destroyed, and then repaired or rebuilt in substantially the same manner as originally constructed, the Owners agree that minor encroachments over the abutting Unit shall be permitted and that there shall be valid easements for the maintenance of said encroachments so long as they shall exist. Section 8.4. Recording Data Regarding Easements. Pursuant to § 38-33.3-205(1)(m) of the Act, the recording data for recorded easements and licenses appurtenant to or included in the Condominium Community or to which any portion of the Condominium Community is or may become subject to are identified on the attached Exhibit A. ARTICLE 9 MANDATORY DISPUTE RESOLUTION 9.1. Statement of Clarification. Without modifying or restricting the scope of this Article and as a statement of clarification only, nothing contained in this Article is intended to prevent the parties from attempting to resolve any differences between them through the normal course of business and communications. It is only when the parties are unable to resolve their differences and they wish to proceed further through the assertion of a "Claim" as defined herein, that the mandatory dispute resolution provisions contained in this Article are required. 9.2. Alternative Method for Resolving Disputes. Declarant, the Association, its officers and directors, all Owners, design professionals, contractors ("Builders"), and any Person 49451461.1 14 not otherwise subject to this Declaration but who agrees to submit to this Article (including any Builder's subcontractors and suppliers), each such entity being referred to as a "Bound Party," agree to encourage the amicable resolution of disputes involving the Community and all of its improvements without the emotional and financial costs of litigation. Accordingly, each Bound Party covenants and agrees to submit all Claims to final binding arbitration and not to otherwise bring legal or equitable action in any court. 9.3. Claims. Except as specifically excluded in this Section 9.3, all claims, disputes and other controversies arising out of or relating to the and/or (a) resolution of a Deadlock as defined in Section 3.6(a) herein; (b) interpretation, application or enforcement of this Declaration; (c) design or construction of improvements within the Community or any alleged defect therein; (d) rights, obligations and duties of any Bound Party under this Declaration; (e) breach thereof are hereinafter referred to as a "Claim" or "Claims." All Claims shall be subject to and resolved in accordance with the terms and provisions of this Article 9. Notwithstanding any contrary provision of this Article 9, the following shall not be Claims and shall not be subject to the provisions of this Article 9: (a) any legal action by the Association against any Bound Party to enforce the provisions of Article 5 (Covenant for Common Expense Assessments); (b) any legal action by the Association to obtain a temporary or permanent restraining order or injunction and such other ancillary relief as the court may deem necessary in order for the Association to act under and enforce the provisions of Article 7 (Restrictions on Use); and (c) any legal action to enforce an arbitration award provided in this Article 9. 9.4. Notice of Claim. Any Bound Party having a Claim ("Claimant') against any other Bound Parry ("Respondent") shall submit all of their Claims by written notification delivered to each Respondent, stating plainly and concisely: (a) the nature of the Claim, including the Persons involved and Respondent's role in the Claim; 49451461.1 15 (b) the legal or contractual basis of the Claim (i.e., the specific authority out of which the claim arises); and (c) the specific relief and/or proposed remedy sought. 9.5. Timely Initiation. All Claims shall be initiated by the Claimant within a reasonable time after the Claim has arisen, and in no event shall it be made after the date when institution of legal or equitable action based on such Claim would be barred by the applicable statute of limitations or repose. 9.6. Right to be Heard. Upon receipt of a Claim and prior to commencing any arbitration proceeding which may fall within the scope of this Article 9, the Respondent shall have the right to be heard by the Claimant in an effort to resolve the Claim. The parties shall make every reasonable effort to meet in person and confer for the purpose of resolving the Claim by good faith negotiation. Any parry may appoint a representative to assist such party in negotiations. 9.7. Right to Inspect. If the Claim is asserted against Declarant or a Builder and is based on a defect in the design or the construction of the Improvements within the Community, subject to Owner's prior written approval, which shall not be unreasonably withheld, Declarant or the Builder, as applicable, shall have the right to access the affected area for purposes of inspecting the condition complained of, and the correction thereof, including any necessary redesign. This shall include, but not be limited to, notice prior to conducting any investigative or destructive testing. All Claimants shall meet with Declarant or the Builder, as applicable, to discuss, in good faith, ways to resolve the Claim. The Association shall have the same right to inspect for any claims by an Owner against the Association in accordance with the above. In the exercise of the inspection rights contained herein, the inspecting party ("Inspecting_ Party") shall be careful to avoid any unreasonable intrusion upon, or harm, damage or costs to the other party. The Inspecting Party shall use best efforts to avoid causing any damage to, or interference with, any improvements on the Property being inspected and minimize any disruption or inconvenience to any person who occupies the Property; shall remove all debris located on the Property in a reasonable and timely manner, at the Inspecting Parry's sole cost and expense, promptly remove equipment and materials from the Property and repair, replace and restore the Property to the condition of the Property as of the date of the exercise of the inspection right. The Inspecting Parry shall not permit any claim, lien or other encumbrance arising from the exercise of its rights to accrue against or attach to the Property. The repair, replacement and restoration work includes, without limitation, the repair or replacement of any structures, driveways, fences, landscaping, utility lines or other Improvements on the Property that were damaged, removed or destroyed by Inspecting Party. The Inspecting Party shall indemnify, defend and hold harmless the Owners, tenants, 49451461.1 16 guests, employees and agents, against any and all liability, claims, demands, losses, costs and damages incurred, including court costs and attorneys' fees, resulting from or in performance of this Section 9.7, or as a result of any Inspecting Party's breach of this Section 9.7. 9.8. Final Binding Arbitration. If the Parties do not reach a settlement of the Claim within 30 days after Claimant's initiation of the Claim, the Claimant shall have 30 additional days to submit the Claim to binding arbitration in accordance with the arbitration procedures set forth below: (a) The parties agree that where any Claim is submitted to arbitration, and any other Bound Parry may have liability with respect thereto, all parties to the dispute agree that the third parties may be joined as additional parties in the arbitration, or if a separate arbitration exists or is separately initiated, to the consolidation of all arbitrations. It is the intent of the parties to resolve all rights and obligations of all interested parties at one time in one forum rather than in multiple proceedings. (b) If the Claim(s) are not timely submitted to arbitration or if the Claimant fails to appear for the arbitration proceeding, the Claims shall be deemed abandoned, and Respondent(s) shall be released and discharged from any and all liability to Claimant arising out of such Claims. (c) All Claims subject to arbitration shall be decided by a single private party arbitrator to be appointed by the parties. (d) If the parties are unable to agree upon an arbitrator within thirty (30) days from the date of the demand for arbitration, the presiding judge of the District Court in Pitkin County shall appoint a qualified arbitrator upon application of any party. (e) No person shall serve as the arbitrator who may have any financial or personal interest in the result of the arbitration or any family, social or significant professional acquaintance with any other party to the arbitration. Any person designated as an arbitrator shall immediately disclose in writing to all parties any circumstance likely to affect the appearance of impartiality, including any bias or financial or personal interest in the outcome of the arbitration ("Arbitrator's Disclosure"). If any party objects to the service of any arbitrator within 14 days after receipt of that Arbitrator's Disclosure, such arbitrator shall be replaced in the same manner as provided in Section 9.8(d) above. (f) The arbitrator shall fix the date, time and place for the hearing. The arbitration proceedings shall be conducted in Pitkin County, unless otherwise agreed by the parties. (g) Subject to the provisions of these procedures, the arbitration shall be conducted in accordance with rules and procedures determined by the arbitrator. 49451461.1 17 (h) The Arbitrator shall be generally guided by the intent of the Declarant that the Common Interest Community shall be maintained in a first-class condition befitting a luxury duplex condominium in the Aspen, Colorado market. (i) No formal discovery shall be conducted in the absence of an order of the arbitrator or express written agreement of the parties. Notwithstanding the foregoing sentence, any party asserting Claims against the Declarant or a Builder shall notify the Declarant or such Builder prior to retaining any Person as an expert witness for purposes of any arbitration or authorized litigation, and the Declarant or Builder shall be entitled to conduct discovery, including depositions, of such expert. (j) The award rendered by the arbitrator shall be final and binding, may be filed with any court of competent jurisdiction in accordance with applicable law and judgment obtained thereon, and execution may issue. An award in favor of any party shall be limited to actual damages, and the arbitrator shall not have any authority to award exemplary, punitive, special, indirect, consequential or any other damages other than actual damages. The party seeking enforcement shall be entitled to all reasonable attorney fees and costs incurred in the enforcement of the award. (k) The Arbitrator shall have authority, in the sound exercise of discretion, to award the prevailing parry such parry's costs and expenses, including reasonable attorney fees. (1) Unless directed by the arbitrator, there shall be no post -hearing briefs. (m) The arbitration award shall address each claim to be resolved in the arbitration, provide a summary of the reasons therefor and the relief granted. 9.9. Amendment. This Article 9 shall not be amended unless such amendment is approved by Owners to which sixty-seven percent (67%) of the votes of the Association are allocated, and with the consent of Declarant for a period of eight years after the final Improvements are completed on every Unit in the Community. ARTICLE 10 MISCELLANEOUS Section 10.1. Expansion or Redevelopment of Improvements on the Units. At the time of the recordation of this Declaration, the Property is improved with the Building as permitted by the City of Aspen Land Use Code (the "Code"). If any additional floor area is available to be constructed on the Property under the Code, then that unused floor area is hereby allocated to each Unit as follows: thirty-four percent (34%) to Unit A and sixty-six percent (66%) to Unit B; neither Unit shall utilize more than its share of the unused floor area without the unanimous written consent of the Unit A Member Group and the Unit B Member Group. Subject to the preceding limitation, the Owners maintain the right to seek any approvals allowed under the 49451461.1 18 Code to permit additional floor area to be constructed. An Owner shall not take any actions with the County that will affect the amount of floor area allocated to the other Unit without the prior written approval of the other Owner. Section 10.2. When Consent or Authorization Not Necessary. Notwithstanding anything in this Declaration to the contrary, whenever the consent or authorization of the Association or Executive Board shall be required under the provisions hereof, it shall suffice, and the consent or authorization of the Association shall thereby be deemed given, if an Owner seeking such consent or authorization has obtained the written consent or authorization of the other Owner in the Common Interest Community. Section 10.3. Indemnity. Each Owner ("Indemnifying Owner") agrees to indemnify and hold the other owner ("Other Owner") blameless and harmless of, from and against any loss, claim, demand or obligation (including costs of defense and attorney fees) of whatsoever nature occasioned by or in any manner resulting or emanating from any work done at the behest of the Indemnifying Owner on such Owner's Unit or labor, services or materials furnished to such Owner or such Owner's Unit, and the Indemnifying Owner will maintain the Other Owner's Unit, all General Common Elements, and that portion of the Limited Common Elements exclusively reserved to such Other Owner, as provided in Section 7.4, above, entirely lien free through payment or suitable substitution bond and, upon the failure of the Indemnifying Owner so to do, the Other Owner shall have the right to do that which it, in its discretion, determines to be necessary to effect the release and discharge of the lien from such Other Owner's Unit, the General Common Elements, and the applicable Limited Common Elements. The costs and expenses incurred in so doing, together with interest at the per annum rate of 21 % shall be repaid by the Indemnifying Owner upon demand to the Other Owner. Until repaid, the obligation so to do shall be secured by a lien against the Unit of the Indemnifying Owner, notice of which may be given by the Other Owner in the records of Pitkin County, Colorado, and which may be foreclosed as in the case of a mortgage. In any such foreclosure proceedings, the Other Owner shall be entitled to recover its costs and reasonable attorney fees. Section 10.4. Additional Rights of Enforcement. Each of the covenants, obligations and undertakings in this Declaration contained on the part of the respective Unit Owners to be kept, discharged or performed is intended to and shall be deemed to be for the specific benefit of the other Unit Owner to the end that, in the event of the failure or inability of the Association to enforce any provision of this Declaration against a delinquent or defaulting Owner, the remaining Owner, acting alone, shall have the right in the name of the Association and on its behalf or, as the case may be necessary or advisable, in the name of such remaining Owner and on his, her or its behalf to commence, maintain and obtain judgment under an action for damages, for specific performance, or for both, as appropriate, and in connection with any proceedings against a delinquent or defaulting Owner the remaining Owner shall be entitled to his, her or its costs and reasonable attorney fees as a part of any judgment entered for such Owner, and whether or not the relief obtained, including any damages, is less than what was sought. 49451461.1 19 Section 10.5. Audit. At the discretion of the executive board or upon a written request by either Owner, the books and records of the Association shall be subject to an audit, using generally accepted auditing standards, or a review, using statements on standards for accounting and review services, by an independent and qualified person selected by the board, in compliance with C.R.S. § 38-33.3-303(4). Copies of an audit or review under this paragraph (b) shall be made available upon request to any Owner beginning no later than thirty days after its completion. Section 10.6 Amendment. This Declaration may be amended by the affirmative vote or agreement of Owners to which at least sixty-seven percent (67%) of the votes in the Association are allocated, except that any provision hereof requiring Declarant's consent for amendment may only be amended pursuant to this paragraph and with the written consent of the Declarant. IN WITNESS WHEREOF, the Owners have caused this Amended and Restated Declaration to be executed as of the O'day of January a 0/ , 2019. 49451461.1 20 UNIT B OWNER AND DECLARANT: 229 WEST SMUGGLER, LLC a Colorado limited liability company By: oY Name: bow fer Title: r�a�er• STATE OF COLA DO �) ) ss. COUNTY OF NTKIN ) % l I GAS The foregoing was subscribed and sworn to before me thiQagay oflr nL),GLf , 2019, by David Dowler, as Manager of 229 West Smuggler, LLC, a Colorado limited liabili ompany. Witness my hand and official seal. My Commission expires: ►0.� PO KAILEY PRETZLAFF i Bar Notary ID #129919481 My Commission Expires �lF pF S�+P August 13, 2022 6 / I Ak4ew)l Notary Public 0 21 49451461.1 UNIT A OWNER AND DECLARANT: 426 NORTH SECOND, LLC a Colorado limited liability company By: Name: ,&Ile Z-. 2,0,w/Gl- Title: M,cAtj cr STATE OF CORADO ss. COUNTY OF NTK!N ) D0. l l q,_1 h 7"anu The foregoing was subscribed and sworn to before me thisRAof 019, by David Dowler, as Manager of 426 North Second, LLC, a Colorado limited liability con1pany. Witness my hand and official seal. My Commission expires: E- KAILEY PRETLLAFF Notary ID #129919481 My commission Expires August 13, 2022 K9, Notary Public 49451461.1 22 P�' SCHEDULE A (Easements and Encumbrances) 49451461.1 23 EXHIBIT A EXCEPTIONS l .. Exceptions and reservations as set forth in the Act authorizing the issuance of the Patent for the City and Townsite of Aspen dated June 2, 1881, and recorded March 1, 1897, in Book 139 at Page 216, as Reception No. 060156. 2. Terms, conditions, provisions, agreements and obligations specified under the Statement of Exemption from the Definition of Subdivision dated March 1, 1979, and recorded March 14, 1979, in Book 364 at Page 769, as Reception No. 212659. 3 Terms, conditions, provisions, agreements and obligations specified under the Condominium Declaration for Second and Smuggler Condominiums (A Condominium) recorded March 14, 1979, in Book 364 at Page 771, as Reception No. 212660, and First Amendment to Condominium Declaration for Second and Smuggler Condominiums (A Condominium) dated April 14, 1980, and recorded April 15, 1980, in Book 387 at Page 580, as Reception No. 223333. 4. Any and all notes, easements and recitals as disclosed on the recorded Condominium Map of Second and Smuggler Condominiums recorded March 14, 1979, in Plat Book 7 at Page 66, as Reception No. 282661. 5. Terms, conditions, provisions, agreements and obligations specified under the Resolution of the Aspen Planning and Zoning Commission Recommending Landmark Designation of 426 N. 2nd Street, Units A and B, Second and Smuggler Condominiums, Block 48, City of Aspen (Resolution No. 99-26) dated September 21, 1999, and recorded October 7, 1999, as Reception No. 436340. 6. Terms, conditions, provisions, agreements and obligations specified under An Ordinance of the Aspen City Council Granting Approval for Landmark Designation of 426 N. 2nd Street, Units A and B, Second and Smuggler Condominiums, Block 48, City of Aspen (Ordinance No. 40 - Series of 1999) dated October 12, 1999, and recorded October 18, 1999, as Reception No. 436711. 7. Terms, conditions, provisions, agreements and obligations specified under the Resolution of the Aspen Historic Preservation Commission Approving an Application for Landmark Designation, Minor Development, Partial Demolition, Residential Design Review and Variances to Remodel a Historic House at 426 N. Second Street, City and Townsite of Aspen, Colorado (Resolution No. 44, Series of 1999) dated September 8, 1999, and recorded November 12, 1999, as Reception No. 437683. 8. Terms, conditions, provisions, agreements and obligations specified under the Resolution of the Aspen Historic Preservation Commission Approving an Application for Landmark Designation, Minor Development, Partial Demolition, Residential Design Review and Variances to Remodel a Historic House at 426 N. Second Street, City and Townsite of Aspen, Colorado (Resolution No. 42, Series of 1999) dated September 8, 1999, and recorded December 16, 1999, as Reception No. 438637. Active/49463030.1 9. Any and all notes, easements and recitals as disclosed on the recorded Improvement & Topographic Survey Plat dated May 24, 2012, and recorded January 4, 2013, in Plat Book 101 at Page 52, as Reception No. 595803. 10. Terms, conditions, provisions, agreements and obligations specified under Resolution #1, Series of 2015, recorded January 21, 2015, as Reception No. 616812 11. Terms, conditions, provisions, agreements and obligations specified under Resolution #9, Series of 2015, recorded March 26, 2015, as Reception No. 618454. 12. Terms, conditions, provisions, agreements and obligations specified under the City of Aspen Easement Agreement, dated September 23, 2016, and recorded November 4, 2016, as Reception No. 633601. 2 Active/49463030. t 0 E, Janice K. Vos Caudill Pitkin County Clerk and Recorder 534 East Hyman Avenue Aspen, CO 81611 (970)429-2716 Number of Documents Recorded: 2 r T K I N Transaction Receipt Print Date: 02/19/2019 12:11:19 PM CuUNT� Transaction #618981 Transaction Type: Recording Receipt #2019000795 Cashier: Patty Nadon Cashier Date: 02/19/2019 12:11:15 PM Reception#654047 - PLAT - 7pg(s) Recording Surcharge: $3.00 Book 124 / Page 079 Recording Fee: Plats: $70.00 $73.00 Reception#654048 - AMENDMENT TO Recording Surcharge: $3.00 CONDOMINIUM DECLARATION - 25pg(s) Recording Fee: $130.00 S 133.00 Total Fees S206.00 Payment Received: Escrow Account $206.00 Change S0.00 Escrow Account: SHERMAN & HOWARD (New Balance: $230.00) Payment Comment: 1109 Presented by: SHERMAN & HOWARD 730 E DURANT AVE STE 200 ASPEN, CO 81611 Yy' It r a8 Hit 18� Ft'��;^ Ell �rp CC Jill pppi cc d � � 9��igg Yfiy i""' 11 °aa$ ii8 4 r th pp g°ii Q Z� �� R41 O All a w 5 Z =oo W o LLJ m al, IN k9 0 vuj .0$ o�= Zstt biz O$ 3 t iga�B�l W!E� pgF (i AiA ip y5 pE pE y ie!R] �; ae; �q Ey eA �Jill fit }E €[If if, I s H N s 1' 1 r! A'y r = A i F 9 a t5 1 aas i r- a4� a ���i� RECEPTION#: 654047, 02/19/2019 at 12:11:15 PM, Pgs 2 of 7, Janice K. Vos Caudill, Pitkin County, CO 9 0 Z Q yo: 0 RECEPTIONM 654047, 02/19/2019 at 12:11:15 PM, Pgs 3 of 7, Janice K. Vos Caudill, Pitkin County, CO U) :�i MD Z �� 2i O .0 Z O U o �L NJ (D (D U i mo 2 2E U) Q Z 0 Z O LijW U) � s ZF=oa W Ot; of =a't 1 W>ao� O 44 N_ ry m a - fill J W W J , Z Lu a 0 J 9 0 RECEPTIONM 654047, 02/19/2019 at 12:11:15 PM, Pgs 4 of 7, Janice K. Vos Caudill, Pitkin County, CO Eo�„0 'r R d3d3 M ue - v aHia 0 Is RECEPTIONM 654047, 02/19/2019 at 12:11:15 PM, Pgs 5 of 7, Janice K. Vos Caudill, Pitkin County, CO i All F3Hit@ _ fill HIM HH, i t _ Ilil n• � I:� I1i I O it III II' III1 Z � � -�•--' o �� i I U� s j � �s•s ' z Z , 11i JUj .� o Ij7il� hliili Q W :D � I� F�, -'•�y L 1 , �1V �� k $SN U Z� Z "-Oo wV= H v C° wJ�o"��' _ o Ii Z� /�- u Z J I III I I y Z --LUit O — - W F- LU Cn U r ��II II J > W Z C•- I i �I.I: �I� I � O w Ui z sigh M �849! RECEPTIONM 654047, 02/19/2019 at 12:11:15 PM, Pgs 6 of 7, Janice K. Vos Caudill. Pitkin County, CO RECEPTIONM 654047, 02/19/2019 at 12:11:15 PM, Pgs 7 of 7, Janice K. Vos Caudill, Pitkin County, CO 1 �a 5 ,y g�I - ii o p zU —+ a w i " . O u I I Z i _ K Oco Z Z I (0 w ry f CO F'- t 06 LU W < W y1- au S o� ? J ZJ �z 2 Z W Q V = a `u�0�9w 0 0� o l7uzao o� wJao� -iz� �n 0 .. w � � o rg �Y d Ns� ZE i !i R i . `'n Z 7 N �. LUZ in i A (nF- ! C.�-- W O O Z II tz mw Z f z Q 0 U lit R LU °laRQ 0 9 0.00 RECEPTION#. 654048, R: $133.00, $ DOC CODE: AMEND DEC '"`��� Pg 1 of 25, 02/19/2019 at 12:11:16 PM d ,, I,_ Janice K. Vos Caudill, Pitkin County, CO FEB 19 RECT C11 Y Urr L:%w1tN AMENDED AND RESTATED CONDOMINIUM DECLARATIF 1�MII''NITY OEVFLOPVF"l OF THE SECOND AND SMUGGLER CONDOMINIUMS THIS AMENDED AND RESTATED CONDOMINIUM DECLARATION OF SECOND AND SMUGGLER CONDOMINIUMS ("Declaration") is made by 229 West Smuggler, LLC, a Colorado limited liability company, and 426 North Second, LLC, a Colorado limited liability company (collectively, "Owners" and "Declarant") to be effective as of the day of January, 2019. —C— WHEREAS, the Owners own certain real property located in Pitkin County, Colorado, legally described as Condominium Units A and B, SECOND AND SMUGGLER CONDOMINIUMS (the "Pro e " or "Community"), according to the Condominium Map of Second and Smuggler Condominiums recorded March 14, 1979 in Plat Book 7 at Page 66, Pitkin County, Colorado ("Prior Plat"), and as defined and described by the Condominium Declaration of Second and Smuggler Condominiums recorded March 14, 1979 in Book 364 at Page 771, Pitkin County, Colorado and First Amendment to the Condominium Declaration for Second and Smuggler Condominiums recorded April 15, 1980 as Reception No. 223333, Pitkin County, Colorado (collectively, the "Prior Declaration"); WHEREAS, the Owners have redeveloped the Property with two single family residences (the "Improvements") and have provided for approval, adoption, and the recordation of the Amended and Restated Condominium Map of Second and Smuggler Condominiums on 1&(S MT% , 2019 as Reception No. Sga!D , (the "Plat") which Plat supersedes and replaces in its entirety the Prior Plat; WHEREAS, by this Declaration, the Owners desire to further provide for the approval and adoption of this Declaration, which shall supersede and replace in their entirety the Prior Declaration; and NOW THEREFORE, the Owners hereby declare that all of the Property shall be held, sold and conveyed subject to the following covenants, conditions, and obligations, all of which are declared and agreed to be for the protection of the value of the Property, and for the benefit of any persons having any right, title, or interest in the Property and which shall be deemed to run with the land and shall be a burden and a benefit to any persons acquiring any interest in the Property, their grantees, heirs, legal representatives, successors, and assigns. 49451461.1 0 • ARTICLE I SUBMISSION; DEFINED TERMS Section 1.1. Submission of Property. Declarant hereby declares that all of the Property is hereby made subject to the following easements, restrictions, covenants and conditions which shall run with the Property and be binding on all parties having any right, title or interest in the Property or any part thereof, their heirs, Iegal representatives, successors and assigns, and shall inure to the benefit of each owner thereof. The Property shall be subject to the provisions of the Colorado Common Interest Ownership Act, C.R.S. § 38-33.3-101, et seq., as amended from time to time ("CCIOA"). Section 1.2. Defined Terms. Each capitalized term not otherwise defined in this Declaration or on the Plat (the "Records") and used herein or on the Plat shall have the meanings specified or used in CCIOA. (a) Allocated Interests means the percentage ownership interest in the Common Elements, the Common Expense Assessment Liability, and the votes in the Association that are allocated to each of the Units in the Condominium Community. The formulas used to establish the Allocated Interests are as follows: (i) Interest in the Common Elements. Unit A: 2,284 square feet 34% interest in the Common Elements Unit B: 4,414 square feet 66% interest in the Common Elements (ii) Common Expense Assessment Liability. Common Expenses shall be assessed against the Units on the basis of thirty four percent (34%) to the Unit A and sixty six percent (66%) to the Unit B (the "Common Expense Allocation") (subject to the other terms of this Declaration). (iii) Votes. Each Unit within the Condominium Community is entitled to one (1) vote. (b) "General Common Elements" means: (i) those areas identified on the Plat as being General Common Elements for the use and enjoyment of both the Unit A and Unit B; (ii) any common gas, electric, water, sewer and other utility lines, pipes, wires, conduits, snow melt equipment or snowmelt boiler, or other systems (collectively herein "Infrastructure") running through or outside either Owner's Unit, but which serve both Units; (iii) irrigated common areas as shown on the Plat and any irrigation system within these areas; (iv) common vegetation within the irrigated common areas; (v) the roofs of both Units; (vi) the exterior finish, trim and siding of both Units; (vii) the common walls, ceilings and floors between the Units as shown on the Plat; (viii) any portion of the yard, landscaping, hardscaping and fencing that is not designated as a Limited Common Element below; (ix) all structural components of the building 49451461.1 2 located on the Property, including roof trusses, framing, foundation, window wells and exterior walls to the drywall; (x) drywells, downspouts and other drainage features; and (xi) the land comprising any portion of the Real Property (c) "Limited Common Elements" means: (i) those areas identified on the Plat as being Limited Common Elements; (ii) the window wells, walkway, entry porch, decks, and patio serving Unit A; (iii) the windows, skylights, exterior doors serving an individual unit. The Limited Common EIements shall be for the sole use and enjoyment of the Unit to which any such Limited Common Elements are appurtenant, as shown on the Plat and as provided herein. (d) "Unit A" shall mean all portions of the residence located at 426 North Second Street, Aspen, Colorado, 81611 (but excluding therefrom any Common Elements or Limited Common Elements), together with a thirty four (34%) percent interest in the Common Elements. Unit A includes, but is not limited to, the individual airspace which is contained within the perimeter windows, doors and unfinished surfaces of perimeter walls, floors and ceilings and all interior finishes from the surface of the drywall in, including but not limited to paint, cabinets, fixtures, flooring, appliances, internal doors and trim. The boundaries of the Unit are depicted on the Plat. The Unit shall include any heating, refrigerating, ventilation elements or related equipment, utility lines and outlets, electrical and plumbing fixtures, pipes and all other related equipment required to provide heating, air conditioning, hot and cold water, electrical or other utility services to the Unit and located within the unfinished walls, ceilings, and floors. (e) "Unit B" shall mean all portions of the residence located at 229 West Smuggler, Aspen, Colorado, 81611 (but excluding therefrom any Common Elements or Limited Common Elements), together with a sixty six (66%) percent interest in the Common Elements. Unit B includes, but is not Iimited to the individual airspace which is contained within the perimeter windows, doors and unfinished surfaces of perimeter walls, floors and ceilings and all interior finishes from the surface of the drywall in, including but not limited to paint, cabinets, fixtures, flooring, appliances, internal doors and trim. The boundaries of the Unit are depicted on the Plat. The Unit shall include any heating, refrigerating, ventilation elements or related equipment, utility lines and outlets, electrical and plumbing fixtures, pipes and all other related equipment required to provide heating, air conditioning, hot and cold water, electrical or other utility services to the Unit and located within the unfinished walls, ceilings, and floors. Unit B shall also include the automobile lift system located in the garage. ARTICLE 2 NAMES; DESCRIPTION OF PROPERTY Section 2.1. Names. (a) Common Interest Community. The name of the Common Interest Community is the Second and Smuggler Condominiums. (b) Association. The name of the homeowners association for the Common 49451461.1 3 0 0 Interest Community is the Second and Smuggler Condominium Association, Inc. a Colorado nonprofit corporation (the "Association"). The Members of the Association shall be all of the Owners of the Units within the Common Interest Community. ARTICLE 3 THE ASSOCIATION Section 3. 1. Authority. The business affairs of the Condominium shall be managed by the Association. Section 3.2. Powers. The Association acting through the Board serves as the governing body for the Condominium and has the powers and responsibilities set forth in the Declaration and the Act Section 38-33.3-302, specially including the authority and power to: (a) adopt and amend the Bylaws and Rules and Regulations; (b) adopt and amend budgets for revenues, expenditures and reserves and assess and collect any Assessments or any other amounts due from Owners or others to the Association; (c) hire and terminate managing agents and other employees, agents and independent contractors; (d) subject to the terms of this Declaration, institute, defend or intervene in litigation or administrative proceedings in its own name on behalf of itself (but not individual owners) on matters affecting the Condominium; (e) make contracts and incur liabilities; (f) borrow funds to cover Association expenditures and pledge Association assets as security therefor; (g) regulate the use, maintenance, repair, replacement and modification of the Common Elements; (h) cause additional improvements to be made as a part of the Common Elements; (i) acquire, hold, encumber and convey in its own name any right, title or interest to real or personal property; 0) grant easements, leases, licenses, and concessions through or over the Common Elements; (k) impose and receive any payments, fees or charges for any services provided to Owners; 4 49451461.1 0 0 (1) impose charges for late payment of Assessments, recover reasonable attorneys' fees and other legal costs for collection of Assessments and other actions to enforce the power of the Association, regardless of whether or not suit was initiated, and, after notice and an opportunity to be heard, levy reasonable fines for violations of the Condominium Instruments; (m) impose reasonable charges for the preparation and recording of amendments to this Declaration or statements of unpaid Assessments; (n) provide for the indemnification of its officers and members of the Board and maintain directors' and officers' liability insurance; (o) assign its right to future income, including the right to receive Assessments, provided that the Association must continue to have sufficient revenues to meet its obligations under this Declaration; (p) exercise any other powers conferred by this Declaration, the Articles, the Bylaws or the Act; (q) exercise all other powers that may be exercised in the State of Colorado by legal entities of the same type as the Association; and (r) exercise any other powers necessary and proper for the governance and operation of the Association. Section 3.3_ Member Groups. The Association shall have two (2) member groups, the Unit A Member Group, which is attached to Unit A and the Unit B Member Group, which is attached to Unit B. Membership in the Association shall be automatic on the part of any individual(s) or entity(ies) acquiring an ownership interest in a Unit (each an "Owner" or "Unit Owner') and shall automatically pass from any individual(s) or entity(ies) no longer holding an ownership interest therein. Section 3.4. Executive Board. Except as otherwise provided in this Declaration or as required by the provisions of CCIOA or the Association Act, the Association shall act through its Executive Board. The Executive Board will consist of two directors, and the directors shall appoint the officers of the Association. The Unit A Member Group and the Unit B Member Group shall each appoint one director. Except as otherwise provided in this Declaration, the Executive Board may only act by unanimous decision, subject to the terms set forth in Section 3.6 below. Directors and officers of the Association may, but need not be, Owners of Units. The Executive Board may promulgate Bylaws and Rules and Regulations for the Common Interest Community. Section 3.5. Notice to Owners. Any notice to an Owner of matters affecting the Common Interest Community by the Association or by another Owner shall be sufficiently given 5 49451461.1 if such notice is in writing and is delivered personally, by courier or private service delivery or the third business day after deposit in the U.S. mail, by certified or registered mail, first-class postage prepaid and return receipt requested, at the address of record for real property tax assessment notices with respect to that Owner's Unit. Section 3.6. Deadlock. (a) Definition. "Deadlock" shall mean a written statement that there is a deadlock (the "Claim") served by either Director upon the other Director within a reasonable period of time after a formal vote in which one member of the Executive Board votes for or against a proposition and the other member votes differently or refuses to attend a duly called meeting or refuses to vote, concerning (i) the amount of insurance to be provided by the Association, (ii) the insurance company to provide the Association's insurance or the budget therefor, (iii) the required degree or performance of Maintenance, or the use of, any General Common Elements, (iv) the manner in which Maintenance will be accomplished, including without limitation the selection of a maintenance company (if there is to be one) to provide or manage the Maintenance, (v) the budget for Maintenance, or (vi) any other decision where the members of the Executive Board are unable to reach a unanimous decision. All Claims must state plainly and concisely the nature of and basis for the Claim and the specific relief or remedy sought. In the event of a Deadlock relating to adoption of a proposed budget, the periodic budget last proposed by the Executive Board must be continued until the Deadlock is broken. (b) Breaking a Deadlock. In the event of a Deadlock, the Executive Board shall take a second vote on the proposition within thirty (30) days of service of the Claim. If that vote is not unanimous, or if either Director refuses by words or action to attend a duly called meeting or refuses to vote, then a decision that resolves the Deadlock issue shall be made in final, binding arbitration in accordance with pursuant to Article 10, herein. ARTICLE 4 UNITS Section 4.1. Number of Units. The number of Units in the Common Interest Community is two (2), namely Unit A, at 426 North Second Street, Aspen, Colorado, 81611 and Unit B, at 229 West Smuggler, Aspen, Colorado, 81611. No more than two Units may be created within the Common Interest Community. Section 4.2. Use and Enjoyment. Each Unit Owner shall have the sole use and enjoyment of all areas marked on the Plat as being part of, or appurtenant to, such Unit, including, without limitation, all Limited Common Elements shown on the Plat or described herein as being appurtenant to such Unit. Furthermore, each Unit Owner shall have the sole responsibility to maintain each Unit (and the Limited Common Elements appurtenant to such Unit except as otherwise specifically provided herein), at such Unit Owner's cost, and in a first class condition. Section 4.3. Boundaries. The boundaries of each Unit, and the boundaries of all 6 49451461.1 0 a Limited Common Elements and General Common Elements that can be depicted, are as shown on the Plat. ARTICLE 5 COVENANT FOR COMMON EXPENSE ASSESSMENTS Section 5.1. Common Expenses. The "Common Expenses" of the Association are for (a) Maintenance, as defined in Article 6 below, (b) Insurance, as defined in Article 6 below, (c) Water for Irrigation, as defined below; (d) trash removal, and (e) any and all other costs and expenses that are necessary to the proper maintenance, repair, replacement and condition of any of the General Common Elements. (a) The water supply for the irrigation system in the Common Areas is a Common Expense, but if the water supply for the irrigation system is metered through one but not both Units, then any overage from the average amount of water consumed by the other Unit will be considered a Common Expense, unless the water overage is caused by a water line break that is unrelated to the irrigation system. (b) Both the Limited Common Element walkways shall be maintained, resurfaced/sealed and snowplowed by the Association and the expense for such maintenance shall be a Common Expense in order to maintain the integrity of the visual design of the community. (c) The costs of maintaining in good order and repair the equipment and Infrastructure (including, without limitation, the roof system and snowmelt system), which does not serve either Unit exclusively shall be a Common Expense borne by the Owners in accordance with the Common Expense Allocation. Section 5.2. Creation of Association Lien and Personal Obligation to Pay Assessments. Each person or entity owning any interest in a Unit (other than a bona fide mortgagee), by acceptance of any conveyance of such interest in the Unit, shall be deemed to covenant and agree to pay to the Association annual Common Expense Assessments and Special Assessments (collectively, the "Assessments"). Such Assessments shall also include late charges, attorney fees and costs of collection charged by the Association. All Assessments shall be the personal obligation of the Owner(s) at the time when the Assessment becomes due. No Unit Owner(s) shall convey any interest in the Unit unless and until all sums due the Association and not assumed by the transferee are currently paid. All Assessments shall be a continuing lien upon the Unit and is subject to the Association's right to foreclose as provided by CCIOA. Notice of such lien may be given by filing in the records of Pitkin County, Colorado by any Owner in the name of the Association. Acceleration of any installment of the Assessments shall be in the Association's sole discretion on a case by case basis. Section 5.3. Apportionment of Common Expenses. Except for expenses related to Limited Common Elements, which except as set forth in Section 5.1(b) shall be apportioned to 7 49451461.1 the Unit benefitted thereby when paid for by the Association, Common Expenses shall be assessed against the Units on the basis of thirty four percent (34%) to Unit A and sixty six percent (66%) to Unit B (the "Common Expense Allocation"). The Common Expense Allocation may only be changed upon the unanimous written consent of the Unit A Member Group and the Unit B Member Group. Section 5.4. Annual Assessment/Commencement of Common Expense Assessments. The Common Expense Assessments shall be based upon the Association's advance budget of the cash requirements needed by it to fund payment of Common Expenses during such assessment year. Section 5.5. Special Assessments. A Special Assessment is any assessment that is not levied pursuant to an approved budget. The Association may levy one or more Special Assessments only to provide, with respect to the General Common Elements or Limited Common Elements, which the Association maintains, for liability claims or for unbudgeted repairs or replacement, to the extent not covered by Insurance, or to provide for extraordinary Maintenance, if the Executive Board so determines. Section 5.6. Effect of Non -Payment of Assessments. Any Assessment provided for in this Declaration, or any installment thereof, which is not fully paid within fifteen days after the due date thereof, shall bear interest at the rate of twenty-one percent (21 %) per annum. Further, following 'written notice to the non-paying Owner(s) complying with the Association's Collection Policy pursuant to C.R.S, § 38-33.3-209.5 and the provisions of C.R.S. § 38-33.3- 316.3, the Association may bring an action at law or in equity, or both, against any non-paying Owner(s) to pay such overdue Assessment, or installments thereof, and may accelerate the due date for payments of all installments remaining for the budget year, and may also proceed to foreclose its lien against such Owner's Unit, provided that the Owner(s) shall have the right, until the date of sale in the foreclosure proceeding, to cure the delinquency upon payment to the Association of the amount due, including attorney's fees, interest and costs. An action at law or in equity by the Association against any Owner(s) to recover a money judgment for unpaid Assessments or installments thereof, may be commenced and pursued by the Association enforcing the provisions of this Section 5.6 without foreclosing, or in any way waiving, the Association's lien therefor. For the purposes of collecting upon an unpaid Assessment, the provisions of Sections 3.4, 3.6 and Article 9 herein need not apply and the non -delinquent Owner, acting alone, shall have the right in the name of the Association and on its behalf or, as may be necessary, in the name of such non -delinquent Owner, to do and pursue all things that the Association is authorized to do under this Declaration in the case of a delinquent Assessment, in addition to any rights of the non -delinquent Owner under the provisions of Section 10.4 hereof. ARTICLE 6 MAINTENANCE, ALTERATIONS AND INSURANCE Section 6.1. Maintenance. 49451461.1 8 (a) Association's Responsibility. The Association shall be responsible for the maintenance, repair and replacement (including, without limitation, structural and exterior building and roof improvements, irrigation, driveway and landscaping maintenance and removal of snow, leaves and debris, collectively "Maintenance") of all those areas defined herein or marked on the Plat as "General Common Elements" and of all those portions of the Common Interest Community whose maintenance and repair has not been assigned to the Owners by the remaining provisions of this Section 6.1. Notwithstanding the foregoing, in the event an Owner neglects to maintain, repair or replace Limited Common Elements appurtenant to its unit, the Association may conduct such maintenance, repairs or replacement as is necessary to maintain the community in a first class condition and appearance and may bill the other Owner for the costs therefore. (b) Owner's Responsibility. Except as set forth in Section 5.1(b) herein, for purposes of maintenance, repair, alteration and remodeling, an Owner shall be deemed to own, and shall have the right and the obligation to maintain, repair, alter and remodel the interior non- structural walls, the materials making up the finished surfaces of the perimeter walls, ceilings and floors within the Unit, as well as the doors and windows of the Unit, any and all new additions to a Unit hereafter made by the Owner thereof, the Limited Common Elements reserved for the exclusive use of the Owner of the Unit (as shown on the Plat or defined herein) and any new fence or other structure enclosing a Limited Common Element patio, balcony or deck area. Each Owner shall, at such Owner's sole cost and expense: (i) keep and maintain in good order and repair the equipment and that portion of the Infrastructure located in such Owner's Unit, which serve that Unit exclusively; (ii) replace any finishing or other materials removed from any Unit with materials of as near as practicable type, kind, color, and quality; (iii) maintain in a "like new" clean, safe and attractive condition and in good repair the interior of such Owner's Unit, including the fixtures, doors and windows thereof, and the improvements affixed thereto; and (iv) maintain in a neat and clean condition all the decks, yard, porches, roof, balconies or patio areas, which have elsewhere in this Declaration been reserved to and for the exclusive use of such Owner, including the Limited Common Elements that have been so reserved. (c) Owner Alterations. Notwithstanding the provisions of Section 6.1(b) above, without the prior written consent of all Owners, no Owner shall (i) make any changes or alterations of any type or kind to the exterior surfaces of any doors or windows, (ii) modify or alter the appearance, materials, or color scheme of the exterior improvements as they may exist from time to time by agreement of the Owners, or (iii) modify or alter any landscaping now or hereafter installed within the Common Interest Community, with the exception of any such landscaping contained entirely within any fenced -in portion or deck of any Limited Common Elements appurtenant to a given Unit. Section 6.2. Insurance. (a) Association's Insurance. The Association shall maintain, as a Common Expense item, property insurance for the Common Elements and Limited Common Elements in a 49451461.1 9 policy amount that is not less than the full insurable replacement cost thereof and commercial general liability insurance in such minimum amounts as the Executive Board may establish from time to time, as provided by C.R.S. § 38-33.3-313 of CCIOA, the provisions of which Section are incorporated herein by this reference. Each such insurance policy shall be written with an insurance company licensed to do the business of insurance in the State of Colorado and shall have a rating of "A" or better as shown in the published rating of AM Best Company. (b) Owner's Insurance. Each Owner shall maintain such personal property and liability insurance with respect to its Unit (and the contents thereof) as such Owner may establish from time to time. The Owners shall endeavor to use the same insurance company as the Association uses for its insurance under Section 6.2(a) hereof. (c) Waiver. Subject to obtaining the waiver of subrogation endorsement required by CCIOA, the Owners release each other and the Association, and their respective authorized representatives, from any claims for damage to any person or to the Units or Common Elements that are caused by or result from risks insured against under any insurance policies carried by the Owners or the Association and in force at the time of any such damage. (d) Obligation to Repair or Replace. In the event of a casualty with respect to the General Common Elements, the Association shall repair or replace the improvements as necessary to restore them to their condition before the casualty event. As provided by CCIOA, the proceeds of the insurance carried by the Association shall be used for such purpose and the Association shall be the trustee to receive the insurance awards and cause the repair or replacement to be accomplished. If the cost of repair or replacement exceeds the amount of insurance proceeds, the amount necessary to effect such restoration as determined by the Executive Board shall be a Common Expense assessed against the Owners as set forth in Section 5.3 above; provided, however, that the Executive Board shall reallocate such assessment between Unit A and Unit B Member Groups to the extent that the restoration benefits do not benefit both Units substantially proportionately to their Allocated Interests. Notwithstanding the foregoing, if the casualty was caused by the gross negligence or misconduct of an Owner, the amount needed to effect the restoration after use of the Association's and such Owner's insurance proceeds shall be assessed exclusively against such Owner's Unit. Section 6.4 Restoration Upon Condemnation. (a) Total Taking. In the event of a taking of the total Property by eminent domain, each Owner shall be entitled to receive the award of such taking for that Owner's Unit, after all mortgages and liens on the Unit have been satisfied or otherwise discharged. After acceptance of the award of the taking by the Owners and their mortgagees and lienholders, the Owners, their mortgagees and Iienholders shall be divested of all interest in the Units and the Owners shall vacate the Units as a result of such taking. (b) Partial Taking. In the event of a partial taking of the Property by eminent domain, the Owner of any affected Unit or its mortgagees or Iienholders, as applicable, shall be 10 49451461.1 i entitled to receive the award of such taking and after acceptance of the award of the taking by the Owner and its mortgagees and lienholders, the Owner, its mortgagee and lienholders shall be divested of all interest in the Unit or portion of the Unit, as applicable, and such Owner shall vacate the Unit or said portion thereof as a result of such taking. The remaining portion of the Unit shall be re -surveyed and, if necessary, the Declaration and/or the Plat shall be amended to reflect such taking. If the taking includes all or a portion of the General Common Elements then, unless the Owners decide not to rebuild, the remaining General Common Elements shall be restored by the Association using the condemnation proceeds. If the cost of restoration exceeds the amount of condemnation proceeds, the amount necessary to effect such restoration as determined by the Executive Board shall be a Common Expense assessed against the Owners as set forth in Section 5.3 above; provided, however, that the Executive Board shall reallocate such assessment between Unit A and Unit B Member Groups to the extent that the restoration benefits do not benefit both Units substantially proportionately to their Allocated Interests. ARTICLE 7 RESTRICTIONS ON USE Section 7.1. Nuisances and Negligence: Environmental Conditions. There shall be no noxious or offensive activities carried on, in or upon any Unit or any General or Limited Common Element, and no loud noises or noxious odors shall be permitted anywhere in the Common Interest Community such that sounds are heard or noxious odors can be smelled outside of any Unit. Nothing shall be done in the Common Interest Community that may be or become an unreasonable annoyance or a nuisance to any other Owner or any occupant of any Unit. Any Owner shall have the right to enforce the provisions of this Article by bringing suit or otherwise. No Owner or occupant of any Unit shall permit or cause anything to be done or kept on the Common Interest Community which will increase the rate of insurance or which will result in the cancellation of such insurance. Any rate increases and related costs that are due to the acts of either Member Group, acting alone, will be paid by the Owner of the corresponding Unit. Each Owner shall be accountable to the Association and the other Owner for the uses and behavior of its tenants or guests. Section 7.2. Structural Integrity. Nothing shall be done to any Unit or the General or Limited Common Elements that will impair the structural integrity of any improvements on the other Unit or the General or Limited Common Elements unless prior written unanimous authorization is obtained from the Executive Board or from the other Owner, as appropriate. Section 7.3. Restriction Upon Occupancy. Except as the Owners might otherwise agree, each Unit shall be used and occupied solely for single-family residential purposes, meaning that all occupants of a Unit shall be related by marriage, civil union, adoption or descent or not more than two (2) unrelated persons occupying the same Unit, and except as provided in this section, no trade or business of any kind may be carried on therein. Short-term lease or rental of a Unit for lodging or residential purposes for single-family residential purposes shall not be considered to be a violation of this covenant. Similarly, the maintenance of a home office shall not be considered to be a violation of this restriction so long as the nature of the 49451461.1 11 11 w business involved is such that for all outward intents and purposes no business or commercial activity is being conducted within the Unit. Section 7.4. Usage of Common Elements. The Plat shall show the portions of the Limited Common Elements that are appurtenant to each Unit, and such portions shall be for the exclusive use and enjoyment of each such Unit as shown on the Plat. Except as otherwise provided in this Section 7.4, no Owner shall be entitled to use the exclusive areas set aside for the other Owner as shown on the Plat without the express written consent of the other Owner, anything in this Declaration or shown on the Plat to the contrary notwithstanding; provided, however, that a valid easement over and under each Limited Common Element area of exclusive use shall and does exist for the benefit of the Owners otherwise not entitled to use such area for purposes of the installation and maintenance of below -ground utility and Infrastructure systems now or hereafter serving either or both Units. Subject to the provisions of Section 7.1 herein, each Owner shall have the right to use and enjoy all areas on the Plat marked as General Common Elements. Section 7.5. No Unsightliness. No unsightliness or waste shall be permitted on or in any part of the Common Interest Community. Without limiting the generality of the foregoing, no Owner shall keep or store anything on or in any of the General Common Elements. No Owner shall have, erect, affix or place anything on any of the General Common Elements (except for small satellite receiver dishes and decorative items within the Owner's Unit), and nothing shall be placed on or in windows or doors of Units which would or might create an unsightly appearance. All trash shall be collected in each Owner's garage, or as may be otherwise designated by the Association and shall only be set out on the street on the day of collection. Section 7.6. Other Caused Damages. If, due to the act or neglect of an Owner or such Owner's tenants, guests or invitees, Ioss or damage shall be caused to any person or property, including the Common Interest Community or any Unit thereon, such Owner shall be liable or responsible for the same, except to the extent that such damage or loss is covered by insurance obtained by the Association or the other Owner, and the carrier of the insurance has waived rights of subrogation against such Owner. The amount of such loss or damage may be collected by the Association from such Owner as an assessment against such Owner by legal proceedings or otherwise, and such amount (including reasonable attorneys' fees) shall be secured by a lien on the Unit of such Owner, as provided hereinabove, for assessments or other charges. Any increase in the cost of any insurance maintained by the Association caused by such Owner caused damage shall be paid by the Owner causing such damage. Section 7.7. Parking of Vehicles. Parking of any and all vehicles on the Common Interest Community shall be only on the areas designated for parking on the Plat and subject to the rules and regulations of the Association as may be adopted from time to time. The Association shall have no responsibility for damage done to automobiles parked on the Common Interest Community. Section 7.8. Restrictions on Parking and Storage. No part of the Common Interest 49451461.1 12 • Community, including the public streets, unless specifically designated on the Plat or by the Association, shall be used as a parking, storage display or accommodation area for any type of trailer, camping trailer, boat trailer, hauling trailer, boat or accessories thereto, truck or recreational vehicle for in excess of three (3) hours, except as a temporary expedience for loading, delivery, emergency, etc., provided this restriction shall not restrict trucks or other commercial vehicles which are necessary for the construction or maintenance of the Common Interest Community. Section 7.9. Leases. No Owner may lease less than that Owner's entire Unit, and all leases shall be in writing. All leases shall provide that the terms of the lease are subject, in all respects, to the provisions of this Declaration, and to the provisions of any rules and regulations, decisions or resolutions of the Association or the Executive Board. All Leases shall be subject to the requirement of single-family occupancy described in Section 7.3 herein. Section 7.10. Animal Restrictions. No animals, horses, livestock, birds, poultry, reptiles or insects of any kind shall be raised, bred, kept or boarded in the Common Interest Community; provided, however, that the Owners of each Unit may keep not more than three (3) bona fide household pets (including cats, dogs and other domestic animals approved by the Executive Board), so long as such pets are not kept for any commercial purpose and are not kept in such number or in such manner as to create a nuisance to any resident of the Association. An Owner shall be absolutely liable to the other Owner and their families and guests for any unreasonable noise or damage to any person or property caused by any animal brought or kept on the Property by such Owner or by members of the Owner's family, invitees or guests. Section 7.11. Enforcement. The Association, any member of the Executive Board and any Owner shall have the right to enforce this Declaration and the right to collect costs and expenses (including without limitation attorney fees) incurred in any enforcement action. ARTICLE 8 EASEMENTS Section 8 1. General Common Elements Easement. Each Unit Owner has a right and easement of use and enjoyment in and to the General Common Elements, which shall be appurtenant to and shall pass with the title to every Unit, subject to the provisions contained herein. Every Owner shall have a non-exclusive easement over, under and across the General Common Elements. Section 8.2. Easements for Improvements, Maintenance and Utilities. Reciprocal Easements (among all Units and all Common Elements) are hereby created, granted and reserved for the use and benefit of the Owners perpetual, non-exclusive reciprocal easements over and under the Property and all areas thereof for the continued existence of the Common Elements, in their present location, and for the use, enjoyment, maintenance, repair, preservation, restoration and replacement of the Common Elements when necessary, together with and including a right of reasonable access, ingress and egress over, upon and across both Units and the improvements 49451461.1 13 • thereon for such purposes and for the existing electric, telephone, water, gas, and sanitary and storm sewer lines and facilities, exhaust, heating and air conditioning facilities, snowmelt boiler and snowmelt equipment, plumbing vent pipes, cable or master television antenna lines, drainage facilities, garbage chutes, stairs, walkways, and landscaping, and for the repair, replacement and maintenance of the same, as needed to service the Property and/or the individual Units. Each Owner has the right, at such Owner's sole expense and after giving written notice of at least ten (10) business days to the other Owner, to relocate such lines and facilities within such Owner's Unit; provided, however, that such relocation shall be accomplished without interrupting the need of the other Owner for the use of such lines or facilities (including the providing of temporary service, if necessary), except as such other Owner specifically permits. Any Unit Owner relocating utility lines and facilities (i) has a duty to immediately repair any damage to the other Owner's Unit or utilities caused by such relocation and (ii) shall indemnify and protect the other Unit Owner against any and all claims, losses, damages and injuries caused by such relocation, including reasonable attorney fees and costs of litigation. Section 8.3. Encroachment Easements. Each Owner has an easement over the adjoining Unit for the purpose of accommodating any encroachment due to engineering errors, errors in original construction, reconstruction, repair, settlement or shifting or movement of the building, or any other similar cause. There shall be valid easements for the maintenance of said encroachments so long as they shall exist, and the rights and obligations of Owners shall not be altered in any way by said encroachment, settlement or shifting; provided, however, that in no event shall a valid easement for encroachment occur due to the willful misconduct of an Owner or Owners. In the event a structure is partially or totally destroyed, and then repaired or rebuilt in substantially the same manner as originally constructed, the Owners agree that minor encroachments over the abutting Unit shall be permitted and that there shall be valid easements for the maintenance of said encroachments so long as they shall exist. Section 8.4. Recording Data Regarding Easements. Pursuant to § 38-33.3-205(1)(m) of the Act, the recording data for recorded easements and licenses appurtenant to or included in the Condominium Community or to which any portion of the Condominium Community is or may become subject to are identified on the attached Exhibit A. ARTICLE 9 MANDATORY DISPUTE RESOLUTION 9.1. Statement of Clarification. Without modifying or restricting the scope of this Article and as a statement of clarification only, nothing contained in this Article is intended to prevent the parties from attempting to resolve any differences between them through the normal course of business and communications. It is only when the parties are unable to resolve their differences and they wish to proceed further through the assertion of a "Claim" as defined herein, that the mandatory dispute resolution provisions contained in this Article are required. 9.2. Alternative Method for Resolving Disputes. Declarant, the Association, its officers and directors, all Owners, design professionals, contractors ("Builders"), and any Person 14 49451461.1 not otherwise subject to this Declaration but who agrees to submit to this Article (including any Builder's subcontractors and suppliers), each such entity being referred to as a "Bound Party," agree to encourage the amicable resolution of disputes involving the Community and all of its improvements without the emotional and financial costs of litigation. Accordingly, each Bound Party covenants and agrees to submit all Claims to final binding arbitration and not to otherwise bring legal or equitable action in any court. 9.3. Claims. Except as specifically excluded in this Section 9.3, all claims, disputes and other controversies arising out of or relating to the and/or (a) resolution of a Deadlock as defined in Section 3.6(a) herein; (b) interpretation, application or enforcement of this Declaration; (c) design or construction of improvements within the Community or any alleged defect therein; (d) rights, obligations and duties of any Bound Party under this Declaration; (e) breach thereof are hereinafter referred to as a "Claim" or "Claims." All Claims shall be subject to and resolved in accordance with the terms and provisions of this Article 9. Notwithstanding any contrary provision of this Article 9, the following shall not be Claims and shall not be subject to the provisions of this Article 9: (a) any legal action by the Association against any Bound Party to enforce the provisions of Article 5 (Covenant for Common Expense Assessments); (b) any legal action by the Association to obtain a temporary or permanent restraining order or injunction and such other ancillary relief as the court may deem necessary in order for the Association to act under and enforce the provisions of Article 7 (Restrictions on Use); and (c) any legal action to enforce an arbitration award provided in this Article 9. 9.4. Notice of Claim. Any Bound Party having a Claim ("Claimant") against any other Bound Party ("Respondent") shall submit all of their Claims by written notification delivered to each Respondent, stating plainly and concisely: (a) the nature of the Claim, including the Persons involved and Respondent's role in the Claim; 49451461.1 15 0 0 (b) the legal or contractual basis of the Claim (i.e., the specific authority out of which the claim arises); and (c) the specific relief and/or proposed remedy sought. 9.5. Timely Initiation. All Claims shall be initiated by the Claimant within a reasonable time after the Claim has arisen, and in no event shall it be made after the date when institution of legal or equitable action based on such Claim would be barred by the applicable statute of limitations or repose. 9.6. Right to be Heard. Upon receipt of a Claim and prior to commencing any arbitration proceeding which may fall within the scope of this Article 9, the Respondent shall have the right to be heard by the Claimant in an effort to resolve the Claim. The parties shall make every reasonable effort to meet in person and confer for the purpose of resolving the Claim by good faith negotiation. Any party may appoint a representative to assist such party in negotiations. 9.7. Right to Inspect. If the Claim is asserted against Declarant or a Builder and is based on a defect in the design or the construction of the Improvements within the Community, subject to Owner's prior written approval, which shall not be unreasonably withheld, Declarant or the Builder, as applicable, shall have the right to access the affected area for purposes of inspecting the condition complained of, and the correction thereof, including any necessary redesign. This shall include, but not be limited to, notice prior to conducting any investigative or destructive testing. All Claimants shall meet with Declarant or the Builder, as applicable, to discuss, in good faith, ways to resolve the Claim. The Association shall have the same right to inspect for any claims by an Owner against the Association in accordance with the above. In the exercise of the inspection rights contained herein, the inspecting party ("Inspecting Party") shall be careful to avoid any unreasonable intrusion upon, or harm, damage or costs to the other party. The Inspecting Party shall use best efforts to avoid causing any damage to, or interference with, any improvements on the Property being inspected and minimize any disruption or inconvenience to any person who occupies the Property; shall remove all debris located on the Property in a reasonable and timely manner, at the Inspecting Parry's sole cost and expense, promptly remove equipment and materials from the Property and repair, replace and restore the Property to the condition of the Property as of the date of the exercise of the inspection right. The Inspecting Parry shall not permit any claim, lien or other encumbrance arising from the exercise of its rights to accrue against or attach to the Property. The repair, replacement and restoration work includes, without limitation, the repair or replacement of any structures, driveways, fences, landscaping, utility lines or other Improvements on the Property that were damaged, removed or destroyed by Inspecting Party. The Inspecting Party shall indemnify, defend and hold harmless the Owners, tenants, 16 49451461.1 guests, employees and agents, against any and all liability, claims, demands, losses, costs and damages incurred, including court costs and attorneys' fees, resulting from or in performance of this Section 9.7, or as a result of any Inspecting Party's breach of this Section 9.7. 9.8. Final Binding Arbitration. If the Parties do not reach a settlement of the Claim within 30 days after Claimant's initiation of the Claim, the Claimant shall have 30 additional days to submit the Claim to binding arbitration in accordance with the arbitration procedures set forth below: (a) The parties agree that where any Claim is submitted to arbitration, and any other Bound Party may have liability with respect thereto, all parties to the dispute agree that the third parties may be joined as additional parties in the arbitration, or if a separate arbitration exists or is separately initiated, to the consolidation of all arbitrations. It is the intent of the parties to resolve all rights and obligations of all interested parties at one time in one forum rather than in multiple proceedings. (b) If the Claim(s) are not timely submitted to arbitration or if the Claimant fails to appear for the arbitration proceeding, the Claims shall be deemed abandoned, and Respondent(s) shall be released and discharged from any and all liability to Claimant arising out of such Claims. (c) All Claims subject to arbitration shall be decided by a single private party arbitrator to be appointed by the parties. (d) If the parties are unable to agree upon an arbitrator within thirty (30) days from the date of the demand for arbitration, the presiding judge of the District Court in Pitkin County shall appoint a qualified arbitrator upon application of any party. (e) No person shall serve as the arbitrator who may have any financial or personal interest in the result of the arbitration or any family, social or significant professional acquaintance with any other party to the arbitration. Any person designated as an arbitrator shall immediately disclose in writing to all parties any circumstance likely to affect the appearance of impartiality, including any bias or financial or personal interest in the outcome of the arbitration ("Arbitrator's Disclosure"). If any party objects to the service of any arbitrator within 14 days after receipt of that Arbitrator's Disclosure, such arbitrator shall be replaced in the same manner as provided in Section 9.8(d) above. (f) The arbitrator shall fix the date, time and place for the hearing. The arbitration proceedings shall be conducted in Pitkin County, unless otherwise agreed by the parties. (g) Subject to the provisions of these procedures, the arbitration shall be conducted in accordance with rules and procedures determined by the arbitrator. 49451461.1 17 0 0 (h) The Arbitrator shall be generally guided by the intent of the Declarant that the Common Interest Community shall be maintained in a first-class condition befitting a luxury duplex condominium in the Aspen, Colorado market. (i) No formal discovery shall be conducted in the absence of an order of the arbitrator or express written agreement of the parties. Notwithstanding the foregoing sentence, any party asserting Claims against the Declarant or a Builder shall notify the Declarant or such Builder prior to retaining any Person as an expert witness for purposes of any arbitration or authorized litigation, and the Declarant or Builder shall be entitled to conduct discovery, including depositions, of such expert. ZD (j) The award rendered by the arbitrator shall be final and binding, may be filed with any court of competent jurisdiction in accordance with applicable law and judgment obtained thereon, and execution may issue. An award in favor of any party shall be limited to actual damages, and the arbitrator shall not have any authority to award exemplary, punitive, special, indirect, consequential or any other damages other than actual damages. The party seeking enforcement shall be entitled to all reasonable attorney fees and costs incurred in the enforcement of the award. (k) The Arbitrator shall have authority, in the sound exercise of discretion, to award the prevailing party such party's costs and expenses, including reasonable attorney fees. (1) Unless directed by the arbitrator, there shall be no post -hearing briefs. (m) The arbitration award shall address each claim to be resolved in the arbitration, provide a summary of the reasons therefor and the relief granted. 9.9. Amendment. This Article 9 shall not be amended unless such amendment is approved by Owners to which sixty-seven percent (67%) of the votes of the Association are allocated, and with the consent of Declarant for a period of eight years after the final ZD Improvements are completed on every Unit in the Community. ARTICLE 10 MISCELLANEOUS Section 10.1. Expansion or Redevelopment of Improvements on the Units. At the time of the recordation of this Declaration, the Property is improved with the Building as permitted by the City of Aspen Land Use Code (the "Code"). If any additional floor area is available to be constructed on the Property under the Code, then that unused floor area is hereby allocated to each Unit as follows: thirty-four percent (34%) to Unit A and sixty-six percent (66%) to Unit B; neither Unit shall utilize more than its share of the unused floor area without the unanimous written consent of the Unit A Member Group and the Unit B Member Group. Subject to the preceding limitation, the Owners maintain the right to seek any approvals allowed under the 18 49451461.1 Code to permit additional floor area to be constructed. An Owner shall not take any actions with the County that will affect the amount of floor area allocated to the other Unit without the prior written approval of the other Owner. Section 10.2. When Consent or Authorization Not Necessary. Notwithstanding anything in this Declaration to the contrary, whenever the consent or authorization of the Association or Executive Board shall be required under the provisions hereof, it shall suffice, and the consent or authorization of the Association shall thereby be deemed given, if an Owner seeking such consent or authorization has obtained the written consent or authorization of the other Owner in the Common Interest Community. Section 10.3. Indemnity. Each Owner ("Indemnifying Owner") agrees to indemnify and hold the other owner ("Other Owner") blameless and harmless of, from and against any loss, claim, demand or obligation (including costs of defense and attorney fees) of whatsoever nature occasioned by or in any manner resulting or emanating from any work done at the behest of the Indemnifying Owner on such Owner's Unit or labor, services or materials furnished to such Owner or such Owner's Unit, and the Indemnifying Owner will maintain the Other Owner's Unit, all General Common Elements, and that portion of the Limited Common Elements exclusively reserved to such Other Owner, as provided in Section 7.4, above, entirely lien free through payment or suitable substitution bond and, upon the failure of the Indemnifying Owner so to do, the Other Owner shall have the right to do that which it, in its discretion, determines to be necessary to effect the release and discharge of the lien from such Other Owner's Unit, the General Common Elements, and the applicable Limited Common Elements. The costs and expenses incurred in so doing, together with interest at the per annum rate of 21 % shall be repaid by the Indemnifying Owner upon demand to the Other Owner. Until repaid, the obligation so to do shall be secured by a lien against the Unit of the Indemnifying Owner, notice of which may be given by the Other Owner in the records of Pitkin County, Colorado, and which may be foreclosed as in the case of a mortgage. In any such foreclosure proceedings, the Other Owner shall be entitled to recover its costs and reasonable attorney fees. Section 10.4. Additional Rights of Enforcement. Each of the covenants, obligations and undertakings in this Declaration contained on the part of the respective Unit Owners to be kept, discharged or performed is intended to and shall be deemed to be for the specific benefit of the other Unit Owner to the end that, in the event of the failure or inability of the Association to enforce any provision of this Declaration against a delinquent or defaulting Owner, the remaining Owner, acting alone, shall have the right in the name of the Association and on its behalf or, as the case may be necessary or advisable, in the name of such remaining Owner and on his, her or its behalf to commence, maintain and obtain judgment under an action for damages, for specific performance, or for both, as appropriate, and in connection with any proceedings against a delinquent or defaulting Owner the remaining Owner shall be entitled to his, her or its costs and reasonable attorney fees as a part of any judgment entered for such Owner, and whether or not the relief obtained, including any damages, is less than what was sought. 49451461.1 19 • • Section 10.5. Audit. At the discretion of the executive board or upon a written request by either Owner, the books and records of the Association shall be subject to an audit, using generally accepted auditing standards, or a review, using statements on standards for accounting and review services, by an independent and qualified person selected by the board, in compliance with C.R.S. § 38-33.3-303(4). Copies of an audit or review under this paragraph (b) shall be made available upon request to any Owner beginning no later than thirty days after its completion. Section 10.6 Amendment. This Declaration may be amended by the affirmative vote or agreement of Owners to which at least sixty-seven percent (67%) of the votes in the Association are allocated, except that any provision hereof requiring Declarant's consent for amendment may only be amended pursuant to this paragraph and with the written consent of the Declarant. IN WITNESS WHEREOF, the Owners have caused this Amended and Restated Declaration to be executed as of the Uday of January , 2019. 49451461.1 20 • 0 UNIT B OWNER AND DECLARANT: 229 WEST SMUGGLER, LLC a Colorado limited liability company By. Name�va✓Y L oW it Title: ��a9er STATE OF COO GlS ss. COUNTY OF - -SIN ) �-r� The foregoing was subscribed and sworn to before me thiQpay of1Cl mar , 2019, by David Dowler, as Manager of 229 West Smuggler, LLC, a Colorado limited liabili ompany. Witness my hand and official seal My Commission expires: ♦�aY °�B KAILEY PRETZLAFF i Notary ID #129919481 P My Commission Expires August 13, 2022 6 / I iu4ewe Notary Public 49451461.1 21 UNIT A OWNER AND DECLARANT: 426 NORTH SECOND, LLC a Colorado limited liability company By: 1914 fz' J�� Name: ,7 yiq� G. 2/,o w %Glt Title: Aix,%jti ey STATE OF CORADO ) ) ss. COUNTY OF 1�KIN DQ l l aJ th The foregoing was subscribed and sworn to before me thiso��day ofTaw , �019, by David Dowler, as Manager of 426 North Second, LLC, a Colorado limited liability con1pany_ Witness my hand and official seal. My Commission expires: <p0.Y °Ue KAILEY PRETZLAFF ? �n Notary ID #129919481 My Commission Expires N�1E.OF �4"+P August 13, 2022 49451461.1 22 11 • SCHEDULE A (Easements and Encumbrances) 49451461.1 23 EXHIBIT A EXCEPTIONS 1.. Exceptions and reservations as set forth in the Act authorizing the issuance of the Patent for the City and Townsite of Aspen dated June 2, 1881, and recorded March 1, 1897, in Book 1-39 at Page 216, as Reception No. 060156. 2. Terms, conditions, provisions, agreements and obligations specified under the Statement of Exemption from the Definition of Subdivision dated March 1, 1979, and recorded March 14, 1979, in Book 364 at Page 769, as Reception No. 212659. 3 Terms, conditions, provisions, agreements and obligations specified under the Condominium Declaration for Second and Smuggler Condominiums (A Condominium) recorded March 14, 1979, in Book 364 at Page 771, as Reception No. 212660, and First Amendment to Condominium Declaration for Second and Smuggler Condominiums (A Condominium) dated April 14, 1980, and recorded April 15, 1980, in Book 387 at Page 580, as Reception No. 223333. 4. Any and all notes, easements and recitals as disclosed on the recorded Condominium Map of Second and Smuggler Condominiums recorded March 14, 1979, in Plat Book 7 at Page 66, as Reception No. 282661. 5. Terms, conditions, provisions, agreements and obligations specified under the Resolution of the Aspen Planning and Zoning Commission Recommending Landmark Designation of 426 N. 2nd Street, Units A and B, Second and Smuggler Condominiums, Block 48, City of Aspen (Resolution No. 99-26) dated September 21, 1999, and recorded October 7, 1999, as Reception No. 436340. 6. Terms, conditions, provisions, agreements and obligations specified under An Ordinance of the Aspen City Council Granting Approval for Landmark Designation of 426 N. 2nd Street, Units A and B, Second and Smuggler Condominiums, Block 48, City of Aspen (Ordinance No. 40 - Series of 1999) dated October 12, 1999, and recorded October 18, 1999, as Reception No. 436711. 7. Terms, conditions, provisions, agreements and obligations specified under the Resolution of the Aspen Historic Preservation Commission Approving an Application for Landmark Designation, Minor Development, Partial Demolition, Residential Design Review and Variances to Remodel a Historic House at 426 N. Second Street, City and Townsite of Aspen, Colorado (Resolution No. 44, Series of 1999) dated September 8, 1999, and recorded November 12, 1999, as Reception No. 437683. 8. Terms, conditions, provisions, agreements and obligations specified under the Resolution of the Aspen Historic Preservation Commission Approving an Application for Landmark Designation, Minor Development, Partial Demolition, Residential Design Review and Variances to Remodel a Historic House at 426 N. Second Street, City and Townsite of Aspen, Colorado (Resolution No. 42, Series of 1999) dated September 8, 1999, and recorded December 16, 1999, as Reception No. 43 863 7. Active/49463030.1 0 0 9. Any and all notes, easements and recitals as disclosed on the recorded Improvement & Topographic Survey Plat dated May 24, 2012, and recorded January 4, 2013, in Plat Book 101 at Page 52, as Reception No. 595803. 10. Terms, conditions, provisions, agreements and obligations specified under Resolution #1, Series of 2015, recorded January 21, 2015, as Reception No. 616812 11. Terms, conditions, provisions, agreements and obligations specified under Resolution #9, Series of 2015, recorded March 26, 2015, as Reception No. 618454. 12. Terms, conditions, provisions, agreements and obligations specified under the City of Aspen Easement Agreement, dated September 23, 2016, and recorded November 4, 2016, as Reception No. 633601. 2 Active/49463030. t Heiberger, Cheryl From: Heiberger, Cheryl Sent: Monday, February 18, 2019 9:23 AM To: 'Bob Narracci' ECTIVED FEB 1�� � � NITY QEVE QppIIFN� Cc: Heiberger, Cheryl Subject: RE: 229 West Smuggler, LLC - 426 North Second, LLC re: Property: 229 West Smuggler Street and 426 North Second Street Aspen Attachments: 2019-01-28 Amended and Restated Condominium Declaration of The Second and Smuggler Condominiums (49578924v1).PDF Bob —we have received the original Declaration signed by David Dowler. I will have the original Declaration delivered to your office on errands and you have the authorization to record the mylar and the Declaration using our firm's prepaid Escrow Account with the Clerk and Recorder's office. Our account number is 1109. Once the mylars are recorded, you can complete that recording information on Page 1, Paragraph 3 of the Amended and Rested Condominium Declaration of the Second and Smuggler Condominiums and then record the original Declaration. I have attached a copy of the Declaration that will be delivered to your office. Let me know if you need anything further. Once the documents have been recorded we will ask that Patti from the Clerk's office email a PDF of each for our records. Cheryl Heiberger - Paralegal 730 E. Durant Avenue, Suite 200, Aspen, Colorado 81611-2072 Direct: 970.300.0117 1 Office: 970.925.6300 1 Fax: 970.925.1181 cheiberger she rmanhoward.com 1 www.shermanhoward.com SHERMAN4HOWARD Albuquerque • Aspen • Colorado Springs • Denver • Las Vegas • Phoenix • Reno • Scottsdale • St. Louis • Steamboat Springs CONFIDENTIALITY NOTICE This electronic mail transmission and any attachments contain information belonging to the sender which may be confidential and legally privileged. This information is intended only for the use of the individual or entity to whom this electronic mail transmission was sent as indicated above. If you are not the intended recipient, any disclosure, copying, distribution, or action taken in reliance on the contents of the information contained in this transmission is strictly prohibited. If you have received this transmission in error, please immediately inform me by "reply" email and delete the message. Thank you. From: Bob Narracci[mailto:bob. narracci@cityofaspen.coml Sent: Wednesday, January 23, 2019 10:43 AM To: Heiberger, Cheryl <cheiberger@shermanhoward.com> Cc: Krabacher, Joseph <jkrabacher@shermanhoward.com>; Ettlinger, Diana Godwin <dettlinger@shermanhoward.com> Subject: RE: 229 West Smuggler, LLC - 426 North Second, LLC re: Property: 229 West Smuggler Street and 426 North Second Street Aspen • • Thank you Cheryl. Just let me know when you are ready. Take care, Bob ot CITY OF ASPEN Bob Narracci, AICP Community Development Department Zoning Administrator 130 S. Galena St. Aspen, CO 81611 P: (970) 429-2754 www.cityofaspen.com www.as communityvoice.com E00M Notice and Disclaimer: This message is intended only for the individual or entity to which it is addressed and may contain information that is confidential and exempt from disclosure pursuant to applicable law. If you are not the intended recipient, please reply to the sender that you have received the message in error and then delete it. Further, the information or opinions contained in this email are advisory in nature only and are not binding on the City of Aspen. If applicable, the information and opinions contain in the email are based on current zoning, which is subject to change in the future, and upon factual representations that may or may not be accurate. The opinions and information contained herein do not create a legal or vested right or any claim of detrimental reliance. From: Heiberger, Cheryl Sent: Wednesday, January 23, 2019 10:42 AM To: Bob Narracci Cc: Krabacher, Joseph ; Ettlinger, Diana Godwin ; Heiberger, Cheryl Subject: RE: 229 West Smuggler, LLC - 426 North Second, LLC re: Property: 229 West Smuggler Street and 426 North Second Street Aspen Hi Bob — thank you for this update. We are coordinating with our client for his signature on the Final Declaration and I will not have that today or tomorrow so will reach back out to Mr. Dowler and email you as soon as we have same in our possession so that we can coordinate the recording. Appreciate your help! Cheryl Heiberger - Paralegal • 730 E. Durant Avenue, Suite 200, As en, Colorado 81611-2072 Direct:970.300.0117 1 Office:970.925.6300 1 Fax: 970.925.1181 cheiberger@shermanhoward.com I www.shermanhoward.com SHERMAN4-HOWARD Albuquerque • Aspen • Colorado Springs • Denver • Las Vegas • Phoenix • Reno • Scottsdale • St. Louis • Steamboat Springs CONFIDENTIALITY NOTICE This electronic mail transmission and any attachments contain information belonging to the sender which may be confidential and legally privileged. This information is intended only for the use of the individual or entity to whom this electronic mail transmission was sent as indicated above. If you are not the intended recipient, any disclosure, copying, distribution, or action taken in reliance on the contents of the information contained in this transmission is strictly prohibited. If you have received this transmission in error, please immediately inform me by "reply" email and delete the message. Thank you. From: Bob Narracci [mailto:bob.narracci cityofaspen.com] Sent: Wednesday, January 23, 2019 10:35 AM To: Heiberger, Cheryl <cheiberger@shermanhoward.com> Subject: RE: 229 West Smuggler, LLC - 426 North Second, LLC re: Property: 229 West Smuggler Street and 426 North Second Street Aspen Good Morning Cheryl: I now have the signed condo map back in my possession. When would be a good time where I can meet you at the County Clerk's Office to record the Declarations and the Condo Map? Today, I am available from 12:30 until 3:30 this afternoon. Tomorrow, 1/24, 1 am available from 8:00 until noon. Please let me know if one of these timeframes works for you. If so, at what time should we meet at the Clerk and Recorder's Office? Thank you, Bob CITY OF ASPEN Bob Narracci, AICP Community Development Department Zoning Administrator 130 S. Galena St. Aspen, CO 81611 P: (970) 429-2754 www.cityofaspen.corn www.aspencommunityvoice.com 930 C3 Notice and Disclaimer: This message is intended only for the individual or entity to which it is addressed and may contain information that is confidential and exempt from disclosure pursuant to applicable law. if you are not the intended recipient, please reply to the sender that you have received the message in error and then delete it. Further, the information or opinions contained in this email are advisory in nature only and are not binding on the City of Aspen. If applicable, the information and opinions contain in the email are based on current zoning, which is subject to change in the future, and upon factual representations that may or may not be accurate. The opinions and information contained herein do not create a legal or vested right or any claim of detrimental reliance. From: Heiberger, Cheryl <cheiberger@shermanhoward.com> Sent: Tuesday, January 22, 2019 8:54 AM To: Bob Narracci <bob.narracci cit ofaspen.com> Cc: Krabacher, Joseph <irabacher@shermanhoward.com>; Ettlinger, Diana Godwin <dettlinger shermanhoward.com>; Heiberger, Cheryl <cheiberger shermanhoward.com> Subject: RE: 229 West Smuggler, LLC - 426 North Second, LLC re: Property: 229 West Smuggler Street and 426 North Second Street Aspen Thanks for that update Bob — We'll be in touch shortly Cheryl Heiberger - Paralegal 730 E. Durant Avenue, Suite 200, Aspen, Colorado 81611-2072 Direct: 970.300.0117 1 Office: 970.925.6300 1 Fax: 970.925.1181 cheibergerpshermanhoward.com I www.shermanhoward.com SHERMAN6 HOWARD Albuquerque • Aspen • Colorado Springs • Denver • Las Vegas • Phoenix • Reno • Scottsdale • St. Louis • Steamboat Springs CONFIDENTIALITY NOTICE This electronic mail transmission and any attachments contain information belonging to the sender which may be confidential and legally privileged. This information is intended only for the use of the individual or entity to whom this electronic mail transmission was sent as indicated above. If you are not the intended recipient, any disclosure, copying, distribution, or action taken in reliance on the contents of the information contained in this transmission is strictly prohibited. If you have received this transmission in error, please immediately inform me by "reply" email and delete the message. Thank you. From: Bob Narracci [ DaiIto.-bob.narracci@cityofaspen.com] Sent: Tuesday, January 22, 2019 8:48 AM To: Heiberger, Cheryl <cheibergertsiermanhoward.com> Subject: RE: 229 West Smuggler, LLC - 426 North Second, LLC re Second Street Aspen Good Morning Cheryl: • Property: 229 West Smuggler Street and 426 North I have routed the permit for signatures. Once I receive the fully executed Mylar back on my desk, I will let you know so that we can coordinate recording of the plat along with the Decs. Thank you, Bob CITY OF ASPEN Bob Narracci, AICP Community Development Department Zoning Administrator 130 S. Galena St. Aspen, CO 81611 P: (970) 429-2754 www.cityofaspen.com www.aspencommunityvoice.com U 10 C Notice and Disclaimer: This message is intended only for the individual or entity to which it is addressed and may contain information that is confidential and exempt from disclosure pursuant to applicable law. If you are not the intended recipient, please reply to the sender that you have received the message in error and then delete it. Further, the information or opinions contained in this email are advisory in nature only and are not binding on the City of Aspen. If applicable, the information and opinions contain in the email are based on current zoning, which is subject to change in the future, and upon factual representations that may or may not be accurate. The opinions and information contained herein do not create a legal or vested right or any claim of detrimental reliance. From: Heiberger, Cheryl <cheiberger@shermanhoward.com> Sent: Monday, January 21, 2019 2:00 PM To: Bob Narracci <bob.narracci@citvofaspen.com> Cc: Heiberger, Cheryl <cheiberger@sherrnanhoward.com> Subject: 229 West Smuggler, LLC - 426 North Second, LLC re: Property: 229 West Smuggler Street and 426 North Second Street Aspen Hi Bob —just following up on the status of the review of the duplicate original mylars condominium map dropped off to your attention on January 9, 2019 for review, approval and sign off. Can you please give our office an update of same so that we can coordinate getting same recorded along with the Declaration we are holding at our office on behalf of the client David Dowler and the above referenced entities. Thank you for your assistance in this matter. Cheryl Heiberger - Paralegal 730 E. Durant Avenue, Suite 200, Aspen, Colorado 81611-2072 Direct: 970.300.0117 1 Office: 970.925.6300 1 Fax: 970.925.1181 cheiberger@shermanhoward.com I www.shermanhoward.com SHERMAN6HOWARD Albuquerque • Aspen • Colorado Springs • Denver • Las Vegas • Phoenix • Reno • Scottsdale • St. Louis • Steamboat Springs CONFIDENTIALITY NOTICE This electronic mail transmission and any attachments contain information belonging to the sender which may be confidential and legally privileged. This information is intended only for the use of the individual or entity to whom this electronic mail transmission was sent as indicated above. If you are not the intended recipient, any disclosure, copying, distribution, or action taken in reliance on the contents of the information contained in this transmission is strictly prohibited. If you have received this transmission in error, please immediately inform me by "reply" email and delete the message. Thank you. 9 0 SHERMAN6HOWARD 730 E. Durant Avenue, Suite 200, Aspen, Colorado 81611-2072 Telephone: 970.925.6300 Fax: 970.925.1181 www.shermanhoward.com Cheryl Heiberger Sherman & Howard L.L.C. Direct Dial Number: 970.300.0117 E-mail: cheiberger@shermanhoward.com TRANSMITTAL LETTER Via Hand Delivery January 8, 2019 Jennifer Phelan City of Aspen Community Development 130 South Galena St. 3`d Floor Aspen, CO 81611 Owner: 229 West Smuggler, LLC, a Colorado limited liability company (229 West Smuggler Street) Parcel ID No. 273512417032 Owner: 426 North Second, LLC, a Colorado limited liability company (426 North Second Street) Parcel ID No. 273512417031 Property: 229 West Smuggler Street and 426 North Second Street, Aspen, Colorado I AM DELIVERING TO YOU THE FOLLOWING: XXX Two (2) ORIGINAL 2406 mylar Condominium Maps fully executed by all parties. THESE ARE SENT TO YOU: XXX For your review, circulation nd execution on behalf of the City Community Development and also the City Engineer. Once executed please contact our office as we are in the process of obtaining signature on the original Declaration from our client and will coordinate recording of these documents with your office. REMARKS: Please call if you have any questions and you may speak with attorney Diana Ettlinger are her direct extension of 970.300.0120. Thank you for your assistance in this matter Very Truly Yqurs, Ch ryl Heiberger Paralegal Enclosures as recited 012245.001 Active/49308810.1 0 0 000+0 ' 20M. P6LA Agreement to Pay Application Fees An agreement between the City of Aspen ("City") and Z 2241 W Cs-r SIriK�j STyer Please type or print in all caps Address of Property: i 2 to N W"iln SeU4-101 ,StWO— " Property Owner Name: !42-u NWT SC4w1d I I " Representative Name (if different from ProperryOwner) �vfrrpv� ILra./iacG•Gv Billing Name and Address -Send Bills to: GIo Vavfo(Dowke 061 Cvcs6eAI-Avew-e, DPOAS TX -152oS Contact info for billing: e-mail. d d aw I tr 6) 1 K G Vn . ( wm Phone: (2 (`t� 3S`f Rfo ,g I understand that the City has adopted, via Ordinance No. 30, Series of 2017, review fees for Land Use applications and payment of these fees is a condition precedent to determining application completeness. I understand that as the property owner that I am responsible for paying all fees for this development application. For flat fees and referral fees: I agree to pay the following fees for the services indicated. I understand that these flat fees are non-refundable. $. flat fee for $. flat fee for $. flat fee for $_ flat fee for For Deposit cases only: The City and I understand that because of the size, nature or scope of the proposed project, it is not possible at this time to know the full extent or total costs involved in processing the application. I understand that additional costs over and above the deposit may accrue. I understand and agree that it is impracticable for City staff to complete processing, review and presentation of sufficient information to enable legally required findings to be made for project consideration, unless invoices are paid in full. The City and I understand and agree that invoices mailed by the City to the above listed billing address and not returned to the City shall be considered by the City as being received by me. I agree to remit payment within 30 days of presentation of an invoice by the City for such services_ I have read, understood, and agree to the Land Use Review Fee Policy including consequences for no -payment I agree to pay the following initial deposit amounts for the specified hours of staff time. I understand that payment of a deposit does not render and application complete or compliant with approval criteria. If actual recorded costs exceed the initial deposit, I agree to pay additional monthly billings to the City to reimburse the City for the processing of my application at the hourly rates hereinafter ated. $ 51�, deposit for hours of Community Development Department staff time. Additional time above the dep amount will be billed at $325.00 per hour. $ 2721' depositfor I hours of Engineering Department staff time. Additional time above the deposit amount will be billed at $325.00 per hour. City of Aspen: t Signature: Jessica Garrow, AICP Community Development Director ,(j� PRINT Name: _PGt.�d Dow 1r'' / fVl�tiir+4�Grr City Use: Fees Due: $ Received $ Title: MSMA.II_, Case # 0 M M 0 LAND USE APPLICATION -r , Project Name and Address: � `� a l+ �'ti Seu,r,d �� Cf �a Parcel ID # (REQUIRED) _No . A 1 3 51 a 1 O Z (, aaq woes N o• s Z 3 5 t a y i -� 0 3> C y a La tZ�j-t, Se w,1d S 7 rr; APPLICANT: Name: a.a 4 Wesh Cam�.n n 1. LL C and 44 aL� livti-1, se o+1d t l.C� Address: IAeurn.A LLC -130 �. �wana ;ii 300 Phone #: _Ol `70 • q d 5 . !9 3 00 Cy*n.')email: REPRESENTIVATIVE: Name: "ing i 3'o4"V, 1�p,- S�.e ► n 4 kAG wa,d L. L C Address: `lap �. �xna�nk � doo h�acn CO-a,Lnll 91b 300- 01'aI CZ7ive.ckJC0.u6ihcr� oCJ SCL%,.C4M Phone#: g� " 9 a S - Laio0 L�w;r,� email: J KV'Ala, },er 6) -Cal,. ",.,,v uescnpuon: txistmg ana Proposed Conditions See ajA- O.C� cA Q\" CN.+ Ei u•t� Review: Administrativ or Board Review Required Land Use Review(s): Growth Management Quota System (GMQS) required fields: is I IN - Net Leasable square footage Lodge Pillows Free Market dwelling units Affordable Housing dwelling units Essential Public Facility square footage CTa U rn i n i vA tm �a ln1 1 Have you included the following? FEES DUE: $ Ct Z 5 • o O Pre -Application Conference Summary Signed Fee Agreement HOA Compliance form All items listed in checklist on PreApplication Conference Summary November 2017 City of Aspen 1130 S. Galena St. 1(970) 920 5090 0 Existing and proposed conditions: The existing condition of the Property is an approved 2 unit condominium known as the Second and Smuggler Condominiums (a condominium), recorded in Plat Book 7 at Page 66 as Reception No. 212661. The applicants owns both of the condominium units and have remodeled both of the units. The proposal is to amend and restate the boundaries of the two units and the common elements with the proposed Amended and Restated Condominium Map of Second and Smuggler Condominiums. Active/48521056.1 C� • CITY OF ASPEN 130 S. Galena Street, 3d Floor Aspen CO 81611 APPLICATION FOR CONDOMINIUMIZATION 229 West Smuggler Street and 426 North Second Street, Aspen, CO 81611 (Condominium Exemption Application) Date: Mayg1, 2018 Location/Address: 229 West Smuggler Street and 426 North Second Street, Aspen CO 81611 Unit A and B, Second and Smuggler Condominiums (a condominium), according to the Condominium Map appearing in the records of the County Clerk and Recorder of Pitkin County, Colorado, in Plat Book 7 at Page 66 as Reception No. 212661, and as defined and described in the Condominium Declaration recorded March 14, 1979 in Book 364 at Page 771 as Reception No. 212660, and First Amendment thereto recorded April 15, 1980 in Book at Page 580 as Reception 223333, Pitkin County, Colorado Parcel ID No. 273512417032 (229 West Smuggler Street) Parcel ID No. 273 51241703 1 (426 North Second Street) Owner: 229 West Smuggler, LLC, a Colorado limited liability company (229 West Smuggler Street) 426 North Second, LLC, a Colorado limited liability company (426 North Second Street) Address: c/o Sherman & Howard L.L.C. 730 East Durant Avenue, Suite 200 Aspen CO 81611 Telephone: 214 354 9635 Email: ddowler _.lkcm.com Representative: Joseph Krabacher Jennifer Causing Address: Sherman & Howard L.L.C. 730 East Durant Avenue, Suite 200 Aspen CO 81611 Telephone: (970) 300 0123 SUBMITTALS: Email: ikrabacher2shermanhoward.com Application Deposit: $975.00 Authorization to Represent Certificate of Ownership Completed Land Use Application Signed Fee A--reement Pre -application Conference Summary Proposed Condominium Plat (2 paper copies and digital.pd q Description of Proposal and Compliance with Standards Representative Signature: Active/48234528.1 11 • APPLICATION FOR CONDOMINIUMIZATION 229 West Smuggler Street and 426 North Second Street, Aspen CO 81611 1. Introduction. The Applicant is proposing to amend the existing condominium map for a condominimized duplex located at 229 West Smuggler and 426 North Second Street, Aspen CO 81611. The original condominium map was recorded in Plat Book 7 at Page 66 as Reception No. 212661 2. Pre -Application Conference. The pre -application conference summary was issued on February 28, 2018, a copy of which is submitted with this Application. 3. Summary of Application. The property consists of two residential units which have a common party wall on the lower level. The Applicant is seeking to approval of the amended and restated condominium under an exemption application pursuant to the requirements of Aspen Land Use Code Section 26.480.050 (A), Condominiumization. Review Standards. The Application complies with applicable review standards of Aspen Land Use Code Section 26.480.050 (A), Condominiumization. Standard: Condominiumization shall be limited to allocating ownership interests of a single parcel and shall not effect a division of the parcel into multiple lots, an aggregation of the parcel with other lands, a change in use of the property, and shall not operate as an abatement of other applicable regulations affecting the property. Response: The Application proposes to amend and restate the existing two condominium units on a single parcel. The underlying parcel of land consists of Lots A, B, and C, Block 48, Townsite of Aspen. The approval of the amended and restated condominium map does not effect a division of that parcel into multiple lots, an aggregation of the parcel with other lands, a change in use of the property, and does not operate as an abatement of other applicable regulations affecting the Property Standard: The Condominium Plat is in an acceptable style and format as prescribed in Title 29 — Engineering Design Standards, Plats. Response: The proposed Amended and Restated Condominium Plat is submitted herewith, and has been prepared consistent with the Engineering Design Standards for Condominium Plats in Section 2.3 of the City of Aspen Engineering Department Design Standards. Standard: The Condominium Plat shall be reviewed and then recorded in the office of the Pitkin County Clerk and Recorder. No subdivision agreement need be prepared or entered into between the applicant and the City unless the Community Development Director determines such an agreement is necessary. Response: The Amended and Restated Condominium Plat is hereby submitted for review, and upon approval by the Community Development Department and the Engineering Department will be recorded in the office of the Pitkin County Clerk and Recorder. No subdivision agreement should be required as there are no public infrastructure requirements applicable to this Application. 2 Active148234528.1 • 229 WEST SMUGGLER, LLC 426 NORTH SECOND, LLC c/o Sherman & Howard, LLC 720 East Durant, Suite 200 Aspen CO 81611 May 2, 2018 City of Aspen Community Development Department 130 S. Galena St., 3`d Floor Aspen, CO 81611 To Whom it May Concern: I am writing as Manager of 229 West Smuggler, LLC, a Colorado limited liability company and as Manager of 426 North Second, LLC, a Colorado limited liability company (collectively, the "Applicant") to authorize the persons listed below to act as the agents for and representatives of the Applicant in all matters related to and in connection with the Subdivision Exemption Application for the property located at 229 West Smuggler and 426 North Second, Aspen, CO 81611, also known as Unit A and Unit B, Second and Smuggler Condominiums. The address and phone number of the representatives are as follows: Jennifer M. Causing/Joseph Krabacher SHERMAN & HowARD L.L.C. 720 East Durant Street, Suite 200 Aspen, Colorado 81611 (970) 300 0113/925 6300 jcausingasah.com ikrabacher(@sah.com Please contact me if you have any questions. Thank you. 229 WEST SMUGGLER, LLC A Colorado limited liability company By: 2&«& .-e- Ar-�/ David L. Dowler Manager 426 NORTH SECOND, LLC A Colorado limited liability company By: a David L. Dowler Manager Active/5513885.2 0 0 CERTIFICATE OF OWNERSHIP First American Title insurance Company Commitment No. 18003920 Owner: 229 West Smuggler, LLC, a Colorado limited liability company (229 West Smuggler Street) Parcel ID No. 273512417032 Owner: 426 North Second, LLC, a Colorado limited liability company (426 North Second Street) Parcel ID No. 273512417031 Property: 229 West Smuggler Street and 426 North Second Street, Aspen, Colorado INFORMATION The Title Insurance Commitment is a legal contract between you and the Company. It is issued to show the basis on which we will issue a Title Insurance Policy to you, The Policy will insure you against certain risks to the land title, subject to the limitations shown in the Policy. The Company will give you a sample of the Policy form, if you ask. The Policy contains an arbitration clause. All arbitrable matters when the Amount of Insurance is $2,000,000 or less shall be arbitrated at the option of either the Company or you as the exclusive remedy of the parties. You may review a copy of the arbitration rules at htto://vrww.alta.org/. The Commitment is based on the land He as of the Commitment Date. Any changes in the land title or the transaction may affect the Commitment and the Policy. The Commitment is subject to its Requirements, Exceptions and Conditions. THIS INFORMATION IS NOT PART OF THE TITLE INSURANCE COMMITMENT. YOU SHOULD READ THE COMMITMENT VERY CAREFULLY. If you have any questions about the Commitment, contact FIRST AMERICAN TITLE INSURANCE COMPANY 1 First American Way, Santa Ana, Callfomia 92707 TABLE OF CONTENTS AGREEMENT TO ISSUE POLICY CONDITIONS SCHEDULE A Insert 1. Commitment Date 2. Policies to be Issued, Amounts and Proposed Insureds 3. Interest in the Land and Owner 4. Description of the Land SCHEDULE B-1- REQUIREMENTS Insert SCHEDULE B-II - EXCEPTIONS Insert AGREEMENT TO ISSUE POLICY We agree to issue policy to you according to the terms of the Commitment. When we show the policy amount and your name as the proposed insured in Schedule A, this Commitment becomes effective as of the Commitment Date shown in Schedule A. If the Requirements shown in this Commitment have not been met within six months after the Commitment Date, our obligation under this Commitment will end. Also, our obligation under this Commitment will end when the Policy is issued and then our obligation to you will be under the Policy. Our obligation under this Commitment is limited by the following: • The Provisions in Schedule A. • The Requirements in Schedule B4. • The Exceptions in Schedule B41. • The Conditions on Page 2. This Commitment is not valid without SCHEDULE A and Sections I and II of SCHEDULE B. First Ametkan Title: insurance Company SEPTE<eEe 1214. ; y' y- asae Dennis .'s,`° erFaa .J_;Gamore '�,,„ President - Tirnothy Kemp Secretary, (This Commitment is valid only when Schedules A and B are attached) This jacket was created electronically and constitutes an original document Copyright 2006.2009 American Land Title Association. All rights reserved The use of this form is restricted to ALTA licensees and ALTA members in good standing as of the dale of use. All other uses are prohibited. Reprinted under license from the American Land Title Association. Form 5011000 (6-22-10) Page 1 of 2 1 ALTA Plain Language Commitment (6-17-06) 0 0 1. DEFINITIONS CONDITIONS (a) "Mortgage" means mortgage, deed of trust or other security instrument. that give constructive notice of matters affecting your title according located. 2. LATER DEFECTS (b) "Public Records" means title records to the state statutes where your land is The Exceptions in Schedule B - Section II may be amended to show any defects, liens or encumbrances that appear for the first time in the public records or are created or attached between the Commitment Date and the date on which all of the Requirements (a) and (c) of Schedule B - Section I are met. We shall have no liability to you because of this amendment. 3. EXISTING DEFECTS If any defects, liens or encumbrances existing at Commitment Date are not shown in Schedule B, we may amend Schedule B to show them. If we do amend Schedule B to show these defects, liens or encumbrances, we shall be liable to you according to Paragraph 4 below unless you knew of this information and did not tell us about it in writing. 4. LIMITATION OF OUR LIABILITY Our only obligation is to issue to you the Policy referred to in this Commitment, when you have met its Requirements. If we have any liability to you for any loss you incur because of an error in this Commitment, our liability will be limited to your actual loss caused by your relying on this Commitment when you acted in good faith to: or Comply with the Requirements shown in Schedule B - Section Eliminate with our written consent any Exceptions shown in Schedule B - Section II. We shall not be liable for more than the Policy Amount shown in Schedule A of this Commitment and our liability is subject to the terms of the Policy form to be issued to you. 5. CLAIMS MUST BE BASED ON THIS COMMITMENT Any claim, whether or not based on negligence, which you may have against us concerning the title to the land must be based on this Commitment and is subject to its terms. Form 5011000 (6-22-10) Page 2 of 2 1 ALTA Plain Language Commitment (6-17-06) 0 • American Land Title Association ALTA Commitment Form Adopted 6-17-06 First American Title Insurance Co. Commitment No.: 18003920 SCHEDULE A 1. Effective Date: April 25, 2018 at 07:45 AM 2. Policy or Policies to be issued: Amount Premium A. ALTA Owners Policy (06/17/06) TBD $0.00 Proposed Insured: TBD Certificate of Taxes Due $0.00 Endorsements: Additional Charges: $0 Total $0.00 3. The estate or interest in the land described or referred to in this Commitment is Fee simple. 4. Title to the Fee simple or interest in the land is at the Effective Date vested in: 426 North Second, LLC, a Colorado limited liability company (as to Unit: A) and 229 West Smuggler, LLC, a Colorado limited liability company (as to Unit: B) 5. The land referred to in the Commitment is described as follows: SEE EXHIBIT A ATTACHED HERETO For informational purposes only, the property address is: 426 North Second Street, Unit A and 229 West Smuggler Street, Unit B, Aspen, CO 81611. Attorneys Title Insurance Agency of Aspen, LLC By: V � 1Ui Winter VanAlstine Authorized Officer or Agent FOR INFORMATIONAL PURPOSES OR SERVICES IN CONNECTION WITH THIS COMMITMENT, CONTACT: Attorneys Title Insurance Agency of Aspen, LLC, 715 West Main Street, Suite 202, Aspen, CO 81611, Phone: 970 925-7328, Fax: 970 925-7348. Copyright 2006-2009 American Land Title Association. All right reserved. The use of this Form is restricted to ALTA licensees and ALTA members in good standing as of the date of use. All other uses are prohibited. Reprinted under license from the American Land Title Association. AM E_R1CAN taNn ilTl[ Ilk- iS�UII�IriN: 18003920 C American Land Title Association Commitment No.: 18003920 First American Title Insurance Co. SCHEDULE B ALTA Commitment Form Adopted 6-17-06 1. Requirements: 1. Pay the agreed amounts for the interest in the land and/or the mortgage to be insured. 2. Pay us the premiums, fees and charges for the policy. 3. Documents satisfactory to us creating the interest in the land and/or the mortgage to be insured must be signed, delivered and recorded. 4. You must tell us in writing the name of anyone not referred to in this Commitment who will get an interest in the land or who will make a loan on the land. We may then make additional requirements or exceptions. 5. Payment of all taxes, charges and assessments, levied and assessed against the subject premises which are due and payable. 6. A Certification of Taxes due listing each taxing jurisdiction shall be obtained from the County Treasurer or an authorized agent (pursuant to Senate Bill 92-143, CRS 10-11-122). 7. Receipt by the Company of the appropriate affidavit as to new construction and indemnifying the Company against any unfiled materialmen's or mechanic's liens. 8. Warranty Deed must be sufficient to convey the fee simple estate or interest in the land described or referred to herein, from 426 North Second, LLC, a Colorado limited liability company and 229 West Smuggler, LLC, a Colorado limited liability company, to the proposed insured, Schedule A, item 2A. NOTE: C.R.S. Section 38-35-109(2) required that a notation of the purchaser's legal address, (not necessarily the same as the property address) be included on the face of the Deed to be recorded. 9. Release of the Deed of Trust from 426 North Second, LLC, to the Public Trustee of Pitkin County for the benefit of Iberiabank, to secure an indebtedness in the principal sum of $9,264,480.00, and any other amounts and/obligations secured thereby, dated July 7, 2016, and recorded July 11, 2016, as Reception No. 630601 (NOTE: This affects Unit A only). 10. Release of the Deed of Trust from 229 West Smuggler, LLC, to the Public Trustee of Pitkin County for the benefit of Iberiabank, to secure an indebtedness in the principal sum of $9,264,480.00, and any other amounts and/obligations secured thereby, dated July 7, 2016, and recorded July 11, 2016, as Reception No. 630599 (NOTE: This affects Unit B only). 11. Record a Statement of Authority to provide prima facie evidence of existence of 426 North Second, LLC, a Colorado limited liability company, an entity capable of holding property, and the name of the person authorized to execute instruments affecting title to real property as authorized by C.R.S. Section 38-30-172. 12. A copy of the properly signed and executed Operating Agreement if written, for 426 North Second, LLC, a Colorado limited liability company, to be submitted to the Company for review. Copyright 2006-2009 American Land Title Association. All right reserved. _A15ERlCA_N The use of this Form is restricted to ALTA licensees and ALTA members t h � P TIT 1 C in good standing as of the date of use. All other uses are prohibited. AtiMICI e t tON Reprinted under license from the American Land Title Association. VE 041 1. 18003920 0 0 American Land Title Association First American Title Insurance Co. ALTA Commitment Form Adopted 6-17-06 Commitment No.: 18003920 SCHEDULE B (Continued) 13. Certificate of Good Standing from the Colorado Secretary of State for 426 North Second, LLC, a Colorado limited liability company. 14. Record a Statement of Authority to provide prima facie evidence of existence of 229 West Smuggler, LLC, a Colorado limited liability company, an entity capable of holding property, and the name of the person authorized to execute instruments affecting title to real property as authorized by C.R.S. Section 38-30-172. 15. A copy of the properly signed and executed Operating Agreement if written, for 229 West Smuggler, LLC, a Colorado limited liability company, to be submitted to the Company for review. 16. Certificate of Good Standing from the Colorado Secretary of State for 229 West Smuggler, LLC, a Colorado limited liability company. 17. Additional Requirements may be included once the name of the Buyer is provided. 18. Evidence to the Company that all assessments and liens due under the Declaration referred to in Schedule B have been paid. 19. This Title Commitment is subject to underwriter approval. 2. Schedule B of the policy or policies to be issued will contain exceptions to the following matters unless the same are disposed of to the satisfaction of the Company: 1. Any facts, rights, interests or claims which are not shown by the Public Records, but which could be ascertained by an inspection of the Land or by making inquiry of persons in possession thereof. 2. Easements, or claims of easements, not shown by the Public Records. 3. Discrepancies, conflicts in boundary lines, shortage in area, encroachments, and any facts which a correct survey and inspection of the Land would disclose, and which are not shown by the Public Records. 4. Any lien, or right to a lien, for services, labor or material theretofore or hereafter furnished, imposed by law and not shown in the Public Records. 5. Any and all unpaid taxes, assessments and unredeemed tax sales. 6. (a) Unpatented mining claims; (b) reservations or exceptions in patents or in Acts authorizing the issuance thereof; (c) water rights, claims or title to water, whether or not the matters excepted under (a), (b), or (c) are shown by the Public Records. 7. Taxes and assessments for the year 2018, and subsequent years, a lien not yet due or payable. Copyright 2006-2009 American Land Title Association. All right reserved. A !� RIC.At1 The use of this Form is restricted to ALTA licensees and ALTA members In good standing as of the date of use. I AK rr TI T I I' All other uses are prohibited. Reprinted under license from the American Land Title Association. iSS41,_N110ti 18003920 0 American Land Title Association First American Title Insurance Co. ALTA Commitment Form Adopted 6-17-06 Commitment No.: 18003920 SCHEDULE B (Continued) 8. Exceptions and reservations as set forth in the Act authorizing the issuance of the Patent for the City and Townsite of Aspen dated June 2, 1881, and recorded March 1, 1897, in Book 139 at Page 216, as Reception No. 060156. 9_ Terms, conditions, provisions, agreements and obligations specified under the Statement of Exemption from the Definition of Subdivision dated March 1, 1979, and recorded March 14, 1979, in Book 364 at Page 769, as Reception No. 212659. 10. Terms, conditions, provisions, agreements and obligations specified under the Condominium Declaration for Second and Smuggler Condominiums (A Condominium) recorded March 14, 1979, in Book 364 at Page 771, as Reception No. 212660, and First Amendment to Condominium Declaration for Second and Smuggler Condominiums (A Condominium) dated April 14, 1980, and recorded April 15, 1980, in Book 387 at Page 580, as Reception No. 223333. 11. Any and all notes, easements and recitals as disclosed on the recorded Condominium Map of Second and Smuggler Condominiums recorded March 14, 1979, in Plat Book 7 at Page 66, as Reception No. 282661. 12. Terms, conditions, provisions, agreements and obligations specified under the Resolution of the Aspen Planning and Zoning Commission Recommending Landmark Designation of 426 N. 2nd Street, Units A and B, Second and Smuggler Condominiums, Block 48, City of Aspen (Resolution No. 99-26) dated September 21, 1999, and recorded October 7, 1999, as Reception No. 436340. 13. Terms, conditions, provisions, agreements and obligations specified under An Ordinance of the Aspen City Council Granting Approval for Landmark Designation of 426 N. 2nd Street, Units A and B, Second and Smuggler Condominiums, Block 48, City of Aspen (Ordinance No. 40 - Series of 1999) dated October 12, 1999, and recorded October 18, 1999, as Reception No. 436711. 14. Terms, conditions, provisions, agreements and obligations specified under the Resolution of the Aspen Historic Preservation Commission Approving an Application for Landmark Designation, Minor Development, Partial Demolition, Residential Design Review and Variances to Remodel a Historic House at 426 N. Second Street, City and Townsite of Aspen, Colorado (Resolution No. 44, Series of 1999) dated September 8, 1999, and recorded November 12, 1999, as Reception No. 437683. 15. Terms, conditions, provisions, agreements and obligations specified under the Resolution of the Aspen Historic Preservation Commission Approving an Application for Landmark Designation, Minor Development, Partial Demolition, Residential Design Review and Variances to Remodel a Historic House at 426 N. Second Street, City and Townsite of Aspen, Colorado (Resolution No. 42, Series of 1999) dated September 8, 1999, and recorded December 16, 1999, as Reception No. 438637. 16. Any and all notes, easements and recitals as disclosed on the recorded Improvement & Topographic Survey Plat dated May 24, 2012, and recorded January 4, 2013, in Plat Book 101 at Page 52, as Reception No. 595803. 17. Terms, conditions, provisions, agreements and obligations specified under Resolution #1, Series of 2015, recorded January21, 2015, as Reception No. 616812. Copyright 2006-2009 American Land Title Association. All right reserved. - ,)4EAICAN The use of this Form is restricted to ALTA licensees and ALTA members in good standing as of the date of use. t At Q TI T t r All other uses are prohibited. Reprinted under license from the American Land Title Association. .45AICIM HIN 18003920 0 0 American Land Title Association First American Title Insurance Co. Commitment No.: 18003920 ALTA Commitment Form Adopted 6-17-06 SCHEDULE B (Continued) 18. Terms, conditions, provisions, agreements and obligations specified under Resolution #9, Series of 2015, recorded March 26, 2015, as Reception No. 618454. 19. Terms, conditions, provisions, agreements and obligations specified under the City of Aspen Easement Agreement, dated September 23, 2016, and recorded November 4, 2016, as Reception No. 633601. 20. Any existing leases or tenancies, and any and all parties claiming by, through or under said lessees. Copyright 2006-2009 American Land Title Association. All right reserved. The use of this Form is restricted to ALTA licensees and ALTA members in good standing as of the date of use. Ali other uses are prohibited. Reprinted under license from the American Land True Association. A:•{ERICAN l Al.n TITtr ASSOL 1A794.1N 18003920 • Commitment No.: 18003920 First American Title Insurance Co. EXHIBIT A PROPERTY DESCRIPTION The land referred to in this Commitment is described as follows: Condominium Units A and B, SECOND AND SMUGGLER CONDOMINIUMS (A CONDOMINIUM), according to the Condominium Map appearing in the records of the County Clerk and Recorder of Pitkin County, Colorado, in Plat Book 7 at Page 66 as Reception No. 212661, and as defined and described in the Condominium Declaration recorded March 14, 1979 in Book 364 at Page 771 as Reception No. 212660, and First Amendment thereto recorded April 15, 1980 in Book 387 at Page 580 as Reception No. 223333, Pitkin County, Colorado. ALTA Commitment 18003920 Exhibit A • 0 F c, FirstAmerican Title" DISCLOSURE STATEMENT Pursuant to C.R.S. 30-10-406(3)(a) all documents received for recording or filing in the Clerk and Recorder's office shall contain a top margin of at least one inch and a left, right and bottom margin of at least one-half of an inch. The Clerk and Recorder will refuse to record or file any document that does not conform to the requirements of this section. NOTE: If this transaction includes a sale of the property and the price exceeds $100,000.00, the seller must comply with the disclosure/withholding provisions of C.R.S. 39-22-604.5 (Nonresident withholding). NOTE: Colorado Division of Insurance Regulations 8-1-2 requires that "Every title insurance company shall be responsible to the proposed insured(s) subject to the terms and conditions of the title commitment, other than the effective date of the title commitment, for all matters which appear of record prior to the time of recording whenever the title insurance company, or its agent, conducts the closing and settlement service that is in conjunction with its issuance of an owner's policy of title insurance and is responsible for the recording and filing of legal documents resulting from the transaction which was closed. Pursuant to C.R.S. 10-11-122, the company will not issue its owner's policy or owner's policies of title insurance contemplated by this commitment until it has been provided a Certificate of Taxes due or other equivalent documentation from the County Treasurer or the County Treasurer's authorized agent; or until the Proposed Insured has notified or instructed the company in writing to the contrary. The subject property may be located in a special taxing district. A Certificate of Taxes due listing each taxing jurisdiction shall be obtained from the County Treasurer or the County Treasurer's authorized agent. Information regarding special districts and the boundaries of such districts may be obtained from the Board of County Commissioners, the County Clerk and Recorder, or the County Assessor. NOTE: Pursuant to CRS 10-11-123, notice is hereby given: This notice applies to owner's policy commitments containing a mineral severance instrument exception, or exceptions, in Schedule B, Section 2. A. That there is recorded evidence that a mineral estate has been severed, leased, or otherwise conveyed from the surface estate and that there is a substantial likelihood that a third party holds some or all interest in oil, gas, other minerals, or geothermal energy in the property; and B. That such mineral estate may include the right to enter and use the property without the surface owner's permission. NOTE: Pursuant to Colorado Division of Insurance Regulations 8-1-2, Affirmative mechanic's lien protection for the Owner may be available (typically by deletion of Exception no. 4 of Schedule B, Section 2 of the Commitment from the Owner's Policy to be issued) upon compliance with the following conditions: NOTE: Pursuant to Colorado Division of Insurance Regulations 8-1-2, Affirmative mechanic's lien protection for the Owner may be available (typically by deletion of Exception no. 4 of Schedule B, Section 2 of the Commitment from the Owner's Policy to be issued) upon compliance with the following conditions: A. The land described in Schedule A of this commitment must be a single family residence which includes a condominium or townhouse unit. B. No labor or materials have been furnished by mechanics or material -men for purposes of construction on the land described in Schedule A of this Commitment within the past 6 months. C. The Company must receive an appropriate affidavit indemnifying the Company against un-filed mechanic's and material-men's liens. D. The Company must receive payment of the appropriate premium. E. If there has been construction, improvements or major repairs undertaken on the property to be purchased within six months prior to the Date of the Commitment, the requirements to obtain coverage for unrecorded liens will include: disclosure of certain construction information; financial information as to the seller, the builder and or the contractor; payment of the appropriate premium, fully executed Indemnity Agreements satisfactory to the company, and, any additional requirements as may be necessary after an examination of the aforesaid information by the Company. No coverage will be given under any circumstances for labor or material for which the insured has contracted for or agreed to pay. First American Title Insurance Company 0 • NOTE: Pursuant to C.R.S. 38-35-125(2) no person or entity that provides closing and settlement services for a real estate transaction shall disburse funds as a part of such services until those funds have been received and are available for immediate withdrawal as a matter of right. NOTE: C.R.S. 39-14-102 requires that a real property transfer declaration accompany any conveyance document presented for recordation in the State of Colorado. Said declaration shall be completed and signed by either the grantor or grantee. NOTE: Pursuant to CRS 10-1-128(6)(a), It is unlawful to knowingly provide false, incomplete, or misleading facts or information to an insurance company for the purpose of defrauding or attempting to defraud the company. Penalties may include imprisonment, fines, denial of insurance and civil damages. Any insurance company or agent of an insurance company who knowingly provides false, incomplete, or misleading facts or information to a policyholder or claimant for the purpose of defrauding or attempting to defraud the policyholder or claimant with regard to a settlement or award payable from insurance proceeds shall be reported to the Colorado division of insurance within the department of regulatory agencies. NOTE: Pursuant to Colorado Division of Insurance Regulations 8-1-3, notice is hereby given of the availability of an ALTA Closing Protection Letter which may, upon request, be provided to certain parties to the transaction identified in the commitment. Nothing herein contained will be deemed to obligate the company to provide any of the coverages referred to herein unless the above conditions are fully satisfied. First American Title Insurance Company 0 ATTORNEYS TITLE INSURANCE AGENCY OF ASPEN, LLC 715 West Main Street, Suite 202 Aspen, CO 81611 Attorneys Title Insurance Agency of Aspen, LLC Privacy Policy Notice PURPOSE OF THIS NOTICE Title V. of the Gramm -Leach -Bliley Act (GLBA) generally prohibits any financial institution, directly or through it affiliates, from sharing non-public personal information about you with a nonaffiliated third party unless the institution provides you with a notice of its privacy policies and practices, such as the type of information that it collects about you and the categories of persons or entities to whom it may be disclosed. In compliance with the GLBA, we are providing you with this document, which notifies you of the privacy policies and practices of Attorneys Title Insurance Agency of Aspen, LLC. We may collect nonpublic personal information about you from the following sources • Information we receive from you, such as on application or other forms. • Information about your transactions we secure from out files, or from our affiliates or others. • Information we receive from a consumer reporting agency. • Information that we receive from others involved in your transaction, such as the real estate agent or lender. Unless it is specifically stated otherwise in an amended Privacy Policy Notice, no additional nonpublic personal information will be collected about you. We may disclose any of the above information that we collect about our customers or former customer to our affiliates or to nonaffiliated third parties as permitted by law. We also may disclose this information about our customers or former customers to the following types of nonaffiliated companies that perform marketing services on our behalf or with whom we have joint marketing agreements: • Financial service providers such as companies engaged in banking, consumer finance, securities and insurance. • Non -financial companies such as envelope stuffers and other fulfillment service providers. WE DO NOT DISCLOSE ANY NONPUBLIC PERSONAL INFORMATION ABOUT YOU WITH ANYONE FOR ANY PURPOSE THAT IS NOT SPECIFICALLY PERMITTED BY LAW. We restrict access to nonpublic personal information about you to those employees who need to know that information in order to provide products or services to you. We maintain physical, electronic, and procedural safeguards that comply with federal regulations to guard your nonpublic personal information. TELEPHONE 970 925-7328 , • A FACSIMILE 970 925-7348 • Existing and proposed conditions: The existing condition of the Property is an approved 2 unit condominium known as the Second and Smuggler Condominiums (a condominium), recorded in Plat Book 7 at Page 66 as Reception No. 212661. The applicants owns both of the condominium units and have remodeled both of the units. The proposal is to amend and restate the boundaries of the two units and the common elements with the proposed Amended and Restated Condominium Map of Second and Smuggler Condominiums. Active/48521056.1 u • Homeowner Association Compliance Policy All land use applications within the City of Aspen are required to include a Homeowner Association Compliance Form (this form) certifying the scope of work included in the land use application complies with all applicable covenants and homeowner association policies. The certification must be signed by the property owner or Attorney representinq the property owner. 229 West Smuggler, LLC, a Colorado limited liability company Property 426 North Second, LLC, a Colorado limited liability company Owner ("I"): Phone No.: (970) 925 6300 Address of 229 West Smuggler and 426 North Second Property: Aspen Colorado 81611 (subject of application) I certify as follows: (pick one) ❑ This property is not subject to a homeowners association or other form of private covenant. ❑ This property is subject to a homeowners association or private covenant and the improvements proposed in this land use application do not require approval by the homeowners association or covenant beneficiary. X This property is subject to a homeowners association or private covenant and the improvements proposed in this land use application have been approved by the homeowners association or covenant beneficiary. 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'rl'•'�i�.' :'al' ,�:i: { , :•1•.•'1 `�.=�15� a:�� .'4`+ •� _ �` -.., a�f1 ji i �4 i4. sf'•'�' ��a . � � � a tft� r B `tis F ii'r kF •a3b6 F } F S :211 : S a 3 3 t cr 63 ! ! c g •y � Z =� 3; { �2• Fig 2�{� ' � t _ as i CS• Hiei ii � -F t33 if 1:f_ ise i f ? k iuf l DialI H lit , C) C _Z 0 Q z 0 oU x i 8 W u 10 vJ Q Z Q }Q L O U W (n .01 fif W 94 IIg LL Q i-I- E g 3�Ya �lH law ,;r7. A M �i 63:�b - F== F LL Of 0 z 0 w w z F- -V Z 0 F- ¢ W J W F— co ¢ W ¢ F— Z c/ ) 2E Cz C 0 Z 0 �U o w O� O g C < CO 0 `Z`' Z O ui R i I n II II 1 it it I II it W � w i It a. ��-- -___---_--14 If .F 11 n u u n I' H It z W W F- W m 2 I l .I ,1 I u n If rr 11 LL LL LL • SHERMANBfHOWARD 730 E. Durant Avenue, Suite 200, Aspen, Colorado 81611-2072 Telephone: 970.925.6300 Fax: 970.925.1181 www.shermanhoward.com Cheryl Heiberger Sherman & Howard L.L.C. Direct Dial Number: 970.300.0117 E-mail: cheiberger@shermanhoward.com TRANSMITTAL LETTER RECF'x/'cD Via Hand Delivery June 7, 2018 JUN 0 7 2018 Jennifer Phelan, AICP CITY Ol Garrett Larimer CM04TY L vELOPWNT City of Aspen Community Development 130 South Galena St. 3`d Floor Aspen, CO 81611 Owner: 229 West Smuggler, LLC, a Colorado limited liability company (229 West Smuggler Street) Parcel ID No. 273512417032 Owner: 426 North Second, LLC, a Colorado limited liability company (426 North Second Street) Parcel ID No. 273512417031 Property: 229 West Smuggler Street and 426 North Second Street, Aspen, Colorado I AM DELIVERING TO YOU THE FOLLOWING: A) Deposit checks made payable to the City of Aspen in the total sum of $975.00; and B) Digital Copy of the Application for Condominiumization in PDF Format required to be provided on thumb drive; and C) One additional hard copy of the application. THESE ARE SENT TO YOU: As requested in the June 7, 2018 Determination of Completeness correspondence dated June 7, 2018 (Copy attached for your reference). REMARKS: Please call if you have any questions. Thank you for your assistance in this matter Very Truly Yours, C`_ ti.�� r� r" Chet H tberger ""t Paralegal Enclosures as recited 012245.001 Active/48514936.1 229 WEST SMUGGLER LLC 3509 CRESCENT AVENUE DALLAS, TX 75205 Pay to the Order of_ i PegasusaANK www-Pegasus bankdaJlae.com Ph(214)353-3000 For 1:1110254661: 426 NORTH SECOND LLC 3509 CRESCENT AVENUE DALLAS, TX 75205 Pay to the Order of_ 1317 32-2546/1110 Z L aq 01 Date J $ '�487. So �SU �° Dollars 8 50008 7 3811' 13 17 NP i / PegasusBANK www. Pegasus ben kdallas. com Ph (214)353-3000 1291 Z-0/ 32-2546/I110 O1 ale a1ecK eenl�n $ Dollars 1 10 2 5 4 6 500 i 2 1 3611 1291 RECEIVED JUN 0 7 2018 CITY COMM�i�: CITY OF ASPEN Land Use Application Determination of Completeness Date: June 7, 2018 Dear City of Aspen Land Use Review Applicant, RECEIVED JUN 0 7 2018 CITY OF ASPEN CMAMTY DEVELOPMENT We have received your land use application for 229 W. Smug_gler/426 N. Second, Condominiumization and have reviewed it for completeness (and not compliance). Your Land Use Application is complete: Please submit the following to begin the land use re ew process. 1) Digital pdf of the entire application (via t drive, emailed files, or file sharing) / 2) Review deposit of $975.00 V 3) One additional hard copy of the application.✓ Other submission items may be requested throughout the review process as deemed necessary by the Community Development Department. Please contact me at 429-2759 if you have any questions. T Yo nifer Ph an, Deputy Planning Director City of n, Community Development Department For Office Use Only: Qualifying Applications: Mineral Rights Notice Required New PD Yes No Subdivision, or PD (creating more than 1 additional lot) GMQS Allotm nts Residential Affordable Housing Yes NoCommercial E.P.F. Lodging t3o South Galena Street Aspen, CO 81611 1975 1 P 970.920•5000 1 F, 9/0.920_5197 1 6tyofaspen.com • SHERMAN6HOWARD 730 E. Durant Avenue, Suite 200, Aspen, Colorado 81611-2072 Telephone: 970.925.6300 Fax: 970.925.1181 www.shermanhoward corn Cheryl Heiberger Sherman & Howard L.L.C. Direct Dial Number: 970.300.0117 E-mail: cheiberger@shermanhoward.com TRANSMITTAL LETTER Via Hand Delivery May 31, 2018 Garrett Larimer City of Aspen Community Development 130 South Galena St. 31 Floor Aspen, CO 81611 Owner: 229 West Smuggler, LLC, a Colorado limited liability company (229 West Smuggler Street) Parcel ID No. 273512417032 Owner: 426 North Second, LLC, a Colorado limited liability company (426 North Second Street) Parcel ID No. 273512417031 Property: 229 West Smuggler Street and 426 North Second Street, Aspen, Colorado I AM DELIVERING TO YOU THE FOLLOWING: XXXX One (1) Unbound Condom iniumization Exemption Application regarding the above referenced Property; and XXXX One (1) 2406 paper copies of the draft Condominium Map. 9 1� IMA"I" L302 "61"61f01 XXXX For review and acceptance per your communications with attorney Jennifer Causing. REMARKS: Once you have reviewed and deemed this Application complete our office is prepared to deliver the additional materials which are: A) Deposit checks made payable to the City of Aspen in the total sum of $975.00; and B) Digital Copy of the application in PDF Format that will be provided on thumhdrive. Active/48514856. l 0 0 Please call if you have any questions. Thank you for your assistance in this matter Very Truly Yours LTJ Ch l Heiberger Paralegal Enclosures as recited 012245.001 Active/48514856.1 0 Homeowner Association Compliance Policy All land use applications within the City of Aspen are required to include a Homeowner Association Compliance Form (this form) certifying the scope of work included in the land use application complies with all applicable covenants and homeowner association policies. The certification must be signed by the property owner or Attorney representing the property owner. 229 West Smuggler, LLC, a Colorado limited liability company Property 426 North Second, LLC, a Colorado limited liability company Owner ("I"): Phone No.: (970) 925 6300 Address of 229 West Smuggler and 426 North Second Property: Aspen Colorado 81611 (subject of application) I certify as follows: (pick one) ❑ This property is not subject to a homeowners association or other form of private covenant. ❑ This property is subject to a homeowners association or private covenant and the improvements proposed in this land use application do not require approval by the homeowners association or covenant beneficiary. X This property is subject to a homeowners association or private covenant and the improvements proposed in this land use application have been approved by the homeowners association or covenant beneficiary. I understand this policy and I understand the City of Aspen does not interpret, enforce, or manage the applicability, meaning or effect of private covenants or homeowner association rules or bylaws. I understand that this document is a public document. Owner signature. - Owner printed name: or, Attorney signature Attorney printed name: Jennifer M. Causing date: date: 2 Z o i g Active/48234528.1 0 0 5 _ 1. a k a 5 � Y 1 +' Hill I :� #�t, e� df fit J; M! 1 9 I r• . I y J W W ° r z � 5 8 W ru� z z� W O a �5 Ix Si s 1 9 t ! j Id ilia 1111,11 SLu TI gy e Y E £F3e W HIM; 119 W w a Illi OJ U— 5! L D 5Z L 0 Z 0 �U a 5 f ' I I o W O or^ o �+ QCO 0 Z Z 0 U U) hQ� bWWWr� nnnM411WudNFg1'"�t.,.'... s F i U— L1� 0 v5J G _Z G O 0 Z 0 AWJ �J 0 0�5 <r`n v J VZ/ Z O U � I Q > w w Z 0 Q w _I w Q Z UI 4 J m 2 0 cz z g„ (D ff z ao0 €i2^ N Nmm O S� N 5) Z O 0 Z O �U s LU 0 �J a(D w� Cn 0 Vz Z O � W C+ i ,I , t E �� II ZIU [ o W mO i P ZI 3 I Z j O y N i w �.. !, Z (5 O U) I O ,L O m 1— f m W O N cn w • • CITY OF ASPEN 130 S. Galena Street, 3`d Floor Aspen CO 81611 APPLICATION FOR CONDOMINIUMIZATION 229 West Smuggler Street and 426 North Second Street, Aspen, CO 81611 (Condominium Exemption Application) Date: May3l , 2018 Location/Address: 229 West Smuggler Street and 426 North Second Street, Aspen CO 81611 Unit A and B, Second and Smuggler Condominiums (a condominium), according to the Condominium Map appearing in the records of the County Clerk and Recorder of Pitkin County, Colorado, in Plat Book 7 at Page 66 as Reception No. 212661, and as defined and described in the Condominium Declaration recorded March 14, 1979 in Book 364 at Page 771 as Reception No. 212660, and First Amendment thereto recorded April 15, 1980 in Book at Page 580 as Reception 223333, Pitkin County, Colorado Parcel ID No. 273512417032 (229 West Smuggler Street) Parcel ID No. 273512417031 (426 North Second Street) Owner: 229 West Smuggler, LLC, a Colorado limited liability company (229 West Smuggler Street) 426 North Second, LLC, a Colorado limited liability company (426 North Second Street) Address: c/o Sherman & Howard L.L.C. 730 East Durant Avenue, Suite 200 Aspen CO 81611 Telephone: 214 354 9635 Email: ddowler@lkcm.com Representative: Joseph Krabacher Jennifer Causing Address: Sherman & Howard L.L.C. 730 East Durant Avenue, Suite 200 Aspen CO 81611 Telephone: (970) 300 0123 13111u111rri' MI Email: jkrabacher@shermanhoward.com Application Deposit: $975.00 Authorization to Represent Certificate of Ownership Completed Land Use Application Signed Fee Agreement Pre -application Conference Summary Proposed Condominium Plat (2 paper copies and diaital.pd Description of Proposal and Compliance with Standards Representative Signature: Active/48234528.1 40 • APPLICATION FOR CONDOMINIUMIZATION 229 West Smuggler Street and 426 North Second Street, Aspen CO 81611 1. Introduction. The Applicant is proposing to amend the existing condominium map for a condominimized duplex located at 229 West Smuggler and 426 North Second Street, Aspen CO 81611. The original condominium map was recorded in Plat Book 7 at Page 66 as Reception No. 212661 2. Pre -Application Conference. The pre -application conference summary was issued on February 28, 2018, a copy of which is submitted with this Application. 3. Summa!y Application. The property consists of two residential units which have a common party wall on the lower level. The Applicant is seeking to approval of the amended and restated condominium under an exemption application pursuant to the requirements of Aspen Land Use Code Section 26.480.050 (A), Condominiumization. 4. Review Standards. The Application complies with applicable review standards of Aspen Land Use Code Section 26.480.050 (A), Condominiumization. Standard: Condominiumization shall be limited to allocating ownership interests of a single parcel and shall not effect a division of the parcel into multiple lots, an aggregation of the parcel with other lands, a change in use of the property, and shall not operate as an abatement of other applicable regulations affecting the property. Response: The Application proposes to amend and restate the existing two condominium units on a single parcel. The underlying parcel of land consists of Lots A, B, and C, Block 48, Townsite of Aspen. The approval of the amended and restated condominium map does not effect a division of that parcel into multiple lots, an aggregation of the parcel with other lands, a change in use of the property, and does not operate as an abatement of other applicable regulations affecting the Property Standard: The Condominium Plat is in an acceptable style and format as prescribed in Title 29 — Engineering Design Standards, Plats. Response: The proposed Amended and Restated Condominium Plat is sithmitted herewith, and has been prepared consistent with the Engineering Design Standards for Condominium Plats in Section 2.3 of the City of Aspen Engineering Department Design Standards. Standard: The Condominium Plat shall be reviewed and then recorded in the office of the Pitkin County Clerk and Recorder. No subdivision agreement need be prepared or entered into between the applicant and the City unless the Community Development Director determines such an agreement is necessary. Response: The Amended and Restated Condominium Plat is hereby submitted for review, and upon approval by the Community Development Department and the Engineering Department will be recorded in the office of the Pitkin County Clerk and Recorder. No subdivision agreement should be required as there are no public infrastructure requirements applicable to this Application. Active/48234528.1 (9 0 229 WEST SMUGGLER, LLC 426 NORTH SECOND, LLC c/o Sherman & Howard, LLC 720 East Durant, Suite 200 Aspen CO 81611 May 2, 2018 City of Aspen Community Development Department 130 S. Galena St., 3`d Floor Aspen, CO 81611 To Whom it May Concern: I am writing as Manager of 229 West Smuggler, LLC, a Colorado limited liability company and as Manager of 426 North Second, LLC, a Colorado limited liability company (collectively, the "Applicant") to authorize the persons listed below to act as the agents for and representatives of the Applicant in all matters related to and in connection with the Subdivision Exemption Application for the property located at 229 West Smuggler and 426 North Second, Aspen, CO 81611, also known as Unit A and Unit B, Second and Smuggler Condominiums. The address and phone number of the representatives are as follows: Jennifer M. Causing/Joseph Krabacher SHERMAN & HOWARD L.L.C. 720 East Durant Street, Suite 200 Aspen, Colorado 81611 (970) 300 0113/925 6300 jcausingna sah.com ikrabacherAsah.com Please contact me if you have any questions. Thank you. Active/5513886.2 229 WEST SMUGGLER, LLC A Colorado limited liability company By: & Af, xv-�V ✓ David L. Dowler Manager 426 NORTH SECOND, LLC A Colorado limited liability company By: pgyd.[_ David L. Dowler Manager is 0 0 0 CERTIFICATE OF OWNERSHIP First American Title insurance Company Commitment No. 18003920 Owner: 229 West Smuggler, LLC, a Colorado limited liability company (229 West Smuggler Street) Parcel ID No. 273512417032 Owner: 426 North Second, LLC, a Colorado limited liability company (426 North Second Street) Parcel ID No. 273512417031 Property: 229 West Smuggler Street and 426 North Second Street, Aspen, Colorado • • Commitment Title Insurance Commitment ISSUED BY First American Title Insurance Company INFORMATION The Title Insurance Commitment is a legal contract between you and the Company. It is issued to show the basis on which we will issue a Title Insurance Policy to you. The Policy will insure you against certain risks to the land title, subject to the limitations shown in the Policy. The Company will give you a sample of the Policy form, if you ask. The Policy contains an arbitration clause. All arbitrable matters when the Amount of Insurance is $2,000,000 or less shall be arbitrated at the option of either the Company or you as the exclusive remedy of the parties. You may review a copy of the arbitration rules at http://www.alta.org/. The Commitment is based on the land title as of the Commitment Date. Any changes in the land title or the transaction may affect the Commitment and the Policy. The Commitment is subject to its Requirements, Exceptions and Conditions. THIS INFORMATION IS NOT PART OF THE TITLE INSURANCE COMMITMENT. YOU SHOULD READ THE COMMITMENT VERY CAREFULLY. If you have any questions about the Commitment, contact: FIRST AMERICAN TITLE INSURANCE COMPANY 1 First American Way, Santa Ana, California 92707 TABLE OF CONTENTS AGREEMENT TO ISSUE POLICY CONDITIONS SCHEDULE A Insert 1. Commitment Date 2. Policies to be Issued, Amounts and Proposed Insureds 3. Interest in the Land and Owner 4. Description of the Land SCHEDULE B-1- REQUIREMENTS Insert SCHEDULE B-II - EXCEPTIONS Insert AGREEMENT TO ISSUE POLICY We agree to issue policy to you according to the terms of the Commitment. When we show the policy amount and your name as the proposed insured in Schedule A, this Commitment becomes effective as of the Commitment Date shown in Schedule A. If the Requirements shown in this Commitment have not been met within six months after the Commitment Date, our obligation under this Commitment will end. Also, our obligation under this Commitment will end when the Policy is issued and then our obligation to you will be under the Policy. Our obligation under this Commitment is limited by the following: • The Provisions in Schedule A. • The Requirements in Schedule B-I. • The Exceptions in Schedule B-Il. • The Conditions on Page 2. This Commitment is not valid without SCHEDULE A and Sections I and II of SCHEDULE B. First American Title Insurance Company 94¢'•�• N SEPTEMBER 24. ; ' f i f96B � i • '' ~' Dennis J Gilmore �•''•c*trfoss�* President Timothy Kemp Secretary (This Commitment is valid only when Schedules A and B are attached) This jacket was created electronically and constitutes an original document Copyright 2006.2009 American Land Title Association. All rights reserved. The use of this form is restricted to ALTA licensees and ALTA members in good standing as of the date of use. All other uses are prohibited. Reprinted under license from the American Land Title Association. Form 5011000 (6-22-10) Page 1 of 2 ALTA Plain Language Commitment (6-17-06) • i 1. DEFINITIONS CONDITIONS (a) "Mortgage" means mortgage, deed of trust or other security instrument. (b) "Public Records" means title records that give constructive notice of matters affecting your title according to the state statutes where your land is located. 2. LATER DEFECTS The Exceptions in Schedule B - Section II may be amended to show any defects, liens or encumbrances that appear for the first time in the public records or are created or attached between the Commitment Date and the date on which all of the Requirements (a) and (c) of Schedule B - Section I are met. We shall have no liability to you because of this amendment. 3. EXISTING DEFECTS If any defects, liens or encumbrances existing at Commitment Date are not shown in Schedule B, we may amend Schedule B to show them. If we do amend Schedule B to show these defects, liens or encumbrances, we shall be liable to you according to Paragraph 4 below unless you knew of this information and did not tell us about it in writing. 4. LIMITATION OF OUR LIABILITY Our only obligation is to issue to you the Policy referred to in this Commitment, when you have met its Requirements. If we have any liability to you for any loss you incur because of an error in this Commitment, our liability will be limited to your actual loss caused by your relying on this Commitment when you acted in good faith to: or Comply with the Requirements shown in Schedule B - Section I Eliminate with our written consent any Exceptions shown in Schedule B - Section II. We shall not be liable for more than the Policy Amount shown in Schedule A of this Commitment and our liability is subject to the terms of the Policy form to be issued to you. 5. CLAIMS MUST BE BASED ON THIS COMMITMENT Any claim, whether or not based on negligence, which you may have against us concerning the title to the land must be based on this Commitment and is subject to its terms. Farm 5011000 (6 22-10) Page 2 of 2 1ALTA Plain Language Commitment (6-17-06) i n LJ American Land Title Association First American Title Insurance Co. Commitment No.: 18003920 SCHEDULE A 1. Effective Date: April 25, 2018 at 07:45 AM 2. Policy or Policies to be issued: A. ALTA Owners Policy (06/17/06) Proposed Insured: TBD Certificate of Taxes Due Endorsements: Additional Charges: ALTA Commitment Form Adopted 6-17-06 Amount Premium TBD $0.00 $0.00 $0 Total $0.00 3. The estate or interest in the land described or referred to in this Commitment is Fee simple. 4. Title to the Fee simple or interest in the land is at the Effective Date vested in: 426 North Second, LLC, a Colorado limited liability company (as to Unit: A) and 229 West Smuggler, LLC, a Colorado limited liability company (as to Unit: B) 5. The land referred to in the Commitment is described as follows: SEE EXHIBIT A ATTACHED HERETO For informational purposes only, the property address is: 426 North Second Street, Unit A and 229 West Smuggler Street, Unit B, Aspen, CO 81611. Attorneys Title Insurance Agency of Aspen, LLC l By: � 10,.tt v�oiu _ Winter VanAlstine Authorized Officer or Agent FOR INFORMATIONAL PURPOSES OR SERVICES IN CONNECTION WITH THIS COMMITMENT, CONTACT: Attorneys Title Insurance Agency of Aspen, LLC, 715 West Main Street, Suite 202, Aspen, CO 81611, Phone: 970 925-7328, Fax: 970 925-7348. Copyright 2006-2009 American Land Title Association. All right reserved. The use of this Form is restricted to ALTA licensees and ALTA members in good standing as of the date of use All other uses are prohibited. Reprinted under license from the American Land Title Association. 4 tit ILI t . AN IANII TITIr AS Y0i. I A I WN It.- 18003920 0 16 American Land Title Association Commitment No.: 18003920 First American Title Insurance Co. SCHEDULE B ALTA Commitment Form Adopted 6-17-06 1. Requirements: 1. Pay the agreed amounts for the interest in the land and/or the mortgage to be insured. 2. Pay us the premiums, fees and charges for the policy. 3. Documents satisfactory to us creating the interest in the land and/or the mortgage to be insured must be signed, delivered and recorded. 4. You must tell us in writing the name of anyone not referred to in this Commitment who will get an interest in the land or who will make a loan on the land. We may then make additional requirements or exceptions. 5. Payment of all taxes, charges and assessments, levied and assessed against the subject premises which are due and payable. 6. A Certification of Taxes due listing each taxing jurisdiction shall be obtained from the County Treasurer or an authorized agent (pursuant to Senate Bill 92-143, CRS 10-11-122). 7. Receipt by the Company of the appropriate affidavit as to new construction and indemnifying the Company against any unfiled materialmen's or mechanic's liens. 8. Warranty Deed must be sufficient to convey the fee simple estate or interest in the land described or referred to herein, from 426 North Second, LLC, a Colorado limited liability company and 229 West Smuggler, LLC, a Colorado limited liability company, to the proposed insured, Schedule A, item 2A. NOTE: C.R.S. Section 38-35-109(2) required that a notation of the purchaser's legal address, (not necessarily the same as the property address) be included on the face of the Deed to be recorded. 9. Release of the Deed of Trust from 426 North Second, LLC, to the Public Trustee of Pitkin County for the benefit of Iberiabank, to secure an indebtedness in the principal sum of $9,264,480.00, and any other amounts and/obligations secured thereby, dated July 7, 2016, and recorded July 11, 2016, as Reception No. 630601 (NOTE: This affects Unit A only). 10. Release of the Deed of Trust from 229 West Smuggler, LLC, to the Public Trustee of Pitkin County for the benefit of Iberiabank, to secure an indebtedness in the principal sum of $9,264,480.00, and any other amounts and/obligations secured thereby, dated July 7, 2016, and recorded July 11, 2016, as Reception No. 630599 (NOTE: This affects Unit B only). 11. Record a Statement of Authority to provide prima facie evidence of existence of 426 North Second, LLC, a Colorado limited liability company, an entity capable of holding property, and the name of the person authorized to execute instruments affecting title to real property as authorized by C.R.S. Section 38-30-172. 12. A copy of the properly signed and executed Operating Agreement if written, for 426 North Second, LLC, a Colorado limited liability company, to be submitted to the Company for review. Copyright 2006-2009 American Land Title Association. All right reserved. AMERICAN The use of this Form is restricted to ALTA licensees and ALTA members I AND TITI E in good standing as of the date of use. All other uses are prohibited. A.»lxYAI WN Reprinted under license from the American Land Title Association. 18003920 9 E American Land Title Association First American Title Insurance Co. ALTA Commitment Form Adopted 6-17-06 Commitment No.: 18003920 SCHEDULE B (Continued) 13. Certificate of Good Standing from the Colorado Secretary of State for 426 North Second, LLC, a Colorado limited liability company. 14. Record a Statement of Authority to provide prima facie evidence of existence of 229 West Smuggler, LLC, a Colorado limited liability company, an entity capable of holding property, and the name of the person authorized to execute instruments affecting title to real property as authorized by C.R.S. Section 38-30-172. 15. A copy of the properly signed and executed Operating Agreement if written, for 229 West Smuggler, LLC, a Colorado limited liability company, to be submitted to the Company for review. 16. Certificate of Good Standing from the Colorado Secretary of State for 229 West Smuggler, LLC, a Colorado limited liability company. 17. Additional Requirements may be included once the name of the Buyer is provided. 18. Evidence to the Company that all assessments and liens due under the Declaration referred to in Schedule B have been paid. 19. This Title Commitment is subject to underwriter approval. 2. Schedule B of the policy or policies to be issued will contain exceptions to the following matters unless the same are disposed of to the satisfaction of the Company: 1. Any facts, rights, interests or claims which are not shown by the Public Records, but which could be ascertained by an inspection of the Land or by making inquiry of persons in possession thereof. 2. Easements, or claims of easements, not shown by the Public Records. 3. Discrepancies, conflicts in boundary lines, shortage in area, encroachments, and any facts which a correct survey and inspection of the Land would disclose, and which are not shown by the Public Records. 4. Any lien, or right to a lien, for services, labor or material theretofore or hereafter furnished, imposed by law and not shown in the Public Records. 5. Any and all unpaid taxes, assessments and unredeemed tax sales. 6. (a) Unpatented mining claims; (b) reservations or exceptions in patents or in Acts authorizing the issuance thereof; (c) water rights, claims or title to water, whether or not the matters excepted under (a), (b), or (c) are shown by the Public Records. 7. Taxes and assessments for the year 2018, and subsequent years, a lien not yet due or payable. Copyright 2006-2009 American Land Title Association. All right reserved. AMERIC:AN The use of this Form is restricted to ALTA licensees and ALTA members in good standing as of the date of use. I AND TITtr All other uses are prohibited. Reprinted under license from the American Land Title Association. a5SM M ION 18003920 • American Land Title Association First American Title Insurance Co. ALTA Commitment Form Adopted 6-17-06 Commitment No.: 18003920 SCHEDULE B (Continued) 8. Exceptions and reservations as set forth in the Act authorizing the issuance of the Patent for the City and Townsite of Aspen dated June 2, 1881, and recorded March 1, 1897, in Book 139 at Page 216, as Reception No. 060156. 9. Terms, conditions, provisions, agreements and obligations specified under the Statement of Exemption from the Definition of Subdivision dated March 1, 1979, and recorded March 14, 1979, in Book 364 at Page 769, as Reception No. 212659. 10. Terms, conditions, provisions, agreements and obligations specified under the Condominium Declaration for Second and Smuggler Condominiums (A Condominium) recorded March 14, 1979, in Book 364 at Page 771, as Reception No. 212660, and First Amendment to Condominium Declaration for Second and Smuggler Condominiums (A Condominium) dated April 14, 1980, and recorded April 15, 1980, in Book 387 at Page 580, as Reception No. 223333. 11. Any and all notes, easements and recitals as disclosed on the recorded Condominium Map of Second and Smuggler Condominiums recorded March 14, 1979, in Plat Book 7 at Page 66, as Reception No. 282661. 12. Terms, conditions, provisions, agreements and obligations specified under the Resolution of the Aspen Planning and Zoning Commission Recommending Landmark Designation of 426 N. 2nd Street, Units A and B, Second and Smuggler Condominiums, Block 48, City of Aspen (Resolution No. 99-26) dated September 21, 1999, and recorded October 7, 1999, as Reception No. 436340. 13. Terms, conditions, provisions, agreements and obligations specified under An Ordinance of the Aspen City Council Granting Approval for Landmark Designation of 426 N. 2nd Street, Units A and B, Second and Smuggler Condominiums, Block 48, City of Aspen (Ordinance No. 40 - Series of 1999) dated October 12, 1999, and recorded October 18, 1999, as Reception No. 436711. 14. Terms, conditions, provisions, agreements and obligations specified under the Resolution of the Aspen Historic Preservation Commission Approving an Application for Landmark Designation, Minor Development, Partial Demolition, Residential Design Review and Variances to Remodel a Historic House at 426 N. Second Street, City and Townsite of Aspen, Colorado (Resolution No. 44, Series of 1999) dated September 8, 1999, and recorded November 12, 1999, as Reception No. 437683. 15. Terms, conditions, provisions, agreements and obligations specified under the Resolution of the Aspen Historic Preservation Commission Approving an Application for Landmark Designation, Minor Development, Partial Demolition, Residential Design Review and Variances to Remodel a Historic House at 426 N. Second Street, City and Townsite of Aspen, Colorado (Resolution No. 42, Series of 1999) dated September 8, 1999, and recorded December 16, 1999, as Reception No. 438637. 16. Any and all notes, easements and recitals as disclosed on the recorded Improvement & Topographic Survey Plat dated May 24, 2012, and recorded January 4, 2013, in Plat Book 101 at Page 52, as Reception No. 595803. 17. Terms, conditions, provisions, agreements and obligations specified under Resolution #1, Series of 2015, recorded January 21, 2015, as Reception No. 616812. Copyright 2006-2009 American Land Title Association. All right reserved. kM1141("AN The use of this Form is restricted to ALTA licensees and ALTA members in good standing as of the date of use. 1 A N P r 1 1 1 1 All other uses are prohibited. Reprinted under license from the American Land Title Association. k-111.11H.N I,: 18003920 • American Land Title Association First American Title Insurance Co. Commitment No.: 18003920 ALTA Commitment Form Adopted 6-17-06 SCHEDULE B (Continued) 18. Terms, conditions, provisions, agreements and obligations specified under Resolution #9, Series of 2015. recorded March 26, 2015, as Reception No. 618454. 19. Terms, conditions, provisions, agreements and obligations specified under the City of Aspen Easement Agreement, dated September 23, 2016, and recorded November 4, 2016, as Reception No. 633601. 20. Any existing leases or tenancies, and any and all parties claiming by, through or under said lessees. Copyright 2006-2009 American Land Title Association. All right reserved. The use of this Form is restricted to ALTA licensees and ALTA members in good standing as of the date of use. All other uses are prohibited. Reprinted under license from the American Land Title Association. � if..RICAN tnW6 TITI.[ ,„�i� ulra iN 18003920 0 • Commitment No.: 18003920 First American Title Insurance Co. EXHIBIT A PROPERTY DESCRIPTION The land referred to in this Commitment is described as follows: Condominium Units A and B, SECOND AND SMUGGLER CONDOMINIUMS (A CONDOMINIUM), according to the Condominium Map appearing in the records of the County Clerk and Recorder of Pitkin County, Colorado, in Plat Book 7 at Page 66 as Reception No. 212661, and as defined and described in the Condominium Declaration recorded March 14, 1979 in Book 364 at Page 771 as Reception No. 212660, and First Amendment thereto recorded April 15, 1980 in Book 387 at Page 580 as Reception No. 223333, Pitkin County, Colorado. ALTA Commitment 18003920 Exhibit A • FirstAmerican Title"' DISCLOSURE STATEMENT Pursuant to C.R.S. 30-10-406(3)(a) all documents received for recording or filing in the Clerk and Recorder's office shall contain a top margin of at least one inch and a left, right and bottom margin of at least one-half of an inch. The Clerk and Recorder will refuse to record or file any document that does not conform to the requirements of this section. NOTE: If this transaction includes a sale of the property and the price exceeds $100,000.00, the seller must comply with the disclosure/withholding provisions of C.R.S. 39-22-604.5 (Nonresident withholding). NOTE: Colorado Division of Insurance Regulations 8-1-2 requires that "Every title insurance company shall be responsible to the proposed insured(s) subject to the terms and conditions of the title commitment, other than the effective date of the title commitment, for all matters which appear of record prior to the time of recording whenever the title insurance company, or its agent, conducts the closing and settlement service that is in conjunction with its issuance of an owner's policy of title insurance and is responsible for the recording and filing of legal documents resulting from the transaction which was closed. Pursuant to C.R.S. 10-11-122, the company will not issue its owner's policy or owner's policies of title insurance contemplated by this commitment until it has been provided a Certificate of Taxes due or other equivalent documentation from the County Treasurer or the County Treasurer's authorized agent; or until the Proposed Insured has notified or instructed the company in writing to the contrary. The subject property may be located in a special taxing district. A Certificate of Taxes due listing each taxing jurisdiction shall be obtained from the County Treasurer or the County Treasurer's authorized agent. Information regarding special districts and the boundaries of such districts may be obtained from the Board of County Commissioners, the County Clerk and Recorder, or the County Assessor. NOTE: Pursuant to CRS 10-11-123, notice is hereby given: This notice applies to owner's policy commitments containing a mineral severance instrument exception, or exceptions, in Schedule B, Section 2. A. That there is recorded evidence that a mineral estate has been severed, leased, or otherwise conveyed from the surface estate and that there is a substantial likelihood that a third party holds some or all interest in oil, gas, other minerals, or geothermal energy in the property; and B. That such mineral estate may include the right to enter and use the property without the surface owner's permission. NOTE: Pursuant to Colorado Division of Insurance Regulations 8-1-2, Affirmative mechanic's lien protection for the Owner may be available (typically by deletion of Exception no. 4 of Schedule B, Section 2 of the Commitment from the Owner's Policy to be issued) upon compliance with the following conditions: NOTE: Pursuant to Colorado Division of Insurance Regulations 8-1-2, Affirmative mechanic's lien protection for the Owner may be available (typically by deletion of Exception no. 4 of Schedule B, Section 2 of the Commitment from the Owner's Policy to be issued) upon compliance with the following conditions: A. The land described in Schedule A of this commitment must be a single family residence which includes a condominium or townhouse unit. B. No labor or materials have been furnished by mechanics or material -men for purposes of construction on the land described in Schedule A of this Commitment within the past 6 months. C. The Company must receive an appropriate affidavit indemnifying the Company against un-filed mechanic's and material-men's liens. D. The Company must receive payment of the appropriate premium. E. If there has been construction, improvements or major repairs undertaken on the property to be purchased within six months prior to the Date of the Commitment, the requirements to obtain coverage for unrecorded liens will include: disclosure of certain construction information; financial information as to the seller, the builder and or the contractor; payment of the appropriate premium, fully executed Indemnity Agreements satisfactory to the company, and, any additional requirements as may be necessary after an examination of the aforesaid information by the Company. No coverage will be given under any circumstances for labor or material for which the insured has contracted for or agreed to pay. First American Title Insurance Company NOTE: Pursuant to C.R.S. 38-35-125(2) no person or entity that provides closing and settlement services for a real estate transaction shall disburse funds as a part of such services until those funds have been received and are available for immediate withdrawal as a matter of right. NOTE: C.R.S. 39-14-102 requires that a real property transfer declaration accompany any conveyance document presented for recordation in the State of Colorado. Said declaration shall be completed and signed by either the grantor or grantee. NOTE: Pursuant to CRS 10-1-128(6)(a), It is unlawful to knowingly provide false, incomplete, or misleading facts or information to an insurance company for the purpose of defrauding or attempting to defraud the company. Penalties may include imprisonment, fines, denial of insurance and civil damages. Any insurance company or agent of an insurance company who knowingly provides false, incomplete, or misleading facts or information to a policyholder or claimant for the purpose of defrauding or attempting to defraud the policyholder or claimant with regard to a settlement or award payable from insurance proceeds shall be reported to the Colorado division of insurance within the department of regulatory agencies. NOTE: Pursuant to Colorado Division of Insurance Regulations 8-1-3, notice is hereby given of the availability of an ALTA Closing Protection Letter which may, upon request, be provided to certain parties to the transaction identified in the commitment. Nothing herein contained will be deemed to obligate the company to provide any of the coverages referred to herein unless the above conditions are fully satisfied. First American Title Insurance Company ATTORNEYS TITLE INSURANCE AGENCY OF ASPEN, LLC 715 West Main Street, Suite 202 Aspen, CO 81611 Attorneys Title Insurance Agency of Aspen, LLC Privacy Policy Notice PURPOSE OF THIS NOTICE Title V. of the Gramm -Leach -Bliley Act (GLBA) generally prohibits any financial institution, directly or through it affiliates, from sharing non-public personal information about you with a nonaffiliated third party unless the institution provides you with a notice of its privacy policies and practices, such as the type of information that it collects about you and the categories of persons or entities to whom it may be disclosed. In compliance with the GLBA, we are providing you with this document, which notifies you of the privacy policies and practices of Attorneys Title Insurance Agency of Aspen, LLC. We may collect nonpublic personal information about you from the following sources: • Information we receive from you, such as on application or other forms. • Information about your transactions we secure from out files, or from our affiliates or others. • Information we receive from a consumer reporting agency. • Information that we receive from others involved in your transaction, such as the real estate agent or lender. Unless it is specifically stated otherwise in an amended Privacy Policy Notice, no additional nonpublic personal information will be collected about you. We may disclose any of the above information that we collect about our customers or former customer to our affiliates or to nonaffiliated third parties as permitted by law. We also may disclose this information about our customers or former customers to the following types of nonaffiliated companies that perform marketing services on our behalf or with whom we have joint marketing agreements: • Financial service providers such as companies engaged in banking, consumer finance, securities and insurance. • Non -financial companies such as envelope stuffers and other fulfillment service providers. WE DO NOT DISCLOSE ANY NONPUBLIC PERSONAL INFORMATION ABOUT YOU WITH ANYONE FOR ANY PURPOSE THAT IS NOT SPECIFICALLY PERMITTED BY LAW. We restrict access to nonpublic personal information about you to those employees who need to know that information in order to provide products or services to you. We maintain physical, electronic, and procedural safeguards that comply with federal regulations to guard your nonpublic personal information. TELEPHONE 970 925-7328 A - A FACSIMILE 970 925-7348 EC&VCITY OF ASPEN �, PRE -APPLICATION CONFERENCE SUMMARY C/ AY 3 OF 2D18 aa� PLANNER: Garrett Larimer, 970.429.2763 DATE: 2.28.2018 ,�JpEN PROJECT: 229 W. Smuggler St./426 N Second St. * REPRESENTATIVE: Jennifer Causing, icausing(a.shermanhoward.com, 970.925.6300 REQUEST: Condominiumization DESCRIPTION: The applicant is pursuing a restated Condo Plat for a duplex at 229 W. Smuggler St. and 426 N Second St. The condo plat should address how the ownership is divided between these two addresses. Condominium Plats are reviewed by Community Development and Engineering Department staff. A draft Plat should be submitted electronically. ComDev and Engineering will return comments. The response to comments should be submitted electronically and then confirmed by staff before printing to Mylar. Two (2) copies of the finalized plat, printed to Mylar, should be submitted with necessary certificates and signatures. Once Engineering and ComDev have signed their certificates, the Plat will be recorded with the Pitkin County Recorder. A separate recording fee will apply. Below are links to the Land Use Application form and Land Use Code for your convenience: Land Use App: Land Use Application Land Use Code: Land Use Code Land Use Code Section(s ❑ 26.304 Common Development Review Procedures ❑ 26.480.050.A Condominiumization Review by: Staff for complete application and content Engineering Dept. for content and format Planning Fees: Planning Deposit — $650, for two hours of review time (additional planning hours over deposit are billed at a rate of $325/hour). Referral Fees: Engineering - $325 for one hour of review time (additional engineering hours over deposit are billed at a rate of S325/hour) Total Deposit: $975 To apply, submit one paper copy of the following information: ❑ Completed Land Use Application and signed fee agreement. ❑ Pre -application Conference Summary (this document). ❑ Street address and legal description of the parcel on which development is proposed to occur, consisting of a current (no older than 6 months) certificate from a title insurance company, an ownership and encumbrance report, 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. Active/48234528.1 n ❑ Applicant's name, address and telephone number in a letter signed by the applicant that states the name, address and telephone number of the representative authorized to act on behalf of the applicant. ❑ HOA Compliance form (Attached). ❑ A written description of the proposal and an explanation in written, graphic, or model form of how the proposed development complies with the review standards relevant to the development application and relevant land use approvals associated with the property. ❑ Written responses to all review criteria. El ❑ One 24" x 36" draft plat, which must meet the requirements of Chapter 26.490 —Approval Documents and the Engineering Design Standards. ❑ An 81,12" x 11" vicinity map locating the parcel within the City of Aspen. If the copy is deemed complete by staff, the following items will then need to be submitted: ❑ Total deposit for review of the application. ❑ A digital copy of the application provided in pdf file format. 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. 4 Active/48234528.1