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HomeMy WebLinkAboutcoa.lu.ec.531 E Cooper Ave.0042.2010.aslu THE CITY OF ASPEN City of Aspen Community Development Department CASE NUMBER 0042.2010.Aslu PARCEL ID NUMBERS �� / rc),. C�)-0O� �rS 3S" PROJECTS ADDRESS 531 E. COOPER ST. PLANNER SARA ADAMS CASE DESCRIPTION SUBDIVISION EXEMPTION INCLUDES CONDOMINIUMIZATION REPRESENTATIVE GARFIELD & HETCHT, PC 9491565 DATE OF FINAL ACTION 01/14/2013 CLOSED BY ANGELA SCOREY ON: 11/11/13 l File Edit Record AUavigate Fgrm Reports Format Tab Help r ►X ► ►.Jai mP l o h _:j Clgat- A q t Routing Status J Feej l Fee Summary Main Actions lAttachmentslRoutingLitstory I yaluation (Arch/En9 l Custom Fields 5ub L)ermits Parcels plptrrimREype Flu Aspen Land Use ps *10042.201 0.ASLU A*vm 531 E COOPER WAA& Qty JASPEN St1ts C0 $p 81611 Peanut WOtmiki0tt . Mager per* Routing Qjeue aslu07 Applied 8M ol2010 Prod status 1pending -1 Approved Description SUBDIVISION EXEMPTION INCLUDES CONOMINIUMIZATION-BOWMAN BUILDING Issued Final Submitted GARFIELD&HETCHT,PC 9491565 Clock Running Days 0] Expires 8/Sr2011 c r� Submitted via l�1 71 Owner Last name INJ STEIN,LLC First name PO BOX 5450 AVON CA 81620 Phone (970)949-1566 Address Applicant ❑Owner is applicant? ❑Contractor is applicant? Last name IGARFIELD 8 HECHT First name 601 E HYMAN € UNIT 2 Phone (970)925-1936 Cust# 25185 Address ASPEN CO 81611 ' Lender i Last name First name Phone ( ) Address Displays the permit lender's address AspenGold5(server) angelas _ 1 of 1 V 2v 0 SHEET INDEX SHEET 1 EXISTING CONnmONS CONDOMINIUM MAP OF SHEET 2 LEVEL ONE FLOOR PLAN SHEET 3 LEVEL BOWMAN BUILDING CONDOMINIUMS 7710 FLOOR PLAN SHEET 4 BUILDING SEC770N PLANS PURPOSE OF THIS MAP IS TO CONDOMINIUMIZE ALL OF LOTS I AND HAND THE EASTERLY 5 FEET OF LOT G,BLOCK 96 INTO 7 2 CONDOMINIUM UNITS ASPEN TYPICAL EKTEg10R WINDOW ANO DODR DETAIL Cg E gg� CITY AND TOWNSITE OF ASPEN GIs o SECTION 7,TOWNSHIP 10 SOUTH,RANGE 84 WEST OF THE 6TH P.M. PROPERTY DESCRIPTION COUNTY OF PITKIN o rn mro- STATE OF COLORADO / Rm�O1 axv,aws"'zIX�s arx.0 mr -��-� YT11-ECOMPANy CER'f1FlGTE J n Rte, ,our,umwgo aRR�xumT £ GRAPHIC SCALE u,R�,n'c�easy<eur aam nu.��:°a�.00cnxn a •ss '� _aowm u Rmcs - i .wr.n ro,s aiawm LEGEND \ x ~i`me�)s �q iu s a i su,aur P—PER� Lec_cvvea rnrw sisuexr `� $6 I , -u n i�o�xz�`,ro or rL usxs uo axw�,�� V PRO CO q/ -,x111l= Op�R VICIN IT'MAmw asRn+mC xic C�RTIFlCATE OFOWNERSNIP AND DEDK:A D .mnxoxs esaslA `!�' 1 o- ,xwvw ap s JOINDER CERTIFCATEnm e)eoxxoeau wnV x,s n> nT�nxro aYe) s ^� n'bon * i/ vs wxma�M U1C°'sam ivi�n[u m®r _ w+s naw u 4)Rmn,nr uRrs no agpa� MgO O 1 J. i aen z +..eo'2s M eow.n [aq'a yy;eu awxx u0 xoao xO[dv)axx�'"l T-4 i0ic ni�wm�s Cq�`aw '•,i iecv,mrl s'Dwe�n. o[4,x, ear.p ,c"mw¢m � z rMSERn uK M y ,.,,�,, �'Yf- .� er,xT acrs.xd��-,a,�;:. ma m,xa ��,� ,uR,n�aw.moi,aY� v.�C°A-fib. -� oalvim,ns a•�� i' IT- �°""°° i A '. €¢1 L - in0' Y ) nmw I �ISat llP VL --c.— -wOSeawsO euclRe a rz,swiorA� J' ``? a�erssaRm.swa m.vm,aaowman eaae K iRS�o. Nd ---�a---- "'u —� ti II I eR ro•�°njR� •E ty' TOTALAREA �^'co,xesaax swess�roA a�r6//- \� ['�r aw rnw�w�� J... Z // O B 80o PERTY %' y-1.\LLa6_NKhFrz a,s i sioi uc;r,onouoo U' f" SOFT. yI,• �4NSr P a';j 2 RVYORS CECE 1 * W a E BLOCK a8 S A �,aa,rrr ma w'x"wRamn me PAnw 'sa°wi xms �o Z 11 n tl 1°';,„s"�"E ':i','""xDLrm"' iyi-ro-isi.wo iRS mwwN "n, W s $ 9 rm,siw EKIS'TING e ° o i/ m+* .c�tlsesiA urEV,t a ttovrs° uSixri t;mn a.,mo fuII 'OO 'N Q 3 $ nvo-srolxr MRa v� aRno nmw , d� BUILDING k ��---'°'T U RD AI EOOOP[RAVESILK (y }. I h • VERBS I ARPFN.COLORADO $ B f °ap°p"Mu ln9e Pmfn .wr. v sld Biadq ut,” _. ♦ q.,' a� 1 CY5Rt1' xf r?� 5! IQiL__ gruE/A�• NOTES � �• c b � v ,Raw ad � , a, _ ` y K wro mm4"Asun. tt a Pnss• N¢ CnS UI Lars V ii= a\ R. ��. _ Y s urtrtiP Oe aav u i anKr Em •F` I xvcosrz meq s4 mOV.mo \ I rar amsr xvE Ovxn rc nlxR � � =.TMeo�uo : �"°""°.x. .,�.xrsn er m�..' ..s"°rs°R�_ rD��,�a:°sn ue: ? um a®o my m," max. b m• �MYPOO.. U w 8 cm adASPEN ENGINEER'S REWEW mo-a. `I A a�'�' ` W O •' "�c�"�w,�""°tea nn o,v"o.°"`,,.s`i' ""';`a^"•aysn ���C� ro�a °"no, �C ill Dcm D,sixw u,r s,s".ors,ac.rzn�x nE `�,r S J D sr asnucr. U O L) ue„. 9°`•o"ox a'";ix¢n w,wc xaowna r2mmm � , D o 9 a O "mRRa.. 0 - ,sP.aeinm) I` ti.s%�o«:amo:a..awed.rxo.o m° 4 Q m o1 ° CLERK AND REwORDEw•9 CERTIFICATE . x f� mow) ��w1eeux.sE w � �4 " a �,a��-ry".Innf—m-L?: R"o"w�m _........... �� * ae.�.ro m Rwn�rom,ons u mwx,s oLr. s„rz a m«.m) n O " . "° �i y ry�,.. COMMUNTIY DEVELO _ \� ' °x°�z^n r,us w zwr ry.ortxn amps os M s�'.µ�noro mp S C a>i ,.,,., aoewaaoo I i ,`b"z°^8 R.noxai osllcex on ,amo�. on""si am'•"'omron er o,amsaeas um,>E ••ea x, /�- rtA-1 CONDOMINIUM MAP OF UMS $ ¢� BOWMAN BUILDING CONDOMINI CITY AND TOWNSITE OF ASPEN SECTION 7,TOWNSHIP 1 O SOUTH,RANGE 84 WEST OF THE 6TH P.M. COUNTY OF PITKIN,STATE OF COLORADO 6TA616 I I 1 S x.92'1r 6„GETO R-M 8.6T 3.]B' SOB' I i II I n I � III 1 a UNITC-5 I II L 9' II 7(16 w.tT. t UNM R-5 z9z arAIR66w+DwD UNIT R-5 LOFT DETAI "Ia Q-C.ETO YNR Rlx _ 0.7I' I� x9.80' a ¢ - D I` � I- I 1 I�- AIRS .EUNI TO 1 I S.SB' 6_C.ETO UNR C-0 C.EUNRR-611 W Z W P c -MM l HALLWAY- totw-RT. I 6-C.ETo UNMR-l&R-Y I $ u x387 fxa 1 1 1x363'-LOPI INN TO LOFfI 1 IJ______ _ 1.76Q.tT. -4 1 __ __ /� % ___ _______I _ YMi6 CP R W1M J,I( Eli C-a LOR 6)AIR6T --N _\\^// Y S 6TNR6l u(SEE OEiALI a dENTAPEA M 2 xs'r it 0..C.ETO UNRC-m pOR UDE OF REMD-"T A AND COMMERCNLYNR4 19� wBy� I W UNIT G 4 LOFT DETAI «.w' W 7 O"M 0 BATHROOM �'. I. 66 w.FT. 19.00' n Q E"-2 UN(T6C-1. • II IuI CONCRETE SIDEWALK •II 'I LUMMERGAL UNIT$) y m 9NrrC- -- a _____________ _ UNrrc T ExP06ID BF6M y PLANTER TO G-c.E. I R Z pQ( ( 1 S.OD' 676 w.FT. aU Z E 2 LANDSCAPING u COMMERCIAL UNITS) U Q O (G.C.E.TO 1 UNrr C-3 ---- eJ n I� COMMERCIAL LEGEND 1 __-- D UNITS) I a WOOD DECK PATIO lyl 64T Mi.PT. Z O V 6() u �I - ---- 7x a C-COMMERICAL UNIT g COMMERCIAL UNITS) 6' Q �1q R-RESIDENTipLUNR 4 STEP 6ruR6 alBALLwwv < �� Q OiI ARWi_C.ETOPEWn4o E-R AN {F- �+ SHARED D UNRC-6) / YLOyLm (\ G GENERAL COMMON O ELEMENT I ,aW O V .+gym GENERAL COMMON (G.C.E_) ELEMENT — ,w' PRO3ErrNO. oS .•I LANDSCAPING 1 6 (G.C.E.TO ` Yy, :$ LIMITED COMMON COMMERCAL UNITS) I ELEMENT WOOD PICKET PENCE \//Y�J LEVEL ONE FLOOR PLAN UNITS c-I. �. —. B scALE:V•'-''-0- 2OF4 -2'"`-' HUNTER STREET �a IN BOWMAN BUILDINuMMAPOF G CONDOMINIUMS CITY AND TOWNSITE OF ASPEN a SECTION 7,TOWNSHIP 10 SOUTH,RANGE 84 WEST OF THE 6TH P.M. $N� COUNTY OF PITKIN,STATE OF COLORADO P-1 UNETR-3 UNITR-4 A ron ttui-tav¢nyp UNRC-e i PENTHOUSE-R � UNi" ¢aIp O .7m-- UNITC-4 UNG1 �A.=g LLVtaaRe 1T UNMC-Z m uNii -t-atva ottwp O Ti >o COOPER 3tly 4 CO COOPER� f � vtr LevEV tsar AVENUE »3t.00— — — __ _ Ntaa.L�tNO,mvmiuurm� AVENUE — ----___ U 2 t9 BUILDING SECTION'A' Z BUILDING SECTION'C' m p LEGEND SEME:i/e• t•_o• Z du yHy E- 'El-11 UNIT U 'y 4 R- ESIDEN M UNIT Z (C.CE.) GENERAL CUU40u }pia S ELEUENT LINIIEG—.. .a EIENENL { .7 q8 PENTHOUMA UNf1RC-S UNIT R-1 i NAU E.¢varwo UNfTR-] UNIT R.1 v=tutLL.Lavp.Tyo _ � AtvA.maT � f 'r UNETC-1 UNfTC-4 w =7 ^ UNTC-8 UNRRm 1 rl 11Z1 Mum UNm RB UNm" W aS Op O HUNTER E�J STREET —� 4 y.e LLVtrLOK O U G _ mo idU �3 mwTLCVei v.o- __ - - 9 i w o Z IL ° 4a+molTtwEUNtn w i 0 q6 W S O� BUILDING SECTION'B` $u u SOME:t/tl• '_p _ BUILDING SECTIONhRNO. y � 40F4 CONDOMINIUM MAP OF �w BOWMAN BUILDING CONDOMINIUMS CITY AND TOWNSITE OF ASPEN a SECTION 7,TOWNSHIP 10 SOUTH,RANGE 84 WEST OF THE 6TH P.M. COUNTY OF PITKIN,STATE OF COLORADO 37,92' y,T o I„ I I IL, Ef080.FT. '' { TERRACE �} �eeTO UNIT R-2 1L1Q a uNrt R.z1 eeo sasr. - 1 2. i D rTAc •lIA Il e2'. tz5 D 4.p.ETD UN"RB ONj 01 0 4280• R-1•RO 32)5 W oye n j uHdNG ,� 9.08• I ''. g S Z UNIT R•b R sT o UN"NdND UNTf R-3 d.C.E TO UNR'3 R-2rR-3) C) j SB930.Ff. � 7-�3,Y2(�y Tv E- ; r z UN,T R. `y 3 A NR R.31 IL ,,59 29.58 a 9.59 0 e B.Y 42.55 O D- 1.V = 19.50 UNff C•e - I I u 32.Q'-------------- � C 1,25' / ).N' I'. TERRACE 9m•••.,. ._ ',� 19 C 1 Tt LL.c E n -2t7 • 8.25 LEGEND rvm+ousEro n _ s.)s J _ 6 � 'D ' C•COMMERICALUNR I 350 L a 101 3 R-RESIDENTIAL UNIT •# - - G 629 Z PENTHOUSE-R y '1 )37 4� SHARED ',., 131480.FT. 8.01' - I U G GENERAL COMMON O =a U r ELEMENT u ELEMENT 1 LIMITED COMMON - / a< 8 O� J SZ UNIT$R-1,R-2. 53.50' R-3,h R-4 p rr :e (G.GE.) GENERA L COMMON i� ELEMENT n a+WER rvO' e� ..`+w�_� 30B1rp200 (L. LIMITED COMMON C.E.) B :a ELEMENT LEVELTWO FLOOR PLAN wm HUNTER STREET ScNT:v. -I'_9 craws 30F4 r k: G� as City of Aspen Community Development Department THE QTY of ASPEN Plat Routing Sheet Plat Information: Plat Title: N N ,-) Applicant& Contact Number: -W ` r ^ P�P Case Num er. �1, , o ,M LV1 Planner: Date To Be Completed By: Department Required To Review: Department Approval: X/ Engineering ❑ Engineering :l Parks ❑ Parks Com Dev ❑ Com Dev ❑ Other ❑ Other Comments: JAM JAM 7-7 tAWV W Follow Up and Resolution: Additional Comments: Sara Adams From: Trish Aragon Sent: Thursday, May 17, 2012 2:35 PM To: Sara Adams; Shaun Rourke Subject: FW: Bowman Building-Sheet 1 for Review. Attachments: Bowman Sheet 1-For Review 5-10-12.pdf Sara, This sheet looks good to me. Trish Aragon, P.E. City Engineer 130 S. Galena St. Aspen, CO 81611 (970) 429-2785 We are interested in your opinion. Please fill out the survey below and tell us how we are doing: htty;//www surveymonkey com/s/2O12Eng5vcs "The mission of the Engineering Department is to enrich Aspen's distinctive character so that it remains one of the world's premier mountain communities by protecting the natural environment, improving water quality, enhancing the pedestrian experience and minimizing construction impacts for the enjoyment of residents and guests alike." From: Shaun Rourke Sent: Friday, May 11, 2012 1:35 PM To: Trish Aragon Subject: FW: Bowman Building-Sheet 1 for Review. Any comments on the attached? Sara Adams will have them remove Note #7. the new permanent Note Doessthis make sOe`nse?and encroachments recorded in 2008 and note#12 From: Rodney Kiser [mailto:RKiser(&hceng.com] Sent: Thursday, May 10, 2012 10:22 AM To: Kursten Canada Cc: Shaun Rourke; Sara Adams Subject: Bowman Building-Sheet 1 for Review. Please find the attached Sheet 1 of the Bowman Building Condo Map for review. We added Note 13 for the Encroachment agreement (portion of Building encroaching onto Lot G) to be recorded. 1 Thanks- Rodney P. Kiser- PLS Project Manager High Country Engineering, Inc. 1517 Blake Avenue Suite im Glenwood Springs, Colorado 816o1 Ph:970-945-8676 Fax:970-945-2555 www.hceng.com z SHEET INDEX CONDOMINIUM MAP OF w i ow a'o°z SHEET 1 EXISTING CONDITIONS BOWMAN BUILDING G O N D O M I N I U M S o'0 G r 2 w p =°ap SHEET 2 LEVEL ONE FLOOR PLAN �ufm 00 SHEET 3 LEVEL TWO FLOOR PLAN ASPEN 2I N Z °F f SHEET 4 BUILDING SECTION PLANS PURPOSE OF THIS MAP IS TO CONDOMINIUMIZE ALL OF LOTS 1 AND H AND THE °o >LL� EASTERLY 5 FEET OF LOT G, BLOCK 96 INTO 12 CONDOMINIUM UNITS r ' 6 'F7z cp c TYPICAL EXTERIOR WINDOW AND DOOR DETAIL CITY AND TOWNSITE OF ASPEN EXTERIOR WALL G.OE WINDOW OR DOOR SECTION 7, TOWNSHIP 10 SOUTH, RANGE 84 WEST OF THE 6TH P.M. m PROPERTY DESCRIPTION COUNTY OF PITKIN, STATE OF COLORADO ALL OF LOTS I AND H.AND THE EASTERLY 5 FEET OF LOT G.BLOCK 96,CITY AND TITLE COMPANY CERTIFICATEY TOWNSITE OF ASPEN,BEING IN SECTION J,TOWNSHIP 10 SOUTH,RANGE 84 WEST AK $ FACE OF DRYWALL NDIVIDUAL OWNERSHIP Of ME 6TH PRINCIPAL MERIDIAN. THE UNDERSIGNED A DULY AUTHORIZED REPRESENTATIVE OF PIMIN COUNTY TITLE,INC.,DOES HEREBY CERTIFY THAT NJ STEIN LLC,A COLORADO LIMITED COLD NOTE: _` LIABILITY COMPANY,AS TO AN UNDIVIDED 52.985 INTEREST.STEIN BUILDING LLC, RgO0 A COLORADO LIMITED LIABILITY COMPANY,AS TO AN UNDIVIDED 23.115 INTEREST, WK.#g2 INTERIOR DIMENSIONS ARE FROM FACE OF DRYWALL TO FACE S /� �\ GRAPHIC SCALE AV STEIN LLC,A COLORADO LIMITED LIABILITY COMPANY,AS TO AN UNDIVIDED DRYWALL.OWNERSHIP AT EXTERIOR WINDOWS AND DOORS IS AS /• \ 19.085 INTEREST AND RG COOPER STREET LLC,A COLORADO LIMITED LIABILITY SUBJECT ° Z SHOWN ON THIS DIAGRAM.WINDOW AND ODOR FRAMES ARE / ° \ COMPANY, R TO AN UNDIVIDED 4.835 INTEREST AS OWNERS OF THIS O GENERAL COMMON ELEMENT. / p:48, •' CONDOMINIUM MAP AND DO HOLD FEE SIMPLE TITLE TO THE WITHIN DESCRIBED U PROPERTY 5 UNE REAL PROPERTY,FREE AND CLEAR OF ALL DENS AND ENCUMBRANCES EXCEPT W (IN FE HOSE LISTED IN THE OWNERS AND MORTGAGEE'S CERTIFICATE.ALTHOUGH WE ASPEN D: BELIEVE THE FACTS STATED ARE TRUE,THIS CERTIFICATE IS NOT TO BE W \ 1 imch= 10 ft __ CONSTRUED AS AN ABSTRACT OF TITLE,NOR AS OPINION OF TITLE,NOR A MOUNTAIN LEGEND & BUILDING /� 16.E GUARANTY OF TITLE.AND IT IS UNDERSTOOD AND AGREED THAT PITKIN COUNT TITLE,INC.,NEITHER ASSUMES,NOR WILL BE CHARGED WITH ANY FINANCIAL G.C.E -GENERAL COMMON ELEMENT \a Op �\ OBLIGATION OR UABLITY WHATSOEVER ON ANY STATEMENT CONTAINED HEREIN. VICINITY MAP I BRASS PLUG LC.E. -LIMITED COMMON ELEMENT \ / LS#37935(FND) eR (23 \ PITKIN cWNtt TITLE INC., CERTIFICATE OF OWNERSHIP AND DEDICATION 20'p 11 601 EAST HOPKINS ° I UB / a•. KNOW ALL MEN BY THESE PRESENTS,THAT THE UNDERSIGNED NJ STEIN LLC,A COLORADO LIMITED Q -FOUND PROPERTY CORNER AS DESCRIBED I LNC R O W / h w- ASPEN,COLORADO 81611 a ° ) UILdNG O¢vi ) LIABILITY COMPANY,AS TO AN UNDIVIDED 52965 INTEREST:STEIN BUILDING LLC,A COLORADO LIMITED LIABILITY CO.IPANY,AS TO AN UNDIVIDED 2 3.115 INTEREST,AV STEIN LLC,A COLORADO LIMITED ® -TELEPHONE MANHOLE 'e< ° a ° / .51' / BY: LIABILITY COMPANY,AS TO AN UNDIVIDED 19.085 INTEREST AND RG COOPER STREET LLC,A COLORADO UNITED UARUT COMPANY,AS TO AN UNDIVIDED 4.835 INTEREST.BEING ME OWNERS IN FEE SIMPLE F DATE OF LOTS I,H AND THE EASTERLY 5 FEET OF LOT G.BLOCK 96,CITY AND TOWNSITE OF ASPEN,PITKIN Q ❑ -CAN PEDESTAL e°d ° \ / a C �/ JOINDER CERTIFICATE RESIDENTIAL LUNITS DI SIX(6)ACOMMERCIA UNITS AND HAS BY THESE IPRESENTSaCONDOMINIUMIZED O © -CAS METER `d / SAID REAL PROPERTY AND IMPROVEMENTS INTO SIX(6)RESIDENTIAL UNITS AND SIX(6)COMMERCIAL °--a-.. \ v- ED / / FOUND 2.5-ALUMINUM THE UNDERSIGNED LIEN HOLDER HEREBY APPROVES THE RECORDING OF THIS UNITS,KNOWN AS BOWMAN BUILDING CONDOMINIUMS,AS SHOWN AND NOTED HEREON,INCLUDING D -ELECTRIC METER e\/ ° I L ��GE�-RA PARKING SIGN / / CAP LS#28650 CONDOMINIUM MAP OF BOWMAN BUILDING CONDOMINIUMS AND SUBORDINATES ITS CERTAIN APPURTENANT COMMON ELEMENTS,PURSUANT TO AND FOR THE PURPOSES STATED IN THE 0 IE CUR VEA,EryT / / CITY OF ASPEN LIEN RECORDED IN THE PITKIN COUNTY RECORDS AT RECEPTION NUMBER 54668]. CONDOMINIUM DECLARATION FOR BOWIAAN CONDOMINIUMS RECORDED 2012 AT -TELEPHONE PEDESTAL v Ig•13N5 B h GT/T7ER ) LIGHT POLE / GIPS CONTROL MONUMENT U.S.BANK NATIONAL ASSOCIATION,A NATIONAL BANKING ASSOCIATION CWORADO.NO IN THE OFFICE OF THE CLERK AND RECORDER OF PITKIN COUNTY, BY00' OFg ./STOP SIGN / CPS-4 EENp\ < S7g°013.EggNNOF / A EXECUTED MIS DAY OF MAY"2012. N 3 TREE NC a_Jva^' 30,Op. 2J F ° 8 BRASS PLUG BY; PROPERTY LINE ^ TRANCE 65'00 s $ /LS#19598(FN024142(DEL /// NAME TITHE QWTNFP N.I 51L1N LC A COLORADO MITER R TTY OMP 'Y ' 13i O ON x -FENCE e Nj4.5109, / v ^ 30 0 /_` % / STATE OF COLORADO ) 3 p G -UNDERGROUND GAS O 22", )55. BY: _ 5 S �a/ COUNTY OF PITKIN ) - SS -SANITARY SEWER 00 I��.m SUBSCRIBED,SWORN TO AND ACKNOWLEDGED BEFORE ME THIS DAY OF MAY, NAME TILE 2012 a°L / ° / STATE OF COLORADO)SS.-UNDERGROUND ELECTRIC \\ a / WWITNESS MY HAND AND OFFld AL SEAL Z COUNTY OF PITKIN ) ET AIR COOLER-UNDERGROUND ELECTRIC R TELEPHONE W UCT ��nn ° / MY COMMISSION EXPIRES: V / 6 E FOREGOING CERTIFICATE WAS ACKNOWLEDGED BEFORE ME THIS DAY IN MAY, COLORADO AS OF NJ STEIN LLC,A COLORADO UNITED LIABILITY COMPANY. Z N i O TOTAL AREA G /I / /s NOTARY PUBLIC WITNESS MY HAND AND OFFICIAL SEAL OF PROPERTY � c•O m O W m 6,500 SQ. SURVEYOR'S CERTIFICATE MY COMMISSION EXPIRES: MI o f ° PARKING SIGN / 1,FRANK W.HARRINGTON,A REGISTERED LAND SURVEYOR OF ME STATE OF COLORADO,DO W H 0 Qni O HEREBY CERTIFY THAT CI HAVE PREPARED THIS CONDOMINIUM MAP FOR THE CONDOMINIUM MAP U X U OF BOWMAN BUILDING CONDOMINIUMS,THAT THE LOCATION OF ME OUTSIDE BOUNDARIES,ROADS, NOTARY PUBJC MI / ° / EXISTING STRUCTURES,FACILITIES,AND OTHER FEATURES ARE ACCURATELY AND CORRECTLY Q m Q G ° SHOWN HEREON THAT THE SAME ARE BASED ON FIELD SURVEY PERFORMED UNDER MY �J Z Z LL Z O7 / SUPERVISION,THAT THIS CONDOMINIUM MAP FOR THE BOWMAN BUILDING CONDOMINIUMS,MEETS Owl STEIN FILM DING LC COLOR 00 NMI D ARI TTY OM.PgNY ^ W-Hy ItI \ 41 THE REQUIREMENTS OF A LAND SURVEY PLAT AS SET FORM IN COLORADO REVISED STATUTES W R'ID V JJ\ Nj'^ ° e [ / 1973,TITLE 38,ARTICLE 53,AS AMENDED FROM TIME-TO-TIME AND THIS CONDOMINIUM PLAT Q d m / 024' BUILDING \ O C9 - f� / CONTAINS ALL THE INFORMATION REWIRED BY C.R.S.38-33.3-209 OF THE COLORADO COMMON BY: \ 00 Q 00 O v IA / IN OWNERSHIP ACT,THIS CONDOMINIUM MAP IS SUBJECT TO RESERVATIONS,RESTRICTIONS, Hy Y Q W \ \ -/,. O p v' COVENANTS AND EASEMENTS OF RECORD OR IN PLACE AND EXCEPTIONS TO TITLE SHOWN IN THE {L Q Q 3 \ _# w �� W p BLOCK 96 O O/ G / TITLE COMMITMENT PREPARED BY PITMN COUNTY TITS.INC.,ISSUED:JJLY 26,2010(CASE NAME TITLE I,.. J Q m NUMBER PCT22563F2).LINEAR ERROR OF OOSURE IS LESS THAN 1:15,000. m>O CATV o' / STATE OF COLORADO) Z I,2 n V 3 PEDESTAL EXISTING O °3 // DATED: 2012 COUNTY OF PITKIN )SS. W W W O °y / THE FOREGOING CERTIFICATE WAS ACKNOWLEDGED BEFORE ME THIS DAY OF MAY,2012, TWO-STORY BY U li BY: AS OF STEIN BUILDING LLC,A N H p BUILDING O / MANN W.HARRINGTON,LS.NO.19598,C1ed5 COLORADO UNITED LIABILITY COMPANY. .l. IL V 531 E.COOPER AVENUE 3 �- / HIGH COUNTRY ENGINEERING,INC. (� \ % MI v a: 1517 BLAKE AVENUE,SUITE 101 WITNESS MY HAND AND OFFICIAL SEAL �+ \ ASPEN,COLORADO O w 3 / GLEN SPRINGS,CO 816011 \ TELEPHONE O I \\ PEDESTAL v e a/ NOTES MY COMMISSION EXPIRES: 1. BASIS WE BEARINGS FOR THIS SURVEY IS A BEARING OF S]5'09'11•E BETWEEN THE NORMNEST PROPERTY CORNER,A BRASS PLUG LS#37935 IN PLACE AND THE NOTARY PUELIC 2g y2, y'� THE NORTHEAST CORNER OF ME PROPERTY,A BRASS PLUG LS 037935 IN PLACE / AS SHOWN HEREON. 4�i 4i DONC ( OWNER'. AV'"IFIN TIC A C OR DD MITER ABILITY COMPANY GAS ��� RfT� t J / 2. DATE OF FIELD SURVEY:SEPTEMBER 30.2008. METER O - GESIDEWA(/f \ I ELECTRIC J/i\v 3. UNFAIR UNITS USED FOR THIS SURVEY WERE U.S.SURVEY FEET. BY: ELECTRIC W FLAGSTONE METER E.A- 0 4 \ / 4 LC.E 'w+0 a ARKING SIGN TRANSFORMER G DES \ / 4. THIS SURVEY IS BASED ON ME MAP OF THE CITY AND TONNSITE OF ASPEN, DATED: NOVEMBER 16,1959,AN ALTA/AGSM UND TITLE SURVEY PREPARED BY NAME T e ^ PLANTER e\ HIGH COUNTRY ENGINEERING,INC.,DATED: JANUARY 09,2008 AND CORNERS o J 2 ./DRY WELL \ \ FOUND IN PUCE AS SHOWN HEREON. STATE OF COLORADO) N �F15\ O CONCRETE 296• 3 \ / 5. THIS PROPERTY IS SUBJECT TO RESERVATIONS AND EXCEPTIONS AS SET FORTH IN COUNTY OF PITKIN =Z \FSS\c DRIVE _ nE \ THE DEED FROM THE CITY OF ASPEN RECORDED IN BOA( UI AT PAGES 221,287 \ / THE FOREGOING CERTIFICATE WAS ACKNOWLEDGED BEFORE ME THIS_DAY OF MAY,2012, Z G LD,SILVER CINNABAR"THAT NO TITLE SHALL BE HEREBY AC WIRED TO ANY MINE OF Ell EDGE BRA .0. .LC E•.^ CO \\ / GOLD,SILVER,CINNABAR OR COOPER OR TO ANY VALID MINING CLAIM OR COLORADO UNITED LIABILITY COMPANY. AS OF AV STEIN LLC,A U Z D 13 `\ ENT Op. NQRE \ / POSSESSION HELD UNDER EXISTING LAWS'. U N>5° LANOSC ° SIOEW ° m a I WITNESS MY NAND AND OFFICIAL SEAL W O Q \/ ss \ 8• 1„ CE LNG 'AL•Y � � \ / 6. THE PROPERTY IS SUBJECT TO THE NOTICE 15 HISTORIC DESIGNATION RECORDED F W 0 uZ_ [r C STAIRS w es ) e BUILD NO"e JANUARY 13,1975 I BOOK 295 AT PAGE 515 AND IS LOCATED IN THE MY COMMISSION EXPIRES: U< Q i REBAR k CAP ss\ RESIDENTIAL O T SpO, (�O,pO, ° a \ //BUILDING of •\ COMMERCIAL CORE HISTORIC dSTRICT. =O d Q WITNESS CORNER FI k CGMMERdAL i/4 \ / I _- S06'STED.W-1.12' LC.EF�\c 4 \ / ]. MIS PROPERTY IS SUBJECT TO TERMS,CONDITIONS,PROVISIONS,OBLIGATIONS AND ILLEGIBLE(FND) ED ° \I PRESERVATIION ACOMMSSION,DENYING ANTAPPLIATION FOR MINOR DEIVELOPMENT ` v 52".I/ NOTARY PUEUC CIS O Z ^U CITY OF ASPEN ENGINEER'S REVIEW P�B \\ \ PAL'EN \ 4 ° 'l/ RECORDED MAY 17,1999 AS RECEPTION NO.431139 AS RESOLUTION NO.18, Q O 0 Z II. L/C FENCE ENT �• N // SE ES OF 1999. ONNFR R DOPR TRFFT I C A COLOR J Z -�W O THIS CONDOMINIUM MAP OF BOWMAN BUILDING CONDOMINIUMS,WAS RENEWED (16.24• ALL lN. \° / GIRL TY OI.PAI.Y W IL BY THE ENGINEER OF THE CITY OF ASPEN THIS DAY OF MAT 2012. - - RO.W.) EY °a a \ / 8. THIS PROPERTY IS SUBJECT TO EASEMENTS"RIGHTS-OF-WAY,ENCROACHMENTS ,r L> U)W REBAR k CAP \\ _ AND ALL MATTERS AS DISCLOSED ON SURVEY OF SUBJECT PROPERTY RECORDED BY._- Q m WITNESS CORNER ° DECEMBER B.2008 IN PUT BOOK 89 AT PAGE 49. Q Z Q BY: S1!'S0'49•W-3.00' / (� V„ TRIpA ARAGON,PE.-CITY OF ASPEN ENGINEER 45 598(FND) °° c mod" / 9. THIS PROPERTY IS SUBJECT TO THE RIGHTS OF TENANTS AS TENANTS ONLY, NAME TITLE D N UNDER LEASES. STATE OF COLORADO) CLERK AND RECORDER'S CERTIFICATE `° \F/ I 10. ACCORDING TO FEMA PANE L N0.06097CO24C DATED JUNE 4.1987,THIS° \OB3. / PROPERTY FALLS IN ZONE X(PROPERTY OUTSIDE OF THE 500 YEAR FLOOD ZONE). COUNTY OF pITKIN ))SS m THIS CONDOMINIUM MAP WAS FILED FOR RECORD IN THE OFFICE OF THE CLERK AND \ J, U RECORDER OF PITK IN COUNTY,COLORADO,AT O'CLOCK M.,ON \9�� / 11. ELEVATIONS SHOWN HEREON ARE BASED ON NORTH AMERICAN VERTICAL DATUM OF THE FOREGOING CERTIFICATE WAS ACKNOWLEDGED BEFORE ME THIS DAY OF MAY,2012, THE DAY OF 2012 AND IS DULY RECORDED IN BOOK \\j �( 1988(NAVD 88)REFERENCED FROM NATIONAL GEODETIC SURVEY STATION BY AS OF RG COOPER STREET LLC.A PROJECT NO. PAGE AS RECEPTION ND. _ \ \v DESIGNATION•Q159'OF PITKIN COUNTY,HAVING A PUBUSHED ELEVATION OF COLORADO LIMITED LIABILITY COMPANY. COMMUNITY DEVELOPMENT DIRECTOR'S APPROVAL / 7911.98.SITE BENCH MARK IS WS-1 AS SHOWN ON THE CITY OF ASPEN CPS THIS CONDOMINIUM MAP OF BOW CONTROL MONUMENTATION MAP HAVING AN ELEVATION OF 7945.54.MAN BUILDING CONDOMINIUMS WAS APPROVED \ / WITNESS MT HANG AND OFFICIAL SEAL 2051692.00 BY THE CITY OF ASPEN COMMUNITY DEVELOPMENT DIRECTOR THIS_DAY I>t FOUND 2 5�ALUMINUM Cpp !?B6 0 12. THIS CONDOMINIUM MAP IS SUBJECT TO THE REVOCABLE ENCROACHMENT UCENSE CLERK AND RECORDER OF MAY,2012. v CITY OF ASPEN PS CONTROL MONUMENT AGREEMENT(PERMANENT)RECORDED AS RECEPTION NO. GPS-1 MY COMMISSION EXPIRES: 13. THIS CONDOMINIUM MAP IS SUBJECT TO AN ENCROACHMENT AGREEMENT RECORDED xo11c£• ciwx>�� �X MOx� BY: AS RECEPTION N0, g Y1cirnHH 1Ip¢y[µ5 AFIpH rql RgyT psco�fp BY: CITY OF ASPEN COMMUNITY DEVELOPMENT DIRECTOR NOTARY PUBLIC 1H5 we�TY Ile coxxw®Was 1xµ1p DEPUTY w I1HCCrr�W xP[`.vR MAY•xy Arnw eASm uRw 1 OF AI �fAxS�aM 111E OAIf aF CFx1FlCAlIW SM ALTA Commitment For Title Insurance Fidelity National Title Insurance Company AUTHORIZED AGENT: PITKIN COUNTY TITLE, INC. 601 E. HOPKINS AVE. 3RD FLOOR ASPEN, COLORADO 81611 970-925-1766-PHONE 970-925-6527-FAX 877-217-3158-TOLL FREE E-MAIL ADDRESS: TITLE MATTERS: CLOSING MATTERS: Tom Twitchell (tomt @sopris.net) TJ Davis-(tjd @sopris.net) Brandi Jepson- (brandi @sopris.net) Joy Higens-(joy @sopris.net) (Closing & Title Assistance) FIDELITY NATIONAL TITLE INSURANCE COMPANY lilll Fkieiit' National Ti41t inmransr C'.antpwnr T Commitment for Title Insurance Fideliot National Title Insurance Company A Stock Company COMMITMENT FOR TITLE INSURANCE FIDELITY AATIOA 4L TITLE INSUPANCE COIufPAN-1" a Corporation. herein called the Companv;for a valuable consideration. hereby commits to issue its policy or policies of title insurance, as identified in Schedule A; in favor of the Proposed Insured named in Schedule A, as owner or mortgagee of the estate or interest covered hereby in the land described or referred to in Schedule A, upon payment of the premiums and charges therefor; all subject to the provisions of Schedule A and B and to the Conditions and Stipulations hereof. This Commitment shall be effective only when the identity of the Proposed Insured and the amount of the policy or policies committed for have been inserted in Schedule A hereof by the Companv, either at the time of the issuance of this Commitment or by subsequent endorsement. This Commitment is preliminary to the issuance of such policy or policies of title insurance and all liability and obligations hereunder shall cease and terminate within six (6) months of er the effective date hereof or when the policy or policies committed_for shall issue, whichever_first occurs, provided that the failure to issue such policy or policies is not the fault of the Company. This Commitment shall not be valid or binding until countersigned by an authorized officer or agent. IN WITNESS WHEREOF, Fidelity_National Title Insurance Company has caused its corporate name and seal to be hereunto affixed and these presents to be signed in facsimile under authority of its by-laws on the date shown in Schedule A. FIDELITY NATIONAL TITLE INSURANCE COMPANY rfr ff SEAL ct-r Secruary Countersigned: Authorized Signature FGP N ? -Q8� 66 (1�i�31 Ai TA COMMITM�?�rT 1966 CONDITIONS AND STIPULATIONS I. The term "mortgage", when used herein, shall include deed of trust, trust deed or other security instrument. 2. if the Proposed Insured has or acquires actual knowledge of any defect. lien, encumbrance. adverse claim or other matter affecting the estate or interest or mortgage thereon covered by this Commitment other than those shown in Schedule B hereof. and shall fail to disclose such knowledge to the Company in writing. the Company shall be relieved from liability for any loss or damage resulting from any act of reliance hereon to the extent the Company is prejudiced by failure to so disclose such knowledge. If the Proposed Insured shall disclose such knowledge to the Company. or if the Company otherwise acquires actual knowledge of any such defect, lien or encumbrance. adverse claim or other matter, the Company at its option may amend Schedule B of this Commitment accordingly, but such amendment shall not relieve the Company from liability previously incurred pursuant to paragraph 3 of these Conditions and Stipulations. 3. Liability of the Company under this Commitment shall be only to the named Proposed Insured and such parties included under the definition of Insured in the form of policy or policies committed for and only for actual loss incurred in reliance hereon in undertaking in good faith (a) to comply with the requirements hereof. or (b) to eliminate exceptions shown in Schedule B, or (c) to acquire or create the estate or interest or mortgage thereon covered by this Commitment In no event shall such liability exceed the amount stated in Schedule A for the policy or policies committed for and such liability is subject to the insuring provisions and Conditions and Stipulations and the Exclusions from Coverage of the form of policy or policies committed for in favor of the Proposed Insured which are hereby incorporated by reference and are made a part of this Commitment except as expressly modified herein. 4. Any action or actions or rights of action that the Proposed Insured may have or may bring against the Company arising out of die status of the title to the estate or interest or (he status of the mortgage thereon covered by this Commitment must be based on and are subject to the provisions of this Commitment. COMMITMENT FOR TITLE INSURANCE SCHEDULE A 1. Effective Date: July 26, 2010 at 8:00 AV Case No. PCT22563F2 2. Policy or Policies to be issued: (a) ALTA Owner's Policy-(6/17/D6) Amount$ 0.00 Premium$ 0.00 Proposed Insured: Rate: PROFORMA (b) ALTA Loan Policy-(6/17/06) Amount$ 0.00 Premium$ O.DO Proposed Insured: Rate: (c)ALTA Loan Policy-(6/17/06) Amount$ Premium$ Proposed Insured: Rate: 3. Title to the FEE SIMPLE estate or interest in the land described or referred to in this Commitment is at the effective date hereof vested in: NJ STEIN LLC, A COLORADO LIMITED LIABILITY COMPANY, AS TO AN UNDIVIDED 52.98% INTEREST, STEIN BUILDING LLC, A COLORADO LIMITED LIABILITY COMPANY, AS TO AN UNDIVIDED 23.11% INTEREST, AV STEIN LLC, A COLORADO LIMITED LIABILITY COMPANY, AS TO AN UNDIVIDED 19.08% INTEREST and RG COOPER STREET LLC, AS TO AN UNDIVIDED 4.83% INTEREST 4. The land referred to in this Commitment is situated in the County of PITKIN State of COLORADO and is described as follows: ALL OF LOT f, ALL OF LOT H, AND THE EASTERLY 5 FEET OF LOT G, BLOCK 96, CITY AND TOWNSITE OF ASPEN PITKIN COUNTY TITLE, INC Schedule A-PG.1 601 E. HOPKINS,ASPEN,CO. 81611 This Commitment is invalid 970-925-1766 Phone/970-925-6527 Fax unless the insuring 877-217-3158 Toll Free Provisions and Schedules AUTHORIZED AGENT A and B are attached. Countersigned: r ' SCHEDULE B -SECTION 1 REQUIREMENTS The following are the requirements to be complied with: ITEM (a) Payment to or for the account of the grantors or mortgagors of the full consideration for the estate or interest to be insured. ITEM (b) Proper instrument(s) creating the estate or interest to be insured must be executed and duly filed for record to-wit: THIS COMMITMENT IS FURNISHED FOR INFORMATIONAL PURPOSES ONLY, IT IS NOT A CONTRACT TO ISSUE TITLE INSURANCE AND SHALL NOT BE CONSTRUED AS SUCH. IN THE EVENT A PROPOSED INSURED IS NAMED THE COMPANY HEREBY RESERVES THE RIGHT TO MAKE ADDITIONAL REQUIREMENTS AND/OR EXCEPTIONS AS DEEMED NECESSARY. THE RECIPIENT OF THIS INFORMATIONAL REPORT HEREBY AGREES THAT THE COMPANY HAS ISSUED THIS REPORT BY THEIR REQUEST AND ALTHOUGH WE BELIEVE ALL INFORMATION CONTAINED HEREIN IS ACCURATE AND CORRECT, THE COMPANY SHALL NOT BE CHARGED WITH ANY FINANCIAL LIABILITY SHOULD THAT PROVE TO BE INCORRECT AND THE COMPANY IS NOT OBLIGATED TO ISSUE ANY POLICIES OF TITLE INSURANCE. SCHEDULE B SECTION 2 EXCEPTIONS The policy or policies to be issued will contain exceptions to the following unless the same are disposed of to the satisfaction of the Company: 1. 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 which may be asserted by persons in possession, or claiming to be in possession, thereof. 2. Easements, liens, encumbrances, or claims thereof, which are not shown by the public records. 3. Any encroachment, encumbrance, violation, variation, or adverse circumstance affecting the Title that would be disclosed by an accurate and complete land survey of the Land, and that is not shown by the public records. 4. Any lien, or right to a lien, imposed by law for services, labor, or material heretofore or hereafter furnished, which lien, or right to a lien, is not shown by the public records. 5. (a) Unpatented mining claims; (b) reservations or exceptions in patents or in Acts authorizing the issuance thereof, (c) Indian treaty or aboriginal rights, including#gut-not-limited to, easements or equitable - - servitudes; or, (d) water rights, claims or title to water(see additional information page regarding water rights), whether or not the matters excepted under(a), (b), (c) or (d) are shown for the public records. 6. Taxes or assessments which are not now payable or which are not shown as existing liens by the records of any taxing authority that levies taxes or assessments on real property or by the public records; proceedings by a public agency which may result in taxes or assessments, or notices of such proceedings, whether or not shown by the records of such agency or by the public records 7. Any service, installation, connection, maintenance or construction charges for sewer, water, electricity, or garbage collection or disposal or other utilities unless shown as an existing lien by the public records. 8. Defects, liens, encumbrances, adverse claims or other matters, if any, created, first appearing in the public records or attaching subsequent to the effective date hereof but prior to the date the proposed insured acquires of record for value the estate or interest or mortgage thereon covered by this Commitment. SPECIAL EXCEPTIONS 9. Reservations and exceptions as set forth in the Deeds from the City of Aspen recorded in Book 59 at Page 221, 287 & 453 providing as follows: "That no title shall be hereby acquired to any mine of gold, silver, cinnabar or copper or to any valid mining claim or possession held under existing laws". 10. Notice of Historic Designation recorded ,January 13, 1975 in Book 295 at Page 51 S. 11. Terms, conditions, provisions, obligations and all matters as set forth in Resolution of the Aspen Historic Preservation Commission, denying an application for Minor Development recorded May 17, 1999 as Reception No. 431139 as Resolution No. 18. Series of 1999. 12. Easements, rights of way, encroachments and all matters as disclosed on Survey of subject property recorded December 8, 2008 in Plat Book 89 at Page 49. 13. The rights of tenants, as tenants only, under leases. (Continued) SCHEDULE B SECTION 2 EXCEPTIONS - (Continued) 14. Deed of Trust from: PERRYTON HOLDINGS, LLC, A COLORADO LIMITED LIABILITY COMPANY and OPAL HOLDINGS. LLC, A COLORADO LIMITED LIABILITY COMPANY and RG COOPER STREET, LLC. A COLORADO LIMITED LIABILITY COMPANY and STEIN BUILDING, LLC; A COLORADO LIMITED LIABILITY COMPANY To the Pubiic Trustee of the County of PITKIN For the use of U.S. BANK NATIONAL ASSOCIATION Original Amount $5,000,000.00 Dated February 19; 2008 Recorded February 22, 2008 Reception No. 546687 NOTE: Assignment and Assumption Agreement recorded November 24, 2008 as Reception No. 554520. NOTE: First Modification of Deed of Trust recorded January 29, 2010 as Reception No. 566630. ADDITIONAL INFORMATION AND DISCLOSURES The Owner`s Policy to be issued, if any shall contain the following items in addition to the ones set forth above: (1) The Deed of Trust, if any, required under Schedule 5-Section 1. (2) Water rights, claims or title to water. (NOTE: THIS EXCEPTION WILL APPEAR ON THE OWNER'S AND MORTGAGE POLICY TO BE ISSUED HEREUNDER) Pursuant to insurance Regulation 89-2 NOTE: Each title entity shall notify in writing every prospective insured in an owner's title insurance policy for a single family residence (including a condominium or townhouse unit) (i) of that title entity's general requirements for the deletion of an exception or exclusion to coverage relating to unfiied mechanics or materialmens liens, except when said coverage or insurance is extended to the insured under the terms of the policy. A satisfactory affidavit and agreement indemnifying the Company against unfiied mechanics' and/or Materialmen's Liens executed by the persons indicated in the attached copy of said affidavit must be furnished to the Company. Upon receipt of these items and any others requirements to be specified by the Company upon request. Pre-printed Item Number 4 may be deleted from the Owner's policy when issued. Please contact the Company for further information. Notwithstanding the foregoing, nothing contained in this Paragraph shall be deemed to impose any requirement upon any title insurer to provide mechanics or materialmens lien coverage. NOTE: If the Company conducts the owners or loan closing under circumstances where it is responsible for the recording or filing of legal documents from said transaction, the Company will be deemed to have provided "Gap Coverage". Pursuant to Senate Bill 91-14 (CRS 10-11-122) (a) The Subject Real Property may be located in a Special Taxing District; (b) A Certificate of Taxes Due listing each taxing jurisdiction may be obtained form the County treasurer of the County Treasurer's Authorized Agent: (c) 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: A tax Certificate or other appropriate research will be ordered from the County Treasurer/Assessor by the Company and the costs thereof charged to the proposed insured unless written instruction to the contrary are received by the company prior to the issuance of the Title Policy anticipated by this Commitment. Pursuant to House Bill 01-1088 (CRS 10-11-123) If Schedule B of your commitment for an Owner's Title Policy reflects an exception for mineral interests or leases, pursuant to CRS 1G-11-123 (HB 01-1088), this is to advise: (a) 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 owners' permission. NOTE: The policy(s) of insurance may contain a clause permitting arbitration of claims at the request of either the insured or the Company. Upon request, the Company will provide a copy of this clause and the accompanying arbitration rules prior to the closing of the transaction. NOTICE REGARDING CONSTRUCTION FINANCING: If it is not disclosed to the company that the loan to be insured hereunder is in fact a construction loan, any coverage given under the final policy regarding mechanic or materiaimen's liens shall be deemed void and of no effect. Pitkin County Title, Inc. Privacy Policy We collect nonpublic information about you from the following sources: • Information we receive from you, such as your name, address, telephone number, or social security number; • Information about your transactions with us, our affiliates, or others. We receive this information from your lender, attorney, real estate broker, etc.; and Information from public records We do not disclose any nonpublic personal information about our customers or former customers to anyone, except as permitted by law. We restrict access to nonpublic personal information about you to those employees who need to know that information to provide the products or services requested by you or your lender. We maintain physical, electronic, and procedural safeguards that company with appropriate federal and state regulations. Effective Date: 5/1/2008 Fidelity National Financial, Inc. Privacy Statement Fidelity National Financial, Inc. and its subsidiaries ("FNF") respect the privacy and security of your non-public personal information ("Personal Information") and protecting your Personal Information is one of our top priorities. This Privacy Statement explains FNF`s privacy practices. including how we use the Personal Information we receive from you and from other specified sources, and to whom it may be disclosed. FNF follows the privacy practices described in this Privacy Statement and, depending on the business performed, FNF companies may share information as described herein. Personal Information Collected We may collect Personal Information about you from the following sources: • Information we receive from you on applications or other forms, such as your name, address, social security number, tax identification number, asset information, and income information; • information we receive from you through our Internet websites, such as your name, address, email address, Internet Protocol address, the website links you used to get to our websites, and your activity while using or reviewing our websites: • information about your transactions with or services performed by us, our affiliates, or others, such as information concerning your policy, premiums, payment history, information about your home or other real property, information from fenders and other third parties involved in such transaction, account balances, and credit card information, • Information we receive from consumer or other reporting agencies and publicly recorded documents. Disclosure of Personal Information We may provide your Personal Information (excluding information we receive from consumer or other credit reporting agencies) to various individuals and companies, as permitted by law, without obtaining your prior authorization. Such laws do not allow consumers to restrict these disclosures. Disclosures may include, without limitation, the following: • To insurance agents, brokers, representatives, support organizations, or others to provide you with services you have requested, and to enable us to detect or prevent criminal activity, fraud, material misrepresentation, or nondisclosure in connection with an insurance transaction; • To third-party contractors or service providers for the purpose of determining your eligibility for an insurance benefit or payment and/or providing you with services you have requested; • To an insurance regulatory authority, or a law enforcement or other governmental authority, in a civil action, in connection with a subpoena or a governmental investigation; • To companies that perform marketing services on our behalf or to other financial institutions with which we have joint marketing agreements and/or • To lenders, lien holders, judgment creditors, or other parties claiming an encumbrance or an interest in title whose claim or interest must be determined, settled, paid or released prior to a title or escrow closing. We may also disclose your Personal Information to others when we believe, in good faith, that such disclosure is reasonably necessary to comply with the law or to protect the safety of our customers, employees, or Property and/or to comply with a judicial proceeding, court order or legal process. Page 1 of 2 Effective Date: 5/1/2008 Disclosure to Affiliated Companies - We are permitted by law to share your name, address and facts about your transaction with other FNF companies, such as insurance companies, agents, and other real estate service providers to provide you with services you have requested, for marketing or product development research, or to market products or services to you. We do not., however, disclose information we collect from consumer or credit reporting agencies with our affiliates or others without your consent, in conformity with applicable law, unless such disclosure is otherwise permitted by law. Disclosure to Nonaffiliated Third Parties - We do not disclose Personal Information about our customers or former customers to nonaffiliated third parties, except as outlined herein or as otherwise permitted by law. Confidentiality and Security of Personal Information We restrict access to Personal Information about you to those employees who need to know that information to provide products or services to you. We maintain physical; electronic, and procedural safeguards that comply with federal regulations to guard Personal Information. Access to Personal Information/ Requests for Correction, Amendment, or Deletion of Personal Information As required by applicable law, we will afford you the right to access your Personal Information, under certain circumstances to find out to whom your Personal Information has been disclosed. and request correction or deletion of your Personal Information. However, FNF's current policy is to maintain customers' Personal Information for no less than your state's required record retention requirements for the purpose of handling future coverage claims For your protection, all requests made under this section must be in writing and must include your notarized signature to establish your identity, Where permitted by law, we may charge a reasonable fee to cover the costs incurred in responding to such requests. Please send requests to: Chief Privacy Officer Fidelity National Financial, Inc. 601 Riverside Avenue Jacksonville, FL 32204 Changes to this Privacy Statement This Privacy Statement may be amended from time to time consistent with applicable privacy laws. When we amend this Privacy Statement, we will post a notice of such changes on our website. The effective date of this Privacy Statement, as stated above; indicates the last time this Privacy Statement was revised or materially changed. Page 2 of 2 AVON OFFICE 0070 Benchmark Road GARFIELD Post Office Box 5450 &HECHT p Avon,Colorado 81620 ) i�C. Telephone(970)949-0707 ATTORNEYS A T LAW Facsimile(970)949-1810 Since 1975 N w v-9arfieldhecht.com MEMORANDUM TO: City of Aspen Attorney Attn: James R. True, Esq. FROM: Kursten Canada RE: Bowman Building- Estate Above Surface Issue DATE: November 18, 2010 ■••••�■■■■rrr■r■■rrr■■■.rr■•rrrr■■r■■■■r■rrrrrrrrrrr■■rr■■►■r■■ ■"•••rr■■■rrrrr LS S Whether or not a basement area utilized as a utility room or below the natural surface of the ground qualifies under Co otherwise which Is located Surface." lorado law as an "Estate Above SHORT ANSWER The excavation of the ground for a basement area consequently original/natural surface of the round. q y lowers the level of the g After the completion of this change in the ground's contour, a basement constructed above the finished grade should be coI ' the surface of the ground"for u Isldered an area "above p rposes of C.R.S. § 38-21-101. ANA— LYSIS The possessory interest in property extends below the surface o Powell, Powell on Real Pro ert f the land, 9 Richard R. p Y § 64A.01[6] (Michael Allan Wolf ed., 2007). Therefo re, the 610045-1 Aspen • Avon • Basalt • Glenwood Springs - Rifle ®Printed on recycled paper 01— GAUIELD&.HECIHT,P-C. s has a limited right to excavate below the orig owner of the surface right inal surface of the ground to construct a basement area. round, then by definition If such an owner excavates below the original surface of the ground, "S urface- is defined de of the ground becomes the "surface of the gro'md• Ouse College the new contou r/grade Random H ter face, outside, or exterior boundary of a thing••• " as "the ou xcavation of the ground for a basement area lowers the exterior Dictionary (1973}. Therefore, e boundary of the earth's surface. CONCLUSION the natural surface of the ground, but constructed above the A basement located below t round" for purposes of de should be considered an area "above the surface of the g finished gra , C•R•S• § 38-21-101. printed on recycled paper 610045-1 Sara Adams From: Kursten Canada [kcanada @garfieldhecht.com] Sent: Friday, November 19, 2010 12:13 PM I' ��(/( To: True.James @ci.aspen.co.us `Qw� t3 Cc: Sara Adams Subject: Attached Bowman Building Memorandum Attachments: _1119101008_001.pdf Hi Jim, Please recall that we represent the Owner of the Bowman Building and are handling the condominiumization process related to same. We met back in early October regarding your comments to the Application and mapping. In connection therewith, attached hereto please find a Memorandum which addresses your concern about the Estate Above Surface implication to the basement. I've had two associates research it, and neither is able to find clearly dispositive information which addresses your concern. We rely on the attached analysis and I'm hopeful this sufficiently addresses your concern so that we don't need to replat/map the Project for cross-easements to the Basement. Please contact me if you have questions or concerns about the attached information or if you want to further discuss it. Thanks, Kursten L. Canada Attorney at Law Garfield & Hecht, P.C. Avon Town Square, Unit 104 0070 Benchmark Rd. P.O. Box 5450 Avon, Colorado 81620 (970) 949-1566 (direct) (970) 949-1810 (fax) E-mail: kcanada(@garfieldhecht.com CONFIDENTIALITY NOTICE - This e-mail transmission, and any documents, files or previous e- mail messages attached to it may contain information that is confidential or legally privileged. If you are not the intended recipient, or a person responsible for delivering it to the intended recipient, you are hereby notified that you must not read this transmission and that any disclosure, copying, printing, distribution or use of any of the information contained in or attached to this transmission is STRICTLY PROHIBITED. If you have received this transmission in error, please immediately notify the sender by telephone or return e- mail and delete the original transmission and its attachments without reading or saving in any manner. Thank you. Your message is ready to be sent with the following file or link attachments: 1119101008001 1 Note: To protect against computer viruses, e-mail programs may prevent sending or receiving certain types of file attachments. Check your e-mail security settings to determine how attachments are handled. Tax Advice Disclosure: Any U.S. Federal tax advice contained in this <br>communication (including any attachments) is not intended or written to be used, <br>and cannot be used or relied upon, for the purpose of avoiding penalties under <br>the Internal Revenue Code or promoting, marketing or recommending any entity, <br>investment plan or other transaction. Email secured by Check Point 2 Michie's Legal Resources Page 1 of 1 38-32-101. Estates may be created. Estates, rights, and interests in areas above the surface of the ground, whether or not contiguous thereto, may be validly created in persons or corporations other than the owners of the land below such areas and shall be deemed to be estates, rights, and interests in lands. Source: L. 53: p. 202, § 1. CRS 53: § 118-12-1. C.R.S. 1963: § 118-12-1. Cross references: For sovereignty in the space above the lands and waters of Colorado, see § 49-_1 _ _-10.6; for ownership of the same, see §41-1-107. ANNOTATION Law reviews. For note, "The Creation of Estates in Airspace", see 25 Rocky Mt. L. Rev. 354 (1953). Legislative intent. The intent of the General Assembly in providing for the establishment of estates in airspace was to subject all such estates to those legal provisions historically and by statute applicable to the traditional estate in real property. Association of Owners, Satellite Apt., Inc. v. Otte, 38 Colo. App. 12, 550 P.2d 894 (1976). http://www.michie.com/colorado/lpext.dll/cocode/2/622d9/63 f08/63fOa/643bc/643c3?f=te... 8/25/2010 Michie's Legal Resources Page 1 of 1 38-32-103. Rightss lncident_s, and duties. All of the rights, privileges, incidents, powers, remedies, burdens, duties, liabilities, and restrictions pertaining to estates, rights, and interests in land shall appertain and be applicable to such estates, rights, and interests in areas above the surface of the ground. Source: L. 53: p. 202, § 3. CRS 53: § 118-12-3. C.R.S. 1963: § 118-12-3. http://www.michie.com/colorado/1pext.dll/cocode/2/622d9/63f08/63f'a/643bc/643d4?f=te... 8/25/2010 Michie's Legal Resources Page 1 of 1 41-1-107. Ownership-of space. The ownership of space above the lands and waters of this state is declared to be vested in the several owners of the surface beneath, subject to the right of flight of aircraft. Source: L. 37: p. 251, § 7. CSA: C. 17, § 15. CRS 53: § 5-1-6. C.R.S. 1963: § 5-1-6. Cross references: For estates above the surface, see article 32 of title 38. ANNOTATION Am.Jur.2d. See 8A Am. Jur.2d, Aviation, §§ 3-12. C.J.S. See 2A C.J.S., Aeronautics and Aerospace, §§ 2, 9. Law reviews. For article, "From the Floor of Hell to the Ceiling of Heaven", see 16 Dicta 125 (1939). For comment, "People v. Emmert, 198 Colo. 137, 597 P.2d 1025 (1979): A Step Backward for Recreational Water Use in Colorado", see 52 U. Colo. L. Rev. 247 (1981). Landowner can exclude public from waters of nonnavigable stream crossing his lands. People v. Emmert, 198 Colo. 137, 597 P.2d 1025 (1979). "Breaking the close" deemed trespass. Whoever "breaks the close"--intrudes upon the space above the surface of the land--without the permission of the owner, whether it be for fishing or for other recreational purposes, such as floating, commits a trespass. People v. Emmert, 198 Colo. 237, 597 P.2d 1025 (1979). Owner of stream bed in exclusive control of everything above. The ownership of the bed of a nonnavigable stream vests in the owner the exclusive right of control of everything above the stream bed, subject only to constitutional and statutory limitations, restrictions and regulations. People v. Emmert, 198 Colo. 137, 597 P.2d 1025 (1979). Applied in Thompson v. City and County of Denver, 958 P.2d 525 (Colo. App. 1998). http://www.michie.com/colorado/1pext.dll/cocode/2/6bObc/6bOc8/6bOca/6b 104?f=template... 8/25/2010 Michie's Legal Resources Page 1 of 1 38-32-103. Rights, incidents, and duties. All of the rights, privileges, incidents, powers, remedies, burdens, duties, liabilities, and restrictions pertaining to estates, rights, and interests in land shall appertain and be applicable to such estates, rights, and interests in areas above the surface of the ground. Source: L. 53: p. 202, § 3. CRS 53: § 118-12-3. C.R.S. 1963: § 118-12-3. http://www.michie.com/colorado/1pext.dll/cocode/2/622d9/63fD8/63fDa/643bc/643d4?f=te... 8/25/2010 Michie's Legal Resources Page 1 of 1 41-1-107. of space. The ownership of space above the lands and waters of this state is declared to be vested in the several owners of the surface beneath, subject to the right of flight of aircraft. Source: L. 37: p. 251, § 7. CSA: C. 17, § 15. CRS 53: § 5-1-6. C.R.S. 1963: § 5-1-6. Cross references: For estates above the surface, see article 32 of title 38. ANNOTATION Am.Jur.2d. See 8A Am. Jur.2d, Aviation, §§ 3-12. C.J.S. See 2A C.J.S., Aeronautics and Aerospace, §§ 2, 9. Law reviews. For article, "From the Floor of Hell to the Ceiling of Heaven", see 16 Dicta 125 (1939). For comment, "People v. Emmert, 198 Colo. 137, 597 P.2d 1025 (1979): A Step Backward for Recreational Water Use in Colorado", see 52 U. Colo. L. Rev. 247 (1981). Landowner can exclude public from waters of nonnavigable stream crossing his lands. People v. Emmert, 198 Colo. 137, 597 P.2d 1025 (1979). "Breaking the close" deemed trespass. Whoever "breaks the close"--intrudes upon the space above the surface of the land--without the permission of the owner, whether it be for fishing or for other recreational purposes, such as floating, commits a trespass. People v. Emmert, 198 Colo. 237, 597 P.2d 1025 (1979). Owner of stream bed in exclusive control of everything above. The ownership of the bed of a nonnavigable stream vests in the owner the exclusive right of control of everything above the stream bed, subject only to constitutional and statutory limitations, restrictions and regulations. People v. Emmert, 198 Colo. 137, 597 P.2d 1025 (1979). Applied in Thompson v. City and County of Denver, 958 P.2d 525 (Colo. App. 1998). http://www.michie.com/colorado/1pext.dll/cocode/2/6bObc/6bOc8/6bOca/6b 104?f=template... 8/25/2010 t —SHEETINDEX -- CONDOMINIUM MAP OF [SI,1,1FTj EXISTING °ONDITION9 BOWMAN BUILDING CONDOMINIUMS _ET 2 LEVEL ONE FLOOR PLAN ET 3 LEVEL TWO FLOOR PLAN A RESUBDIVISION OF AIRSPACE BOWMAN COMMERICAL CONDOMINIUM LOTH tg ET 4 BUILDING SECTION PLANS BOWMAN RESIDENCES CONDOMINIUM LOT B,BOWMAN PROJECT CITY AND TOWNSITE OF ASPEN TYPICAL E%TERIOR WINDOW AND DOOR DEI AIL SECTION 7,TOWNSHIP 10 SOUTH,RANGE 84 WEST OF THE 6TH P.M. 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COUNTY OF PITKIN,STATE OF COLORADO I _ I ° I _ LINE TABLE W - S / Al._ u]axa.__�i i AIRSPACE BOWMAN �% COMMERICAL `IS �lilla �! / (;I 8 CONDOMINIUM LOT A T,.luf]Llli--blL Z j• jr 'a . 3 W wu_La A m/ aZ O /m0 U.r a S NOT Z l a a o°/5" R � .,•a.a,,°,•wo r�^°w m.,w..�,°r ,«,msµ �m g It „ J eceHO = LOT I = 1 _ / 7a O I / �°qa a0i f "o ¢D7 To aOD �G ZOO u w LEVEL ONE(AT SURFACE LEVEL) a GRAPHIC KAU! / / / FINISH FLOOR ELEVATIONS VARY t9 O SEE SHEET 8 SECTION DE PAILS FOR ELEVATIONS Qr U Q � ELII�N�Y °e„s o 40F8 CONDOMINIUM PLAT OF BOWMAN PROJECT '� �VA A RESIDENTIAL AND COMMERCIAL AIRSPACE LOT CO_NDOMINIUM__ as pia° A RESUBDIVISION OF LOTS 1 AND H,AND THE EASTERLY 5 FEET OF LOT G,BLOCK 96 �� gs .wJu INTO AIRSPACE LOTS A AND B,BOWMAN PROJECT CITY AND TOWNSITE OF ASPEN SECTION 7,TOWNSHIP 10 SOUTH,RANGE 84 WEST OF THE 6TH P.M. COUNTY OF PITKIN,STATE OF COLORADO I E / / / 8 0 I & LOFT LEVEL LINE TABLE inl AIR SPACE BOW MAN / 2J/ RESIDENCES —IL_ / w,% 9 • � CONDOMINIUM LOT B /.(V rELOT I„ 8 (iii Z ° UU 8 z _ z w M= a <rytl 0. ,e� a,n wea.w . ,w It aJ ppG 3 / LOFTLEVEL AIRSPACE BOWMAN e.n.vn,ne Keen....w Nrc sw.+,encw s,a.a rs rn.•n Nam = iii 9 COMMERICAL O„�Z CONDOMINIUM LOT A ti� S 0 N o_, II`` unm.a•nv.w cwu[nc..cniumwu.ion n es o0 0 UFO / I o NoT \ LOFT LEVEL "OU a€UDO BETWEEN SURFACELEVEL ONE AND LEVELTWO _ '�� 3 Iz �______ p U b, IL 4 u rt m In 0 GRAPIIIC SCALE a� —u— U 5 OF 9 CONDOMINIUM PLAT OF I E BOWMAN PROJECT UT �_, A RESIDENTIAL AND COMMERCIAL AIRSPACE LOT CONDOMINIUM_ ;N,Wi q" A RESUBDIVISION OF LOTS I AND H,AND THE EASTERLY 5 FEET OF LOT G,BLOCK 96 dg3@ INTO AIRSPACE LOTS A AND B,BOWMAN PROJECT 3 n CITY AND TOWNSITE OF ASPEN SECTION 7,TOWNSHIP 10 SOUTH,RANGE 84 WEST OF THE 6TH P.M. COUNTY OF PITKIN,STATE OF COLORADO po _ R 1 R eNUE _ LINE TABLE — --- nulales__at' O! (V w s AIRSPACE BOWMAN / RESIDENCES /° 8 i NOTES / CONDOMINIUM LOT I Z f i 3 N : z LEGEND tell Z I � o GZo F[t �/'��_ ')a o0Y x03 az u Z U U �z 'w �a Qa l I I 1 as ma`s GRAPNIC SCALP. O LEVEL TWO aU . Ylk �.... oar"aaz CONDOMINIUM PLAT OF OCT E €a BOWMAN PROJECT FF pcaY 4� 1 A_R RESIDENTIAL AND COMMERCIAL AIRSPACE CONDOMINIUM q .' —. o� A RESUBDIVISION OF LOTS I AND H,AND THE EASTERLY 5 FEET OF LOT G,BLOCK 96 INTO AIRSPACE LOTS A AND B,BOWMAN PROJECT CITY AND TOWNSITE OF ASPEN SECTION 7,TOWNSHIP 10 SOUTH,RANGE 84 WEST OF THE 6TH P.M. -- COUNTY OF PITKIN,STATE OF COLORADO o` Z YI U o l - - W _ o D U oI_ f LEG ENO in F z LL ° b l o LEVEL ONE LE VEL TWO ° °u roi, zu ---- - -.J — Q z o U a urt mN4 , GRAPHIC SCAT F. _ K 0 _UPPER HORIZONTAL BOUNDARIES a L BOWMAN COMMERCIAL CONDOMINIUM LOT A V Ole WV .o CONDOMINIUM PLAT OF BOWMAN PROJECT _ v A RESIDENTIAL AND COMMERCIAL AIRSPACE LOT C_O_NDOMINIUM °a8FaF A RESUBDIVISION OF LOTS I AND H,AND THE EASTERLY 5 FEET OF LOT G,BLOCK 96 INTO AIRSPACE LOTS A AND B,BOWMAN PROJECT CITY AND TOWNSITE OF ASPEN SECTION 7,TOWNSHIP 10 SOUTH,RANGE 84 WEST OF THE 6TH P.M. COUNTY OF PITKIN,STATE OF COLORADO 0 r C U Z Z Gug UO n aA I \/ r rt d Vui�l7 t I I i .z W TTa a G u �= ° € 4 2 7� (( LEV__--ELONE - ­0 U-10 1 [LEVEL TWO Z a L0 €€3H UPPER HORIZONTAL BOUNDARIES ua my 0 nenrwC SCALE I BOWMAN RESIDENCES CONDOMINIUM LOT B �O a� ", " ,. <ELIAMNA Y OB1892O �\ !I� BOFB CONDOMINIUM PLAT OF .oF BOWMAN PROJECT nom¢¢ yew 8o�t Ng�: A RESIDENTIAL AND COMMERCIAL AIRSPACE LOT CONDOMINIUM g "a q3 0 A RESUBDIVISION OF LOTS 1 AND H,AND THE EASTERLY 5 FEET OF LOT G,BLOCK 96 INTO AIRSPACE LOTS A AND B,BOWMAN PROJECT �'s' CITY AND TOWNSITE OF ASPEN SECTION 7,TOWNSHIP 1 O SOUTH,RANGE 84 WEST OF THE 6TH P.M. COUNTY OF PITKIN,STATE OF COLORADO (Ei /iii ---- CO DO AIRBP CE OOWMA HO NC 9C0 O � � �I?6P__€.B 1YM N-g CE a c. NDOMINIUM LOT e . � s AIRSPACE BOW AN "' ---- COMMN U—P66E PACE OOMINIUM AIRa BOWMAN�OMMER IALDDN eL alOewnLn ie sl0ewnLA •_x, �,•s' i �: __— •- LOT1 q COOPER COOPER z AVENNE AVENUE •aVneunrwre - - 4 •x,i' L4L1 U Z LOil YI 2 SE_CTION'A'DETAIL SE_C_TION_'C'DETAIL SCFLE I/9�.�•_1T.-..0.. _—____ ..� SCAIE. /e'- Z ��U 3 04 6 Z�?mw s r loo �PCOND_OMIN 1MLO BED /� 6 L�..n •ee BOWM .,w _ F - g Algaf!ACl AN REH OENCE9 A oxen Iq_///OWMAN RIHIOEN_CE_3 • -CO OOMI UU LO k B LEVEL xwn o �xan �o s EoW °°e unTDVeu /� q -?4 AIgaPAC! maw B, COMMERCIAS •,eae of L - _- _.. - -..-_ -. AIgBPACE BOWMAN IjL J O CONDOMINIUM LOTH a: yk _ CONDOMINIUM LOiALLEY a Z O O p,�e..v _- aloewALa •..,a' « .ov°E LEVEL ON€ p i o o mOewA,R o ISTREEIR q iq ,exaxa- --_. - — --- „i O F 1 Z o OT I 9 •e��uaevo xncE LEVEL —L w� fIW __ -_—_-- __ ---___ -. .- _ — __ ___.. .•.,o' LOT 0 m 0.Q orT rco QT _ CU SECTION'B'DETAIL SECTION'D'DETAIL -- — cnEei/e'- � .EP.I/e'•r-a'- �.� �Oh .Eleaao �.J r LMANJ�Y BOF 9 NJ 5TEYN LLC 601 E.HYMAN AVENUE ASPEN, CO 81611 August 19,2010 VIA E-MAIL TRANSMITTAL City of Aspen Community Development Department Attn: Sara Adams 130 South Galena Street Aspen, CO 81611 RE: 531 and 535 E. Cooper Street,Aspen, CO("Property")/Condominiumization Application (Supplement) Dear Sara: NJ Stein, LLC, a Colorado limited liability company, owns more than a 51% record interest in the above-referenced Property. In response to your request for evidence of legal representation by Garfield & Hecht, P.C. in order to complete the Property Application for Condominiumization, please find this correspondence suWcient evidence of authorization for Garfield&Hecht, P.C.to act as legal counsel and designee on our behalf in this matter. Very truly yours, NJ Stein LLC,a Colorado limited liability company Nikos Hecht,Manager cc: Stein Building Entities(via e-mail transmittal) 583088v1 THE CITY of ASPEN Land Use Application Determination of Completeness Date: August 17, 2010 Dear City of Aspen Land Use Review Applicant, We have received your land use application and reviewed it for completeness. The case number and name assigned to this property is 0042 2010 ASLU — 531 E. Cooper. The planner assigned to this case is Sara Adams. Your Land Use Application is incomplete: We found that the application needs additional items to be submitted for it to be deemed complete and for us to begin reviewing it. We need the following additional submission contents for you application: 1) A letter from the owner (more than 50% of ownership interest) authorizing representation by Kursten Canada for the subject application. Please submit the aforementioned missing submission items so that we may begin reviewing your application. No review hearings will be scheduled until all of the submission contents listed above have been submitted and are to the satisfaction of the City of Aspen Planner reviewing the land use application. ❑ Your Land Use Application is complete: If there are not missing items listed above, then your application has been deemed complete to begin the land use review process. 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. Thank You, ennifer Ph a , Deputy Director City of Aspen, Community Development Department For Office Use Only: Qualifying Applications: M ineral Rights Notice Required SPA PUD COWOP Yes No Subdivision(creating more than I additional lot) GMQS Allotments Residential Affordable Housing Yes No—)<--- Commercial E.P.F. Jennifer Phelan From: Jennifer Phelan Sent: Wednesday, August 18, 2010 1:10 PM To: 'kcanada @garfieldhect.com' Subject: FW: 531 E. Cooper, Aspen -application Attachments: 20100818130105152.pdf Hi Kursten: I've assigned the condo application to Sara Adams as she has the most background on the application; however, before final approval is granted we will need a letter of consent from the owner(s) permitting you to represent them in the application for our records. Please review the attached letter. Let me know if you have any questions. Best regards, Jennifer Jennifer Phelan, AICP Deputy Director Community Development Department City of Aspen 130 S. Galena Street Aspen, CO 81611 PH: 970.429.2759 FAX: 970.920.5439 www.aspenpitkin.com -----Original Message----- From: Jennifer [mailto:jennifep @ci.aspen.co.us] Sent: Wednesday, August 18, 2010 1:01 PM To: Jennifer Phelan Subject: This E-mail was sent from "RNPE9642B" (Aficio MP 4000) . Scan Date: 08.18.2010 13:01:04 (-0600) 1 ASPEN OFFICE GA IELD & �CHT VON OFFICE 601 East Hyman Avenue lll' 1J 11 � P.C.l� 0070 Benchmark Road Aspen,Colorado 81611 Post Office Box 5450 Telephone:(970)925-1936 Avon,Colorado 81620 Facsimile:(970)925-3008 Telephone:(970)949-0707 Facsimile:(970)949-1810 ATTORNEYS AT LAW BASALT OFFICE GLENWOOD SPRINGS OFFICE River View Plaza The Denver Centre Since 1975 100 Elk Run Drive.Suite 220 Basalt,Colorado 81621 420 Seventh Street,Suite 100 www.,-arfieldhecht.com Telephone:(970)927-1936 Glenwood Springs,Colorado 81601 Facsimile:(970)927-1939 Telephone:(970)947-1936 Facsimile:(970)947-1937 August 6, 2010 VIA OVERNIGHT DELIVERY RECEIVEW City of Aspen Community Development Department AUG 1 0 2010 Attn: Sara Adams 130 South Galena Street CITY OF ASPEN Aspen, CO 81611 COMMUNITY DEVELOPMENT RE: 531 and 535 E. Cooper Street,Aspen,CO/Condominiumization Application Dear Sara: Thank you for the pre-application meeting with both you and Jim yesterday which I found very helpful. Enclosed herewith please fmd the executed Application and Application Fee deposit in the amount of $735. Yesterday I deposited with you all items required by Section 26.480.090 of the City Code, including two (2) sets of the final draft(i)Condominium Plat(which creates the Estate Above Surface box regime); (ii) Shared Facilities Agreement (which creates the easements between the residential and commercial boxes); (iii) Condominium Map for both the residential and commercial units; (iv) Declaration for the Bowman Residences; and (v) Declaration for Bowman Commercial Condominiums. I also deposited with you two (2) sets of the title commitment which designates ownership and encumbrance information. We request that the property described above, known as the 'Bowman Building" be carved into estates above surface and subsequently condominiumized in accordance with our Application. Recall that there is an existing building on the site, which is physically located over three separate parcels comprising the underlying land. Based on the pre-existence of the building, we do not see the need to vacate lot lines except and unless required by the City. You and Jim will need to confirm this piece and let me know what you decide. As we discussed, do not hesitate to contact me if you have any questions or concerns during the review process or if I can be of assistance to the other departments in their review since this regime is slightly different than the standard condominiumization. Please direct any and all comments back to me as the designated representative for the Owner. I look forward to working with you. Very truly yours, G EL & CHT,P.C. Bv: Kurst Canada.Esq. cc: Stein Building Entities (via e-mail transmittal) 5908550 Ott wrwq 'W S y�NT r 1' J �46 ,• THE Qn,of ASPEN PLANNER: Sara Adams,970.429.2778 DATE: 08.05.10 PROJECT: 531/535 East Cooper Street REPRESENTATIVE: Kursten Canada, Garfield and Hecht ;.A kcanada(a)aarfieldhecht.com �: I' DESCRIPTION: 531 and 535 East Cooper Street are eE.' designated landmarks located within the Commercial Core Historic District. The applicant would like to condominiumizeil�f the properties. Relevant Land Use Code Section(s): 26.304 Common Development Review Procedures 26.408.090 Condominiumization Review by: Staff. Public Hearing: No. Referral Agencies: None. Planning Fees: $735. Referral Agency Fees: None. Total Deposit: $735. To app , submit the following information: Proof of ownership with payment. ❑ Signed fee agreement. [Applicant's name, address and telephone number in a letter signed by the applicant which states the name, address and telephone number of the representative authorized to act on behalf of the applicant. I/ Street address and legal description of the parcel on which development is proposed to occur, consisting of a current certificate from a title insurance company, or attorney licensed to practice in the State of Colorado, listing the names of all owners of the property, and all mortgages,judgments, liens, easements, contracts and agreements affecting the parcel, and demonstrating the owner's right to apply for the Development Application. 5�/Total deposit for review of the application, Q 2 Copies of the complete application packet. Ci/ An 8 112" by 11"vicinity map locating the parcel within the City of Aspen. Q Site improvement survey including topography and vegetation showing the current status, including all easements and vacated rights of way, of the parcel certified by a registered land surveyor, licensed in the state of Colorado. (This requirement, or any part thereof, may be waived by the Community Development Department if the project is determined not /to warrant a survey document.) Q A written description of the proposal. C� Copies of prior approvals. 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. RECEIVED AUG 10 2010 CITY OF ASPEN CITY OF ASPEN COMMUNITY DEVELOPMENT DEPARTMEItbMMUNITY OEVELOPMEN Agreement for Payment of City of Aspen Development Application Fees CITY OF ASPEN(hereinafter CITY)and � (hereinafter APPLICANT)AGREE AS FOLLOWS: APPLICANT has submitt d to IT,Y�an pplication f 53( 53 (hereinafter,THE PROJECT). 2. APPLICANT understands and agrees that the City of Aspen has an adopted fee structure for Land Use applications and the payment of all processing fees is a condition precedent to a determination of application completeness. 3. APPLICANT and CITY agree that because of the size, nature or scope of the proposed project, it is not possible at this time to ascertain the full extent of the costs involved in processing the application. APPLICANT and CITY further agree that it is in the interest of the parties that APPLICANT make payment of an initial deposit and to thereafter permit additional costs to be billed to APPLICANT on a monthly basis. APPLICANT agrees additional costs may accrue following their hearings and/or approvals. APPLICANT agrees he will be benefited by retaining greater cash liquidity and will make additional payments upon notification by the CITY when they are necessary as costs are incurred. CITY agrees it will be benefited through the greater certainty of recovering its full costs to process APPLICANT'S application. 4. CITY and APPLICANT further agree that it is impracticable for CITY staff to complete processing or present sufficient information to the Historic Preservation Commission, Planning and Zoning Commission and/or City Council to enable the Historic Preservation Commission, Planning and Zoning Commission and/or City Council to make legally required findings for project consideration, unless current billings are paid in full prior to decision. 5. Therefore, APPLICANT agrees that in consideration of the CITY's waiver of its right to collect full fees prior t a d termination of app cation completeness, APPLICANT shall pay an initial deposit in the amount of$�which is for� hours of Community Development staff time, and if actual recorded costs exceed the initial deposit, APPLICANT shall pay additional monthly billings to CITY to reimburse the CITY for the processing of the application mentioned above,including post approval review at a rate of 5245.00 per planner hour over the initial deposit. Such periodic payments shall be made within 30 days of the billing date. APPLICANT further agrees that failure to pay such accrued costs shall be grounds for suspension of processing,and in no case will building permits be issued until all costs associated with case processing have been paid. CITY OF ASPEN APPLICANT By: B1104nq Chris Bendon Community Development Director DC. Bp one um er: / ' 5 RECEIVED AUG 10 2010 ATTACHMENT 2-LAND USE APPLICATION CITY OF ASPEN PROJECT: COMMUNITY Name: GG A&0 1 Location: (Indicate street address.. lot& block number. legal description where appropriate) Parcel ID#(REQUIRED) APPLICANT: Name: _57-6--7W ��► �n� ,,t, ,�.,�/ ,�A Address: to l�/ ( 1. ' rl 6 6116_10"/T�?`/`�.! Phone#: / REPRESENTATIVE: �j Name: I� F ° ` Address: , b - /'U qs Phone#: / TITE OF APPLICATION: (please check all that apply): ❑ GMQS Exemption ❑ Conceptual PUD ❑ Temporary Use ❑ GMQS Allotment ❑ Final PUD(&PUD Amendment) ❑ Text/Map Amendment ❑ Special Review ❑ Subdivision ❑ Conceptual SPA ❑ ESA—8040 Greenline, Stream X Subdivision Exemption(includes ❑ Final SPA(& SPA Margin.Hallam Lake Bluff, condominiumization) Amendment) Mountain View Plane ❑ Commercial Design Review ❑ Lot Split ❑ Small Lodge Conversion/ Expansion ❑ Residential Design Variance ❑ Lot Line Adjustment ❑ Other: ❑ Conditional Use EXISTLNG CO_NDMONS: (description of existing buildings,uses.previous approvals,etc.) PROPOSAL: (description of proposed buildings,uses,modifications.etc.) Ha you attached the following`' FEES DUE: S [' Pre- Application Conference Summary L� Attachment 91.Signed Fee Agreement Response to Attachment 43,Dimensional Requirements Form ['Response to Attachment 44, Submittal Requirements-Including Written Responses to Review Standards ❑y3-D Model for large project All plans that are larger than 8.5"X I I" must be folded. A disk with an electric copy of all written text (Microsoft Word Format)must be submitted as part of the application. Large scale projects should include an electronic 3-D model. Your pre-application conference summary will indicate if you must submit a 3-D model. RECEIVED ATTACHMENT 3 AUG 10 2010 DIMENSIONAL REQUIREMENTS FORM CITY OF ASPEN 1 COMMUNI DEVELOPMENT Project: W �c6)V4N Applicant: RWA ILL, Location: Zone District: Lot Size: Lot Area: (for the purposes of calculating Floor Area,Lot Area may be reduced for areas within the high water mark, easements, and steep slopes. Please refer to the definition of Lot Area in the Municipal Code.) Commercial net leasable: Existing: Proposed: Number of residential units: Existing., Proposed: Number of bedrooms: Existing: Proposed: Proposed% of demolition (Historic properties only): r DIMENSIONS: Floor Area: Existing: Allowable: Proposed: Principal bldg. height: Existing: Allowable: Proposed: Access. bldg. height: Existing: Allowable: Proposed: On-Site parking: Existing: Required: Proposed: % Site coverage: Existing: Required: Proposed: %Open Space: Existing: Required: Proposed. Front Setback: Existing: Required: Proposed: Rear Setback: Existing: Required. Proposed: Combined F/R: Existing: Required: Proposed.' Side Setback: Existing: Required Proposed: Side Setback: Existing: Required Proposed: Combined Sides: Existing: Required. Proposed: Distance Between Existing Required: Proposed: Buildings Existing non-conformities or encroachments: Variations requested: Upon Recordation Return To: Garfield &- Hecht. P.C. Attu: Kursten Canada. Esq. P.O. Box 5450 Avon, CO 81620 CONDONIINIUM DECLARATION` FOR BOWN AN RESIDENCES THIS CONDOMUNIUM DECL.ARATIONT FOR BO1WT4-AN RESIDENCES (this "Declaration") is made as of 2010, by -NJ Stein LLC. a Colorado limited liability company, as to an undivided 52.98% interest. Stein Building LLC. a Colorado limited liability company, as to an undivided 23.11% interest. AV Stein LLC, a Colorado limited liability company, as to an undivided 19.09% interest, and RG Cooper Street LLC; a Colorado limited liability company. as to undivided 4.83% interest.. or any person designated by the foregoing parties as a successor to Declarant's rights and obligations under this Declaration in a written instrument signed by Declarant and recorded in the Records (collectively.. the "Declarant`). RECITALS This Declaration is made with respect to the following facts: A. Certain real property located in Pitkin County, Colorado was legally subdivided pursuant to the Condominium Plat of Bowman Project (the "Plat") recorded in the real property records of Pitkin County, Colorado (the "Records") on . 2010, at Reception No. Pursuant to the Plat, certain airspace located within the real property subjected to the Plat was defined and legally established in the form of two (2) severed and independent property interests authorized as an "estate above surface" under Section 38-32-101; et seq., C.R.S. (the "Residential Lot' or "Property")). In accordance with Section 1.1 below, the Residential Lot and the improvements located thereon are collectively referred to as the "Residential Project." The remainder of the property subjected to the Plat. together with the underlying ground. is a single, subdivided lot (the "Commercial Lot"). The Commercial Lot. the underlying ground, and the improvements located thereon are collectively referred to as the "Commercial Project." B. The Property is legally described on the attached Exhibit A and is owned by the "Declarant". Although the Residential Project will be located adjacent to and in some instances structurally supported by. the Commercial Project. the Commercial Project does not include the Residential Project. C. The Commercial Project. as of the date of this Declaration, contains a mixed use development, which includes as of the date of this Declaration, retail space. The Residential Project contains a combination of residential dwellings and --nay contain individual sleeping rooms attached to some of the residential dwellings. Although portions of the "Commercial Structure" and the "Commercial Service Elements" (as both are defined in Section 1.1) ma-, pass through the Residential Project. the Commercial Structure and the Commercial Sen7ice Elements are not a part of the Residential Project. but rather are a part of the Commercial Project. Declarant and the owner of the Commercial Project (the "Commercial Owner") entered into a Shared Facilities Agreement recorded in the Records on . 2010, at Reception No. (the "Shared Facilities Agreement"), The Shared Facilities Agreement: (i) establishes certain easements benefiting the Residential Project and Declarant and burdening the Commercial Project: (ii) establishes certain easements benefiting the Commercial Project and the Commercial Owner and burdening the Residential Project: (iii) provides an allocation of responsibilities and costs bem7eeen the Commercial Owner and Declarant that are associated with ownership of the Commercial Project and the Residential Project: and (iv) otherwise regulates the use and enjo-,,rent of the Residential Project and the Commercial Project. D. In accordance -Mth the provisions of the "Act" (as defined in Section l.l), and subject to the terms of the Shared Facilities Agreement, Declarant now desires to establish the Residential Project as a Residential Project consisting of condominium units designated for separate ownership and common elements designated for ownership in common by the owners of those residential condominium units. DECLARATION NOVA'. THEREFORE. Declarant declares as follows: Article 1 DEFIN71TIONTS AND EXIIIBITS 1.1 Definitions. The following initially-capitalized terms have the respective meanings set forth below: "Act" means the Colorado Common Interest Ownership Act. C.R.S. § 38-33.3-101; etseq., as amended from time to time. "Alteration" is defined in Section 10.5. "Assessments" is defined in Section 9.4. "Association" means Bowman Residential Association. a Colorado nonprofit corporation, formed or to be formed pursuant to Section 6.1. "Board" means the Board of Directors of the Association. "Boundary Relocation" means: (i) the combina*_ion of two or more adjoining Units into a single Unit; or (ii) the alteration of the boundary or boundaries separating two or more adjoining Units. "Building" means the building located on the Commercial Lot and the Residential Lot in which the Commercial Project and the Residential Project are located. "BYlaws" means the Bylaws of the Association. "Casually" is defined in Section 12.1. "City" means the Cite of Aspen. "Commercial Activities" is defined in Section 17.1. "Commercial Lot" is defined in Recital A. "Commercial Owner" means NJ Stein LLC. a Colorado limited liability company as to an undivided 52.98% interest. Stein Buildina LLC. a Colorado limited liability company as to an undivided 23.11% interest, AV Stein LLC. a Colorado limited liability company, as to an undivided 19.08% interest. and RG Cooper Street LLC, a Colorado limited liability company. as to undivided 4.83% interest. or any successor or assign of the foregoing. "Commercial Project" is defined in Recital A. The Commercial Project includes the Commercial Structure. "Common Allocation" means, with respect to each Unit, the percentage allocated to the Unit as set forth on Exhibit B. The Common Allocation for each Unit has been determined by dividing the Measured Area of the Unit by the total Measured Area of all the Units. If additionaI Units are created pursuant to Declarant's exercise of Development Rights in accordance with Section 2.8(a), the Common Allocation for each Unit shall, upon creation of such additional Units, be recalculated by dividing the Measured Area of the Unit by the total Measured Area of all the Units, including the newly added Units. "Common Alteration" is defined in Section 10.6(b). "Common Element Taking" is defined in Section 13.2. "Common Elements" means all portions of and areas within the Residential Project, including the Shared Service Elements (as defined in the 'Shared Facilities Agreement); but excluding the Residential Structure. Limited Common Elements and General Common Elements are both part of the Common Elements. A portion of the Common Elements may be referred to as a "Common Element" or Residential Common Element on the Map. "Common Expenses" means, except for those costs and expenses expressly excluded below. all costs, expenses and financial liabilities incurred by the Association pursuant to the Shared Facilities Agreement.. this Declaration or the Bylaws including. without Iimitanon: a proportionate share of Shared Expenses under the Shared Facilities Agreement. a fair market value management fee due from the Association under the Shared Facilities Agreement_. all costs of operating. managing administering. securing protecting. insuring. ventilating, lighting. decorating, cleaning. maintaining. repairing. renewing. replacing or restoring (to the extent not covered by insurance or condemnation proceeds). the Common Elements; all costs of providing water. sewer.. waste disposal. telecommunications.. electricity. natural gas and other services. energy and utilities to, the Common Elements and the Association's personal and equipment located in, or used in connection y7,7ith the operation or maintenance of. the Coon Elements: all costs of providing utility service to the Units to the extent not charged directly to the Unit Ovrners pursuant to Section 9.1(b); taxes on any property owned by the Association: and funding of working capital and reasonable reserves for Common Expenses. Except to the extent provided in Sections 9.2 and 183(c). Common Expenses will not include Limited Benefit Expenses. Reimbursable Expenses, the costs of any Restoration Deficit, Voluntary Capital Expenses or any other cost or expense which. pursuant to this Declaration. may be separately assessed (i.e.. in addition to General Assessments for Common Expenses) against any Condominium(s). "Condominium" means a Unit. as defined in the Act. together with the undivided interest in the Common Elements and all Easements, rights, licenses and appurtenances allocated or made appurtenant to the Unit pursuant to this Declaration. "Consideration" is described in Article 19. "Construction Activities" is defined in Section 17.1. "Declarant Control Period" means the period beginning on the date the Association is formed and ending on the first to occur of(1) 60 days after 75% of the total number of Units that may be created pursuant to Section 2.9 have been conveyed to Owners other than Declarant; (ii) two nears after the last conveyance of a Unit by Declarant in the ordinary course of business: (iii) two years after any right to create new units pursuant to this Declaration was last exercised: or (iv) the date on which Declarant, in its sole discretion, voluntarily terminates the Declarant Control Period pursuant to a Recorded statement of termination executed by Declarant. If Declarant terminates the Declarant Control Period pursuant to the preceding clause (iv), Declarant may require that, for the balance of what would have been the Declarant Control Period had Declarant not terminated it. certain actions of the Association or the Board, as described in the Recorded statement of termination, be approved by Declarant before they become effective. "Declarant Development Period" means the period beginning on the date this Declaration is Recorded and ending on the tenth anniversary of the date on which this Declaration was Recorded. "Delinquency Costs" is defined in Section 9.4. "Development Rights" is defined in Section 2.8(a). "Easements" means all easements that burden or benefit the Residential Project or a portion of it. including (1) easements established or granted under this Declaration:. (ii) easements established or granted under the Shared Facilities Agreement; (iii) easements which first burdened or benefited the Residential Project before the Recording of this Declaration: and (iv} easements which first burden or benefit the Residential Project after this Declaration is recorded. "First Mortgage" means a Mortgage that is Recorded and has priority of record over all other Recorded mortgages and liens except those liens made superior by statute (e.g.. general ad ��alorem tax liens and special assessments and mechanics' liens). a "First Mortgagee" means the holder. from time to time. of a First Mortaaae on any Unit or Units as shown by the Records. If there is more than one holder of a First Mortgage. the holders will be treated as. and act as. one First Mortgagee for all purposes under this Declaration and the Bylaws. "Fiscal Year" means the fiscal accounting and reporting period of the Association selected by the Board from time to time. "General Assessments" is defined in Section 9.1. "General Benefit Expense" is defined in Section 9.2(a). "General Common Elements" means all Common Elements that are not Limited Common Elements. A portion of the General Common Elements may be referred to as a "General Common Element" (and labeled on the Map as "Residential GCE"). "Historical Preservation Status" is defined in Section 17.1. "Indemnify, Claims" is defined in Section 4.6. "Land Use Code" means the City of Aspen Land Use Code, as amended from time to time. "Limited Benefit Expenses" is defined in Section 9.2(b). "Limited Common Elements" means the portions of the Common Elements allocated to the exclusive use of one or more, but fewer than all, of the Units. A portion of the Limited Common Elements may be referred to as a "Limited Common Element." Some of the Limited Common Elements are desianated in this Declaration and on the Map and identified by the initials "LCE" followed by the number of the Unit to which the Limited Common Elements are allocated. For example. a Limited Common Element allocated only to the use of Unit H-1 maybe identified as "LCE H-1." "Map" means the Condominium Map of Bowman Building Condominiums and Plat for Bowman Building; which was Recorded on the same date as this Declaration and is made a part of this Declaration, as such Condominium Map and Plat may be amended in accordance with this Declaration. "Measured Area" means for each Unit the area in square feet of all floor space included in the Unit measured from the vertical boundaries of the Unit (as described in Section 2.4). "Mold" is defined in Article 8. "Mortgage" means an unpaid or outstanding mortgaae. deed of trust, deed to secure debt or an-,, other form of security interest encumbering a Unit. "Mountain Resort Activities" is defined in Section 17.1. "Mountain Resort Areas" is defined in Section 17.1. "New Owner" is defined in Section 18.3. "Owner" means a Person or Persons. including Declarant. oWning fee simple title to a Unit from time to time. The term Owner includes a contract vendee under an installment land contract, but does not include the vendor under such a contract or a Security_- Holder (unless and until a Security Holder becomes an owner in fee simple of a Unit). "Permitted Unit Alteration" is defined in Section 10.1. "Permittee" means a Person. other than an Owner. rightfully present on or in rightful possession of a Unit or Common Element, or a portion of a Unit or Common Element_ including, without limitation, (i) a tenant or member of an Owner or the Association. or (i_i) an agent. emplovee, customer. contractor. licensee. west or invitee of an Owner. the Association. or a tenant of either of them. "Person" means a natural person. corporation. partnership. limited liability company, trust or other entity. or any combination of them. "Residential Lot" means the airspace legally established as a severed and independent property" interest as an "estate above the surface" as authorized under Section 38-32-101; et seq... C.R.S. and described on Exhibit A. and within which the Residential Project is located. "Residential Project" means the condominium, as defined in Section 103(9) of the Act.. created by this Declaration and consisting of the Residential Lot and all improvements located thereon. The Residential Project does not include the Commercial Project or the Commercial Structure. "Residential Structure" means those portions of the Residential Project that constitute the structural support and building enclosure systems, including, by way of example only and without limitation, bearing walls, bearing columns, structural slabs and decks for floors. ceilings or roofs, structural girders, beams and joists. foundations and footings. "Residential Service Elements" is defined in Section 2.4(d). "Records" means the real property records maintained by the Clerk and Recorder of Pitkin County, Colorado:. to "Record" or "Recording" means to file or filing for recording in the Records: and "of Record" or "Recorded" means recorded in the Records. "Reimbursable Expenses" is defined in Section 9.2(c). "Reserve Fund" is defined in Section 6.3. "Restoration Deficit" is defined in Section 9.2(d). "Reservation of Density" is defined in Section 17.8. 6 "Right of First Refusal" is defined in Article 19. "Residential Rules" means the reasonable rules and re--zlations. if any, that the Association adopts from time to time. "Security-for an Obligation" means the vendor's interest in an installment land contract; the mortgagee's interest in a mortgage. the beneficiary's interest in a deed of trust. the purchaser's interest under a sheriffs certificate of sale during the period of redemption. or the holder's or beneficiary's interest in a lien. "Securitt Holder" means any Person owning or holding a Securlt,, for an Obligation encumbering a Condominium. including any First Mortgagee. "Shared Area" is defined in Section 10.3(a). "Shared Facilities Agreement" is defined in Recital C. "Special Assessments" is defined in Section 9.2. "Special Declarant Rights" means the rights reserved by Declarant in Section 2.8. "Supplemental Declaration" means an amendment to this Declaration prepared and Recorded by Declarant as necessary to exercise Development Rights pursuant to Section 2.8(a). "Supplemental Map" means an amendment to the Map prepared and Recorded by Declarant as necessary to exercise Development Rights pursuant to Section 2.8(a). "Taking" is defined in Section 13.1. "Termination Agreement" is defined in Section 14.1. "Termination Allocation" is defined in Section 14.3. "Terrace" means the patios and/or balconies adjacent to the Units. "Unit" means a portion of the Residential Project designated for separate o-wnership. Each Unit is designated for separate ownership in this Declaration, and its boundaries are delineated on the Map and described in Section 2.4. The definition of "Unit" excludes the Commercial Structure and all Common Elements, including, without limitation, any Common Elements passing through or existing partly or wholly inside the boundaries of the Unit (e.g., any ducts, pipes flues, chases or equipment serving portions of the Residential Project and Commercial Project other than the Unit). "Unit Connection" is defined in Section 103(a). "Unit Disconnection" is defined in Section 10.4(a). "Voluntan, Capital Expenses" is defined in Section 9.2(e). 7 "Working, Capital Fund" is defined in Section 9.3. 1.2 Exhibits. The Exhibits listed below are attached to and incorporated in this Declaration: Exhibit A — The Residential Lot/Property Exhibit B - Common Allocations Exhibit C —Permitted Exceptions Article 2 CREATION OF THE RESfDENTIAL PROJECT; U-AN TS _N'D ALLOCATIONS 2.1 Creation. Declarant declares that, upon the Recording of this Declaration executed pursuant to the Act. the Residential Lot will be a "condominium" within the meaning of Section 103(9) of the Act and,thus. constitutes the Residential Project. 2.2 Name. The name of the Residential Project is " Bo-s,man Residences." 2.3 Division of Residential Lot. Declarant, pursuant to the Act. hereby divides the Residential Lot into the Units (identified by number on Exhibit B and depicted on the Map) and the Common Elements and designates the Units for separate o,,NTnership and the Common Elements for common ownership solely by the Owners. 2.4 Designation of Boundaries. (a) Units. The vertical and horizontal boundaries of each of the Units are described below and are graphically depicted on the Map. (i) Horizontal Boundaries. The upper horizontal boundary of each Unit is the underside of the concrete slab or other feature forming the unfinished ceiling of the top level contained in such Unit. The lower horizontal boundary of each Unit is the unfinished surface of the top of the floor slab or subfloor immediately beneath the lowest level contained in such Unit. (ii) Vertical Boundaries. The vertical boundaries of each Unit are generally the unfinished interior surface of the wallboard or plasterboard forming a part of the perimeter walls of the Unit as depicted on the Map. Without limiting the generality of Section 10.6(a). no Owner may remove, penetrate or do anything to otherwise impair the fire-separation capability or acoustical separation capability of any perimeter wall forming the vertical boundary of any Unit. (b) Commercial Project. The Commercial Structure and the Commercial Service Elements are not a part of the Residential Project. regardless of whether they are located wholly or partially within the Residential Project. (c) Doors and Windows. All doors and windows. including glazing, sashes, frames. sills. thresholds. hardware, flashing and other co do mponents of those ors and windows in the boundary walls of each Unit, are a part of the Unit. 8 (d) Residential Service Elements. Any shafts, chutes, flues, ducts, vents., chases, pipes. wires. conduits, utility lines or telecommunications, telephone, television, or similar lines or equipment located wholly within the Residential Lot and exclusively sen inQ the Residential Project (or a portion thereof) (collectively, "Residential Service Elements") are a part of the Residential Project. Any Residential Service Elements that exclusively serve a single Unit but that are not located entirely within the Unit are Limited Common Elements allocated to the Unit. Anv Residential Service Elements that serve two or more but fewer than all Units are Limited Common Elements allocated to all of the Units they serve. Any Residential Senyice Elements that serve all of the Units are General Common Elements. Any Residential Service Elements that exclusively serve a Common Element are a part of the Common Elements. Residential Sen ice Elements also include any submeters installed by the Association as needed to allocate water usage by each Unit pursuant to Section 9.1(b). (e) Improvements in Unit. Subject to the terms set forth in Section 2.4 above. all spaces, interior partitions and other fixtures and improvements within the boundaries of any Unit are a part of the Unit. (f) Penetrations. Where a Unit boundary is penetrated by an opening (e.g., a flue, chase; window. or door).. the boundary at such penetration is the surface which would result from the extension of the nearest adjacent surface comprising the boundary that is penetrated by the opening. 2.5 Unit Subdivisions. Connections and Boundary Changes. No Unit may be subdivided into two or more Units except by Declarant pursuant to Section 2.8(c). Subject to this Section 2.5, a Boundary Relocation may be made by Declarant pursuant to Section 2.8(c) or by Owners pursuant to Section 10.2; a Unit Connection may be made pursuant to Section 10.3; and a Unit Disconnection may be made pursuant to Section 10.4. 16 Limited Common Elements. The Limited Common Elements consist of those designated in this Declaration and those designated "LCE" or "Residential LCE" or otherwise allocated on the Map. 2.7 Allocations. (a) Ownership of Common Elements. Each Unit is allocated a percentage of undivided interest in the Common Elements equal to its Common Allocation. (b) Liability for Common Expenses. Each Unit is allocated, and the Owner of the Unit is liable for, a percentage of all Common Expenses equal to the Unit's Common Allocation. All other costs and expenses of the Association are allocated among the Units as otherwise provided in this Declaration (such as the allocation of Limited Benefit Expenses set forth in Section 9.2(b). the allocation of Reimbursable Expenses set forth in Section 9.2(c), and the allocation of Voluntary Capital Expenses set forth in Section 9.2(e)). (c) Votes in the Association. In all matters coming before the Association for which a vote of the Owners is required. each Unit is allocated the number of votes equal to the Units 9 Common Allocation. Notwithstanding the foregoing. the Association is not entitled to any votes for any Unit(s) it owns. 2.8 Reservation of Special Declarant Rights. Declarant reserves the following Special Declarant Rights: (a) Development Rights. During the Declarant Development Period. Declarant may but is not obligated to (1) construct and create additional Units and Common Elements, (ii) convert Units into Common Elements, withdraw real estate from the Residential Lot: or (iv) add real estate to the Residential Lot to the extent allowed under the Act, including, without limitation, Section 222 (the "Development Rights"). The Development Rights apply to all portions of the Residential Project but are subject to the limitations of Section 2.9. Declarant shall exercise any Development Right by preparing. executing and Recording a Supplemental Declaration as necessary to effectuate the exercise of such Development Right. which Supplemental Declaration shall be accompanied by a Supplemental Map, as required by the Act. If Declarant, by exercising any Development Rights, creates any new Common Elements, then the Supplemental Declaration shall describe such newly created Common Elements. If Declarant; by exercising any Development Right, creates any new Units, such Supplemental Declaration shall include a revised Exhibit B, which shall show the new Common Allocations for all of the Units, calculated in accordance with the formula included in the definition of Common Allocation in Section 1.1. Except as expressly provided to the contrary in this Declaration, Declarant's exercise of any Development Right shall not require the consent of any other Owner. (b) Improvements. During the Declarant Development Period, Declarant may, but is not required to, complete any one or more of the following improvements or alterations at the sole cost and expense of Declarant: (1) constructing any improvements indicated on the Map: (ii) remodeling, refurbishing or improving any one or more of the Common Elements; (iii) remodeling or refurbishing any Unit owned by Declarant: (iv) installing utility, lines, running through existing or newly created chases in the Common Elements or in any or all of the Units. as may be necessary or desirable to provide additional utility services in some or all of the Units; (v) constructing or installing lighting in or on any of the Common Elements; and (vi) constructing or installing sign age relating to the Residential Project. (c) Boundary Relocation: Subdivision. During the Declarant Development Period, Declarant may from time to time make Boundary Relocations affecting any Unit(s) then owned by Declarant or may subdivide any Unit then owned by Declarant into two or more Units, subject to Sections 2.5 and 2.9. To effect a Boundary Relocation or subdivision during the Declarant Development Period. Declarant shall execute. acknowledge and Record an amendment to this Declaration (including the Map) showing the affected Units, their new boundaries and dimensions and any changes to their identifying numbers. and revising Exhibit B to show an-,- changes in Common Allocations resulting from the Boundary Relocation or subdivision. The revised Common Allocations resulting from anv Boundary Relocation or subdivision made by Declarant must be based on the formula set forth in the definitions of"Common Allocation" and "Measured Area" as set forth in Section 1.1. Nothing in this Section 2.8(c) prohibits Declarant, as an Ov,n--T, from making a Boundary Relocation pursuant to Section 10.2. :0 (d) Marketing. During the Declarant Development Period. Declarant may maintain sales offices, management offices and model Unit(s) in any Unit(s) owned by Declarant. Declarant may change the locations of the offices and model Unit(s) from time to time during the Declarant Development Period. (e) Easements. Declarant may use the Easements described in Section 3.3 for so long as those Easements remain in effect. (f) Appoint Board and Officers. Subject to the provisions of the Bylaws. during the Declarant Control Period Declarant may appoint and remove the members of the Board and the officers of the Association. (g) Amend Declaration. In addition to the amendments to this Declaration which Declarant may expressly make pursuant to the provisions of this Declaration, Declarant may during the Declarant Development Period amend this Declaration (including the Map) in any manner authorized by the Act. 2.9 Number of Units. The Residential Project consists of six (6) Units, specifically comprised of five (5) Units and a Penthouse Unit. Article 3 EASEMENTS 3.1 Easements Benefiting Owners. Each Owner, and its Pernuttees, is the beneficiary of those easements granted to the "Residential Owner" in the Shared Facilities Agreement, subject to the terms and conditions of the Shared Facilities Agreement; this Declaration, the Commercial Rules and the Residential Rules. To the extent that any Unit is allocated the exclusive use of a particular the Common Element pursuant to this Declaration and/or the Map, the Owner of that Unit has an Easement for the exclusive use and enjoyment of that Limited Common Element. In those cases where a Limited Common Element is allocated to more than one Unit pursuant to this Declaration, the Owners of the Units to which that Limited Common Element is allocated have a nonexclusive Easement for the use and enjoyment of that Limited Common Element. Notwithstanding any provision of this Declaration to the contrary, whenever an Owner has an Easement to use any Limited Common Element pursuant to this Declaration, and regardless of whether the Easement is deemed exclusive or nonexclusive or whether it concerns a Limited Common Element, the right of the Owner and its Permittees to use that Limited Common Element is subject to the Easements described in Sections 3.2 through 3.7, inclusive, and Sections 3.9 and 3.10. 3? Easements Benefitinc Association. The Association, and its Permittees. is the beneficiary of those easements granted to the "Residential Owner" in the Shared Facilities Agreement, subject to the terms and conditions of the Shared Facilities Agreement, this Declaration, the Commercial Rules and the Residential Rules. The Association also has nonexclusive Easements over and across the Common Elements, and over and across other portions of the Residential Project to gain access to the Common Elements. as reasonably necessary or convenient for the Association, acting through its Permittees. to exercise its rights and perform its obligations under Il this Declaration,, including, without limitation. its rights and obligations to enforce this Declaration and the Residential Rules and to operate, manage and control the Common Elements. Without limiting the Generality of the previous sentence.. the Association has an Easement to enter each Unit to the extent reasonably required to operate. manage and control any Common Elements within the boundaries of the Unit or as reasonably necessan-to perform other maintenance and repair duties imposed on the Association by this Declaration. Except in the case of emergency situations concerning threatened injure or damage to persons or property. the Association shall not enter into any Unit pursuant to the Easement established under this Section 32 without giving reasonable advance notice to the occupant thereof. 3.3 Easements Benefiting Declarant. Declarant hereby reserves Easements over and across the Common Elements as reasonably necessary for the purposes of completing the construction of the Residential Project. including any or alterations described in Section 2.8(b), and for the purpose of exercising any Development Rights pursuant to Section 2.8(a): constructing and installing any shafts. chutes, flues. ducts, vents, chases, pipes, wires, conduits or utility lines necessary to serve those improvements or alterations: storing construction materials relating to those improvements and alterations and their service elements; showing Units and Common Elements to prospective purchasers: displaying signs; and perfonning any of Declarant's obligations under this Declaration. Declarant's Easements will exist as long as reasonably necessary for those purposes. Without limiting the generality of the previous two sentences, if Declarant elects to install utility lines to provide additional utility services in some or all of the Units. Declarant will have Easements to install the utility lines and chases housing them on, over, under, across and through the interior or exterior Common Elements. 3.4 Easements for Encroachments. If; as a result of the construction. reconstruction. shifting, settlement; restoration, rehabilitation, alteration or improvement of the Residential Project or any portion of it, any Common Element encroaches upon any part of any Unit, or any part of any Unit encroaches upon any Common Element or upon any part of another Unit, an Easement exists for the continued existence and maintenance of the encroachment. The Easement will continue for so long as the encroachment exists and will burden the Unit or Common Element encroached upon and benefit the encroaching Unit or Common Element. No Easement exists for any encroachment that is materially detrimental to or interferes with the reasonable use and enjoyment of the Common Elements) or Units) burdened by the encroachment. 3.5 Easements to Repair. Maintain. Restore and Reconstruct. With respect to any provision of this Declaration or the Act that authorizes or requires any Person (including, without limitation. the Association) to repair, maintain. restore or reconstruct all or any part of any Unit or Common Element. Easements exist as necessary or convenient to gain access and perform the authorized or required work to the portions of the Residential Project requiring repair, maintenance. restoration or reconstruction, with persons. materials and equipment to the extent and for the periods reasonably necessan to enable the Person to perform the authorized or required work. R%ithout limiting the generalit< of the previous sentence. the Association has an easement to enter each Unit to the extent reasonably required to repair and maintain any Common Elements located in the Unit. The Easements created under this Section 3.5 burden t`iose portions of the Residential Project through which they run and benefit the Persons aatmor-ized or required to perform. and those portions of the Residential Project requiring, the 12 repair, maintenance. restoration or reconstruction. Except in the case of emergency situations concerning threatened damage to persons or properr. no Person shall enter into any Unit pursuant to the Easement established under this Section 3.5 without giving reasonable advance notice to the occupant thereof. Prior to exercising its rights under this Section 3.5. each Owner must notify the Association so that the Association may coordinate the required access through and/or work to the Common Elements or other Units with the impacted Owners. Such Owner's access and work may proceed only at the times and in accordance with the arrangements approved by the Association. 3.6 Easements for Residential Service Elements. An Easement exists for the benefit of each Unit and Common Element for the use of all Residential Service Elements that serve the Unit or Common Element and run through any other Unit(s) or Common Element(s). The other Unit(s) or Common EIement(s) are burdened by the Easement. 3.7 Right of Entrv. Declarant reserves for the Association an easement for the right. but not the obligation, to enter upon any Unit: (1) for emergency, security and safety reasons: and (ii) to inspect any Unit for the purpose of ensuring compliance with this Declaration, the Bylaws and the Residential Rules. Such right may be exercised by any member of the Board and the Association's officers, agents, employees and managers and, for emergency, security and safety purposes, all police, fire and ambulance personnel and other similar emergency personnel in the performance of their duties. This right of entry shall include the right of the Association to enter upon any Unit to cure any condition that may increase the possibility of a fire or other hazard in the event an O-wner fails or refuses to cure such condition within a reasonable time after requested by the Association, but shall not authorize entry into the residence located on or constituting any Unit without permission of the occupant, except by emergency personnel acting in their official capacities. 3.8 Additional Easements. (a) Declarant's Right to Grant Easements. Declarant reserves the non-exclusive right and power to grant, during the Declarant Development Period, such additional specific easements over any portion of the Residential Project owned by Declarant and the Common Elements as may be necessary. in the sole discretion of Declarant, to the orderly development of any portion of the Residential Project. (b) Association's Right to Grant Easements. Notwithstanding anything to the contrary in this Declaration, the Association, acting through the Board and without the approval of the Owners, may grant easements over the Common Elements for installation and maintenance of utilities and for other purposes that benefit the Owners. 3.9 Easements Run with Property-. Except for the Easements described in Section 3.3 and subject to the terms and conditions set forth in the Shared Facilities Agreement. all Easements existing pursuant to this Article 3 are appurtenant to and run with the Residential Project and will be perpetually in full force and effect so long as the Residential Project exists and inure to the benefit of and are binding upon Declarant. the Association. Owners, Permittees. Security Holders and any other Persons having any interest in the Residential Project or any part of it. The Units will be conveved and encumbered subject to all Easements set forth in this Article 3. whether or not specifically mentioned in the conveyance or encumbrance. 3.10 Other Recorded Easements and Licenses Affecting the Propertv. The recorded easements and licenses identified on Exhibit C. which were created prior to the date of this Declaration, and the easements created by the Map affect the Residential Project. Article 4 COVENANTS, CONDITIONS AND RESTRICTIONS 4.1 Administration. The Residential Project will be administered in accordance with the provisions of the Act.. this Declaration and the Bylaws. All Common Elements-are subject to the reasonable supervision, operation. management and control of the Association. 4.2 Compliance. Each Owner, Permittee and Security Holder and all parties claiming under them will take and hold their right; title and interest in any Unit subject to all of the covenants and conditions of the Act, the Shared Facilities Agreement, this Declaration. and the Bylaws. Each Owner. Permittee and Security Holder and all parties claiming under them will comply with all applicable provisions of the Shared Facilities Agreement. the Act. this Declaration, the Bylaws. Commercial Rules and Residential Rules, as may be amended from time to time. To the extent any conflict exists between this Section of the Declaration and the Shared Facilities Agreement. the Shared Facilities Agreement shall govern. 4.3 Permitted Uses. All or any portion of the Residential Lot may be occupied and used only for (i) residential uses and uses incidental to them; (ii) long term and short term rentals of individual residential dwellings within the Residential Lot for residential and lodging purposes, to the extent permitted by applicable zoning laws, including timeshares; and (iii) home occupations permitted by applicable zoning laws, so long as that use is incidental to the residential use of the applicable residential dwelling located within the Residential Lot; does not materially increase the use of elevators; lobbies or other public areas in the Residential Project, and is not advertised or identified by signage on or any directory in the Residential Project. 4.4 Prohibited Uses. In addition to the use restrictions contained in the Shared Facilities Agreement and this Article 4. the occupation and use of the Residential Project by the Residential Owners, their tenants and respective Permittees is subject to the following restrictions: (a) Commercial Purposes. Except as otherwise provided for above, the Units and Common Elements may not be used for commercial purposes. (b) Insurance Risks. The Units and Common Elements may not be used for any use which would constitute an unusual fire hazard. would result in jeopardizing any insurance maintained on anv part of the Residential Project or would result in any increase in the premium for that insurance. (c), Overloading. The Residential Project may not be used for any use beyond the maximum loads the floors of the Residential Project and Commercial_ Project are designed to 14 carry and no apparatus, equipment. futures or other property of any nature may be located within the Residential Project if the same. singularly or in the aggregate, would violate the maximum loads that the structural flooring in the Residential Project or Commercial Project is designed to support. Further, the Residential Project may not be used for any use which would place any extraordinary burden on any portion of the Residential Project or Commercial Project. (d) Nuisance. The Units may not be used for any use (1) constituting a public or private nuisance; (2) consisting of the manufacture of any product: or (3) which causes undue and extraordinary odor, noise, vibration or glare, including, without limitation, the use of any equipment or machine. (e) Violation of Law. No portion of any Unit may be used for any use which violates any law, statute, ordinance. rule; regulation or order of any governmental authority having Jurisdiction over the Residential Project, including, without limitation, any of them that regulate or concern hazardous or toxic waste, substances or materials. (f) Manner of Use. Occupation and use of the Units and Common Elements by the Owners, their tenants and respective Permittees is subject to the restrictions set forth in this Declaration. the Shared Facilities Agreement. Commercial Rules and Residential Rules. (g) Building Security and Rights of Entry. The Owners; their tenants and respective Permittees may enter and exit the Residential Project at any time and neither the Declarant nor the Commercial Owner shall be deemed under any circumstances to guarantee the safety and security of the Owners, their tenants and respective Permittees or the security of the property of such persons. The Declarant and Commercial Owner disclaim all responsibility to ensure the security and safety of persons and property, within the Residential Project and no person shall be entitled to rely upon the presence of any security or access control devices within the Residential Project as a guarantee of safety, and security. (h) Deliveries. All delivery services. including, but not limited to. those of packages, overnight mail, take-out food. floral deliveries and similar types of deliveries. delivering items to the Units are required to enter and exit the Units and Residential Project in accordance with Association policy, the Residential and Commercial Rules in effect from time to time. (1) Large Deliveries/Moving Procedures. When delivering or moving large items to and from the Residential Project. such as furniture, the Association shall designate the ingress and egress locations for such deliveries from time to time. (j) Minimum Heating. The Units must be heated as necessary to maintain a minimum temperature of>j degrees Fahrenheit from October 1 through May 30 ever,year. (k) Pets. No animals, livestock. insects. rodents, poultry, reptiles, birds or other pets may be kept within the Units or Common Elements; except for usual and ordinary domestic household pets (e.g.. a dog, cat. small bird kept in a cage or a sunilar pet). No pet Mal- be kept. bred or maintained for any commercial purpose. No pet may be kept or maintained on i� any patios or balconies unattended. If a pet becomes obnoxious to the Commercial Owner, its tenants or their respective Permittees, the Unit Owner or the person having control over the animal will be given a written notice to correct the problem. If such problem is not corrected, the Owner. upon written notice from the Commercial Owner, may be required to remove the animal from the Residential Project. The Owner. Owner's tenants or Permittees having control over the pet are responsible for cleaning up after the pet and will hold the Residential Owner harmless from any liability, claim, damage. cost or expense resulting from any action of their pet. At any time a pet is outside the Residential Project, it must be accompanied by its owner and on a leash and otherwise under the control of its owner. The Commercial Rules and Residential Rules shall further describe pet restrictions, including, but not limited to, designated areas within the Residential Project and Commercial Project for pet exercise and circulation. (1) Doors. The Unit Owner. its tenants. and Permittees may not change the lock on any door forming the boundary between the Residential Project and the Commercial Project. The Owner.. its tenants, and respective Permittees may not change any door forming the boundary between the Residential Project and the Commercial Project, nor the lock, lock plate, or number signage on any such door. No additional locks may be affixed to doors forming the boundary between the Residential Project and Commercial Project. No decorations of any kind may be placed on or around any door forming the boundary between the Residential Project and Commercial Project, including, without limitation; doormats, welcome mats, wreaths or other decorations. (m) Window Coverings. Each Owner shall maintain. repair and replace.. at such Owner's sole cost and expense, window coverings in accordance with the Residential Rules. as adopted and amended from time to time. (n) Windovvs and Glass Doors. No windows or glass doors within the Residential Project may have any reflective or tinted substance placed on them. No unsightly materials may be placed on any window or glass door or be visible through such window or glass door. (o) Signs and Flags. No suns, flags, banners, pennants or similar items may be displayed to the public view on or from the Residential Project or the Terraces unless political or of patriotic expression in nature without the Commercial Owner's prior written approval, which may be granted, denied or conditioned in the sole and absolute discretion of the Commercial Owner. (p) Refuse Removal. All rubbish.. garbage and debris will be regularly removed from and will not be allowed to accumulate in, on or about the Residential Project. All trash. garbage and other debris generated in the Residential Project will be kept in samtan7 containers and will be disposed of by the Owners in accordance with the normal practices and procedures of and in places designated by the Commercial Rules and Residential Rules. as the same may change from time to time. (q) Use of Patios and Balconies (or "Terraces"). (1) No Attachment or improvement: Satellite Dishes. In addition to the other provisions of this Section 4(r), which also apply to the Terraces. the O-vNners. their tenants. and respective Permittees may not install attach or otherwise affix any item (including satellite dishes) to or on the exterior of the Residential Project or on any railing: provided; however, that satellites. cables and dishes related thereto may be installed subject to applicable law. The Declarant (and thereafter. the Association) may provide a central satellite dish(es) on the roof of the Residential Project, to be purchased, maintained, repaired and replaced at the Declarant's (and thereafter, the Association's) sole cost and expense unless otherwise dictated by Federal law. (ii) Furniture: Personal Property. Except as provided for below, the Owners, their tenants, and respective Permittees may not store any bicycles, skis, recreational equipment or gear or other personal property of any nature on any patios or balconies. No unsightly outdoor or patio furniture may be placed on any patios or balconies except outdoor or patio furniture. (iii) No Barbecue Grills. No propane gas, charcoal grills, barbecue grills or other cooking devices may be used or stored on the patios and balconies. (iv) No Hot Tubs. No hot tubs, spas or similar devices may be placed, installed or otherwise used on the patios and balconies due to structural and size limitations. (v) No Decorations. No holiday lights, decorations, or wind chimes may be placed on the patios and balconies. (vi) No Laundry. Laundry. linens, clothing,. bathing suits or swimwear. curtains, rugs, mops or clothes lines of an y kind may not be shaken or hung from any of the patios and balconies. (vii) Landscaping. No landscaping or plant materials may be installed on any of the patios and balconies, other than in portable containers that are not affixed to any element of the patios and balconies or Common Elements. No landscaping or plant materials will be allowed to hang over the railing or edge of any of the patios and balconies. Hose bibs, if any. on the patios and balconies. used for the purpose of watering any landscaping or plant materials located on the patios and balconies. must be equipped with automatic timers or hoses attached to nozzles with spring-loaded handles that must be used to ensure that other areas of the Common Elements and the Residential Project are not threatened by overflowing water from such watering. No hoses or other equipment may be attached to any such hose bib except from June through September each year. This Section shall not apply to areas designated as "GCE" on the Map. (viii) Music. No television, radio or music may be played and no speakers may be installed or used on any of the patios and balconies. 17 (ix) Fireplaces. Fireplaces located in the Units may not be used for burning of any wood or other solid fuel. except and unless otherwise permitted by the Cit<. (r) Stereos and Home Theater Systems. No stereo speaker or home theater speaker may be installed within the Units in a manner that results in the speaker penetrating any wall, ceiling or floor that is part of the Common Elements or Residential Structure. In addition, no stereo speaker or home theater speaker maN be operated within the Units in a manner in which sounds are heard or vibrations are felt outside of the Units. No speakers may be installed or used on any of the patios and balconies attached to the Units. (s) Bicycles. No bicycles. tricycles, skateboards, roller blades. or other types of wheeled. non-motorized vehicles or equipment may be left unattended in any public area within the Residential Project or Commercial Project by the Residential Owner(s). (t) Real Estate Sales. In no event may any for-sale sign be placed in any window within the Residential Project or on any of the patios and balconies. 4.5 Residential Rules. In addition to the restrictions, conditions and covenants in this .Article 4 concerning the use of the Residential Project, the Board from time to time may promulgate and amend reasonable Residential Rules not in conflict with the Shared Facilities Agreement, Commercial Rules.. the Act, this Declaration or the Bylaws. 4.6 Indemnity. Subject to Section 11.41 each Owner will be liable to and will protect, defend, indemnify and hold harmless the Association and the other Owners from and against any and all damages; claims, demands. liens (including, without limitation. mechanics' and materialmen's liens and claims), losses, costs and expenses (including, without limitation, reasonable attorneys' fees, court costs and other expenses of litigation) and liabilities of any kind or nature whatsoever (collectively referred to as "Indemnity Claims") suffered or incurred by. or threatened or asserted against, the Association or any other Owner as a result of or in connection with (a) the willful misconduct, negligence or breach of the Shared Facilities Agreement, Rules. the Act. this Declaration; the Bylaws or the Residential Rules by the indemnifying Owner or its Permittees, (b) any repair.. restoration, alteration or other construction. demolition, installation or removal work on or about the Residential Project contracted for, or performed by, the indemnifying Owner or its Permittees; or (c) the operation. use. ownership or maintenance of the indemnifying Ow'ner's Unit by the indemnifying Owner or its Permittees. The indemnifying Owner will pay for all Indemnity Claims suffered or incurred by the Association for which the indemnifying Owner is responsible promptly upon receipt of a demand for payment from the Association. The amount of the Indemnity Claims will constitute Special Assessments against the indemnifying Owner's Unit. If the indemnifying Owner fails to make such payment within 30 days after receipt of the Association's demand for it. the Association may take whatever lawful action it deems necessary to collect the payment including. without limitation. foreclosing its lien or instituting an action at law or in equity. Nothing in this Declaration relieves any Perrnittee from liability for its own acts or omissions. Nothing contained in this Section 4.6 will be construed to provide for any indemnification which violates applicable laws. voids any or all of the provisions of this Section 4.6 or negates, abridges. eliminates or otherwise reduces any other indemnification or right which the Association or the Owners have 'c'y law. is 4.7 Provisions Run with Property. Each Condominium. Owner. Permittee and Securin" Holder are subject to all provisions of this Declaration and those provisions are covenants running with the land or equitable servitudes, as the case may be. and bind every Person having any interest in the Residential Project and inure to the benefit of every Owner. 4.8 Enforcement. (a) This Declaration and the Bylaws constitute a general scheme benefiting each unit and the Residential Project as a whole and may be enforced by Declarant. the Association or an aggrieved Owner. A violation of any of the provisions of this Declaration causes irreparable damage to the Residential Project. Therefore. subject to the terms and conditions of this Section 4.8 and except as otherwise expressly provided elsewhere in this Declaration; Declarant; the Association and any aggrieved Owner may prosecute a proceeding at law or in equity against any Person violating or attempting to violate the provisions of this Declaration or the Bylaws; including, without limitation; an action for a temporary restraining order, preliminary injunction and permanent injunction. (b) The Association may recover from any Person violating or attempting to violate any provision of this Declaration or the Bylaws reasonable attorneys' fees and other legal costs incurred by the Association in successfully enforcing the provision, regardless of whether suit is initiated. If the Person is an Owner, the amount of the fees and costs constitute a lien against the Owner's Unit which may be foreclosed in accordance with Section 9.5. In addition, if any Owner fails to comply with the Shared Facilities Agreement, Residential Rules, this Declaration, the Bylaws or the Commercial Rules, the Association may (i) temporarily suspend the Owner's right to use or enjoy any of the Common Elements, (ii) impose monetary penalties, and (iii) impose other appropriate measures; provided, however; that before imposing any of those measures (other than late charges. interest and reasonable collection costs relating to delinquent payments); the Board will promulgate Residential Rules relating to those measures including provisions affording a defaulting Owner notice of the claimed default and an opportunity to be heard by the Board prior to the imposition of the disciplinary measure. (c) Before an aggrieved Owner may prosecute any proceeding at law or in equity enforcing the provisions of this Declaration or seeking other relief relating to a violation or attempted violation of the provisions of this Declaration, the Owner will first give written notice to the Board specifi,ing the violation or attempted violation of the provisions of this Declaration; the facts and circumstances surrounding the violation. and the name of the Person alleged to have violated or attempted to violate the provisions of this Declaration. The Board may initiate a proceeding at law or in equity to enforce the provisions of this Declaration, to prevent a violation or to obtain damages for damage to the Common Elements resulting from the violation. or may otherwise enforce the provisions of this Declaration. The aggrieved Owner may exercise any of its rights under Section 4.8(a) if(i) the violation or attempted violation results or would result in direct and immediate physical damage to the Owner's Unit, or (ii) the Association fails to enforce or cause enforcement of the violated provisions of this Declaration within 60 day_ s after the Board receives the Owner's notice. " 9 Article 5 OPERATION, MAINTENANCE AND REPAIR 5.1 Association's Duties. Subject to the provisions of Article 12 and Article 13, the Association has the following rights and responsibilities with respect to the operation,. maintenance and repair of the Residential Project: (a) Maintenance of Common Elements. Except to the extent otherwise provided in Section 5.2, the Association will maintain, repair, replace and restore the Common Elements, and the costs to do so will be included in Common Expenses. except to the extent paid by insurance or condemnation proceeds or by Owners as set forth herein. The Association may not alter. repair.. replace. or maintain the exterior of the Building or any other portion of the Building that is not a part of the Residential Project. (b) Election to Perform Owners' Duties. The Association may elect to maintain, repair, replace or restore any Unit or Limited Common Element, or portion of either of them, that an Owner is required to maintain, repair, replace or restore pursuant to Section 5.2 if: (1) the Owner has failed, for more than 30 days after notice from the Association, to maintain, repair, replace or restore its Unit or Limited Common Element as required under this Declaration: and (ii) the failure adversely affects the appearance of the Unit or Limited Common Element when N iewed from any area outside the Unit or Limited Common Element, or impairs the structural integrity or building systems of any portion o-the Residential Project, or has an adverse effect on the use of another Unit or Common Element for its permitted and intended use. If; however, the required maintenance, repair, replacement or restoration cannot be cured because of its nature or scope within the 30-day period, the Association may not perform the repair, maintenance, replacement or restoration so long as such Owner commences performance of its obligations within the 30-day period and diligently completes it. The Owner will pay all costs incurred by the Association in accordance with this Section 5.1(b) upon receiving the Association's demand for payment. If the Owner fails to make the payment within 30 days of receiving a demand for it. the Association may take whatever lawful action it deems necessary to collect the payment including, without limitation, foreclosing its lien or instituting an action at law or in equity. 5.2 Owners' Duties. Subject to the provisions of Article 12 and Article 13. each Owner will at its expense (1) maintain at all times in good and clean condition, and perform all required repairs, replacements or restorations of its Unit. and any, Residential Service Elements allocated exclusively to the Owner's Unit as a Limited Common Element: (ii) clean and keep in a sanitary condition any patio or balcony on the outside of its Unit; (iii) perform its responsibilities in a manner that does not unreasonably disturb other Owners or their Permittees; and (iv) promptly report to the Association any defect or need for repairs for which the Association is responsible. No Owner. its tenants or Permittees may alter, repair, replace, or maintain the exterior of the Building or any other portion of the Building that is not a part of the Residential Project. 5.3 Maintenance Standard. For the benefit of all Owners. each Owner and the Association v7ill perform their respective maintenance and repair obligations under Sections 5.1 and 52 in a manner consistent with properties located in the City. 20 Article 6 THE ASSOCLATION AND BOARD 6.1 Formation of the Association: Membership. The Association will be formed no later than the date the first Unit is conveyed to an Owner other than Declarant. Each Owner is a member of the Association as soon and for so long as it is an Owner. Following a termination of the Residential Project, the members of the Association will consist of all Owners entitled to share in the distribution of proceeds of a sale of the Residential Project. Membership in the Association automatically terminates when a Person ceases to be an Owner. whether through sale, intestate succession, testamentary disposition, foreclosure or otherwise, and the new Owner automatically succeeds to that membership in the Association. The Association will recognize a new member upon presentation by a new Owner of satisfactory evidence of the sale, transfer, succession, disposition, foreclosure or other transfer of a Unit. Membership in the Association may not be transferred, pledged or alienated in anv way, except to the new Owner upon conveyance of a Unit. Any prohibited transfer is void and will not be recognized by the Association. 6.2 Powers. The Association will serve as the governing body for the Residential Project and has the responsibilities set forth in this Declaration and the Bylaws. Each Owner, by taking title to a Unit, hereby appoints the Association its duly authorized representative and grants to the Association, acting through its officers under the authority of the Board (as created and described in the Bylaws for the Association), an irrevocable power of attorney, coupled with an interest, to exercise the rights of the "Residential Owner" under the Shared Facilities Agreement on its behalf, except as otherwise provided therein. In addition, the Association, acting by and through its Board may, but shall not be obligated to: (a) adopt and amend the Bylaws and Residential Rules,provided that the Bylaws and Residential Rules will not be inconsistent with the Shared Facilities Agreement, Residential Rules. this Declaration or the Act: (b) adopt and amend budgets for revenues, expenditures and reserves and assess and collect any Assessments and an 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 other provisions of this Declaration, institute, defend or intervene in litigation or administrative proceedings in its own name only on behalf of itself on matters affecting the Residential Project; (e) make contracts and incur liabilities; (f) borrow funds to cover Association expenditures and pledge Association assets as securit-s- therefor, provided that Common Elements may be subjected to a security interest only pursuant to Section 18.2; (g) regulate the use. maintenance, repair, replacement and modification of the Common Eler_rients, �1 (h) acquire.. hold, encumber and convey in its own name anv right.. title or interest to real or personal property (including, without limitation; one or more Condominiums); 'Provided that Common Elements may be conveyed or subjected to a security interest only pursuant to Section 18.2; (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 this Declaration, the Bylaws, Commercial Rules or Residential Rules: (j) impose reasonable charges for the preparation and recording of amendments to this Declaration or statements of unpaid Assessments; (k) provide for the indemnification of its officers and members of the Board and maintain directors' and officers' liability insurance, (1) assign its right to future income. including the right to receive Assessments so long as the Association will continue to have sufficient revenue to meet its maintenance obligations under this Declaration; (m) exercise any other powers conferred by this Declaration or the Bylaws; and (n) exercise any other powers necessary and proper for the governance and operation of the Association in accordance with the Act. This Declaration may not impose any limitations on the powers of the Association to deal with Declarant which are more restrictive than the limitations imposed on the power of the Association to deal with any other Person. 6.3 Budget. (a) Preparation of Budget. The Board will cause a proposed budget for the Association to be prepared and adopted annually.. not less than 30 days prior to the beginning of each Fiscal Year of the Association. in accordance with the terms and conditions set forth in the Shared Facilities Agreement insofar as Shared Expenses and otherwise as set forth herein (except that, for the first Fiscal Year of the Association. the Board may adopt the estimated budget prepared by Declarant). The proposed budget will include all of the following: (1) the estimated revenue and expenses (including, without limitation, Common Expenses) of the Association for the subject Fiscal Year. in reasonable detail as to the various categories of revenue and expense; (ii) the current cash balance in the Association's reserve fund for the major repair or replacement of Common Elements. the Association's equipment, furniture and other personal propem° and for contingencies (including, without limitation. the amount of the deductible under the Association's propem, insurance policy). which fund will be established and maintained by the Board (the "Reserve Fund")- (iii) an estimate of the amount required to be spent during the subject Fiscal Year from the Reserve Fund for the major repair or replacement of Common Elements or the Association's equipment, furniture or other personal property- and (iv) a statement of the amount required to be added to the Reserve Fund during the subject Fiscal Year to cover anticipated withdrawals and adequately address contingencies and anticipated needs in future Fiscal Years. (b) Ratification of Budget. 'W'ithin 90 days after the Board adopts any proposed budget for the Association. the Board will mail. by ordinary first-class mail. or otherwise deliver a summary of the proposed budget to all Owners and will set a date for a meeting of the Owners to consider ratification of the proposed budget. Such meeting will occur within a reasonable time after mailing or other delivery of the summary. The Board will give notice to the Owners of such meeting as provided for in the Bvlaws. The budget proposed by the Board does not require approval of the Owners and will be deemed approved by the Owners in the absence of a veto at such noticed meeting of Owners representing 80% of all the Units.. whether or not a quorum is present. In the event that the proposed budget is vetoed, the periodic budget last proposed by the Board and not vetoed by the Owners will continue in effect until such time as a subsequent budget proposed by the Board is not vetoed by the Owners. For the first Fiscal Year of the Association, the Board may adopt Declarant's estimated budget for the Association and assess General Assessments pursuant to Section 9-.1(a) of this Declaration based on it if the Board submits such budget to the Owners for ratification in accordance with this Section 6.3(b) within 60 days after adopting it. 6.4 No Master Association: No Delegation of Powers. In no event shall the Association be deemed a "Master Association" under the Act. nor shall the Commercial Owner be deemed a "Master Association" under the Act to which some or all of the Association's powers may be delegated. In furtherance thereof, in no event may the Association delegate any of its powers to the Commercial Owner except as otherwise provided in the Shared Facilities Agreement. Article 7 [INTENTIONALLY OMITTED] Article 8 MOLD DISCLOSURE & WAIVER Mold, mildew, fungi, bacteria and microbiologic organisms (collective)y. "Mold") are present in soil. air and elsewhere in the environment. Mold can proliferate in various environments. including, among others, damp areas such as bathrooms and within walls and partitions. Certain parties have expressed concerns about the possible adverse effects on human health from exposure to Mold. Due to various reasons; including the varying sensitivities of different individuals to various t<rnes of Mold and other contaminants. as of the date of this 23 Declaration, no state or federal standards regarding acceptable levels of exposure to Mold exist. According to the Consumer Product Safety Commission and the American Lung Association; some diseases or illnesses have been linked with biological pollutants in the indoor environment.. including some forms of Mold. However, it is believed that many of these conditions may also have causes unrelated to the indoor environment. Therefore, as of the date of this Declaration, it is unknown how many potential health problems relate primarily or exclusively to indoor air qualin� or Mold. Each Owner, by taking title to a Unit, is advised that Declarant and the Association are not qualified and have not undertaken to evaluate all aspects of this very complex issue. Each Owner, by taking title to a Unit, acknowledges that Declarant and/or the Association have not performed any testing or evaluation of. and make no representations or warranties. express or implied, concerning, the past; current or future presence or absence of Mold in the Unit. in anv Common Elements in the vicinity of the Unit. in any other Common Elements within the Residential Project or in the vicinity of the Residential Project, or in the Commercial Project. Declarant and the Association recommend that each Owner, at the Owner's expense, conduct its own investigation and consult with such experts as the Owner deems appropriate regarding the occurrence and effects of Mold, the potential sensitivity or special risk the Owner. his or her family members. and other individuals who will occupy or use the Unit or any Common Elements in the vicinity of the Unit, may have with respect to Mold, and methods to reduce or limit Mold within the Unit or any Common Elements in the vicinity of the Unit. When excessive moisture or water accumulates indoors, Mold growth can and will occur, particularly if the moisture problem remains unaddressed. There is no practical way to eliminate all Mold in an indoor environment. The key to controlling indoor Mold growth is to control moisture. Each Owner, by taking title to a Unit, agrees to maintain the Unit and the Common Elements in the vicinity of the Unit in such a manner as to reduce the potential for increased Mold formation or growth, including, without limitation, keeping dryer and other vents and/or fans clear and functioning, and preventing and repairing plumbing, window and other leaks and sources of moisture. Each Owner. by taking title to a Unit, agrees to make periodic inspections of the Unit. the Common Elements in the vicinity of the Unit, and those portions of the Commercial Project abutting the Unit, for the presence of Mold or conditions which may increase the ability of Mold to propagate within the Unit. within any Common Elements in the vicinity of the Unit, or within those portions of the Commercial Project abutting the Unit, and to monitor the Unit. any Common Elements in the vicinity of the Unit, and those portions of the Commercial Project abutting the Unit, on a continual basis for excessive moisture. water or Mold accumulation. If water or moisture is discovered in or around the Unit, any Common Elements in the vicinity of the Unit. or those portions of the Commercial Project abutting the Unit. the Owner, by taking title to a Unit agrees to immediately seek to eliminate the source of the water or moisture. Failure to eliminate the source of moisture can result in additional damage and the growth of Mold. Declarant will not be responsible for damages, and each Owner, by taking title to a Unit, hereby waives all rights to damages and subrogation of damages. Each Owner, by taking title to a Unit. agrees to indemnify Declarant. the Association. and the Commercial Owner. and hold Declarant. the Association, and the Commercial_ Owner harmless from darnages. including in all cases personal injure- or property- damage. caused by the presence of Mold and/or water or moisture in the Unit or other portions of the Residential Project or the Commercial Project to the extent that the damages are caused by: (1) the Ov,-Ller's negligence or "G failure to properly maintain and monitor the Unit, an-, Common Element in the vicinity of the Unit: or those portions of the Commercial Project abutting the Unit-. or (ii) the Owner's failure to promptly take appropriate corrective measures and minimize any damage caused by water or moisture (including, without limitation, failure to promptly notify and engage the help of appropriate professionals or experts). Article 9 ASSESSMENTS 9.1 General Assessments. Each Unit is subject to assessments for the Unit's Common Allocation of all Common Expenses (the "General Assessments"). General Assessments will commence not later than 60 days after the conveyance of the first Condominium to an Owner other than Declarant. General Assessments will be calculated, paid, adjusted and reconciled in accordance with the following provisions: (a) Budget and Payment. The Board will assess General Assessments against each Unit based on the budget adopted by the Board and ratified by the Owners pursuant to Section 6.3. Each Owner is obligated to pay the Association the General Assessments made against such Owner's Unit, and the payment will be due in equal quarterly installments on or before the first day of each month of each Fiscal Year or in another reasonable manner designated by the Board. The Board's failure to fix the General Assessments prior to the commencement of any Fiscal Year will not be deemed a waiver or modification of any of the provisions of this Declaration or a release of any Owner from its obligation to pay the General Assessments or any installment of them for that Fiscal Year, but the General Assessments fixed for the preceding Fiscal Year will continue until the Board fixes the new General Assessments. (b) Adjustment. If, during any Fiscal Year, the Board determines that the estimated expenses or revenues of the Association, as set forth in the budget upon which the General Assessments were based, are in error for any reason (including, without limitation, nonpayment by any Owner of its General Assessments), then, to the extent the Board estimates that payments of General Assessments during the balance of the Fiscal Year will be inadequate or more than required to meet the Association's obligations intended to be covered by such General Assessments, the Board may amend the budget and increase or decrease the General Assessments for the balance of such Fiscal Year by giving not less than 30 days' prior notice to all Owners. Notwithstanding the previous sentence, however, if anv amendments individually or in aggregate with all previous amendments in any Fiscal Year would increase the total General Assessments for a Fiscal Year by more than 10% of the General Assessments called for by the budget previously ratified by the Owners pursuant to Section 6.37 then the Board will submit the amendment for ratification by the Owners pursuant to Section 6.3 before increasing the General Assessments based on the amendment. Without limiting the generalin7 of the foregoing, the Declarant may. in its sole discretion, install submeters as part of the Residential Service Elements to measure the amount of water and/or any other utility 7 service consumed in each Unit and the Board shall charge each Unit an amount equal to its proportionate share of water and/or any other uti'tity service costs incurred by the Association based upon readings of the submeters. (c) Reconciliation. As soon as reasonably possible after the end of each Fiscal Year, the Board will reconcile the actual costs and expenses incurred by the Association during that Fiscal Year against the General Assessments that the Association received and intended to cover the costs and expenses. To the extent that any Owner has paid more than its proper share of the costs and expenses. the Board may either (1) refund the overpayment to the Owner; (ii) credit the overpayment against the Owner's General Assessments for the next Fiscal Year, or (iii) deposit the overpayment into the Reserve Fund if overpayments were received from all Owners in proportion to each Owner's Common Allocation. To the extent any Owner has underpaid its share of the costs and expenses. the Board may either (A) demand in writing that the Owner pay the amount of the underpayment of General .Assessments to the Association within a time period specifled by the Board. but not less than 30 days after the Board gives its demand to the Owner; or (B) include the underpayment in the Owner's General Assessments for the next Fiscal Year. 9.2 Special Assessments. The Association may leery from time to time one or more special assessments ("Special Assessments") for the purpose of defraying in whole or in part the cost of any construction, restoration, unexpected repair or replacement of a capital improvement. making any "Capital Payment" required under the Shared Facilities Agreement, or for carrying out the other responsibilities of the Association in accordance with this Declaration. Each Special Assessment will be allocated among the Units in accordance with the provisions of Sections 9.2(a) through 9.2(e). Each Owner will pay all Special Assessments assessed against the Owner's Unit. Special Assessments will be paid at the time(s) and in the manner (for example, by lump sum payment or in installments) reasonably determined by the Board. The Board may require that Special Assessments be paid before the subject services or materials are provided. (a) General Benefit Expenses. If the Association incurs any costs or expenses that benefit all Units ("General Benefit Expenses"), then the Board, in its discretion, will assess the General Benefit Expenses as a Special Assessment against each Unit in an amount equal to the General Benefit Expense times such Unit's Common Allocation. The Board may assess Special Assessments for General Benefit Expenses without the approval of the Owners. (b) Limited Benefit Expenses. If the Association incurs any costs or expenses that solely benefit one or more Units but less than all Units (such as.. for example, the costs of repairing a utility line that serves only one or two Units but no others) ("Limited Benefit Expenses"), then the Board, in its reasonable discretion, will assess the Limited Benefit Expenses as a Special Assessment against the Unit or Units benefited bv such Limited Benefit Expenses as follows: any Limited Benefit Expenses incurred for the benefit of only one Unit will be assessed solely to that Unit; and any Limited Benefit Expenses incurred for the benefit of two or more Units will, unless the Owners of all benefited Units otherwise agree to a different proportion, be assessed against each benefited Unit in proportion to the ratio of the Unit's Common Allocation to the sum of the Common Allocations of all benefited Units. The Board may assess Special Assessments for Limited Benefit Expenses without the approval of the Owners. (c) Reimbursable Ex ep nses. If the Association incurs amy costs or expenses as a result o or in connection with (i) an increase in any insurance premium for which an Owner is responsible herein; (ii) subject to Section 11.4 the willful misconduct or negligence or violation 2,15 of anv law. this Declaration. the Bvlaws or the Residential Rules by an Owner or its Permittees; or (iii) subject to Sections 4.8 and 5.1(b), bringing an Owner or the Owner's Unit into compliance with the provisions of this Declaration (including, without limitation, Section 4.4) or any other document governing the Residential Project: then, in each such event. the Board will assess the costs and expenses ("Reimbursable Expenses") as a Special Assessment against the Owner's Unit. The Board may assess Special Assessments for Reimbursable Expenses without the approval of the Owners. (d) Restoration Deficit. If following anv damage, destruction or Taking of the Common Elements. or any portion of them, the total costs of performinc anv restoration of the Common Elements required by this Declaration or the Act exceeds the amount of the insurance proceeds; condemnation award or other funds available for the cost of restoration (such as funds in the Reserve Fund), then the Board may assess Special Assessments to cover the deficit (a "Restoration Deficit"). The Board will assess against each Unit its Common Allocation of the Special Assessments for a Restoration Deficit. The Board may assess Special Assessments for a Restoration Deficit without the approval of the Owners. (e) Voluntary Capital Expenses. Provided the requisite number of Owners petition the Board as provided below, the Board may make Special Assessments for the purpose of paying Voluntary Capital Expenses. "Voluntary Capital Expenses" may include any costs and expenses of any capital improvement to the Common Elements, including all design; construction and associated financing costs, except for (1) costs incurred in order to reduce Common Expenses (which costs will be included in Common Expenses); (ii) costs required to be incurred to cause the Residential Project to comply with applicable law (which costs will be included in Common Expenses), and (iii) costs that constitute all or any part of a Restoration Deficit. Any petition before the Association (or Owners) to make a Special Assessment for Voluntary Capital Expenses must include provisions describing in detail the proposed improvements to be made and whether all of the Units, or one or more but less than all of the Units, will be subject to the Special Assessment. If less than all of the Units will be subject to such Special Assessment, the proposal will also include provisions describing which Units will be subject to such Special Assessment and the manner in which the total amount of the Special Assessment will be allocated among the Units subject to it. In order to approve any Special Assessment for Voluntary Capital Expenses, the Board must be presented with a petition signed by owners representing (_A) 67% of the votes in the Association if all of the Units will be subject to the Special Assessment; or (B) 100% of the votes in the Association that are allocated to the Units that will be subject to the Special Assessment if less than all of the Units will be subject to the Special Assessment. If the petition presented to the Board contains the requisite number of signatures, the Board will (subject to any approval right it has over the design of such proposed improvements pursuant to this Declaration) assess the total amount of a Special Assessment for Voluntary Capital Expenses against (1) all of the Units, if all of the Units are subject to the Special Assessment pursuant to the approved proposal, by allocating to each Unit. its Common .Allocation of the total amount; or (2) the Units subject to the Special Assessment (if less than all) pursuant to the approved petition, by allocating to each the portion of the Special Assessment specified in the approved petition. In no event will Owners be responsible for anN: Commercial Capital Project costs and expenses. 9.3 Working Capital Fund. To provide the Association with sufficient working capital to cover the cost of unforeseen expenditures or to purchase any additional equipment or services, an initial "Working Capital Fund" will be established in an amount equal to three months worth of General Assessments per Unit. For each Unit, the contribution to the 'Working Capital Fund is due on the closing of the sale of the Unit to an Owner other than Declarant. Such contributions will be made by the Owner that purchases the Unit from Declarant or subsequent seller at the closing of the Owner's purchase of its Unit. Amounts contributed to the Working Capital Fund do not constitute advance payments of General Assessments and are not refundable. 9.4 Pavment of Assessments. Each Owner will pay all General Assessments; and Special Assessments (collectively, "Assessments") assessed against such Owner's Unit by the Board in accordance with the terms of this Declaration. Each Assessment is a separate, distinct and personal debt and obligation of the Owner against whose Unit the Assessment is assessed. All Assessments are payable in full without offset for any reason whatsoever. Each Owner's obligation to pay Assessments is entirely independent of any obligation of the Association to the Owner or of Declarant or any other Owner to that Owner. Any Assessment or installment of an Assessment not paid within 15 days after it becomes due is delinquent. If an Assessment or installment of an Assessment is delinquent. the Association may recover all of the following (collectively, the "Delinquency Costs"): (a) interest from the date due at the rate established from time to time by the Board (but not to exceed 21% per year); (b) late charges and other monetary penalties imposed by the Association pursuant to this Declaration and the Act; and (c) all collection and enforcement costs, including reasonable attorneys' fees., incurred by the Association. 9.5 Enforcement of Assessments. If any installment of an Assessment which is payable in installments is delinquent, the Board may, upon notice to the delinquent Owner, accelerate the entire Assessment, whereupon the full amount of such Assessment due from such Owner shall be immediately due and payable. The amount of any delinquent Assessments (including any installments whose due dates are accelerated by the Board pursuant to this Section 9.5) and associated Delinquency Costs may be enforced against the Owner liable for them in either or both of the following ways (to the extent permitted by law or regulation), at the option of the Board: (a) Suit. The Association may bring a suit or suits at law to enforce the Owner's obligation to pay a delinquent Assessment (including any installments whose due dates are accelerated by the Board pursuant to Section 9.5) and associated Delinquency Costs. Each action will be brought in the name of the Association. Any judgment rendered in the action in favor of the Association will include a sum for reasonable attorneys' fees and costs incurred by the Association in bringing the action against the defaulting Owner. Upon full satisfaction of the jud�a-nent, the Association, by one of its officers, will execute and deliver to the judgment debtor ar, appropriate satisfaction of the judgment. (b) Lien and Foreclosure. Assessments (including any installments whose due dates are accelerated by the Board pursuant to this Section 9.5) and associated Delinquency Costs constitute a lien on the Units against which they are assessed from the date due. The lien is subject to the provisions of Section 16 of the Act. If an Assessment is delinquent. if the 28 Association gives a notice concerning the delinquency that substantially complies with the provisions of Section 9.5, and if the delinquent Assessment is not paid in full by the due date specified in the notice. then the Association may foreclose the lien securing the Assessment, any installments whose due dates are accelerated by the Board pursuant to Section 9.5, and any associated Delinquency Costs in accordance with the laws of the State of Colorado, subject, however, to the protection afforded First Mortgagees pursuant to Sections 183(b). 9.6 Disputes and Records. Any Owner or an Owner's authorized representative may, inspect the books and records of the Association during business hours upon reasonable prior notice. If an Owner disputes the amount of any Assessment against its Unit and is unable to resolve the issue through an inspection of the Association's books and records. the Owner will pay in a timely manner the full amount of the disputed Assessment until; if ever, it is finally determined that the amount is incorrect (in which case the Association will promptly refund any overpayment). If the Owner fails to pay the disputed Assessment while the dispute is pending, the Association may immediately pursue any of its remedies for the failure (including, without limitation, suit against the Owner and/or foreclosure of its Unit) and the pendency of the dispute resolution proceeding is not a bar or defense to any actions b-, the Association. 9.7 Owners not Exempt from Liability. No Owner is exempt from liability for payment of Assessments by waiver of the use or enjoyment of any of the Common Elements, by abandonment of its Unit, or otherwise. 9.8 Declarant's Responsibility for Assessments. Until the Association levies Assessments, Declarant will pay the Association's costs and expenses. After Assessments commence as provided in Section 9.1 Declarant's obligations for Assessments may be satisfied in the form of cash or by "in kind" contributions of services or materials to the Association, or by any combination of these. Article 10 ALTERATIONS 10.1 Permitted Unit Alterations. An Owner may, subject to the terms and provisions of this Article 10, construct an alteration or improvement to its Unit (specifically excluding any alteration or improvement to the Patios and balconies) (a "Permitted Unit Alteration") that: (a) does not, either during construction or after completion. impair the structural stability,,, or building systems of. including, without limitation, any acoustical separation assemblies or other components designated to mitigate the transmission of sound through walls and other physical separations, or diminish the support of any portion of the Commercial Structure or impair the Shared Service Elements: (b) does not, during construction, substantially and unreasonably impair the use of any Common Element by an-,- Owner or Perm-11tee entitled to use that Common Element: (c) does not, during construction. substantially- and unreasonably impair the use of any portion cf trie Commercial_ Project or otherwise adversely affect the Commercial Project: (d) does not, construction. change the appearance of or otherwise adversely affect the Common Elements: (e) does not, completion, change the appearance of or otherwise adversely affect the Common Elements: (f) does not, after completion, affect the appearance of the Residential Project or the Commercial Pr oject. when viewed from anv area outside the altered Unit: (g) does not violate the terms of the Historical Preservation Status applicable to the Residential Project or have any historical designation impact: and (h) does not require any other real or personal property to satisfy any exactions by the City (or other applicable entity exactions) involving the Residential Project other than the internal airspace of such Unit. Any City, or other applicable entity, exactions applicable to the internal airspace of such Unit must be fully satisfied solely by the Owner and the Unit(s) upon which the alteration is performed. At least 30 days prior to the commencement of construction, an Ov,ner intending to perform a Permitted Unit Alteration will provide plans and specifications for the Permitted Unit Alteration to the Board. Any change. addition, alteration or improvement of any Unit that does not constitute a Permitted Unit Alteration is prohibited (unless otherwise permitted pursuant to this Article 10) and may be enjoined by the Association or any aggrieved Owner, subject to the provisions of Section 4.8. All costs and expenses related thereto shall be borne by the applicant Owner; including; but not limited to, any costs and expenses reasonably incurred by the Association resulting from its due diligence related to Owner's architectural, engineering and legal compliance required to comply with this Section. The Association may further adopt reasonable rules and regulations related hereto from time to time. 10.2 Boundary, Relocation. Except as provided in Section 2.5, the Owner(s) of one or more adjoining Unit(s) may make a Boundary Relocation affecting the Unit(s) owned by the Owner(s) in accordance with this Section 10.2. The O-ner(s) of the Unit(s) directly affected by any proposed Boundary Relocation will make an application to the Board for the Boundary Relocation, signed by those Owner(s), which includes the following: (a) plans and specifications for the proposed Boundary Relocation in the level of detail required by the Board showing all walls.. doors and other improvements-that will be demolished or constructed (if any): (b) evidence sufficient to the Board (which evidence may include, if applicable. reports of licensed architects or structural or mechanical engineers) that the proposed Boundary Relocation will comply with the requirements of Sections 10.1(a) through 10.1(h): (c) evidence sufficient to demonstrate to the Board that the proposed Boundary Relocation will comply with all applicable laws (including. without limitation. zoning. subdivision and building codes). and either that the proposed Boundary Relocation will not D0 violate the terms of any Security for an Obligation encumbering the affected Unit(s) or that the respective Security Holder(s) have approved the proposed Boundary Relocation: (d) the proposed reallocation of interests, if any, such as reallocation of Common Allocations, or any other rights or responsibilities allocated among the Units pursuant to this Declaration (which reallocation must be based on the same formulas as set forth in this Declaration for the allocations being changed); (e) a form of proposed amendment to this Declaration (including the Map) sufficient to show the altered boundaries of the affected Unit(s), their dimensions and identifying numbers and the reallocation of interests, if any, proposed pursuant to Section 10.2(d) (f) a deposit against attorneys' fees and costs which the Board may incur in reviewing and effectuating the application, in an amount reasonably estimated by the Board; and (g) other information as the Board may reasonably request. When the Board determines that the submitted application satisfies the requirements of Sections 10.2(a) through 10.2(g), it will consider the proposed application and vote whether to approve it. If the proposed Boundary Relocation and related amendment are approved by the affirmative vote of at least two-thirds of the members of the Board, the Board will cause the amendment to be signed by the president or another authorized officer of the Association, acknowledaed and Recorded. The Owner(s) requesting a Boundary Relocation will pay all costs and expenses incurred by the Board or the Association in connection with the Boundary Relocation, including, but not limited to, surveying and legal costs and expenses. 10.3 Connection of Adjoining Units. (a) Two adjoining Units may be connected without combining those Units into a single Unit, so that each connected Unit will retain its separate identin, identifying number, and Common Allocation (a "Unit Connection"), if the Board approves the Unit Connection in accordance with the following provisions. The Owner of the Units to be connected pursuant to a proposed Unit Connection will make an application to the Board for the Unit Connection, signed by the Owner, which (i) identifies the Units to be connected: (ii) specifies, in such detail as required by the Board, all demolition or construction necessary to create the connecting opening(s) in the wall between the Units to be connected (the "Shared Area")- and (iii) includes any other information reasonably requested by the Board. (b) The Board will approve an application for a Unit Connection if all of the following conditions are satisfied: (1) the Units to be connected by a proposed Unit Connection are owned by the same Owner: (ii) sufficient evidence is presented to the Board that the proposed Unit Connection (A) will comply with all applicable laws (including, without limitation.. zoning and building codes), and (B) either will not violate the teens of anN- Security for an Obligation encurrzberina the Unit(s) or has been approved by the respective Security Holder(s): (iii) the creation of the Shared Area will not impair or adversely- affect (A) the Commercial Structure_ (B) any Easement or right granted pursuant to this Declaration: or (Cj any Common Element. �l other than the wall(s) dividing the Units to be connected, which is or are to be demolished to create the Shared Area; and (iv) the Owner of the Units to be connected agrees to such other conditions imposed by the Board (which may include; without limitation, a requirement that construction and demolition work relating to the proposed Unit Connection be commenced and completed within a reasonable time). (c) if the Board approves an application for a Unit Connection.. then it will concurrently redesignate the Shared Area from a General Common Element to a Limited Common Element. Upon redesigrnation, the Shared Area will be allocated to the two Units connected pursuant to the Unit Connection. Upon approval of a Unit Connection, the Board will cause a statement executed by the president or another authorized officer of the Association to be Recorded that (1) identifies the two Units connected by the Unit Connection; (ii) gives notice that those Units are the subject of an approved Unit Connection pursuant to this Declaration (iii) gives notice that those Units may not be conveyed apart from one another until the Board approves a Unit Disconnection (as defined below in Section 10.4(a)) regarding those Units; and (iv) specifies any conditions imposed by the Board pursuant to Section 10.3(b). From and after the Recording of the statement, the Units described in it may not be conveyed apart from one another and any attempt to do so is void and of no force or effect until the Board approves a Unit Disconnection regarding those Units. The Owner requesting a Unit Connection will pay all costs and expenses incurred by the Board or the Association in connection with the Unit Connection, including, but not limited to, engineering and legal costs and expenses. 10.4 Unit Disconnection. (a) Subject to the provisions of this Section 10.4, the Board may disconnect Units connected pursuant to a Unit Connection (a "Unit Disconnection") if (i) the Owner of the connected Units makes an application requesting that the connected Units be disconnected and satisfies any conditions imposed by the Board regarding the proposed Unit Disconnection; or (ii) the Owner of the connected Units fails to satisfy the conditions imposed by the Board pursuant to Section 10.3(b). An application made pursuant to clause (1) above will be signed by the Owner; identify the Units to be disconnected; specify, in such detail as required by the Board; all demolition or construction necessary to replace the wall dividing the Units to be disconnected that existed between the Units before the creation of the Shared Area: and include any other information reasonably requested by the Board. (b) The Board will approve an application for a Unit Disconnection if all of the following conditions are satisfied: (1) sufficient evidence is presented to the Board that the proposed Unit Disconnection will comply with all applicable laws (including; without limitation. zoning and building codes); (ii) sufficient evidence is presented to the Board either that the proposed Unit Disconnection will not violate the terms of any Security, for an Obligation encumbering the Unit(s) or that the respective Securiry Holder(s) has or have approved the proposed Unit Disconnection: (iii) the replacement of the wall at the Shared Area will not impair or adversely affect (A) the Commercial Structure: (B) any Easement or right granted pursuant to this Declaration; or (C) any Common Element other than the wall dividing the Units to be disconnected w]-hich is or are to be constructed: and (iv) any conditions imposed by the Board concerning the proposed Unit Disconnection. (c) If the Board approves a Unit Disconnection. it will concurrently redesignate the Shared Area of the connected Units from a Limited Common Element to a General Common Element and cause a statement executed by the president or another authorized officer of the Association to be Recorded that (0 identifies the Units to be disconnected by the Unit Disconnection; (ii) gives notice that those Units are no longer the subject of a Unit Connection (and, therefore, may thereafter be conveyed separately); and (iii) specifies any conditions imposed by the Board pursuant to Section 10.4(b) that must be satisfied before the Unit Disconnection is effective. Within the time period specified by the Board (which time period will not exceed 60 days from the date of Board approval of a Unit Disconnection). the Owner of the Units to be disconnected will replace at its cost and expense the wall that existed between the Units before the creation of the Shared Area. The Owner will pay all costs and expenses incurred by the Board or the Association relating to the Unit Disconnection, including, but not limited to. any engineering and legal costs and expenses. 10.5 Construction. Any Owner(s) performing any construction or demolition work relating to a Permitted Unit Alteration, a Boundary Relocation. a Unit Connection or a Unit Disconnection (any of which is referred to in this Section 10.5 as an "Alteration") will comply with the following additional provisions: (a) such Owner(s) will obtain all necessary permits and governmental authorizations for the Alteration; (b) such Owner(s) will comply with the Residential Rules when constructing the Alteration; (c) the Alteration and the construction of it will comply with all applicable zoning and building codes and other applicable laws, ordinances and restrictive covenants. including, but not limited to, compliance with historical designation status preservation restrictions, as evidenced by a final Certificate of Occupancy; (d) prior to commencing any construction, such Owner(s) will provide the Board with evidence sufficient to demonstrate that the insurance required to be maintained by such Owner(s) pursuant to Section 11.2 is in full force and effect and that the contractor performing the work maintains worker's compensation insurance in the amount required by law and contractor's liability insurance with the limits the Board reasonably requires, (e) such Owner(s) will cause the Alteration to be constructed and completed diligently. in a good and workmanlike manner.. and free and clear of all mechanics' and materialmen's liens and other claims or liens: (f) during the construction process. such Owners) will. to the extent consistent with good construction practice. keep the area affected in a safe, neat and clean condition and will coordinate all construction work with the Property Manager of the Residential Project: (g) such Owner(s) will minimize any impact from the construction process on other Units. the Common Elements, and the Commcrcial Project: (h) such Owner(s) will perform the Alteration work, cause the work to be performed, in a manner that maintains harmonious labor relations and does not interfere unreasonably with or delay the work of any other contractors then working anywhere on. the Residential Project or on the Commercial Project: (i) such Owners) will reimburse the Association for all costs incurred by the Association in connection with the Alteration, such as the increase in costs of trash removal due to the performance of the Alteration work and architect and attorney review costs; and 0) such Owner(s) will pay or cause to be paid all costs of design and construction of the Alteration. 10.6 Alteration of Common Elements. (a) Except to the extent permitted in connection with an approved Boundary Relocation, Unit Connection or Unit Disconnection, and except as otherwise provided in Section 5.2. no Owner or Owner's Permittee may construct anything upon, remove anything from, or alter any of the Common Elements, paint, decorate or landscape any portion of the Common Elements. (b) The Association may construct an alteration or improvement to a Common Element (a "Common Alteration") if(1) the Common Alteration does not permanently impair the structural stability or building systems of or lessen the support of any portion of the Residential Project (provided, ho-ever, that any impairment will not be deemed permanent if it is susceptible of being cured and will be cured by the proposed Common Alteration); (ii) the Common Alteration does not have a materially adverse effect; either during construction or upon completion; upon the use of any Unit or Common Element for its permitted purposes (unless the Owner of the affected Unit consents in writing to the Common Alteration); and (iii) the cost of the Common Alteration constitutes a Common Expense and a budget that includes such cost is ratified by the Owners pursuant to Section 63. or the cost of the Common Alteration constitutes a Voluntary Capital Expense and a Special Assessment is approved pursuant to Section 9.2(e). The Association will comply with the provisions of Section 10.5 (except Section 10.5(1)) in constructing any Common Alteration, as if the Association were an Owner. 10.7 Alterations by Declarant. Nothing in this Article 10 restricts or prohibits Declarant from making any alteration or improvement that Declarant has reserved the right to make pursuant to Section 2.8(b) or 2.8(c). The provisions of this Article 10 do not apply to any alteration or improvement made by Declarant pursuant to Section 2.8(b) or 2.8(c). Arficle 11 INSURANCE 11.1 Association's Insurance. The Association has the following responsibilities with respect to insurance and, except as otherwise expressly provided in this Declaration. the cost of all insurance maintained by the Association under this Section 11.1 will be included in Common Expenses. 34 (a) Property Insurance. The Association will obtain and maintain property insurance in amounts, against risks, in compliance with the Shared Facilities Agreement and containing provisions as the Board reasonably determines from time to time. At a minimum. the Association's insurance will insure against all risks of direct physical loss for 100% of the full replacement cost (at the time the insurance is purchased and at the renewal date) or fair market value, whichever is greater, of (1) the Units, but not the finished interior surfaces of the walls, floors and ceilings of the Units or the improvements or betterments installed in the Units: (2) the Common Elements and all fixtures. improvements and alterations situated on or constituting a part of the Common Elements; and (3) any personal property of the Association situated in the Common Elements or used in the operation or maintenance of the Common Elements. The Association's insurance may exclude land, excavations, foundations and other items normally excluded from property policies and may provide for a deductible in an amount not to exceed a reasonable and prudent amount as determined by the Board. The Association's propert-y insurance will be maintained in the name of the Association, for the use and benefit of all Owners, who shall be named as additional insureds, and Security Holders, who may be named as additional insureds, as their interests may appear. To the extent available such property insurance also will (1) contain no provisions by which the insurer may impose a so-called "co- insurance" penalty; (ii) permit a waiver of claims by the Association, and provide for a waiver of subrogation rights by the insurer as to claims, against each Owner and the members of the Owner's household; (iii) be written as a primary policy, not contributing with and not supplemental to any coverage that any Owner carries; (iv) provide that, notwithstanding any provision that gives the insurer an option to restore damage in lieu of making a cash settlement, the option may not be exercised if the proper party(ies) elect(s) not to restore the damage in accordance with the provisions of this Declaration or the Act; (v) provide that no act or omission by any Owner, unless acting within the scope of the Owner's authority on behalf of the Association, voids the policy or is a condition to recovery under the policy,- (N71)provide that it may not be canceled, nor may coverage be reduced, without 30 days prior notice to the Association and all additional insureds named in the policy; and (vii) include so-called "inflation guard," "building ordinance or law" "steam boiler and machinery coverage" endorsements. If, as a result of any improvements or alterations made to or concerning a Unit by its Owner, the premium for the Association's property, insurance policy is increased to an amount exceeding what the premium would have been if the Owner had not made the improvements or alterations, the Board may assess the amount of the increase in premium against the Owner's Condominium as a Reimbursable Expense pursuant to Section 92(c). (b) Liability Insurance. The Association will obtain and maintain Comprehensive Liability Insurance for bodily injury and property damage for the benefit of the Association and its officers, directors, agents and employees in amounts and with coverage required by the Shared Facilities Agreement and as determined from time to time by the Board. All Owners shall be named as additional insureds for claims and liabilities arising in connection with the ov-nership, use or management of the Common Elements. Such liability insurance will have a combined single occurrence limit of not less than 52,000.000 and, to the extent available on reasonable terms. will (i) be on a commercial general liabilMn form; (ii) contain a "severability of interest" or "cross-liabilin-" endorsement which precludes the insurer from denying the clairn of an-, named or additional insured due to the negligent acts. errors or omissions of any other named or additional insured; (iii) contain a waiver of subrogation by the insurer as to claims against the Association. its directors, officers, employees and agents, Owners and members of their households, and Declarant; (iv) be written as a primary policy, not contributing with and not supplemental to any coverage that any Owner may carry; (v) provide that no act or omission by any Owner; unless acting within the scope of such Owner's authority on behalf of the Association, voids the policy or is a condition to recove under the policy; (vi) insure all of the ry named and additional insured parties against liability for negligence resulting in death, bodily injury or property damage arising out of or in connection with the operation. use. ownership or maintenance of the Common Elements: and (vii) provide that it may not be canceled. nor may coverage be reduced, 45 days' prior notice to the Association and all additional insureds named in the policy. The liability insurance required to be maintained under this Section 11.1(b) will not include coverage for any liability arising out of the operation, use, ownership or maintenance of any Unit. (c) Worker's Compensation and Employer's Liability. The Association will obtain and maintain worker's compensation. and employer's liability insurance as determined from time to time by the Board. At a minimum, the Association will maintain such insurance in amounts and with coverages required by applicable law. (d) Automobile Insurance. If the Association operates owned, hired or non-owned vehicles. the Association will obtain and maintain comprehensive automobile liability insurance at a limit of liability of not less than $500,000 for combined bodily injury and property damage. (e) Directors' and Officers' Insurance. The Association will obtain and maintain directors' and officers' liability coverage in the amount it determines from time to time. (f) Fidelity Insurance. The Association will obtain and maintain fidelity insurance covering losses resulting from dishonest or fraudulent acts committed by the Association's directors, officers, managing agents., trustees. employees or volunteers who manage the funds collected and held for the benefit of the Association. The police will name the Association as the insured, (or obligee) include a provision requiring at least 30 days' written notice to the Association before any cancellation of, or material modification in, the policy, and provide coverage in an amount equal to at least three months' General Assessments against all Units, based on the General Assessments most recently approved by the Board. If the Association engages a managing agent that handles funds of the Association. the managing agent will also maintain fidelity insurance satist,ing the foregoing requirements of this Section 11.1(f) and the Act and provide evidence of the coverage to the Board. (g) Shared Expense Insurance / Other Insurance. The Association shall obtain, and maintain the Shared Expense insurance are required under the Shared Facilities Agreement. The Association may further obtain and maintain other insurance as the Board, from time to time. deems appropriate to protect the Association or the Owners. (h) Licensed Insurers. All policies of insurance required to be maintained by the Association will be placed vvith insurers licensed in the State of Colorado. The carrier shall be required to provide to the Board at the inception of the policies and on each anniversary date. a 3 6 summary that includes a description of the type of policy, the coverage and limits of coverage, the amount of annual premium and the policy renewal dates. If obtainable without additional expense, the licensed insurance broker or agent shall certify that the policy complies with and satisfies the requirements of the section. 11.2 Owners'' Insurance. Each Owner has the following responsibilities with respect to insurance: (a) Propertv Insurance. Each Owner will maintain at its expense (or will cause its Permittee to maintain at its expense) property insurance upon the Owner's Unit to the extent not covered by the Association's insurance under Section 11.1(a) and all personal property and fixtures within the Owner's Unit, in such amounts, against such risks, and containing such provisions as the Owner may reasonably determine from time to time. Such property insurance will (i) permit a waiver of claims by the Owner, and provide for a waiver of subrogation rights by the insurer as to claims, against the Association, its directors, officers, employees and agents, the other Owners and the members of such Owners' household; (ii) be written as a primary policy, not contributing with and not supplemental to any coverage that the Association carries; and (iii)provide that, notwithstanding any provision that gives the insurer an option to restore damage in lieu of making a cash settlement, the option may not be exercised if the proper party(ies) elect not to restore the damage in accordance with the provisions of this Declaration or the Act. All insurance carried under this Section 11.2(a) will provide that it may not be canceled, nor may coverage be reduced, without 30 days' prior notice to the Association and, notwithstanding that each Owner may select the amount and type of such insurance, for purposes of the waiver of claims set forth in Section 11.4, each Owner is deemed to have elected to obtain such insurance on a 100% replacement cost basis. (b) Liability Insurance. Each Owner will maintain at its expense bodily injury and property damage liability insurance for the benefit of the Owner and any additional insured it names, in amounts and with coverage as are from time to time customarily maintained by prudent owners of similar property;provided that such liability insurance will (1) have a combined single occurrence limit of not less than $500,000; (ii) be written as a primary policy, not contributing with and supplemental to any coverage that the Association or another Owner carries; (iii) insure all of the named and additional insured parties against liability for negligence resulting in death, bodily injury or property damage arising out of or in connection with the operation, use, ownership or maintenance of the Owner's Unit: and (iv) contain a waiver of subrogation by the insurer as to claims against the Association, its directors, officers, employees and agents, owners and members of their households, and Declarant. (c) Other Insurance. Each Owner may obtain additional insurance, at its own expense, affording personal property. condominium assessment loss of rents, personal liability and any other coverage obtainable. to the extent and in the amount the Owner deems necessary to protect its interests. Any such insurance will contain waivers pursuant to Sectior 11.4 and will provide that it is without contribution as against the insurance maintained by the Association. (d) Assignment of Proceeds. If a casualt-N, loss is sustained and there is a reduction in the amount of proceeds that would otherwise be payable under any policy of insurance carried by _i the Association due to the existence of any, insurance carried by an Owner or Permittee, that Owner or the Owner of the Permittee's Unit is liable to the Association to the extent of the reduction and will pay the amount of the reduction to the Association upon demand; such Owner also hereby assigns the proceeds of its insurance, to the extent of such reduction, to the Association. 11.3 Certificates of Insurance: Notices of U_ navailability. Each Owner will provide to the Association at the closing of the purchase of its Unit and no less than 10 days subsequent to expiration of any coverage, certificate(s) of insurance evidencing the insurance required to be carried under Sections 11.2(a) and 11.2(b). The Association will provide each Owner certificates of insurance evidencing the insurance required to be carried by the Association under Sections 11.1(a) and 11.1(b) and naming each Owner as an additional insured under such policies. If the insurance described in Sections 11.1(a) and 11.1(b) is not reasonably available, or if any policy of such insurance is canceled or not renewed and the Association does not obtain a replacement policy for it, the Association promptly will give notice of the fact to all Owners. 11.4 Waiver of Claims. The Association will make no claim against any Owner or the members of the Owner's household, for any loss, damage, injury or liability; no Owner will make any claim against the Association, its directors, officers, employees or agents, or any other Owner or member of such Owner's household for any property, loss or damage to property, and all such claims are hereby waived, to the extent that the loss, damage, injury or liability is or would be covered by any insurance policy that is required under this Declaration (a) to be maintained by or for the benefit of the waiving Person (assuming in the case of property insurance policies that such insurance policy is maintained on a 100% replacement cost basis), and (b) to provide for a waiver of subrogation rights by the insurer. For purposes of this Section 11.4, the deductible or self-insured retention amount under any property insurance policy required to be, or in fact, maintained by a waiving Person is deemed to be covered by the policy so that, in addition to waiving claims for amounts in excess of the deductible or self-insured retention (up to the covered limits, or deemed covered limits. of the policy), the waiving Person waives all claims for amounts within the deductible or self-insured retention. 11.5 Proceeds. Except as provided in Section 11.2(d), the Association has no claim to and each Owner may receive all proceeds of any insurance policy maintained by such Owner. The Board is solely responsible for adjustment of any losses under insurance policies maintained by the Association and is hereby irrevocably appointed the agent of all Owners, Security Holders and other Persons having an interest in the Residential Project for purposes of ad_jusding all claims arising under insurance policies maintained by the Association and executing and delivering releases when claims are paid. The Association shall receive all proceeds of any insurance policy maintained by the Association, except other insured parties under liability insurance policies will be entitled to proceeds arising out of their insured losses. The Association will hold any proceeds of any property, insurance it maintains in tnzst for the Owners and Security Holders. The Board will disburse the proceeds of any property insurance relating to damage to anv Unit or Common Element in accordance with Section 12.2. ,8 Article 12 CASUALTY 12.1 Casualty. If any Unit or Common Element is damaged or destroyed by fire or other casualty (a "Casualty"). this Article 12 shall apply, subject to the terms of the Shared Facilities Agreement. Promptly after any Casualty occurs. the Board will obtain at least two bids from licensed contractors for the full and lawful repair and restoration of all damaged Units and Common Elements. Upon receiving the bids and after sufficient discussions with the adjuster for the Association's insurer. the Board will notify the Owners of the amounts of the bids, the probable amount of insurance proceeds and other funds (such as funds in the Reserve Account) that are available for restoration, and whether; based on that information, the Board believes a Restoration Deficit will result if the Owners elect to fully restore all damaged Units and Common Elements. In the notice, the Board will also call a meeting of the Owners to vote on the question of whether to fully restore all damaged Units and Common Elements. The Association will fully restore the damaged Units and Common Elements to their condition prior to the Casualty and as required by law, and the Board will promptly enter into construction contracts and proceed with the restoration work, unless at the meeting: (a) The Residential Project is terminated pursuant to Article 14; or (b) At least 67% of all Owners, including the Owner of any Unit whose boundaries will be changed or the use or enjoyment of which will be prevented or materially impaired as a result of not fully restoring all damaged Units and Common Elements, vote (1) not to fully restore all damaged Units and Common Elements and not to terminate the Residential Project; (ii) to approve plans and specifications for a limited restoration that will restore the damaged area to a condition compatible with the remainder of the Residential Project and that may include, without limitation, demolition, restoration or alteration of all or part of any damaged Unit or Common Element, and (iii) to adopt, if applicable, an amendment to this Declaration (including the Map) to reflect the conversion of all or part of one or more damaged Unit(s) to Common Elements or of all or part of one or more damaged Common Element(s) to one or more Unit(s) and the corresponding reallocation of the Common Allocations allocated to the Units pursuant to this Declaration (which reallocation will be based on the same formula set forth in this Declaration for deterrninina the Common Allocations). If the Residential Project is terminated; the Association will perform limited restoration of the Units and Common Elements as necessary to return them to a safe, lawful and saleable condition. If the Owners vote not to fully restore all damaged Units and Common Elements and not to terminate the Residential Project, the Association will perform the limited restoration and Record the amendment to this Declaration, if any, approved by the requisite number of Owners pursuant to Section 12.1(b). If. however. the Owners elect to fully restore all damaged Units and Common Elements, the Board will assess a Special Assessment pursuant to Section 92(d), to the extent necessary to cover anv Restoration Deficit. 12 2 Disposition of Insurance Proceeds. All proceeds of property insurance received by or disbursed to the Association in connection with a Casualt-y will be applied first to the full or limited restoration of the damaged Units and Common Elements. as provided in Section 12.1 and 39 then, if any insurance proceeds remain after the full or limited restoration, the excess proceeds will be paid to the Owners, subject to the rights of their Security Holders, as follows: (a) if the Owners elect not to fully restore all damaged Units and Common Elements and to terminate the Residential Project pursuant to Article 14. then each Owner will be paid its Unit's Termination Allocation of the excess proceeds pursuant to Section 14.3; (b) if the Owners elect not to fully restore all damaged Units and Common Elements and not to terminate the Residential Project. then any of such excess proceeds attributable to any damaged Units that are not restored or to any Common Elements that are not restored and were necessary for the use and enjoyment of any Units that are not fully restored will be paid to the Owners of these Units to the extent of the insurance coverage allocated to those Units or Common Elements, and each Owner will be paid its Unit's Common Allocation of the remainder of the excess proceeds.. if any; or (c) if the Owners elect to fully restore all damaged Units and Common Elements, then each Owner will be paid its Unit's Common Allocation of the excess proceeds. 12.3 Manner of Restoration. The restoration of any Unit or Common Element under this Article 12 is subject to the following requirements: (a) Plans. Except in the case of a limited restoration in accordance with Section 12.1(b), the restoration will be completed in accordance with the as-built plans and specifications of the Unit or Common Element immediately prior to the damage. (b) Requirements. The Association will: (i) obtain all necessary permits and governmental authorizations for the restoration, (ii) comply with all applicable zoning and building codes and other applicable laws, ordinances and restrictive covenants, including. but not limited to, any City codes and applicable regulations for historically designated properties', (iii) perform the restoration in a diligent. good and workmanlike manner, free and clear of all mechanics' and materialmen's liens and other claims; (iv) during the construction process. to the extent required by good construction practices, keep the area affected thereby in a safe, neat and clean condition; (v) minimize any impact from the construction process on other Units or Common Elements or other portions of the Residential Project or the Commercial Project; and (vi) perform ary restoration or construction work, or cause such work to be performed, in a manner that maintains harmonious labor relations and does not interfere "r) unreasonably with or delay the work of any other contractors then working anywhere on the Residential Project or the Commercial Project. (c) Coordination by Association. The Association has full authority and responsibility to coordinate the manner of completion and scheduling of any restoration under this Article 12 to ensure the completion of the restoration in an efficient manner. Each Owner will cooperate and cause its contractors and agents to cooperate in the Association's coordination of any restoration. As used in this Article 12. a "restoration" will include any repair, replacement, restoration, reconstruction; construction or demolition required as a result of any damage or destruction. 12.4 No Abatement. Each Unit will continue to be subject to Assessments following any damage to or destruction of any portion of the Residential Project.. without abatement or modification as a result of the damage or destruction. Article 13 CONDEMNATION 13.1 Taking of Condominiums. If all or a part of any Unit or the use of, but not title to, any Limited Common Element allocated to the Unit, is taken by the exercise of the power of eminent domain or is conveyed in lieu of such exercise (collectively, "Taking"), the Owner of the Unit is solely responsible for negotiating with the condemning authority concerning the award for the Taking and may receive the award after the liens of all Security Holders on the affected Unit or portion of it are satisfied or otherwise discharged. If only part of a Unit is acquired by a Taking, the Owner of the Unit is responsible for restoring the Unit as necessary to return the Unit to a safe and lawful condition that does not adversely affect the use or enjoyment of the other Units or Common Elements or detract from the general character or appearance of the Residential Project. The plans and specifications for the restoration are subject to the Board's prior approval. The restoration will be completed in accordance A71th the approved plans and specifications and the provisions of Section 123(b), as if the Owner of the Unit to be restored were the Association. If a condemning authority acquires by a Taking all or a part of one or more Units in such a manner that such Unit(s) is or are no longer subject to this Declaration, then the Association will consider and pass. pursuant to Article 16, an amendment to this Declaration revising the Common Allocation of each of the remaining Units, and; if necessary, the allocation of any Limited Common Element previously allocated to the Unit(s) that is or are no longer subject to this Declaration. 13.2 Taking of Common Elements. A "Common Element Taking" means any Taking by which a condemning authority acquires title to any Common Element. Subject to the Commercial Owner riahts and obligations set forth in the Shared Facilities Agreement, the Board is solely responsible for negotiating, and may negotiate with the condemning authority on behalf of all Owners concerning, the amount of the award for any Common Element Tal inQ. and the Board's acceptance of an award is binding on all Owners. If a Common Element Taking occurs. the Association is responsible for restoring the remaining Common Elements as necessary to return them to a safe and lawful condition that does not adversely affect the use or enjoyment of the Units or other Common Elements or detract from the general character or appearance of the 41 Residential Project. If the net award (i.e.. net of costs of collection) received by the Association from any Common Element Taking exceeds the amount actually incurred by it in connection with any required restoration of the Common Elements. the Association will pay or credit each Owner with its Unit's Termination Allocation of the excess condemnation award, as if the award resulted from a sale of the Residential Project pursuant to Section 14.2:provided, ho-wever.. that the valuation date used to determine the fair market value of each Unit pursuant to Section 14.3 for purposes of determining the Termination Allocations will be the date immediately preceding the earlier of the date that title or the date that possession is transferred to the condemning authority in connection with the Common Element Taking. If the net amount of the award so received is insufficient to effect such restoration, the Board may assess a Special Assessment to cover the Restoration Deficit in accordance with Section 9.2(d). Article 14 TERNIINATION 14.1 Termination Agreement. Subject to the reservation of rights held by the Commercial Owner as described in Article 19 of the Shared Facilities Agreement, the Residential Project may be terminated only pursuant to a written agreement to terminate executed and acknowledged (or ratified and acknowledged in writing) by the Owners of Units to which 67% of the votes in the Association are allocated (a "Termination Agreement"). A Termination Agreement is effective when (a) the requisite number of Owners have executed and acknowledged it or a ratification of it, and (b)the Termination Agreement and all ratifications; if any, are Recorded. A Termination Agreement will state a date after which it is automatically void unless it is effective by that date. A Termination Agreement will also state that, when it becomes effective, the Residential Project is deemed terminated and the Association will sell the Residential Project, including all Units and Common Elements, on behalf of all Owners; upon terms and conditions of sale approved by the Board,provided that those terms will be at least as favorable as the minimum terms set forth in the Termination Agreement. 14.2 Sale of Residential Project. -,When a Termination Agreement becomes effective, the Residential Project is deemed terminated, the Association will sell the entire Residential Project (i.e.. all Units and all Common Elements) for the benefit of the Owners. and the resulting sales proceeds will be allocated in accordance with Section 14.3. Upon approval of a Termination Agreement (a) each Owner (including dissenting Owners) is deemed to grant the Association, acting through its officers under the authority of the Board, an irrevocable power of attorney. coupled with an interest, to sell the Residential Project for the benefit of the Owners, and (b) accordingly. the Association has full and complete authority. right and power to make, execute and deliver any contract, deed or other instrument necessary and appropriate to accomplish that purpose. Notwithstanding the termination of the Residential Project, the Association (and its officers and the Board) will continue to exist and hold office, respectively, with all of its and their powers specified in this Declaration and the Bylaws (including.. without limitation, the power to impose Assessments) until the Residential Project is sold and all proceeds (i.e., sales proceeds and., if applicable. insurance proceeds or condemnation proceeds) are distributed. Unless otherwise specified in the Termination Agreement or otherwise precluded by law. until a sale of the Residential Project is concluded. each Owner has an exclusive right to 4 2 occupy its former Unit and remains liable for all Assessments and other obligations imposed on the Owner pursuant to this Declaration. 14.3 Proceeds. The Association will pay to each Owner its Unit's Termination Allocation of the net proceeds of the sale of the Residential Project following termination of the Residential Project (together with any insurance proceeds or condemnation proceeds). However, no payment will be made to an Owner until all liens on its Condominium are paid out of the 0-,Amer's share of the proceeds. in the order of priority of such liens. A Unit's "Termination Allocation" means the percentage obtained by dividing the fair market value of the Condominium of which the Unit is a part by the total fair market values of all of the Condominiums. The valuation date used in determining the fair market value of each Condominium is the date immediately prior to the date the Termination Agreement becomes effective (or.. if the termination is attributable to a Casualty where the Owners elect to terminate the Residential Project pursuant to Section 12.1, the valuation date is the date immediately prior to the date on which the Casualty occurred). The fair market value of each Condominium as of the appropriate valuation date will be determined by one or more independent appraisers selected by the Board. The Association will distribute to the Owners the values determined by the independent appraisers. Those values are final and binding on all Owners for purposes of establishing the Termination Allocations unless within 30 days after distribution they are disapproved in writing by the Owners of Units to which at least 25% of the votes in the Association are allocated. Article 15 ABANDONMENT UNDER SHARED FACILITIES AGREEMENT By taking title to a Unit, each Owner acknowledges and agrees that pursuant to the Shared Facilities Agreement, in connection with any "Total Casualty" (as defined in the Shared Facilities Agreement) affecting the Commercial Project. the Commercial Owner may elect to forgo any restorations and repairs and to raze or otherwise abandon the Commercial Project. In such event, the terms and conditions set forth in the Shared Facilities Agreement shall apply. Any compensation received by the Association on behalf of the Owners in connection with the Commercial Owner's election to forgo restoration or to raze or otherwise abandon the Commercial Project shall be distributed to the Owners by the Association in accordance with their respective Termination Allocations; as determined in accordance with the procedures set forth in Section 143 effective the date immediately prior to the Total Casualty. Each Owner arants to the Association, acting through its officers under the authority of the Board, an irrevocable power of attorney, coupled with an interest, to convey its Unit to the Commercial Owner as and when required under the Shared Facilities Agreement. and accordingly, the Association has full and complete authority, right and power to make, execute and deliver any contract. deed or other instrument necessary and appropriate to accomplish that purpose. 4=, Article 16 AMENDMENT 16.1 Required Votes. (a) Declarant; without the vote or consent of the Board or the Owners, may amend this Declaration or the Map to correct clerical, typographical or technical errors. (b) Declarant. without the vote or consent of the Board or the Owners. may amend the Declaration to comply with the requirements, standards or guidelines of recognized secondary, mortgage markets. the U.S. Department of Housing and Urban Development, the Federal Housing Administration, the Veteran's Administration, the Federal Home Loan Mortgage Corporation. the Government National Mortgage Association or the Federal National Mortgage Association. (c) Amendments to this Declaration contemplated by Sections 10.2 and 13.1 may be made by the Board on behalf of the Association and do not require the approval of the Owners. Amendments to this Declaration contemplated by Sections 2.8(a), 2.8(c), and 2.8(g) may be made by Declarant and do not require the approval of the Owners. (d) Except as otherwise expressly permitted under this Declaration and the Act, any amendment to this Declaration that increases the Special Declarant Rights, increases the maximum number of Units, or changes the boundaries of any Unit or the allocated interests of any Unit, requires the vote or agreement of the Owners of Units to which at least 67% of the votes in the Association are allocated, including 67% of the votes allocated to Units not owned by Declarant. (e) Except as otherwise expressly permitted under the Act, any amendment to this Declaration that changes the uses to which any Unit is restricted requires the vote or agreement of the Owners of Units to which at least 67% of the votes in the Association are allocated. (f) Any amendment to this Declaration that changes a specific clause or provision prescribing a certain percentage of affirmative votes or written consents for action to be taken under that clause or provision. requires the affirmative vote or written consent of those Owners of Units to which at least that percentage (as prescribed in that clause or provision) of the votes in the Association are allocated. (g) Any amendment to this Declaration made during the Declarant Control Period affecting a right that Declarant may exercise during that period or any amendment to this Declaration made during the Declarant Development Period affecting a right that Declarant may exercise during that period requires the written approval of Declarant in each case. (h) Except as provided in Sections 16.1(a) through Section 16.1(8). this Declaration (inc)uding the Map) may be amended by the affirmative vote or written consent of the Owners of Units to which more than 50% of the votes in the Association are allocated, 44 16.2 Amending Documents. Except for any amendment that by the terms of this Declaration may be and is duly executed.. acknowledged and Recorded by Declarant or by or on behalf of the Board. an amendment to this Declaration is effective only when all of the following events occur: (a) Approved 'Writing. The amendment is reduced to a writing that is approved (by - - affirmative vote or written consent) by the Owners of Units to which at least the applicable required percentage of votes in the Association are allocated. (b) Certificate by Association. A written certificate, executed and acknowledged by the president or any other authorized officer of the Association, is attached to the written amendment which states that the amendment was approved by the applicable required percentage of Owners pursuant to Section 16.1. (c) Recording. The approved written amendment described in Section 16.2(a) and the certificate described in Section 16.2(b) are Recorded. (d) Presumption of Validity. After an amendment to this Declaration is Recorded, a presumption exists that all votes and approvals regarding the amendment were duly obtained and satisfy the requirements of this Declaration. The presumption may be rebutted by an action commenced within one year from the date the amendment is Recorded; in the absence of an action commenced within the one-year period, the presumption is deemed conclusive. Article 17 OWNER'S ACKNOWLEDGMENTS A_ND WAIVERS 17.1 Owner's Acknowledgments. (a) Acknowledgments. (i) Mountain Resort Activities. The Residential Project is located in proximity to skiing facilities, other all-season recreational areas and a public pedestrian village and improvements associated therewith (the "Mountain Resort Areas"). The Mountain Resort Areas are expected to generate an unpredictable amount of visible. audible and odorous impacts and disturbances from activities relating to the construction. operation, use and maintenance of the Mountain Resort Areas (the "Mountain Resort Activities"). The Mountain Resort Activities include, without limitation: (i) movement and operation of passenger vehicles (including, without limitation, buses, vans and other vehicles transporting passengers over adjacent streets and over, around and through the Mountain Resort Areas), commercial vehicles, and construction vehicles and equipment; (ii) activities relating to the construction, operation and maintenance of roads, trails, walkways, pedestrian malls and other facilities relating to the Mountain Resort Areas (including. without limitation, grading and earth moving and other construction activities. construction. operation and maintenance of roads. snow-melting equipment. busses or other transportation systems, operation of vehicles and equipment relating to trash removal and snow removal); (iii) activities relating to the use of the Mountain Resort Areas (including, without limitation. pedestrian traffic): (iv) ski races. snowboardina ni exhibitions and other orgazed events and conapetitlons relating to the Mountain Resort Areas: (v) concerts, open markets. A: fireworks displays, and other performances and special events; (vi) restaurants; clubs, restrooms and other public use facilities; (vii) public access to adjacent to the ski areas; (viii) public parking facilities and the traffic related thereto: (ix) and other activities permitted by law. The Mountain Resort Activities may occur during daytime and nighttime. (ii) Construction Activities. The Residential Project is located in an area that is subject to or near current and/or future construction activities relating to the development of adjacent properties and the Mountain Resort Areas (the "Construction Activities"). The Construction Activities are expected to generate an unpredictable amount of visible, audible and odorous impacts and disturbances. The Construction Activities may include, without limitation: (1) construction traffic (including, without limitation, construction vehicles, equipment and vehicles used or owned by the Commercial Owner. adjacent landowners, and the employees, agents and contractors of either of them). and (2) construction activities (including, without limitation, grading, excavation, clearing, site work and construction of indoor and outdoor improvements) relating to the Residential Project, nearby properties or the Mountain Resort Areas. (iii) Commercial Activities. A variety of commercial activities are and will be conducted in and adjacent to the Residential Project (the "Commercial Activities"). The Commercial Activities are expected to generate an unpredictable amount of visible, audible and odorous impacts and disturbances. The Commercial Activities may include, without limitation: (1) retail sales; (2) meetings, conferences, banquets and other group events. (3) sales and rentals of clothing, skis, ski-related equipment; other over-the-snow equipment, bicycles, and other recreational equipment; (4) indoor and outdoor restaurant and bar operations (including, without limitation. the sale of food and alcoholic and non-alcoholic beverages for consumption on and immediately adjacent to the Residential Project and at other locations) and preparation of hot and cold food (through the use of barbecue grills; fire pits and other smoke and/or odor producing means) and beverages at indoor and outdoor facilities on and immediately adjacent to the Residential Project; (5) sales of services relating to skiing,. other over-the-snow activities, and other recreational activities (including, without limitation, tuning, waxing, repairing, mounting of bindings on. renting, storing and transporting skis, snowboards and similar equipment); (6) parking activities (including, without limitation, public parking); (7) the installation, operation and maintenance of illuminated and non-illuminated signage-, and (8) any other uses or activities permitted by law. The Commercial Activities maN, occur during davame and nighttime. (iv) Traffic Activities and Parking. The Residential Project is located adjacent to certain heavry traffic areas, including, without limitation, Cooper Avenue and Hunter Street (the "Traffic Areas"). The Traffic Areas are expected to generate an unpredictable amount of visible_ audible and odorous impacts and disturbances (the "Traffic Activities"). The Traffic Activities may include, without limitation, (i) noise and pollution associated with the use and maintenance of the Traffic Areas; (ii) peak-time traffic congestion: and (iii) public parking on Cooper Avenue and Hunter Street. The Traffic Activities may occur during daytime and nighttime. (v) Historical Preservation Status. Each Owner, for itself and its successors and assigns acknowledges that the Residential_ Project and Co=crcial Project are subject to a 46 Historic Designation defined in the Land Use Code (the "Historical Preservation Status"). Accordingly, components within the Commercial and Residential Projects, including, but not limited to.. structural.. mechanical, electrical, plumbing and insulation components (i) may not and will not meet current Land Use Code requirements or those implemented from time to time. (ii) may not and will not function or operate like newly constructed components which may have financial and other impact to Owners, and (iii) improvements located thereon shall not be modified. repaired or replaced except and unless applicable approvals are obtained in writing from the City and an y applicable national registry entity. (b) Waiver and Release. Each Owner, for itself and its successors and assigns, acknowledges that the Mountain Resort Activities, the Construction.Activities, Traffic Activities, Commercial Activities, and Historical Preservation Status, and the effects, impacts and disturbances generated by them, may occur in and around the-Residential Project._ Each Owner may not assert or claim any violation of this Declaration based on the existence or occurrence of the Mountain Resort Activities, the Construction Activities, Traffic Activities, Commercial Activities. or the Historical Preservation Status, or the effects. impacts and disturbances generated by them. Each Owner, for itself and its successors and assigns, waives and releases any actions or claims the Owner and its successors and assigns may have against the Declarant and its successors and assigns which in any way arise out of the impacts and disturbances generated from the Mountain Resort Activities.. the Construction Activities, Traffic Activities. Commercial Activities. or the Historical Preservation Status. (c) Disclaimer. The Declarant makes no representations. covenants or warranties to any Owner concerning the nature.. scope, schedule or continuation of activities operated or conducted in or relating to the Mountain Resort Areas, Traffic Areas or the Commercial Project. Each Owner, for itself and its successors and assigns, acknowledges that (1) the activities may be discontinued from time to time or permanently after the date of this Declaration; (2) the activities may not be operated or conducted during the same hours, days or months as any schedule in effect or contemplated on the date of this Declaration; (3) the activities may be conducted during more hours (during both daytime and nighttime), days, and months than any schedule in effect or contemplated on the date of this Declaration; and (4) more activities may be operated or conducted in the Mountain Resort Areas, Traffic Areas or the Commercial Project than occur or are contemplated on the date of this Declaration. 17.2 NO VIEW EASEMENT. Notwithstanding any representation made to any Owner to the contrary by the Declarant; any real estate agency or any agent, employee or representative of the Declarant or any real estate agencv. each Owner acknowledges and agrees. there is no easement or other right, express or implied, for the benefit of the Unit or the Residential Project for light view or air included in or created by this Declaration or as a result of the Owner owning the unit. 173 Security. NEITHER THE ASSOCLATION. THE COMMERCIAL OWNER.. DECLARAt,TT. OR ITS .AFFILIATES SHALL IN ANY WAY BE CONSIDERED INSURERS OR GUARANTORS OF SECURITY WITHLN THE RESIDENTIAL PROJECT, AND NEITHER THE ASSOCLATION. THE COMMERCIAL OWNER. DECLARANT, OR ITS — FILIATES SHALL BE HELD LIABLE✓ FOR ANY LOSS OR D.A-ViAGE BY REASON OF 47 FAILURE TO PROVIDE ADEQUATE SECURITY, INEFFECTIVENESS OF SECURITY MEASURES UNDERTAKEN, OR ACTS OF THIRD PARTIES. ALL OWNERS, TENANTS, GUESTS. AND INVITEES OF ANY OWNER, AS APPLICABLE, ACKNOWLEDGE THAT THE ASSOCIATION, THE COMMERCIAL OWNER DECLARANT, OR ITS AFFILIATES ARE NOT INSURERS AND THAT EACH OWNER TENANT, GUEST. AND rN\1ITEE ASSUMES ALL RISK OF LOSS OR DAMAGE TO PERSONS., TO UNITS. AND TO THE CONTENTS OF UNITS, AND FURTHER ACKNOWLEDGE THAT THE ASSOCIATION, THE COMMERCIAL OWNER, DECLARANTT, OR ITS AFFILIATES HAVE MADE NO REPRESENTATIONS OR WARRANTIES, NOR HAS ANY OWNER, TENANT.. GUEST, OR INTVITEE RELIED UPON ANY REPRESENTATIONS OR WARRANTIES. EXPRESSED OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, RELATIVE TO ANY SECURITY MEASURES RECOMMENDED OR UNDERTAKEN. 17.4 Inspection by Others-, Waiver of Post Inspection Liability-. It is hereby expressly understood and agreed by Declarant and by any Owner upon taking title to a Unit that Declarant relies upon governmental inspectors and other qualified subcontractors and tradesmen to inspect the construction of the Units and the Common Elements in order to verify compliance with construction plans and with any and all building code requirements applicable to residential construction. Declarant and each Owner further expressly understand and agree that w ith respect to the Units and the Common Elements, upon compliance with the inspections required by the local building department and the issuance of a certificate of occupancy by the responsible governmental agency, Declarant shall be deemed to have used its best efforts to construct such Units and Common Elements in compliance with the construction plans and all applicable building code requirements; taking into account certain restrictions due to the historical designation of the Residential and Commercial Projects. EACH OWNER, BY TAKING TITLE TO A UNIT; HEREBY KNOWINGLY AND WILLINGLY WAIVES AGAINST DECLARANT AND ITS AFFILIATES ANY AND ALL DEMANDS, CLAIMS, ACTIONS AND CAUSES OF ACTION, AND ALL LIABILITY, LOSSES, DAMAGES, COSTS OR EXPENSES THAT HAVE BEEN OR MAY BE INCURRED IN ASSOCIATION THEREWITH, INCLUDING, TITHOUT LIMITATION, ATTORNEYS' FEES AN' EXEMPLARY DAMAGES, WHICH VX ARISE FROM OR ARE RELATED TO ANY NONCOMPLIANCE OF THE UNITS OR THE COMMON ELEMENTS WITH CONSTRUCTION PLANS OR BUILDING CODE REQUIREMENTS, 'vNq-IICH NONCOMPLIANCE IS DISCOVERED AFTER THE ISSUANCE OF A CERTIFICATE OF OCCUPANCY FOR, RESPECTIVELY, SUCH UNITS OR COMMON ELEMENTS; AND ANY SUCH NONCOMPLIANCE SHALL BE DEEMED UNINTENTIONAL WITH RESPECT TO DECLARANT. EACH OWNER HEREBY ACCEPTS, AND ASSUMES THE RISK OF ANY AND ALL DAMAGE OR DEFECTS OF OR TO EACH OF THE UNITS AND THE COM 40N ELEMENTS, THE DISCOVERY OF WHICH IS MADE AFTER THE ISSUANCE OF A CERTIFICATE OF OCCUPANCY FOR. RESPECT ELY. SUCH UNITS OR SUCH COMMON ELEMENTS, EXCEPT TO THE EXTENT THAT SUCH OWNER MAY HAVE A CLAIM THEREFOR AGAINST ANY PARTY" OTHER TH�N DECLARANT OR ITS AFFILIATES. A 17.5 Drainage and Soils Condition. (a) Acknowledgment. THE SOILS WITHIN COLORADO CONSIST OF BOTH EXPANSIVE SOILS AND LOW-DENSITY SOILS WHICH MAY ADVERSELY AFFECT THE INTEGRITY OF A UNIT OR A COMMON ELEMENT IF SUCH UNIT OR COMMON ELEMENT IS NOT PROPERLY MALNTTAINED. EXPANSIVE SOILS CONTAIN CLAY MINERALS WHICH HAVE THE CHARACTERISTIC OF CHANGING VOLUME WITH THE ADDITION OR SUBTRACTION OF MOISTURE, THEREBY RESULTING IN SWELLING AND/OR SHRINKING SOILS. THE ADDITION OF MOISTURE TO LOW- DENSITY SOILS CAUSES A RE-ALIGNMENT OF SOIL GRAINTS. THEREBY RESULTING IN CONSOLIDATION AND/OR COLLAPSE OF THE SOILS. (b) Waiver of Liability of Declarant. BY TAKING TITLE TO A UNIT, EACH OWNER ACKNOWLEDGES AND AGREES THAT SUCH OWNER HAS WAIVED AND SHALL BE DEEMED TO HAVE WANED THE RIGHT TO ANY AWARD OF DAMAGES AGAINST DECLARANT, ITS MANAGERS, MEMBERS, EMPLOYEES OR AGENTS FOR ANY LOSS OR DAMAGE TO ANY PORTION OF THE UNIT OR THE COMMON ELEMENTS CAUSED BY, RESULTING FROM OR IN ARTY WAY CONNECTED WITH SOIL CONDITIONS ON OR UNDER ANY COMMON ELEMENTS, INCLUDING SPECIFICALLY THE PRESENCE OF EXPANSIVE SOILS AND RADON GAS. 17.6 Mountain Conditions. By taking title to a Unit, each Owner acknowledges that ownership of real property in mountain areas involves certain inherent inconveniences. These include, but are not limited to, (i) dripping water onto decks and porches from snowmelt, (ii) snow and ice build-up on roofs, decks and porches during winter months, and the need to remove snow and ice to prevent leaking or damage to these structures, (iii) the need to maintain the internal temperature of the Unit at a minimum temperature of 55 degrees in order to prevent broken pipes, and (iv) other inconveniences arising from the sometimes severe winter conditions. 17.7 Sound Transmission Disclaimer. EACH OWNER HEREBY ACKNOWLEDGES AND AGREES THAT SOUND AND IMPACT NOISE TRANSMISSION IN A HISTORICAL BUILDING SUCH AS THE RESIDENTIAL PROJECT IS VERY DIFFICULT TO CONTROL, AND THAT NOISES FROM ADJOINING OR NEARBY RESIDENCES, THE COMMERCIAL PROJECT AND THE PARKING AND SURROUNDING DEVELOPMENT AND/OR MECHANICAL EQUIPMENT CAN AND WILL BE HEARD IN RESIDENCES. NEITHER THE DECLARANT NOR THE OWNER OF THE COMMERCIAL PROJECT MAKES ANY REPRESENTATION OR WARRANTY AS TO THE LEVEL OF SOUND OR IMPACT NOISE TRANSMISSION BETWEEN AI\TD AMONG RESIDENCES AND THE OTHER PORTIONS OF THE RESIDENTIAL PROJECT, AND EACH OWNER HEREBY WAIVES AND EXPRESSLY RELEASES. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW AS OF THE DATE OF THIS DECLARATION, ANY SUCH WARRANTY AND CLAIM FOR LOSS OR DAMAGES RESULTING FROM SOUND OR IMPACT NOISE TRANSMISSION. 17.8 Reservation Of Densit,-. ANY AND ALL DENSITY RIGHTS II�TTERESTS AND V_kLUE THEREFOR ATTRIBUTABLE TO THE RESIDENTLA-L OR COMMERCIAL 49 PROJECTS WHICH ARE GRANTED BY THE APPROPRIATE GOVERNMENTAL AUTHORITY UPON THE EFFECTIVE DATE OF THIS DECLARATION SUBSEQUENT TO THE EFFECTIVE DATE HEREOF ARE HEREBY RESERVED IN FAVOR OF THE COMMERCIAL OWNER ITS SUCCESSORS AND ASSIGNS. BY AND TO THE EXTENT PERMITTED BY LAW. EACH OWNER AND THE ASSOCIATION(S) HEREBY ACKNOWLEDGE AND AGREE THAT THE DENSITY RESERVATION DESCRIBED HEREIN SHALL BE EVIDENCED IN THE CONVEYANCE DEED FOR EACH CONDOMINIUM UNIT WITHIN THE RESIDENTIAL PROJECT AND COMMERCIAL PROJECT AS A RESTRICTION APPURTENANT TO AND RUNNING WITH THE CONDOMINIUM UNIT UNTIL SUCH TIME AS THE COMMERCIAL OWNER TERMINATES OR FULLY EXERCISES ITS RESERVED INTEREST HEREIN. IF THIS RESERVATION OF DENSITY SHALL BE UNLAWFUL OR VOID FOR VIOLATION OF: (A) THE RULE AGAINST PERPETUITIES OR SOME ANALOGOUS THEORY, (B) THE RULE RESTRICTING RESTRAINTS ON ALIENATION. OR (C) ANY OTHER STATUTORY OR COMMON LAW RULES IMPOSING LIKE OR SIlvILAR TIME LIMITS, THEN THIS PROVISION SI-LALL CONTINUE ONLY FOR THE LIFE OF BARACK OBAMA, THE 44TH PRESIDENT OF THE UNITED STATES; OR HIS NOW LIVING DESCENDANTS, IF ANY, AND THE SURVIVOR OF THEM, PLUS 21 YEARS. 17.9 Redevelopment Of Aspen. Each owner, for itself, its successors and assigns acknowledges that Aspen properties may be developed or redeveloped pursuant to the land uses permitted by the zoning resolutions adopted from time to time by the City and other applicable ordinances, rules and regulations. Without limiting the foregoing, Owner, its successors and assigns, specifically acknowledges that the Commercial Owner, Declarant, their successors or assigns; may elect, from time to time, to redevelop certain Aspen properties pursuant to the applicable Land Use Code. Such redevelopment activities may be referred to as the "Aspen Redevelopment" in this Declaration. Each Owner; for itself and its successors and assigns, further acknowledges and agrees that it will not take any action to oppose, impair or delay in any manner any Aspen Redevelopment undertaken pursuant to the then current Land Use Code. As part of the Aspen Redevelopment, the Commercial Owner, Declarant, or any of their affiliates or assignees may seek to include the Aspen properties, the Commercial improvements and the Residential Lot in the boundaries of one or more existing or newly organized special districts, which may impose taxes, assessments or other fees or charges upon property within its boundaries. The Declarant makes no representations or warranties regarding the types or locations of improvements that will be constructed as part of the Aspen Redevelopment, the timing of commencement and completion of the Aspen Redevelopment, or whether or not the Declarant, its affiliates or assignees will proceed with any Aspen Redevelopment at all. Article 18 CONVEYANCING AND ENCUMBRANCING 18.1 Units. Any conveyance of a Unit includes an undivided interest in the Common Elements allocated to the Unit under this Declaration, regardless of whether the undivided interest is specifically described in the conveyance. A description of any Unit that sets forth (a) the identir�,ina number of the Unit (b} the name of the Residential Project. (c} the date of recording and the recording data of this Declaration in the Records. and (d) the county in -,v ch the 50 Residential Project is located is, if included in an otherwise proper instrument, sufficient for all purposes to sell, convey, transfer, encumber or otherwise affect not only the Unit but also the entire Condominium. A Person who becomes an Owner will promptly notify the Association of its ownership of a Unit An Owner may encumber its Unit as it sees fit, subject to the provisions of this Declaration. Any conveyance, encumbrance, judicial sale or other transfer, voluntary or involuntary-. of an individual interest in the Common Elements will be void unless the Unit to which that interest is allocated is also transferred. 18.2 Common Elements. Except as otherwise provided in Article 14 with respect to the termination of the Residential Project, the Common Elements or portions of them may be conveyed or subjected to a lien or security interest by the Association in accordance with Section 312 of the Act, with the written approval of Owners of Units to which are allocated 67% of the votes in the Association, including 67% of the votes allocated to Units not owned by Declarant The conveyance or encumbrance does not affect the priority or validit-, of pre-existing encumbrances. Any net proceeds of the sale of a Common Element pursuant to this Section 18.2 will be distributed to the Owners in accordance with Article 13, as if the proceeds are an award paid as a result of the condemnation of the Common Element. 183 Transferee Liability. (a) General. If any Unit is voluntarily or involuntarily transferred to any Person, the transferee of the Unit (the "New Owner") is liable for all Assessments or Assessment installments against the Unit beginning as of the time of transfer,provided that the New Owner's interest in the Unit is subject to the Association's lien for any unpaid Assessments as of the date of the transfer pursuant to this Declaration. (b) First Mortgage Foreclosure. Any First Mortgage is subject to the Association's lien, but any First Mortgagee acquiring title to a Condominium through foreclosure of a First Mortgage is liable, solely insofar as Assessments, for any unpaid Assessments (1) which are delinquent at the time the First Mortgage is Recorded, or (ii) which become due after the First Mortgage is Recorded to the extent of an amount equal to Assessments based on a budget adopted by the Board and ratified by the Owners pursuant to Section 63 that would have become due during the six-month period immediate]-,%before the Association or any Person holding a lien senior to any part of the Association's lien commences an action or a noniudicial foreclosure either to enforce or extinguish the lien. (c) Reallocation. Without releasing the transferor from any liability for any unpaid Assessments, any, unpaid portion of an Assessment which is not a Lien by operation of Section 183(b) is part of the Common Expenses and collectible from all Owners liable for Common Expenses, including a Transferee or a First Mortgagee acquiring title to a Unit through foreclosure of a First Mortgage. 18.4 Estoppel Certificates. Within 14 days after receiving a written request from any Owner, Security- Holder or a designee of either of them, delivered personally or by certified mail, first- class postage prepaid, return receipt requested. to the Association's registered agent, the Association will furnish to the requesting party, by personal deliver`r or by certified mai':, first- �l class postage prepaid, return receipt requested, estoppel certificate executed by an officer of the Association and addressed to the requesting party, stating any then unpaid Assessments due from the requesting Owner or the Owner of the Unit encumbered by the requesting Security Holder's Security for an Obligation, or stating that there are no unpaid Assessments due from such Owner, as the case may be. An estoppel certificate furnished by the Association pursuant to this Section 18.4 is binding on the Association.. the Board and every Owner. Such Owner's Unit shall not be subject to a lien for any unpaid Assessments against the Unit to the extent that (a) the lien arises before the date of the certificate and the amount of the lien exceeds any unpaid amounts stated in the certificate; or (b) if the Association does not furnish an estoppel certificate pursuant to this Section 18.4. the unpaid Assessments are due as of the date of the request. The Association may charge the Owner of any Unit for which such an estoppel certificate is furnished, and the Owner will pay, a reasonable fee for the preparation of the estoppel certificate in an amount determined by the Board from time to time. Article 19 SALES OF UNITS 19.1 Sales. Any and all sales of Units or any interest therein are subject to the terms and conditions of this Article 19. For purposes of this Article 19, "Sale" of a Unit means the transfer of (1) the undivided interest in the Common Elements appurtenant to the Unit:. (ii) all or any portion of the ownership interest of such Unit Owner in any Unit. and (iii) if Unit Owner is a corporation, other business entity, trustee or nominee, a transfer of any equitable, beneficial, legal or principal interest in Unit Owner. For purposes of this Article, Sales of Units shall be subject to a right of first refusal (the "Right of First Refusal") in favor of Commercial Owner, its successors and assigns. 19.2 Bona Fide Offer. If a Unit Owner proposes to transfer title to all or a portion of its interest in its Unit to any person(s) or entity(ies) other than as permitted in Section 19.8 below, such Unit Owner shall first provide Commercial Owner with a written notice (the "Notice"): (1) certifying that Unit Owner has received a bona fide offer from a third party to acquire an interest in the Unit or a specified portion thereof(the "Offer"). (ii) certifying that Unit Owner desires to accept. or has accepted such Offer subject to the terms of this Article 19.. and (iii) specifying in reasonable detail all relevant terms of the Offer, together with a true cope of the Offer as received, and if applicable. accepted by Unit Owner. Commercial Owner shall then have a period of fifteen (15) days after receipt of the Notice to decide whether or not to exercise its Right of First Refusal described herein on the same terms of the Offer: provided. however. that the purchase price to the Commercial Owner shall be reduced by the amount of any brokerage; finder's fee or other similar fee which would have been payable in connection with such Offer or consummation of the sale contemplated thereby. If Commercial Owner does not elect to exercise its Right of First Refusal_ Commercial Owner's Right of First Refusal with respect to the transfer shall terminate in accordance with Section 19.7 below. i 9.3 Exercise of Right of First Refusal. Commercial Owner shall exercise the Right of First Refusal described above by delivering to Unit Owner, within the fifteen (I5) day period described above, written notice specif ,ing that the Right of First Refusal is being exercised and providing any earnest money payment or deposit equal to the amount specified in the Offer to Unit Owner. 19.4 Form of Purchase Contract. The terms of the purchase and sale will be the same as the terms of the Offer, with Commercial Owner or its designee substituted for the buyer named in the Offer. and the Offer will be amended by any special provisions described in this Article 19. If the Offer is not in the form of a purchase contract, any purchase of the Unit by Commercial Owner shall be pursuant to the terms and provisions of the Colorado Real Estate Commission approved form of Contract to Buy and Sell Real Estate All-Types (Common Interest Community), as amended from time to time, on the terms of the Offer, as modified by any special provisions described in this Article, and on any other customary terms for residential real estate transactions in Pitkin County, Colorado. 19.5 Special Provisions to an Offer. The Offer will be amended for the following terms, as applicable: (a) Non-Cash Consideration. If the Offer contains non-cash consideration, Commercial Owner shall have the option to pay the fair market value of such non-cash consideration. If the parties cannot agree on the fair market value of any such non-cash consideration, such value will be determined in accordance with the valuation procedures set forth in Section 19.5(b) below. (b) Valuations. Within three (3) business days after the request of either parry (the "Request Date"), the fair market value of the non-cash consideration shall be determined by an appraiser mutually agreeable to the parties. If the parties cannot agree on an appraiser within five (5) days of the request, then each party shall select an appraiser and the two appraisers shall select a third appraiser who shall perform the appraisal. Appraisal fees will be shared equally by the parties. 19.6 Closing. The Closing shall take place on the later to occur of (a) the date set forth in the Offer, or (b) the date that is thirty (30) days after delivery of the written notice of exercise. The Closing shall take place at 10:00 a.m. at the offices of the Title Company, as defined in the Offer. 19.7 Termination of Right of First Refusal. If Commercial Owner receives a Notice of an Offer from Unit Owner and thereafter either: (1) expressly declines to exercise the Right of First Refusal, or (ii) fails to exercise such Right of First Refusal within the fifteen (15) day period described above. then: (a) Unit Owner may transfer the Unit covered by the Offer free of the Right of First Refusal at a price no less than, and on terms no less favorable to Unit Owner. than those of the Offer. (b) If Unit Owner desires to transfer the Unit(or any portion thereof] at a price less than or on terms less favorable to the Unit Owner than those described in the Offer,. then Unit Owner shall provide Commercial Owner with another notice of Offer stating 1D reasonable detail all relevant provisions of the then-current Offer and Declarant gill have a new fifteen (15) day Right of First Refusal period as described herein and the provisions hereof will apply to the Offer as ;3 described in the new Notice. (c) If the Unit is conveyed after Commercial Owner has declined to exercise its right to purchase, this Right of First Refusal shall terminate with respect to that particular sale and Commercial Owner shall execute such documents as requested by Unit Owner to evidence termination of the Right of First Refusal as applied to that particular sale. 19.8 Exempted Transfers. Commercial Owner's Right of First Refusal shall not apply to any of the following transfers: (a) transfers by operation of law. including, but not limited to. execution upon judgments, bankruptcy, foreclosure,tax sales., and intestacies; (b) transfers to relatives by blood or marriage for estate planning purposes; (c) conveyance of easements or rights of way; (d) transfers by Unit Owner to an entity in which Unit Owner owns the majority interest. Commercial Owner's Right of First Refusal shall continue in effect for perpetuity following any single termination by Commercial Owner for a particular sale and for any exempted transfer and shall bind any transferee(s) in an exempted transfer and their successors and assigns. Notwithstandim, the foregoing, in the event the Right of First Refusal shall be unlawful, void or voidable, for violation of the rule against perpetuities, such provision shall continue only until twenty-one (21) years after the death of the survivor of the now living descendents of Declarant. 19.9 Notices. All notices required under this provision shall be given in writing to Commercial Owner or Unit Ovvner, as applicable, at the address for such parry as filed with the Association from time to time, and shall be (a) personally delivered. (b) mailed by certified mail, return receipt requested. (c) delivered by acceptable courier; or (d) sent by facsimile transmission. An acceptable courier shall be deemed to include Federal Express or other courier with service, which meets or exceeds that of certified U.S. mail. All notices shall be deemed given when (a) delivered in person to the appropriate address stated below. (b) if sent by mail, three (3) days after being placed in the U.S. mail. certified.. return receipt requested, postage prepaid. (c) if sent by courier. one (1) business day after the notice is deposited with the courier, all costs prepaid. -addressed to Commercial Owner or Unit Owner. and (d) if sent by facsimile. the date on which the sender can verify° a successful transmission by machine. 19.10 Voidable. Any purported Sale of a Unit in violation of this Article shall be voidable at the election of Commercial Owner. 54 Article 20 COVENANT NOT TO SUE Each of the Owners (except Declarant) and the Association and its members. for themselves and their respective agents, attorneys-in-fact; heirs, representatives, assigns, successors, executors, administrators, directors. officers, employees. friends, relatives, tenants. guests and invitees (collectively the "Releasing Parties") do hereby irrevocably and unconditionally release, acquit and forever discharge and indemnify and hold harmless Declarant. Residential Owner and the Commercial Owner and the current and former owners, shareholders; employees, directors, officers, partners, managers, members, agents, attorneys.. representatives, and insurers of each of them and any corporations, limited liability companies or other firms; or entities comprising or related to or affiliated with each of them and their respective successors,, administrators and assigns (collectively, "Released Parties") from and against any and all present and future complaints, claims, liabilities, obligations, agreements. damages, causes of action, costs, losses, and attorneys' fees and expenses whatsoever, whether known or unknown, including those attributable to the negligence; gross negligence or willful misconduct of the Released Parties. incurred in any manner or way in connection with or arising out of or from or in any way related to the Residential Project and any of the activities associated with or related to the Commercial Project, including, without limitation, any annoyance, noise or odor transmission, nuisance or trespass or any other perceived or actual harm, threat or distress related to or arising out of any one or more of the elements comprising the Commercial Project. The Releasing Parties expressly acknowledge and agree that the Commercial Project by its very nature will generate crowds and attendant noise, odors and refuse and that the Owners, for themselves and the other Releasing Parties, by acceptance of title to their respective Units, do hereby accept the risks attendant to the activities conducted in or around the Commercial Project. Each of the Releasing Parties acknowledges and agrees that it is expressly releasing all claims now or hereafter known and suspected as well as all those unknown or not suspected at this time and that its release hereunder includes and contemplates the extinguishment of all claims and complaints they may now or hereafter have against the Released Parties in any way or manner related to activities associated with or related to the Commercial Project and Residential Project under any and all applicable laws. Each of the Owners for itself and the other Releasing Parties does hereby also covenant not to sue. or otherwise participate in any action or class action against. anv of the Released Parties based upon any of the matters set forth above. Article 21 GENERAL PROVISIONS 2 1.1 The Act. Severability. The Residential Project and this Declaration will not be subject to the provisions of any amendment to or replacement of the Act which becomes effective after the date of Recording of this Declaration, unless the provisions of the amendment or replacement are expressly made binding upon existing condominiums. However. the Association may elect to subject the Residential Project to any amendment or replacement by the affirmative vote of all Owners who would be required to approve an amendment to this Declaration pursuant to Section 16.1 concerning the subject matter contained in the amendment to or replacement of the Act. if anv of the terms, conditions. provisions. sections or clauses of this Declaration conflict with any provision of the Act, the provisions of the Act control unless the Act permits this 5� Declaration to override the Act. in which event this Declaration controls. The invalidity of any covenant, restriction; condition, limitation or provision of this Declaration or the application of any of them to any person or circumstance will not impair or affect in any manner the validity, enforceability or effect of the rest of this Declaration, or the application of any covenant. restriction, condition, limitation or provision to any other person or circumstances. 21.2 Interpretation of Declaration. The provisions of this Declaration will be liberally construed to effect its purpose of creating a uniform plan for the ownership and operation of a first-class Residential Project. 'Whenever appropriate, singular terms may be read as plural, plural terms may be read as singular, and the neuter gender may be read as the feminine or masculine gender. The titles, headings and captions used throughout this Declaration are for convenience only and may not be used to construe this Declaration or any part of it. 21.3 Notices. Except for notices concerning meetings of the Association or the Board, which will be given in the manner prodded in the Bylaws, any notices required or permitted under this Declaration or the Bvla-vN,s to be given to any Owner. the Association. the Board or any Security Holder.will be sent by certified mail, first-class postage prepaid, return receipt requested, to the intended recipient at, in the case of notices to an Owner, the address of such Owner at its Unit; in the case of notices to the Association or the Board, the address of the Association's registered agent; or in the case of notices to a Security Holder, the address most recently given to the Association by notice from such Person. All notices are deemed given and received three business days after mailed as provided in the previous sentence. Any Owner or Security Holder may change its address for purposes of notice by notice to the Association in accordance with this Section 21.3. The Association or the Board may change its address for purposes of notice by notice to all Owners in accordance with this Section 213. Any such change of address is effective five days after the required notice is given. 2 1.4 Partition. The Common Elements are not subject to partition. Any purported conveyance, encumbrance,judicial sale or other voluntary or involuntary transfer of an undivided interest in the Common Elements made separately from the Unit to which that interest is allocated is void. Nothing in this Section 21.4 prevents the sale or encumbrance of all or a portion of the Common Elements in accordance with Section 18.2. 21.5 gssianment of Special Declarant Rights. Declarant may assign any or all of the Special Declarant Rights in accordance with Section 304 of the Act. 21.6 Taxation of units. Upon Recording this Declaration. Declarant will deliver a copy of it to the assessor of Pitkin County in accordance with Section 105(2) of the Act. Each Unit, together with its Common Allocation of the Common Elements, constitutes a separate parcel for purposes of real estate assessment and taxation. The Common Elements Will be assessed against each Unit in accordance with the Unit's Common Allocation and may not be separately assessed or taxed. 56 IN uTITNESS 'v�THEREOF, Declarant has executed this Declaration. DECLARANT: NJ STEIN LLC, a Colorado limited liability company as to an undivided 52.98% interest By: Name: Title: COUNTY OF PITKIN ) } ss: STATE OF COLORADO ) The foregoing instrument was acknowledged before me this _ day of 2010. by as of NJ Stein LLC, a Colorado limited liability company as to an undivided 52.98% interest. WITNESS my hand an official seal. My commission expires: Notary Public 4;363 Sv 1 OF-CS-Residential-Final 7 DECL-ARANT: STEIINT BUILDING LLC. a Colorado limited liability company as to an undivided 23.11% interest Bv: Name: Title: COUNTY OF PITKIN ) ss: STATE OF COLORADO ) The foregoing instrument was acknowledged before me this _ day of 2010. by as of Stein Building LLC, a Colorado limited liability company as to an undivided 23.11% interest. WITNESS my hand an official seal. My commission expires: Notary Public Z.S DECLARANT: AV STEIN LLC, a Colorado limited liability company as to an undivided 19.08% interest By: Name: Title: COUNTY OF PITKIN ) ss: STATE OF COLORADO ) The foregoing instrument was acknowledged before me this day of , 2010, by as of AV STEIN LLC, a Colorado limited liability company as to an undivided 19.08% interest. WITNESS my hand an official seal. My commission expires: Notary Public 9 DECLARANT: RG COOPER STREET LLC. a Colorado limited liability company, as to undivided 4.83% interest By: Name: Title: COUNTY OF PITKIN ) ss: STATE OF COLORADO ) The foregoing instrument was acknowledged before me this day of 2010, by as of RG Cooper Street LLC, a Colorado limited liability company as to an undivided 4.83% interest. FITNESS my hand an official seal. My commission expires: Notary Public 60 EXHIBIT A THE RESIDENTIAL LOT/PROPERTY Residential Condominium Lot B. according to the Condominium Plat of Bowman Project, a Residential and Commercial Airspace Lot Condominium, a Resubdivision of Lots I and H. and the easterly 5 feet of Lot G, Block 96. City and Townsite of Aspen, Section 7, Township 10 South. Range 84 West of the 6th P.M., County of Pitkin. State of Colorado. A-1 EXHIBIT B COMMON ALLOCATIONS Unit: Allocation/ Percentage: 1 11.95% 2 13.54% 3 12.14% 4 14.10% 5 19.64% Penthouse 28.63% B-1 EXHIBIT C PERMITTED EXCEPTIONS 1. Reservations and exceptions as set forth in the Deeds from the City of Aspen recorded in Book 59 at Page 221, 287 & 453 providing as follows: "That no title shall hereby acquired to any mine of gold, silver. cinnabar or copper or to any valid mining claim or possession held under existing laws." 2. Notice of Historic Designation recorded January 13, 1975 in Book 295 at Page 515. Terms, conditions, provisions. obligations and all matters as set forth in Resolution of the Aspen Historic Preservation Commission. denying an application for Minor Development recorded May 17, 1999 as Reception No. 431139 as Resolution No. 18, Series of 1999. 4. Easements.. rights of way, and all matters as disclosed on Survey of subject property recorded December 8, 2008 in Plat Book 89 at Page 49. 5. The rights of tenants, as tenants only, under leases. C-1 JOINDER & CONSENT U.S. BANK NATIONAL ASSOCIATION, for itself. its successors and/or assigns ("Lender"). is the beneficiary under that certain Deed of Trust granted by NJ Stein LLC, a Colorado limited liability company as to an undivided 52.98% interest, Stein Building LLC. a Colorado limited liability company, as to an undivided 23.11% interest. AV Stein LLC_a Colorado limited liability company, as to an undivided 19.08% interest, and RG Cooper Street LLC. a Colorado limited liability company. as to undivided 4.83% interest, for the benefit of Lender and recorded in the real property records of Pitkin County, Colorado at Reception No. 546687 (as amended from time to time, the "Deed of Trust"). Lender hereby consents to this Condominium Declaration for Bowman Residences, and acknowledges and agrees that the Deed of Trust and the lien evidenced thereby shall at all times be and remain subordinate to the Shared Facilities Agreement and this Condominium Declaration for Bowman Residences. Lender acknowledges and agrees that in the event of any foreclosure of the Deed of Trust. the Shared Facilities Agreement and Condominium Declaration for Bowman Residences shall remain in priority, effect and not be divested thereby. LENDER: US Bank National Association, a national banking association Bv: Name: Title: STATE OF COLORADO ) )ss. COUNTY OF PITKLN ) The foregoing instrument was acknowledged before me this day of 2010, by , as of US Bank National Association, a national banking association. Witness my hand and official seal. My commission expires: Notary Public (SEAL) Upon Recordation Return To: Garfield & Hecht. P.C. Attn: Kursten Canada., Esc}. P.O. Box X450 Aeon, Colorado 81620 SHARED FACILITIES AGREEMENT BETWEEN NJ Stein LLC, a Colorado limited liability company, as to an undivided 52.98% interest, Stein Building LLC, a Colorado limited liability company, as to an undivided 23.11% interest, AV Stein LLC, a Colorado limited liability company, as to an undivided 19.08% interest, and RG Cooper Street LLC, as to an undivided 4.83% interest, AS "COMMERCIAL OWNER" AND NJ Stein LLC, a Colorado limited liability company, as to an undivided 52.98% interest, Stein Building LLC, a Colorado limited liability company, as to an undivided 23.11% interest, AV Stein LLC, a Colorado limited liability company, as to an undivided 19.08% interest, and RG Cooper Street LLC, as to an undivided 4.83% interest, AS "RESIDENTIAL OWNER" FOR BOV"'--NL N PROJECT SHARED FACILITIES AGREEMENT THIS SHARED FACILITIES AGREEMENT (fnis "Agreement") is made as of the day of 2010. by and between NJ Stein LLC. a Colorado limited liability company. as to an undivided 5298% interest, Stein Building LLC, a Colorado limited- liability company. as to an undivided 23.111/c interest, AV Stein LLC, a Colorado limited liability company, to an undivided 19.08 11/o interest and RG Cooper Street LLC. a Colorado limited liability company.. as to an undivided 4.83% interest, as owner of the "Commercial Lot" (as defined below) (the "Commercial Owner"), and NJ Stein LLC, a Colorado limited liability company, as to an undivided 52.98% interest, Stein Building LLC, a Colorado limited Liability company. as to an undivided _73.11% interest. AV Stein LLC. a Colorado limited liability company, as to an undivided 19.08% interest and RG Cooper Street LLC, as to an undivided 4.83% interest. as owner of the "Residential Lot" (as defined below) (the "Residential Owner"). RECITALS A. Certain real property located in Pitkin County. Colorado was legally subdivided pursuant to the Condominium Plat of Bowman Project (the "Plat") recorded in the real property- records of Pitkin County. Colorado (the "Records") on , 2010, at Reception No. . Pursuant to the Plat, certain airspace located within the real property subjected to the Plat was defined and legally established as two severed and independent property interests, each in the form of an "estate above the surface" as authorized under Section 38-32-101, et seq.. C.R.S. (the "Residential Lot"). The remainder of the property subjected to the Plat not otherwise described as the Residential Lot is a single, subdivided lot (the "Commercial Lot"). Without limiting the foregoing. the Commercial Lot includes the underlying ground. B. The Commercial Lot is legally described on the attached Exhibit A and is owned bv the Commercial Owner. The Residential Lot is legally described on the attached Exhibit B and is owned by the Residential Owner. C. The Commercial Lot contains a mixed-use development, which includes, as of the date of this Agreement, retail space (the "Commercial Improvements"). The Residential Lot contains a residential condominium project. which includes six (6) dwelling units, improvements therein. and the common elements appurtenant thereto (collectively. the "Residential Improvements"). Although a portion of the Residential Lot -,�7111 be located over. and structurally supported by, the Commercial Lot and a portion of the Commercial Lot will be located oven and structurally supported by the Residential Lot. except as otherwise specifically provided in this Agreement. the terms "Commercial Improvements" and "Commercial Lot" do not include the Residential Lot or the Residential Improvements. In addition, although portions of the "Commercial Structure," the "Residential Structure." the "Commercial Service Elements" and the "Shared Service Elements" (as each term is defined below) may pass through the Residential Lot and/or the Commercial Lot pursuant to easements orranted herein, (i) the Commercial Structure and the Commercial Service Elements are not a part of the Residential Improvements, but rather are a part of the Commercial Improvements (owned by the Commercial Owner), (ii) both the Commercial Service Elements and Shared Service Elements are owned by the 1 Comirnerciai Owner with easements and other use arrangements therefor in favor of the Residential Owner. and (iii) both the Residential Structure and Residential Service Elements are owned by the Residential Owner with easements and other use arrangements therefor in favor of the Commercial Owner. D. The Commercial Owner and the Residential Owner now desire to enter into this Agreement in order to (1) establish certain easements benefiting the Residential Lot and the Residential Owner and burdening the Commercial Lot: (ii) establish certain easements benefiting the Commercial Lot and the Commercial Owner and burdening the Residential Lot: (iii) provide an allocation of responsibilities and costs between the Commercial Owner and the Residential Owner that are associated with ownership of the Residential Lot, Shared Service Elements and the Commercial Improvements: and (iv) otherwise regulate the use and enjoyment of the Residential Improvements and the Commercial Improvements to the extent provided for and in accordance with the terms of this Agreement. AGREEMENT NOW, THEREFORE.. pursuant to and in furtherance of the foregoing recitals.. and in consideration of the mutual covenants and agreements set forth in this Agreement, the Commercial Owner and the Residential Owner covenant and agree as follows: 1. DEFINITIONS. The following terms as used in this Agreement have the meanings set forth below. "Adjacent Properties" means other properties located adjacent to and nearby the Commercial Project and/or the Residential Project. "Agreement" means this Shared Facilities Agreement, as amended from time to time. "Alteration" means any alteration, modification or construction to the Residential or Commercial Improvements and/or the Shared Service Elements, but excludes any nonsubstantive cosmetic changes to the Residential or Commercial Improvements and/or Shared Service Elements. "Capital Payments" means those payments that either Party hereto is required to make to the other pursuant to Section 8(1). "Capital Project" is defiled in Section 8(1). "CCIOA" means the Colorado Common Interest Ownership Act.. Section 38-333-101, et seq.. C.R.S.. as amended from time to time. "Claims" is defined in Section 1-'. "Commercial Activities" is defined in Section i5(a)(111). "Commercial Allocation Percentage" means 48°/ti, which percentage is based on a fraction. the numerator of which is the Commercial Area square footage (4.446) and the denominator of which is the square footage for the entire Project (9?48). "Commercial Area" means the approximate square footage of the Commercial Project. "Commercial Association" means the Bowman Commercial Association, Inc., a Colorado nonprofit corporation ("BCA"). "Commercial Improvements" is defined in Recital C. "Commercial Lot" is defined in Recital A. "Commercial Owner" means the Commercial Owner designated in the Recitals herein, as owner of the Commercial Project, and its successors and assigns. "Commercial Project" means the condominium; as defined pursuant to CCIOA.. created by this Agreement and consistin` of the Commercial Lot and Commercial Improvements. The Commercial Project does not include the Residential Project or the Residential Structure. "Commercial Service Elements" means any and all shafts, chutes. flues; ducts, vents, chases, pipes, wire. conduits.. utility lines or telecommunications, telephone television, or similar lines or equipment that solely serve the Commercial Project and not the Residential Project. regardless of whether they are located within the Commercial Lot or Residential Lot. "Commercial Structure" means those portions of the Commercial Improvements that constitute the structural support and building enclosure systems, including, by way of example, bearing walls, bearing columns; structural slabs and decks for floors, ceilings or roofs, structural girders, beams and joists, and foundations and footings. "Construction Activities" is defined in Section 15(a)(11). "Direct Commercial Expenses" means those expenses related to the Commercial Lot and Commercial Improvements that the Commercial Owner is responsible for paying pursuant to Section 8(b). "Direct Residential Expenses" means those expenses related to the Residential Lot and Residential Improvements that the Residential Owner is responsible for paying pursuant to Section 8(a). "Estimated Annual Shared Expenses " is defined in Section 8(d). "Expense Lien" is defined in Section 80). "Historical Preservation Status" is defined in Section 15(a)(,v). "Land Use Code" means the Ciry of Aspen Land Use Code, as amended from time to time. "Liened Owner" is defined in Section 14. "Mountain Resort Activities" is defined in Section 15(a)(i). "Mountain Resort Areas" is defined in Section 15(a)(i). 3 "Party" or "Parties" means either or both parties to this Agreement. "Permitted Exceptions" are those matters appearing on Exhibit C. "Permittees" means the agents, employees, contractors, licensees, members; guests and invitees of the Party. person or entity referenced. "Project" means. collectively. the Residential Project and the Commercial Project. "Project Rules" means any rules and regulations adopted by the Commercial Owner with respect to conduct or activity within the Commercial Lot and Residential Lot; provided,, however, that such rules and regulations must be consistent ,A,Ith the provisions hereof; and any changes that solely effect the Residential Owner with respect to the Residential Lot must be approved by the Residential Association; in its reasonable discretion. "Records" is defined in Recital A. "Residential Allocation Percentage" means 52%, which percentage is based on a fraction, the numerator of which is the Residential Area square footage (4,802) and the denominator of which is the square footage in the entire Project (9.248). "Residential Area" means the approximate square footage of the Residential Project. "Residential Association" means the Bov`rnan Residential Association, Inc., a Colorado nonprofit corporation ('BRA"). "Residential Improvements" is defined in Recital C. "Residential Lot" is defined in Recital A. "Residential Owner" means the Residential Owner defined in the Recitals hereof. as owner of the Residential Lot, and its successors and assigns. "Residential Owner Easements" means those easements created pursuant to Section 2. "Residential Project" means the condominium. as defined pursuant to CCIOA, created by this Agreement and consisting of the Residential Lot and Residential Improvements. The Residential Project does not include the Commercial Project or the Commercial Structure. "Residential Rules" means any reasonable rules and regulations adopted by the Residential Owner with respect to conduct or activity solely within the Residential Lot. The Residential Rules shall be those Rules adopted and approved by the Residential Association from time to time; and perpetually subject and subsidiary to the Project Rules. "Residential Service Elements" means any and all shafts, chutes, flues, ducts, vents, chases, pipes; wire. conduits., utility lines or telecommunications. telephone, television or similar lines or equipment that solely serve the Residential Project and not the Commercial Project, regardless of whether located within the Commercial Lot or the Residential Lot. 4 "Residential Structure" means those portions of the Residential Improvements that constitute the structural support and building enclosure systems, including_ by way of example.. bearing walls. bearinQ columns. structural slabs and decks for floors, ceilings or roofs. structural girders. beams and joists. and foundations and footings. "Responsible Owner" is defined in Section 14. "Shared Expense Payments" means those payments that the Residential Owner is required to make to the Commercial Owner pursuant to Section 8(d). "Shared Service Elements" means anv and all elevators. shafts.. chutes, ducts; vents, chases, pipes.. wire, conduits, utility lines or telecommunications; telephone, television; or similar lines or equipment that (a) mutually serve the Residential Project and Commercial Project; (b) are solely located within the Residential Project or Commercial Project; and (c) the repairs, maintenance. replacement and upkeep for which are paid for by the Residential Owner and Commercial Owner in accordance with Sections 7 and 8 hereof. "Shared Expenses" means those expenses related to the Shared Service Elements that the Commercial Owner is responsible for paying (a portion of which shall be reimbursed by the Residential Owner) pursuant to Section 8(c). "Terraces" means the patios, balconies, decks and terraces which adjoin and are accessible from the interior of the Residential Lot. The Terraces are Limited Common Elements (as such capitalized term is defined in the Condominium Declaration for The Bowman Residences) and are not part of the Commercial Improvements. "Total Casualty" is defined in Section 13(a). "City" means the Cite of Aspen, Colorado. 2. RESIDENTIAL OWNER EASEMENTS. (a) Easements. The Commercial Owner hereby grants and conveys to the Residential Owner the following easements and interests, which are non-exclusive (collectively. the "Residential Owner Easements"): (1) Access Easements. (1) An easement for the benefit of the Residential Owner, its tenants and their respective Permittees through. on or in those portions of the Commercial Project, as may be reasonably necessary to gain pedestrian access between the Commercial improvements and the public roads and sidewalks and rights-of-way adjoining the Commercial Project: and (2) An easement for the benefit of the Residential Owner.. its tenants and their respective Permittees as may be reasonably necessary for access to and from the Residential Project generally and between the Residential Project (a) through. on or in the common corridors. hallways, entrances and lobbies located within the Commercial Project, (b) via any stairways. elevators and escalators within the Commercial Project except any stairways, elevators and escalators specifically designated for Commercial Project employees or operations and not generally open for public use throughout the Commercial Project from time to time. (ii) Utility Easement. An easement for the benefit of the Residential Owner, its tenants and their respective Permittees over and across any Commercial Service Elements as may be reasonably necessary for the continuance of utility services. plumbing services, sanitary and storm sewer services, water supply, telecommunications and other services to the Residential Improvements. (iii) Structural Easements. An easement for the benefit of the Residential Owner over and across the Commercial Structure, including without limitation, the exterior enclosure system and horizontal plane designated as the roof of the first floor of the Project, as may be reasonably necessary for adequate enclosure against the elements and structural support of the Residential Project, and any portion of the Commercial Improvements with respect to which an easement is granted pursuant to this Agreement. (iv) Easement for Encroachments. An easement for the benefit of the Residential Owner over and across the Commercial Project as may be reasonably necessary to permit any encroachments of the Residential Project upon any part of the Commercial Project resulting from the construction, reconstruction; shifting, settlement, restoration, rehabilitation, alteration or improvement of the Residential Improvements or any portion thereof, assuming that the Residential Improvements (or portions thereof) are reconstructed or restored as nearly as possible to their original design and condition. This easement will continue for so long as the encroachment exists and will burden the portion of the Commercial Project encroached upon and benefit the encroaching portion of the Residential Project at no additional cost or expense to the Residential Owner. No easement exists for any encroachment that is materially detrimental to, or interferes with, the reasonable use and enjoyment of the portion of the Commercial Project burdened by the encroachment. (v) Easement for Elevator. An easement over and across the Commercial Project as may be reasonable necessary for the installation. construction, reconstruction, maintenance; repair and replacement. as necessary. of an elevator servicing the Projects and the property adjacent to the Projects. in a location reasonable determined bv_ the Commercial Owner and for the benefit of the Residential Owner. (b) Use of Residential Owner Easements. (1) The Residential Owner must keep.. repair and maintain the Residential Owner Easements to the level of similar]-- situated historical buildings in downtown Aspen at its sole cost and expense. Repairs or maintenance of such Residential_ Owner Easements in excess of$10.000 require prior written approval from the Commercial Owner. (ii) The Residential Owner Easements may be used and enjoyed only in accordance with and subject to all the other provisions of this Agreement governing and limiting the same. Without limiting the aeneraliry of the foregoing. the Residential Lot and the Residential Owner Easements mae be used. enjoyed. occupied and maintained only for 6 commercial purposes, in accordance with the Permitted Exceptions, all applicable laws and my Project Rules adopted by the Commercial Owner from time to time in accordance with this Agreement. Without limiting the foregoing. the Residential Lot and Residential Owner Easements may not be employed for any use or purpose that constitutes an unusual fire hazard, jeopardizes any insurance maintained on any part of the Commercial Improvements (or result in any increase in the premiums for such insurance), constitutes a public or private nuisance or gives rise to anv noxious noises or odors that (on an ongoing basis) materially interfere with the ordinary use and enjoyment of any portion of the Commercial Improvements. (iii) Nothing in this Agreement will be interpreted to grant to the Residential Owner the right to make any alterations or attachments of any sort to the Commercial Structure or in any way modify the Commercial Improvements without the prior written approval of the Commercial Owner, which may be granted or denied in the Commercial Owner's sole and absolute discretion. 3. COMMERCIAL OWNER EASEMENTS. (a) Easements. The Residential Owner hereby grants and conveys to the Commercial Owner the following easements and interests, which are non-exclusive (collectively, the "Commercial Owner Easements"): (1) Access Easement. (1) An easement for the benefit of the Commercial Owner, its tenants and their respective Permlttees through, on or in those portions of the Residential Lot, including, without limitation, corridors, hallways, entrances, closets. and walls, to the extent reasonably necessary to gain vehicular access between any Commercial Improvements and the Shared Service Elements for maintenance, repair, and to perform general upkeep to the Shared Service Elements in the event the Residential Owner fails to do so in accordance with the provisions of this Agreement. (2) An easement for the benefit of the Commercial Owner. its tenants and their respective Permittees as may be reasonably necessary for access to and from the Commercial Project generally and between the Commercial Project (a) through. on or in the common corridors. hallways. entrances and lobbies located within the Residential Project; (b) via any stairways. elevators and escalators within the Residential Project except any stairways. elevators and escalators specifically designated for Residential Project employees or operations and not generally open for public use throughout the Residential Project from time to time. (ii) Utility Easement. An easement for the benefit of the Commercial Owner, its tenants and their respective Permittees over and across any Residential Improvements and Shared Service Elements to the extent reasonably necessary for the maintenance.. installation and preservation of utility services, plumbing services. sanitary and storm sewer services, water supply, telecommunications and other such utility- services. (iii) Structural Easements. An easement for the benefit of the Commercial Owner over and across the Residential Structure, including without limitation, the exterior enclosure system and horizontal, plane designated as the roof of the fist floor of the Project. as may be reasonably necessary for adequate enclosure against the elements and structural support of the Commercial Project, and any portion of the Residential Improvements with respect to T hich an easement is granted pursuant to this Agreement. (iv) Easement for Encroachments. An easement for the benefit of the Commercial Owner over and across the Residential Project as may, be reasonably necessary to permit any encroachments of the Commercial Project upon any part of the Residential Project resulting from the construction. reconstruction. shifting, settlement, restoration, rehabilitation., alteration or improvement of the Commercial Improvements or any portion thereof, assuming that the Commercial Improvements (or portions thereof) are reconstructed or restored as nearly as possible to their original design and condition. This easement will continue for so long as the encroachment exists and will burden the portion of the Residential Project encroached upon and benefit the encroaching portion of the Commercial Project at no additional cost or expense to the Commercial Owner. No easement exists for any encroachment that is materially detrimental to, or interferes with. the reasonable use and enjoyment of the portion of the Residential Project burdened by the encroachment. (b) Use of Commercial Owner Easements. (1) The Commercial Owner must keep, repair and maintain the Commercial Owner Easements to the level of similarly situated historical buildings in downtown Aspen at its sole cost and expense. Repairs or maintenance of such Commercial Owner Easements in excess of$10,000 require prior written approval from the Residential Owner. (ii) The Commercial Owner Easements may be used and enjoyed only in accordance with and subject to all the other provisions of this Agreement governing and limiting the same. Without limiting the generality of the foregoing; the Commercial Lot and the Commercial Owner Easements may be used, enjoyed, occupied and maintained only for residential purposes, in accordance with the Permitted Exceptions, all applicable laws and any Commercial Project Rules adopted by the Residential Owner from time to time in accordance with this Agreement. Without limiting the foregoing. the Commercial Lot and Commercial Owner Easements may, not be emploved for any use or purpose that constitutes an unusual fire hazard. jeopardizes any insurance maintained on any part of the Residential Improvements (or result in any increase in the premiums for such insurance), constitutes a public or private nuisance or gives rise to anv noxious noises or odors that (on an ongoing basis) materially_ interfere with the ordinary use and enjoyment of any portion of the Residential Improvements. (iii) Nothing in this Agreement will be interpreted to grant to the Commercial Owner the right to make anv alterations or attachments of any sort to the Residential Structure or in any way modify the Residential Improvements without the prior written approval of the Residential Owner.. which may be granted or denied in the Residential Owner's sole and absolute discretion. Notwithstandingr the foregoing, the Commercial Owner may install. construct, reconstruct, repair, maintain and replace, as necessary, an elevator servicing the Residential Owner and its designees in a location solely determined by the Commercial Owner. without anv Residential Owner approval requirements. For purposes of Section 4 below, such permissible activities related to the elevator shall not constitute an Alteration. 8 4. ALTERATIONS. Neither the Residential Owner nor the Commercial Owner will undertake anv Alteration without first obtaining the written approval of the other (which approval may be granted or denied in each owner's reasonable discretion). Cosmetic changes that do not constitute Alterations do not need the prior approval of the other owner: provided. however. that the owner -vill notify the other owner prior to commencing such work. Each owner will provide the other owner with written notice of its plans to undertake any Alteration, along with all details regarding such Alteration.. including anv plans and specifications for such Alteration and alternative locations and provisions for temporary displacement of an), Shared Service Elements. Within 30 days after receipt of such notice, such other owner will grant. condition or withhold its approval for the Alteration, in its reasonable discretion. If such Alteration is approved by the other owner, in addition to any other conditions that such other owner may impose, the owner will comply with the following provisions: (a) Each owner will obtain all necessary permits and governmental authorizations for the Alteration: (b) Both the construction of the Alteration and the Alteration itself will comply with all applicable zoning and building codes and other applicable laws, ordinances and restrictive covenants: (c) Each owner wi11 cause the Alteration to be constructed and completed diligently, in a good and workmanlike manner, and free and clear of all mechanics' and materialmen's liens and other claims: (d) Each owner will cause the Alteration to be constructed and completed in a manner that does not impair or diminish the support of any portion of Residential or Commercial Improvements, the Residential Structure or the Commercial Structure or any other portion of the Residential or Commercial Improvements, including, without limitation, any acoustical separation assemblies or other components designated to mitigate the transmission of sound through walls and other physical separations: (e) During the construction process, each owner will. to the extent consistent with good construction practice, keep the area affected in a safe, neat and clean condition. (f) Each owner will minimize to the extent reasonably practical any impact from the construction process on the Commercial and Residential Improvements and Shared Service Elements: (g) Each owner will reimburse the other owner for all reasonable costs incurred by such other owner in connection with the Alteration, such as the increase in costs of trash removal due to the performance of the Alteration work; and (h) Each owner will indemnif�r and hold harmless the other, its directors. officers, agents, employees, successors and assigns from and against anv and all demands, claims, causes of action, liens, fines, penalties, damages, liabilities, judgments, and expenses (including attomevs' fees) arising out of or related to any Alteration undertaken or executed by or through them. The foregoing indomniry shall apply regardless of whether the other owner approved such _alteration. 9 Notwi y disruption or thstanding the foregoing. in no event shall any Alteration cause an discontinuance of the Shared Service Elements unless and until the other owner provides its written consent thereto. In the event the owner not engaging in the alteration fails to comply with anv of the above requirements or any of the requirements of the other owner's approval. after 24-hours prior written notice to the owner not engaging in the alteration, the owner not engaging in the alteration may suspend the owner's work on such Alteration until such time as the owner complies with such requirement and further construct, install or utilize any shafts, flues. ducts or similar infrastructure deemed to be required by the other owner to provide continued uninterrupted utilities to the other owners lot otherwise compromised in connection with the Alterations. all at the owner's sole cost and expense of the owner engaging in the alteration and subject to the Historical Preservation Status described herein. Without limiting the foregoing and regardless of whether any wallboard, plasterboard or other materials which form part of any required. fire-separation assembly is part of the Commercial Improvements or the Residential Improvements, the altering owner mad- not remove, penetrate or do anything to otherwise impair the fire-separation capability of such materials or assemblies without the prior specific, written approval of the other owner, which may be granted or denied, in such other owner's reasonable discretion. 5. COMMERCIAL M"_ER RIGHTS AND EASEMENTS. (a) Commercial Owner Rights. The Residential Owner Easements are non-exclusive and at all times subject to the Commercial Owner's rights with regard to the Commercial Improvements (including the Commercial Owner's rights to adopt Project Rules in accordance with this Agreement). The Commercial Owner retains and reserves all rights to use, occupy; maintain, repair, replace, reconfigure, operate and enjoy the Commercial Improvements. The Commercial Owner's reserved rights in this regard specifically include the following rights and interests for the benefit of the Commercial Owner, any tenants or occupants of the Commercial Improvements claiming by, through or under the Commercial Owner, and their respective Permittees, subject to the limitations set forth elsewhere in this Agreement: (1) The right to use and enjoy the Commercial Improvements for their intended purposes and to operate the retail presence and any restaurants within the Commercial Improvements in a manner determined by the Commercial Owner.. in its reasonable discretion; (ii) The right of access to and from any part of the Commercial Improvements and Shared Service Elements; (iii) The right to use. enjoy, maintain, repair, replace, improve and preserve the Commercial Service Elements and Shared Service Elements (to the extent they benefit the Commercial Lot), together with certain rights and remedies related to the foregoing (as further described below); (iv) The right to use, enjoy, maintain. repair., replace, improve and preserve all portions of the Commercial Structure: i0 (v} The restriction that the Residential Owner has no right to modify or alter the Residential Lot. the Shared Service Elements; the Terraces or the Commercial Improvements except as expressly permitted by this Agreement_ and (vi) An easement for the benefit of the Commercial Owner over and across the Residential Project as may be reasonably necessary to permit any encroachments of the Commercial Improvements. including the Commercial Structure and any Commercial Senice Elements and Shared Service Elements, upon any part of the Residential Project resulting from the construction. reconstruction. shifting. settlement, restoration. rehabilitation. alteration or improvement of the Commercial Improvements or any portion of it. assuming that the Commercial Improvements (or portion thereof) are reconstructed or restored as nearly as possible to their original design and condition. This easement will continue for so long as the encroachment exists and will burden the portion of the Residential Project encroached upon and benefit the encroaching portion of the Commercial Improvements at no additional cast or expense to the Commercial Orwr,er. No easement exists for anti encroachment that is materially detrimental to. or interferes with, the reasonable use and enjoyment of the Residential Project burdened by the encroachment. (b) Entry into Residential Lot. Except as provided for above.. the reserved rights and interests benefiting the Commercial Owner do not extend to the Residential Project: Provided however, that the Commercial Owner has and retains an irrevocable easement to access the Residential Project as may be reasonably necessary or appropriate in order to operate and perform inspections, maintenance. repairs, improvements, replacements and restorations of and for the Commercial Improvements and Shared Service Elements, as provided for in this Agreement (including any such entry as necessary to prevent damage or injury to any or all of the Commercial Improvements and Shared Service Elements). This irrevocable easement for entry will inure to the benefit of the Commercial Owner and its Permittees, and runs with the Commercial Lot as an appurtenance benefiting the ownership of the Commercial Lot. The Residential Owner's right to occupy the Residential Lot is exclusive as against the Commercial Owner and anyone claiming by. through, or under the Commercial Owner, subject only to the foregoing irrevocable easement and the express limitations on the rights of the Residential Lot set forth elsewhere in this Agreement. (c) Modifications to Commercial Improvements. Subject to the limitations set forth elsewhere in this Agreement. the Commercial Owner may make any alterations. modifications and/or improvements to the Commercial Improvements that the Commercial Owner deems appropriate. in its sole and absolute discretion, however. that such alterations. modifications or improvements may not materially impair the benefits which the Residential Owner derives from the ordinary, reasonable use and enjoyment of the Residential Owner Easements. Notwithstanding the foregoing. the Commercial Owner may use and operate all Commercial Service Elements and related equipment as presently configured and located within the Commercial Improvements (and replacements thereof}, and may complete any remaining work for the Shared Service Elements and Commercial Improvements in substantial conformity with the currently existing plans and specifications for the Shared Service Elements and Commercial Improvements. it 6. USE RIGHTS AND RESTRICTIONS. (a) Permitted Uses and Rights. All or any portion of the Residential Lot may be occupied and used only for: (1) residential uses and uses incidental to them: (ii) long term and short term rentals of individual residential dwellings within the Residential Lot for residential and lodging purposes (to the extent permitted by applicable zoning laws): and (iii) home occupations permitted by applicable zoning laws.. so long as that use is incidental to the residential use of the applicable residential dwelling located within the Residential Lot; does not materialiv increase the use of stairways, elevators or other public areas in the Commercial Improvements and Shared Service Elements. and is not advertised or identified by signage on or any directory in the Commercial Improvements. (b) Prohibited Uses. In addition to the other restrictions contained elsewhere in this Agreement, the occupation and use of the Residential Lot by the Residential Owner; and/or the Commercial Lot by the Commercial &caner, their tenants and their respective Permittees, as applicable is subject to the following restrictions: (1) Commercial Purposes. Except as otherwise provided for in Section 6(a), the Residential Lot may not be used for commercial purposes, provided, however, long and short-term rentals, timeshare, and bed and breakfast type uses are specifically permitted. (ii) Insurance Risks. Neither the Commercial Lot nor the Residential Lot may be used for any use that would constitute an unusual fire hazard; jeopardize any insurance maintained on any part of the Commercial or Residential Improvements or cause any increase in the premium for such any insurance. (iii) Overloading. Neither the Commercial Lot nor the Residential Lot may be used for any use that would compromise the structural integrity of the Commercial and,/or Residential Structures . and/or exceed the maximum load capacity of the Shared Service Elements, Commercial Improvements and/or Residential Improvements, and no apparatus, equipment.. fixtures or other property of any nature may be located within the Residential Lot or Commercial Lot if the same. singularly or in the aggregate, would exceed the maximum load capacity that the structural flooring in the Residential Lot and/or Commercial Lot are designed to support. Further, neither the Commercial nor Residential Lot ma5T be used for any use which would place any extraordinary burden on any portion of the Commercial or Residential Improvements or Commercial or Residential Structure. (iv) Nuisance. Neither the Residential Lot nor the Commercial Lot may be used for any use that: (1) constitutes a public or private nuisance: (2) involves the manufacture of any product: or (3) causes undue odor.. noise. vibration or glare; provided, however, standard restaurant industry- odor, noise and vibration are permitted. (y) Violation of Law. No portion of the Residential Lot or Commercial Lot my be used for any use which violates any law, statute, ordinance. rule. regulation or order of any governmental authority having jurisdiction over the Residential Lot or Commercial Lot, including any of them that regulate or concern hazardous or toxic waste. substances or materials. 12 (vi) Commercial Tenants. No portion of the Commercial Lot may be used as: a commercial enterprise for adult entertainment purposes which are prohibited by Colorado law. (c) Manner of Use. The occupation and use of the Residential Lot by the Residential Owner. and/or the Commercial Lot by the Commercial Owner, their tenants and their respective Permittees, as applicable. is subject to the following restrictions: (1) Building Securitv and Rights of Entry. The Residential Owner, its tenants; and their respective Permittees may enter and exit the Residential Improvements at any time. and the Commercial Owner shall not be deemed under any circumstances to guarantee the safety and security of the Residential Owner, its tenants and their respective Permittees or the security of the property of such persons. The Commercial Owner disclaims all responsibility to ensure the security and safety of persons and property within the Commercial Improvements and Residential Improvements and no person shall be entitled to rely upon the presence of any security, or access control devices within the Commercial or Residential Improvements as a guarantee of safety and security. (ii) Minimum Heating. The Residential and Commercial Lots must be heated as necessary to maintain a minimum temperature of 55 degrees Fahrenheit from October 1 through May 30 every year. (iii) Pets. No animals, livestock, insects, rodents, poultry; reptiles, birds or other pets may be kept within the Residential Lot, except for usual and ordinary domestic household pets (e.g., a dog, cat, small bird kept in a cage or a similar pet). No pet may be kept. bred or maintained for any commercial purpose. No pet may be kept or maintained on any Terrace(s). If a pet becomes obnoxious to the Commercial Owner, its tenants or their respective Permittees. the Residential Owner or the person having control over the animal will be given a written notice to correct the problem. If such problem is not corrected. the Residential Owner, upon written notice from the Commercial Owner, may be required to remove the animal from the Residential Lot. The Residential Owner, its tenants or their respective Permittees having control over the pet are responsible for cleaning up after the pet and will hold the Commercial Owner harmless from any liability. claim, damage, cost or expense resulting from any action of their pet. At any time a pet is outside the Residential Lot, it must be accompanied by its owner and on a leash and oth i-xise under the control of its owner. The City shall dictate further pet restrictions to which the Residential Lot and Commercial Lot are subject from time to time, notwithstanding anything to the contrary in this Agreement. the Project Rules and/or Residential Rules. (iy) Doors. Neither the Residential Owner nor the Commercial Owners, their tenants. and their respective Permittees may change the lock on any door forming the boundary between the Residential Lot and the Commercial Lot. Neither the Residential Owner nor the Commercial Owner. their tenants, and their respective Permittees ma-,7 change any door forming the boundary between the Residential Lot and the Commercial Lot. nor the lock, lock plate, or number signage on any such door. No additional locks may be affixed to doors forming the boundary between the Residential Lot and the Commercial Lot. No decorations of any kind may be placed on or around any door forming the boundary between the Residential Lot and the Commercial Lot; including. without limitation. doormats. welcome mats, wreaths or other decorations. (v) NVindow Coverings. The back or window-side of all window coverings in the Residential Lot consisting of drapes, curtains. and blinds. must be backed with a dark brown. dark-grey or black material. The material must be a solid color, no patterns are permitted. Each residential dwelling unit shall have interior window coverings at all times. Each Owner shall maintain. repair and replace, at such Owner's sole cost and expense; window coverings in accordance with the Residential Rules, as adopted and amended from time to time. (vi) VA'indows and Glass Doors. No windows or glass doors within the Residential Lot-may have any reflective or tinted substance placed on them. No unsightly materials may be placed on any window or glass door or be visible through such window or glass door. (vii) Signs and Flags. No signs, flags, banners, pennants or similar items may be displayed to the public view on or from the Residential Lot or the Terraces unless political or of patriotic expression in nature without the Commercial Owner's prior written approval, which may be granted, denied or conditioned in the sole and absolute discretion of the Commercial Owner. (viii) Refuse Removal. All rubbish; garbage and debris will be regularly removed from and will not be allowed to accumulate in, on or about the Commercial Lot or the Residential Lot. All trash.. garbage and other debris generated in the Commercial Lot or the Residential Lot will be kept in sanitary containers and will be disposed of by the Commercial or the Residential Owner, as applicable, in accordance with the normal practices and procedures of and in places designated by the Project Rules, as the same may change from time to time. (d) Use of Terraces. (1) No Attachment or Improvement; Satellite Dishes. In addition to the other provisions of this Section 6. which also apply to the Terraces, the Residential Owner, its tenants. and their respective Permittees may not install, attach or otherwise affix any item (including satellite dishes) to or on the exterior of the Commercial Improvements or the Residential Improvements or on any railing or other portion of the Terraces- provided however, that satellites. cables and dishes related thereto may be installed subject to applicable law. The Residential O-,vner my provide a central satellite dish(es), to be purchased, maintained, repaired and replaced at the Residential Owner's sole cost and expense, unless otherwise dictated by Federal law. (ii) Furniture, Personal Property. Except as provided for below. neither the Residential Owner nor the Commercial Owner, their tenants. and their respective Permittees shall store any bicycles. skis, recreational equipment or gear or other personal property of any nature on the Terraces. No outdoor or patio furniture may be placed on any Terrace except outdoor or patio furniture authorized by the Residential Rules, as amended from time to time. (iii) No Barbecue Grills. No propane gas, charcoal grills, barbecue grills or other cooking devices may be used or stored on the Terraces. 14 (iv) No Hot Tubs. No hot tubs, spas or similar devices may be placed_ installed or otherwise used on the Terraces due to structural and size limitations. (v) No Decorations. No holiday lights. decorations, or wind chimes may be placed on the Terraces. (vi) No Laundry. Laundry. linens, clothing, bathing suits or swimweax. curtains. rugs; mops or clothes lines of anv hind may not be shaken or hung from any of the Terraces. (vii) Landscaping. No landscaping or plant materials may be installed on any, of the Terraces, other than in portable containers that are not affixed to any element of the Terraces or the exterior of the Commercial Improvements. No landscaping or plant materials will be allowed to hang over the railing or edge of any of the Terraces. Hose bibs, if any; on the Terraces. used for the purpose of watering any landscaping or plant materials located on the Terraces, must be equipped with automatic timers or hoses attached to nozzles with spring- loaded handles that must be used to ensure that other areas of the Commercial Improvements and Residential Improvements are not threatened by overflowing water from such watering. No hoses or other equipment may be attached to any such hose bib except from June through September each year. This Section shall not apply to areas designated as "GCE" on the Maps. (viii) Music. No television. radio or music may be played and no speakers may be installed or used on any of the Terraces. (e) Fireplaces. Fireplaces located in the Residential Improvements may not be used for burning of any wood or other solid fuel except and unless permitted by the City. (f) Stereos and Home Tbeater Systems. No stereo speaker or home theater speaker may be installed within the Residential Improvements in a manner that results in the speaker penetrating any wall; ceiling or floor that is part of the Commercial Structure. In addition, no stereo speaker or home theater speaker may be operated in a residential dwelling or sleeping room within the Residential Improvements in a manner in which sounds are heard or vibrations are felt outside of the residential dwelling or sleeping room. No speakers may be installed or used on any° of the Terraces attached to the Residential Improvements. (g) Bicycles. No bicycles, tricycles, skateboards. roller blades, or other types of wheeled. non-motorized vehicles or equipment may be left unattended in any public area within the Commercial Improvements or the Residential Improvements. (h) No Natural Christmas Trees. Due to their extremely flammable nature. natural Christmas trees. whether live or cut. are not permitted within the Residential or Commercial Improvements. (i) Real Estate Sales. In no event may any for-sale sign be placed in any window Commercial the Residential or Comercial Improvements or on any of the Terraces. SHARED SERVICE ELEMENT OBLIGATIONS. The Commercial Owner is solely responsible for maintenance. repair, replacement and general upkeep of the Shared Service l Element obligations. The Residential Owner shall be responsible for payment of its prorated share of the Shared Service Expenses in accordance with Section 8(c) below. In the event the Commercial Owner fails to upkeep, maintain. repair and replace the Shared Service Elements to the level of a similarly situated historic project in downtown Aspen, standard. the Residential Owner shall have the rights and remedies set forth in Section 24 of this Agreement. S. EXPENSES. (a) Direct Residential Expenses. The Residential Owner is solely responsible for and obligated to pay all costs and expenses attributable solely to the Residential Lot, as determined by the Residential Owner in compliance with this Agreement (the "Direct Residential Expenses"). In no event will the Commercial Owner bear any responsibility for any Direct Residential Expenses. Notwithstanding the foregoing, if the Residential Owner fails to pay a Direct Residential Expense., then the Commercial Owner may elect; in its sole and absolute discretion. to pay such Direct Residential Expense on behalf of the Residential Owner and the Residential Owner will reimburse the Commercial Owner for such Direct Residential Expense upon demand. The Direct Residential Expenses include the following: (1) Premiums for all liability insurance coverages that the Residential Owner is obligated to maintain under the terms of this Agreement and Colorado law, and all property, casualty, liabilit-y and other forms of insurance coverages that the Residential Owner actually maintains from time to time in connection with the Residential Project and its contents; (ii) All real and personal property taxes and assessments (and any similar impositions) which are levied and assessed against the Residential Lot, Residential Improvements or the furnishings and other contents contained in the Residential Lot: (iii) All costs of any repairs, maintenance or replacements solely to the Residential Improvements. including the provision or replacement of any furnishings. fixtures or appliances located within the Residential Improvements: (iv) All direct charges for services rendered specifically and solely for the Residential Owner; and (v) Any utility charges for the Residential Lot, to the extent the same are separately metered to the Residential Owner. (b) Direct Commercial Expenses. The Commercial Owner is solely responsible for and obligated to pay all costs and expenses attributable solely to the Commercial Lot, as determined by the Commercial Owner in compliance with this Agreement (the "Direct Commercial Expenses"). In no event will the Residential Owner bear any responsibility for any Direct Commercial Expenses. Notwithstanding the foregoing. if the Commercial Owner fails to pay a Direct Commercial Expense, then the Residential Owner may elect. in its sole and absolute discretion, to pay such Direct Commercial Expense on behalf of the Commercial Owner and the Commercial Owner gill reimburse the Residential Owner for such Direct Commercial Expense upon demand. The Direct Commercial Expenses include the following: 16 (i) Premiums for all liability, insurance coverages that the Commercial Owner is obligated to maintain under the terms of this Agreement and Colorado law. and all property, casualty. liability and other forms of insurance coverages that the Commercial Owner actually maintains from time to time in connection with the Commercial Project and its contents. (ii) All real and personal property taxes and assessments (and any similar impositions) which are levied and assessed against the Commercial Lot, Commercial Improvements or the furnishings and other contents contained in the Commercial Lot; (iii) All costs of any repairs_ maintenance or replacements solely to the Commercial Improvements, including the provision or replacement of any furnishings, fixtures or appliances located within the Commercial Improvements; (iv) All direct charges for services rendered specifically, and solely for the Commercial Owner: and (v) Any utility charges for the Commercial Lot. to the extent the same are separately metered to the Commercial Owner. (c) Shared Expenses. The Commercial Owner and Residential Owner are each responsible for and obligated to bear a prorated share of the expenses attributable to the Shared Service Elements. including, but not limited to any shared "LCE"s as depicted on any condominium map for the Commercial and/or Residential Projects (the "Shared Expenses"). In no event wi11 either Owner bear any responsibility for the other Owner's allocation of Shared Expenses. Nevertheless, if one Owner fails to pay its share of the Shared on (the Defaulting Owner"), then the non-Defaulting O,Der may elect, in its sole and absolute discretion, pay such Shared Expenses on behalf of the Defaulting Owner and. in such event, the Defaulting Owner will reimburse the non-Defaulting Owner for such Shared Expenses upon demand. Notwithstanding the foregoing, if the Defaulting Owner is in default of this Agreement and such default remains uncured K days' after demand from the non-Defaulting Owner, the non-Defaulting Owner shall be entitled to exercise all rights and remedies set forth this Agreement. including those set forth in Section 24. The Shared Expenses include the following: (i) Premiums for all liability insurance coverages that the Owners are collectively obligated to maintain under the terms of this Agreement and Colorado law. and all property, liabili7, and other forms of insurance coverages actually maintained from time to time in connection with the Shared Service Expenses: (ii) All taxes and assessments (and any similar impositions) which are levied and assessed against the Shared Service Elements; (iii) All costs of any repairs. maintenance or replacements to the Shared Service Elements; (iv) All direct charges for services rendered specifically and solely for the Shared Service Elements: and 17 (v) Any utility charges for the Shared Service Elements allocated in the proportionate shares set forth in this Section 8. (d) Shared Expense Payments. Each calendar year. the Residential Owner will pay to the Commercial Owner a portion. calculated as provided for below (the "Shared Expense Payment"). of its proportionate share of the Shared Expenses. Without limiting the generality of the foregoing. the Parties acknowledge and agree that the Shared Expense Payment is intended to reimburse and/or compensate the Commercial Owner for the cost of all utility and similar services provided to the Residential Improvements. but not separately metered. Prior to the start of each calendar vear, the Commercial Owner will develop a budget estimating the total Shared Expenses to be incurred by the Commercial Owner in the upcoming calendar year (the "Estimated Annual Shared Expenses"). The Shared Expense Payment due from the Residential Owner during such calendar year will be equal to the product of the Estimated Annual Shared Expenses multiplied by the Residential Allocation Percentage. The Residential Owner will pay each Shared Expense Payment without demand or set-off, in equal installments due on the first day of each calendar quarter in such calendar year. Any failure or delay of the Commercial Owner in establishing or updating the amount of the Shared Expense Payment for any calendar year will not be deemed a waiver, modification, or release of the right to so establish or update those installments, or of the obligation of the Residential Owner to pay installments of a Shared Expense Payment prospectively. (e) Annual Accounting. Within 120 days after the end of each calendar year, the Commercial Owner will prepare and submit to the Residential Owner an accounting of the actual Shared Expenses incurred for the calendar year lust ended, together with a reconciliation of those actual Shared Expenses and the resulting annual obligation of the Residential Ov,,ner for Shared Expense Payments with the aggregate of the quarterly installments of estimated Shared Expense Payments paid by the Residential Owner for that same calendar year. if the sum of those quarterly installments so paid by the Residential Owner is less than the final annual obligation for Shared Expense Payments. then the Residential Owner will pay such deficiency to the Commercial Owner within 30 days after the Commercial Owner delivers its annual accounting and reconciliation statement. Conversely. if the sum of those monthly installment payments is greater than the final annual obligation for Shared Expense Payments. the Commercial Owner will either reimburse the excess to the Residential Owner contemporaneously with the Commercial Owner's submission of its annual reconciliation statement, or Live the Residential Owner a credit, equal to the amount of the excess, against the quarterly installments of Shared Expense Payments next due and owing until the credit is exhausted. (f) No Waiver: Special Levies. Any failure or delay of the Commercial Owner or Residential Owner in establishing or updating the quarterly installments of estimated Shared Expense Payments for any calendar year will not be deemed a waiver, modification, or release of the right to so establish or update those installments. or of the obligation of the Residential Owner or Commercial Owner to pay installments of Shared Expense Payments prospectively or to make the year-end reconciliation in accordance with this Agreement. At its election. the Commercial Owner may also make specific levies of Shared Expense. Payments, in arrears for the actual amount of Shared Expense, already incurred (e.g., in a case where the Commercial Owner incurs a Shared Expense that is unusual or otherwise non-retuning. Any Shared :� 8 Expense Payment which is thus specially levied is due and payable within 30 days after the Commercial Owner gives the Residential Owner written notice thereof. (g) Books and Records. The Residential Owner. in the Commercial Owner's offices and at the Residential Owner's sole cost and expense, may audit the Commercial Owner's books and records for the purpose of verifying actual Shared Expenses, provided the Residential Owner gives the Commercial Owner reasonable prior notice thereof (and in any case not less than 5 business days in advance), and further provided that such audit may be undertaken only during ordinary business hours and will be subject to such limitations and procedures as the Commercial Owner may reasonably impose in order to avoid any material interference with normal business operations. The Residential Owner may conduct such an audit no more frequently than twice in any calendar year. (h) Payment Due Date and Late Charges. If, for any particular Shared Expense Payment or other obligation owing to the Commercial Owner from the Residential Owner, this Agreement fails to establish an express due date, then the same will be due and payable within 30 days after the Commercial Owner makes written demand for payment. Any installment of Shared Expense Payments not made within 15 days after it becomes due and payable is delinquent. The Residential Owner is obligated to pay a monthly late fee equal to 1.5% of the delinquent amount. which late fee accrues initially as of the occurrence of the delinquency, and thereafter on the first day of each ensuing calendar month until the delinquency is cured. If any late fees collected hereunder prove to be in excess of the amount permissible under applicable law. then the excess, at the recipient's election. either will be refunded or applied as a credit against obligations for other Shared Expense Payments accruing under this Agreement, in the Commercial Owner's election. (1) Capital Projects; Capital Pavments. A "Capital Project" means any project or capital improvement (i) carried out by the Commercial Ov�ner on any portion of the Commercial Improvements encumbered by a Residential Owner Easement or Shared Service Elements (each, a "Commercial Capital Project"), or (ii) carried out by the Residential Owner on any portion of the Residential Improvements encumbered by a Commercial Owner Easement or Shared Service Elements (each. a "Residential Capital Project"), as the case may be, in one or more calendar ,,ears. In the event either Parry undertakes a Capital Project, the Parry undertaking such Capital Project will pay all costs and expenses related thereto. In no event will the Commercial Owner be responsible for any Residential Capital Project costs and expenses. In no event will the Residential Owner be responsible for any Commercial Capital Project costs and expenses. (j) Expense Liens. (1) Each Part), hereby grants to the other a lien against the Residential Project and Commercial Project, as applicable. to secure the timely payment of each Shared Expense Payment and Capital Payment due from time to time and any other amounts due and referenced herein (each. an "Expense Lien"). Upon the occurrence of any delinquency in the payment of any Shared Expense Payment Capital Payment or any other payment required hereunder. the Part-,7 to whom such expense is due may proceed to enforce its lien rights to recover the delinquency by a foreclosure of the Expense Lien. The Expense Lien will be enforceable only by judicial foreclosure in the same manner as a real property mortgage is foreclosed under the 19 prevailing laws of the State of Colorado. In addition to securing payment of the delinquency, the Expense Lien will also secure the late fees established under the foregoing provisions, and all costs and expenses, including attorneys' fees. incurred by the Pam to whom such expense is due in confirming. exercising or foreclosing upon the Expense Lien or in otherwise attempting to enforce the delinquent payment obligation, and all such enforcement and collection costs will be due and owing upon demand. The Expense Lien -,ill survive and will not be extinguished by anv foreclosure. cure or redemption in connection with any one payment delinquency. Any further Shared Expense Payments and Capital Payments or other payments (and any late fees-and - - - collection and enforcement costs attributable thereto) which become delinquent after the commencement and prior to the completion of any foreclosure of the Expense Lien (and the expiration of any redemption period) will become part of the payment delinquency foreclosed upon and added to the indebtedness necessary to redeem. Any Party hereto may be the purchaser at any foreclosure, and for bidding purposes will be entitled to a credit in the amount of the obligations secured from time to time by the Expense Lien. (ii) In order to evidence and confirm the Expense Lien upon the occurrence of a delinquency in payment of the Shared Expense Payments, Capital Payments or other payments.. the enforcing Party may. but is not required to, prepare a written notice setting forth the amount of the pertinent delinquency (including any accrual of late fees and collection and enforcement costs incurred in connection therewith). the name of the pam 7 against whom enforcement is sought, the legal description of the propem owned by the party against whom enforcement is sought, and such other information concerning the Expense Lien and the delinquency as the enforcing Partv may consider appropriate; which notice may then be recorded in the Records. Regardless of whether such notice is recorded, the Expense Lien will attach, be perfected and have a priority as of the recordation of this Agreement, and will be superior to all other liens and encumbrances or any other interests acquired in the property owned by the Party against whom enforcement is sought which arise after such recordation (except for the lien of any first-priority mortgage or deed of trust in place at any time.. and the lien of taxes and assessments). However, the lien of any first-priority- mortgage or deed of trust will be subordinate to the Expense Lien to the extent of any Shared Expense Payments, Capital Payments or other payment secured thereby that accrue or become payable (1) before the mortgage or deed of trust is recorded; or (2) after any foreclosure sale of the mortgage or deed of trust. (iii) The enforcing Party's rights to exercise and enforce the Expense Lien is a non-exclusive remedy. The enforcing Party may maintain a suit to recover any delinquencies in Shared Expense Payments; Capital Payments or other payments, together with the related late fees and enforcement and collection costs, without first foreclosing upon the Expense Lien, as well as exercise any other remedies provided for in this Agreement. The undertaking of any such collection action will not constitute an-\T election of remedies or waiver by the enforcing Party that bars enforcement of the Expense Lien. and the enforcing Part' retains all rights to enforce the Expense Lien for the same or other delinquencies in Shared Expense Payments. Capital Payments or other payments. (k) Notice to Lien Holder. Notwithstanding anything to the contrary- contained in this Agreement, a Party shall not have a right to enforce any lien (or exercise any foreclosure remedies) that it may have against the Residential Project or Commercial Project. as applicable. until (i) written notice is provided to each applicable Lien Holder (as defined herein) stating the 20 grounds for enforcement, and (ii) such Lien Holder(s) shall have been afforded a reasonable opportunity to cure. Upon request. each Party agrees to promptly provide to the other Party then current notice information for its Lien Holder(s). As used herein. the term "Lien Holder" shall mean any entM7 which is the lender of any mortgage loan. 9. OPEKkTION, lYLUATTENANCE AND REPAIRS. (a) Commercial Improvements; Residential Improvements; Shared Service Elements. Subject to Section 3(b) above. the Commercial Owner has sole control over operating. maintaining, repairing or replacimg the Commercial Lot.. Commercial Improvements.. and Shared Service Elements provided that the Commercial Owner will act diliaently to complete the same from time to time as reasonably necessary to preserve the use and enjoyment of the Residential Lot and Residential Owner Easements, and the Residential Owner shall have no liability for the physical aspect of such operations, maintenance, repairs or replacement:. provided. however, the Residential Owner shall have the monetary obligation for Shared Service Elements set forth herein. Subject to the requirements of Section 2(b) above, the Residential Owner is solely responsible for undertaking maintenance, repairs and replacements for the Residential Lot and Residential Improvements. as necessary to maintain the same in a good and clean condition and repair. and the Commercial Owner will have no liability for such maintenance. repairs or replacement. Notwithstanding the foregoing; in the event the Commercial Owner fails to perform the maintenance, repairs and replacement required of it pursuant to this Agreement after reasonable notice. the Residential Owner, in addition to any other remedies it may have pursuant to this Agreement, may undertake such maintenance, repairs and replacement and the Commercial Owner will reimburse the Residential Owner for the reasonable cost of such work upon demand. In the event the Commercial Owner fails to perform in accordance herewith. the Residential Owner shall be further permitted to exercise the remedies set forth in Section 24 hereof. Notwithstanding that any wallboard, plasterboard or other materials that form part of any fire-separation assembly may be part of the Residential Lot or the Commercial Lot. the Residential Owner or the Commercial Owner (as applicable) may not remove or allow to be removed the same or otherwise penetrate, alter or do anything to the same that impairs the fire-separation capability of such materials or assemblies, or that causes any violation of buildma codes or other legal requirements. (b) Utilitv, Service. The Residential Owner will_ at Commercial Owner's cost and expense, provide utility and similar services (gas, electric. hot water, cable, phone, etc.) to the Commercial Lot normally provided throughout the Residential Improvements in the event such utility and similar services are not separately metered and located within the Commercial Lot or do not constitute a Shared Service Element. except to the extent any such services are separately metered for the Commercial Lot. If any of these services provided by the Residential Owner to the Commercial Lot are interrupted or stopped. the Residential Owner will use immediate due diliaence to resume the service. In the event the Residential Owner faits to Perform in accordance herewith. the Commercial Owner shall be permitted to exercise the remedies set forth in Section 24 hereof. (c) Shared Equipment. Certain equipment may be owned or leased jointly by the Commercial Owner and Residential Owner, including snow removal equipment (the "Shared Equipment") for use by each of them, and each of the Commercial Owner and Residential 21 Owner shall have an easement to access areas of the Project in which the Shared Equipment may be stored from time to time. The Residential Owner shall cooperate with the Commercial Owner. from time to time. to establish a mutually acceptable schedule for use of the Shared Equipment based on anticipated use. (d) Entry into Residential Lot. To the extent the Commercial Owner exercises its right and license for entry into the Residential Lot or any portion thereof (as set forth in Section 5(b)) in order to effectuate any inspection. maintenance. repairs. replacements or improvements of the Commercial Improvements or Shared Service Elements, such exercise will be only during business hours and on reasonable prior notice (except where immediate entry is necessitated by emergency circumstances. as determined by the Commercial Owner in its ordinary business judgment exercised in good faith). The Commercial Owner will also (1) exercise reasonable efforts to minimize any resulting unreasonable interference with the use and enjoyment of the Residential Lot; and (ii) repair and restore any damage to the Residential Lot or its contents which may result therefrom. Except as provided for in the previous sentence. the Commercial Owner will not be liable to the Residential Owner, its tenants or their respective Permittees.. for any exercise of such right of entry except for the Commercial Owner's gross negligence or willful misconduct. The Commercial Owner will not have any obligation to the Residential Owner to maintain or make repairs to the Commercial Improvements, other than as necessary to preserve the use and enjoyment of the Residential Lot, and the Residential Owner Easements in accordance with Section 9(a). (e) Negligence and Misconduct. In the event any need for any maintenance; repairs or replacements within the Commercial Improvements is caused_ by any negligence or other misconduct of the Residential Owner, its tenants or their respective Permittees (including any breach of the Residential Owner's obligations under this Agreement), then the Residential Owner vlill be responsible for the entire cost incurred by the Commercial Owner in undertaking the pertinent maintenance, repairs or replacements, which entire cost constitutes an Expense Payment and is due and owing from time to time within 30 days after demand, accompanied by invoices or paid receipts for work, materials or services covered by such demand, and/or an accounting by the Commercial Owner of any portion of such cost that is self-performed. Converselv, if the need for any such maintenance, repairs or replacements is caused by any negligence or misconduct of the Commercial Owner or its Permittees (including any breach of the Commercial Owner's obligations under this Agreement), then the Commercial Owner will be solely responsible for the cost of such maintenance, repairs or replacements as provided herein. (f) Maintenance Standard. Any maintenance or repair work that may be or is required to be performed pursuant to this Agreement by any of the Parties will be performed in a workman-like manner consistent with similar mixed-use projects located in the downtown area of the Cite. 10. INSURANCE. (a) Liability Insurance. The Commercial Owner at all times will maintain, or cause to be maintained in full force and effect, with good and solvent insurance companies authorized to do business in the State of Colorado; general comprehensive public liability insurance against all claims for personal injurv. death or proper damage occurring upon, in or about tht Commercial Improvements. the Commercial Lot, the Commercial Pro)ect and the Shared Service Elements. The Residential Owner at all times will maintain or cause to be maintained in full force and effect. with good and solvent insurance companies authorized to do business in the State of Colorado. general comprehensive public liability insurance against all claim for personal in)un-. death or property damage occurring upon, in or about the Residential Lot and Residential Improvements. In accordance with the Parties' mutual intent. each Palm's coverage will be primary with respect to any liability or loss incurred in connection with any use or enjoyment of any portion of the Residential Lot; Residential improvements. Shared Service Elements, Commercial Lot, Commercial Improvements or any other actions or course of conduct which arise by. through or under that Party (including, without limitation. any breach by that Party of its obligations under this Agreement). For any Permittees of the Residential Owner or the Commercial Owner, their occupancy; actions and omissions will be regarded as arising by, through or under the Residential Owner or the Commercial Owner. as applicable. Each such policy will be underwritten on an "occurrence" basis; will name the other Party as an additional insured as its interests may appear; and will have a single occurrence limit of coverage of not less than $2.000,000 (provided that this minimum from time to time may be increased as reasonably determined by the Commercial O,rner and upon the Commercial Owner giving the Residential Owner written notice thereof so long as such increase is consistent with prevailing market practices for similar properties, as reasonably determined by the Commercial Owner). Each of these coverages will also include a contractual liability endorsement for any breach or default of the insuring Pasty's obligations under this Agreement, will provide that the same may not be cancelled or materially modified without at least 30 days' prior Witten notice to the other Party. and will otherwise contain terms which are reasonably satisfactory to the Commercial Owner as determined in the ordinary course of business. This coverage may be provided by any Party pursuant to a blanket policy, provided the blanket policy expressly makes a separate allocation to the properties of the requisite coverage amounts established pursuant to the foregoing provisions. (b) Property Insurance (i) The Commercial Owner will carry (or cause to be carried) insurance against loss or damage to the Commercial Improvements; and the Commercial Lot (and the Shared Service Elements including all fixtures and personal property located therein) by fire, windstorm. tornado and hail and against loss and damage by such other, further and additional risks as may be now or hereafter embraced by an "all-risk" form of insurance policy (or the relative equivalent thereof available from time to time in the marketplace). This coverage will be in an amount equal to the full replacement cost or fair market value from time to time, whichever is greater; of the Commercial Improvements and the Commercial Lot; including all fixtures and personal property located therein as well as the Shared Service Elements to the extent available and will be on an aLyreed value basis to eliminate the effects of co-insurance. The Commercial Owner will pay. or cause to be paid. all costs associated with such insurance except as otherwise provided for as a Shared Service Element in Section S. (ii) The Residential Owner will carry or cause to be carried insurance against loss or damage to the Residential Improvements and the Residential Lot. including all fixtures and personal property located therein and on the Terraces; by fire. windstorm. tornado and hail and against loss and damage by such other. further and additional risks as may be now or hereafter embraced by an "all-risk" form of insurance policy (or the relative equivalent thereof available from time to time in the marketplace). This coverage will be in an amount equal to the full replacement cost or fair market value from time to time, whichever is greater. of Residential Improvements and the Residential Lot, including all fixtures and personal property located therein and on the Terraces. to the extent available. and will be on an agreed value basis to eliminate the effects of co-insurance. The Residential Owner will pay all costs associated with such insurance. (c) Certificates of Insurance. Amendment to Coverage. 'Within 10 days after the execution of this Agreement; the Residential Owner will furnish to the Commercial Owner and the Commercial Owner will furnish to the Residential Owner an insurance certificate or certificates reasonably evidencing their respective procurement and maintenance of the insurance coverages required under the foregoing provisions of this Section 10. and prior to any expiration of the given coverage.. a new certificate or certificates and a copy of a new binder or binders (if applicable) reasonably evidencing the renewal thereof. If any Party fails for any reason to obtain and maintain its required insurance coverage(s) under the foregoing provisions, then the Party so failing to insure will indemnify the other Parties against any liability, loss. cost or expense, including attorneys' fees. that the other Parties may incur as a result of the failure of the applicable insurance coverage. Notwithstanding anything set forth herein to the contrary. the Commercial Owner and Residential Owner may amend the coverage standards and amounts in accordance with insurance coverage standards in effect from time to time for similar type property in the City. 11. CASUALTY AND CONDEMNATION. Subject to Section 13, in the case of any fire or other casualty or any condemnation affecting the Commercial Lot and/or Commercial Improvements, the following provisions will govern: (a) Restoration of Commercial Improvements. In the event of a fire or other casualt-,7. the Commercial Owner will be responsible for repairing and restoring the Commercial Improvements by the exercise of good faith. Provided the Commercial Owner so proceeds. the Commercial Owner will not have any obligation or liability to the Residential Owner in connection with the casualty or subsequent restoration process. So long as the Commercial Owner restores: (1) the Commercial Structure. (ii) the Residential Service Elements and Shared Service Elements as necessary for the continuance of utility services. plumbing services, sanitary and storm sewer services, water supply and other services to the Residential Lot to substantially the same condition or functional capability as existed prior to the casualty. and (iii) stairwells and elevators) as necessary to provide access to and egress from the Residential Lot each to substantially the condition or functional capability as existed prior to the casualty,, the Residential Owner will have no right of approval over restoration plans. Additionally. in the case of any fire or other casualty or any condemnation affecting those portions of the Commercial Improvements that are encumbered b-, the Residential Owner Easements. the Commercial Owner will restore such damaged or destroyed portions of the Commercial Improvements as reasonably necessary to restore the Residential Owner's use and enjoyment of the Residential Owner Easements. but only to the extent such restorations are feasible and do not constitute material economic waste (as reasonably determined by the Commercial Owner/. Any and all property insurance proceeds related to the Residential Set-vice Elements and Shared Semite Elements resulting from the casualty will be paid over to and controlled by the Commercial Owner for this purpose. 24 (b) Restoration of Residential Improvements. Nothing in Section I1(a) shall be interpreted to require the Commercial Owner to (i) restore or replace the Residential Improvements or the contents within the Residential Lot (-,N,1ich contents will be deemed to include items that the Residential Owner locates on the Terraces), or (ii) perform the requirements set forth in Subsection (i) above at the Commercial Owner's sole cost and expense. The Residential Owner will be solely responsible for restorations and replacements of the Residential Improvements and such contents and will be solely entitled to the insurance proceeds related thereto, and will further pay over to the Commercial Owner all insurance proceeds related to the Residential Service Elements and Shared Service Elements so that the Commercial Owner may perform in accordance herewith. In connection with any restoration of the Residential Improvements. the Residential Owner will exercise reasonable efforts to avoid any material interference with restorations being undertaken by or through the Commercial Owner in connection with the Commercial Improvements, and will comply with such construction procedures. limitations and requirements as the Commercial Owner may reasonably impose, (c) Condemnation. If any condemnation or exercise of eminent domain for taking any portion of or interest in the Commercial Improvements arises, the Commercial Owner will be obligated to undertake any necessary restorations resulting therefrom; to the extent such restorations are feasible and do not constitute material economic waste (as reasonably determined b-,- the Commercial Owner). The Residential Owner will bear its portion of the costs of undertaking any such restorations as a Residential Capital Project payment.. and the Parties will otherwise be left to make their own independent claims for any proceeds or awards that may be derived from any condemnation or eminent domain proceedings affecting the Commercial Improvements and/or the Residential Lot. The Residential Owner wi11 not be entitled to any portion of any condemnation award made or settlement proceeds received in lieu of condemnation regarding the Commercial Improvements for any interest the Residential Owner may have in the Commercial Improvements (except to the extent of the Residential Owner's interest in the Residential Easement Areas) by virtue of this Agreement. Notwithstanding the foregoing. the Residential Owner may negotiate on its own behalf for compensation for damage to the Residential Lot resulting from such taking of the Residential Owner's interest in the Commercial Improvements. (d) Waiver of Claims. The Commercial Owner hereby waives any and all rights and claims to recover against the Residential Owner for any property damage to the Commercial Improvements and Shared Service Elements and any of the Commercial Owner's other property located within the Commercial Improvements, to the extent such property damage arises from any fire or other casualty which is insurable under customary fire and extended coverage insurance (or the relative equivalent thereof available from time to time in the marketplace), or is actually insured by anv forms of insurance coverage actually maintained by the Commercial Owner. Conversely. the Residential Owner hereby waives any and all rights and claims to recover against the Commercial Owner for any property damage to the Residential Lot or its contents and the Shared Service Elements to the extent such property damage arises from any fire or other casualty which is insurable under customary fire and extended coverage insurance (or the relative equivalent thereof available from time to time in the marketplace), or is actually insured by any forms of insurance coverage actuall-,- maintained b-,- the Residential Owner. This mutual waiver will inure to the benefit of the Parties hereto and their respective Permittees. The foregoing provisions are intended to and will act as a mutual waiver of anv subrogation rights that each Pam's respective insurers) mav otherwise have against the other Party for any insured loss suffered by the insured Party. The Parties from time to time will cause their respective insurer(s) to issue appropriate waiver of subrogation rights endorsements for such insurance policies (provided that their failure to do so will not in any way limit or impair the effect of the foregoing waiver of subrogation rights). 12. IN-DEMNIFICATION. Subject to Section 11(d), the Residential Owner -,7,7111 'be liable to and will protect, defend. indemnify and hold harmless Commercial Owner from and against anv and all damages. claims. demands, liens (including, without limitation; mechanics' and matcnalmen`s liens and claims and business interruption claims), losses, costs and expenses (including, without limitation, reasonable attorneys' fees, court costs and other expenses of litigation) and liabilities of anv kind or nature whatsoever (collectively referred to as "Claims") suffered or incurred bv. or threatened or asserted against,. the Commercial Owner as a result of or in connection with (a) the willful misconduct, negligence or breach of this Agreement by the Residential Owner. its tenant(s) or their respective Permittees; (b) any repair, restoration, replacement, alteration or other construction, demolition, installation or removal work on or about the Residential Improvements, Shared Service Elements or the Residential Lot contracted for, or performed bv, the Residential Owner, its tenants or their respective Permittees; or (c) the operation, use, ownership or maintenance of the Residential Lot by the Residential Owner, its tenants or their respective Permittees. The Residential Owner will pay for all Claims suffered or incurred by the Commercial Owner for which the Residential Owner, its tenants or their respective Permittees are responsible promptly upon receipt of a demand for payment from the Commercial Owner. The amount of the Claims will constitute a Shared Expense Payment due from the Residential Owner. Nothing in this Agreement relieves any tenant or Permittee from liability for its own acts or omissions. Nothing contained in this Section 12 will be construed to provide for any indemnification, which violates applicable laws or negates, abridges, eliminates or otherwise reduces any other indemnification or right which the Commercial Owner has by law. 13. ABANDONMENT. (a) Razing of Commercial Improvements and Residential Improvements. Notwithstanding any provisions of this Agreement to the contrary, in conjunction with anv "Total Casualty." the Commercial Owner may, in its sole election, determine to forgo anv restorations and repairs and to raze or otherwise abandon the Commercial Improvements. For purposes of this Section 13, "Total Casualty" means any fire or other casualty affecting the Commercial Improvements when the cost to repair such damage equals or exceeds 801/0 of the total replacement cost of the Commercial Improvements and Shared Service Elements. The Commercial Owner will promptly give the Residential Owner notice of this determination when made and the Residential Owner will be bound by the Commercial Owner's determination in that regard. In such event,. the Residential Improvements will be razed or abandoned along with the Commercial Improvements and the Residential Owner will be entitled only to the insurance proceeds received by the Residential Owner for the Residential Lot and/or the Residential Improvements and its proportionate share in value of the Shared Service Elements. To the extent that the Residential Owner conveys the Residential Lot to the Commercial O-wner on the terms and conditions contained in Section 13(b). the Residential Owner will also 26 be entitled to a portion of the Commercial Owner's insurance proceeds equal to the total square footage of the Residential Improvements divided by the sum of the total square footage of the Residential Improvements plus the total square footage of the Commercial Improvements. At such time as the Commercial Owner gives its notice of determination to forgo restorations. the Residential Owner will not make any settlements of claims for insurance proceeds without the Commercial Owner's prior written consent. and the Commercial Owner will have the right and authorit-N to prosecute and settle such claims (and the Residential Owner will join therein and/or furnish such other cooperation as the Commercial Owner may reasonably require in connection with any such prosecutorial or settlement efforts). (b) Convevance of Residential Lot. No later than 30 days after the Total Casualty and regardless of whether the insurance claims have been settled and the Residential Owner has _ been paid as provided for above. the Residential Owner will elect whether or not it will convey the Residential Lot to the Commercial Owner. If the Residential Owner elects not to convey the Residential Lot to the Commercial Owner. then this Agreement shall automatically terminate and be of no further force or effect. If the Residential Owner elects to convey the Residential Lot to the Commercial Owner, it will do so within 10 business days of such election by a special warranty deed, with title being subject to no title exceptions or matters arising by, through or under the Residential Owner or any previous or current owner of the Residential Lot (excepting only the Permitted Exceptions (and any exception existing at the time of the Residential O,Amer's acquisition) and any condominium declaration and map recorded against the Residential Lot pursuant to this Agreement and excluding from permissible matters in any case the standard title insurance exception for mechanic's liens and other standard exceptions). The Residential Owner will. at its expense, furnish the Commercial Ov�mer with an ALTA owner's title insurance policy, issued in the amount of the fair market value of the Residential Lot and with an effective date and time subsequent to the conveyance, which insures title in conformity with the foregoing provisions. If the Residential Owner is unable to deliver title to its Residential Lot in conformity with the foregoing requirements. the Residential Owner may extend the time for the conveyance in order to secure the cure and removal of the additional title matters causing such non- conformit5, provided that the Residential Owner must pursue such cure and removal by the exercise of all due diligence.. and in anv event such extension may not exceed 30 days. 14. MECI-L4NICS' LIENS. If, by virtue of any, construction, repair or improvement undertaken by. through or under a Party to this Agreement (the "Responsible Owner"), any mechanic's Lien claim is recorded against the property of any other Party (the "Liened Owner"), then the Responsible Owner will cause such lien claim to be released and discharged of record (by payment. bonding or other available process) within 30 days after recordation of the claim. provided that in any case such release and discharge must be secured prior to any, foreclosure of such lien or other disposition of the encumbered property pursuant to such lien. If such release and discharge is not timely secured. then the Liened Owner. at its election and without obligation to do so. may secure the release and discharge of the lien claim through its own efforts, whether by payment, bonding or otherwise, and the Liened Owner will be entitled to recover from the Responsible Owner all costs and expenses. including attorneys' fees, that the Liened Owner may incur in connection therewith (with these reimbursable costs and expenses to be due and owing within ?0 days after demand. which demand will be accompanied by paid invoices or other documentation reasonably evidencing the sums incurred). Furthermore, if the Responsible O,Amer fails to discharge the pertinent lien claim in conformin< with the foregoing. provisions. the 7 Responsible Owner will also indemnify, defend and hold harmless the Liened Owner from and against any liability. loss. damage; cost or expense, including attorneys' fees, incurred or arising on account of or in relation to the pertinent lien claim. 15. RESIDENTLAL 01 7ER'S ACKNOWLEDGEMENTS AND R',&JNTRS. (a) Acknowledgments. (1) Mountain Resort Activities. The Commercial and Residential Lots are located in proximity to skiing facilities, other all-season recreational areas and a public pedestrian village. parking garage and improvements associated therewith (the "Mountain Resort Areas"). The Mountain Resort Areas are expected to generate an unpredictable amount of visible. audible and odorous impacts and disturbances from activities relating to the construction, operation, use and maintenance of the Mountain Resort Areas (the. 'Mountain Resort Activities"). The Mountain Resort Activities include. without limitation: (1) movement and operation of passenger vehicles (including, without limitation.. buses, vans and other vehicles transporting passengers over adjacent streets and over. around and through the Mountain Resort Areas), commercial vehicles, and construction vehicles and equipment; (ii) activities relating to the construction. operation and maintenance of roads. trails. walkways, pedestrian malls and other facilities relating to the Mountain Resort Areas (including, without limitation, grading and earth moving and other construction activities.: construction, operation and maintenance of roads. snow-melting equipment, busses or other transportation systems, operation of vehicles and equipment relating to trash removal and snow removal); (iii) activities relating to the use of the Mountain Resort Areas (including, without limitation, pedestrian traffic); (iv) ski races, snowboarding exhibitions and other organized events and competitions relating to the Mountain Resort Areas; (v) concerts, open markets, fireworks displays.. and other performances and special events: (vi) restaurants, clubs. restrooms and other public use facilities; (vii) public access to the ski areas; (viii) public parking facilities and the traffic related thereto; and (ix) other activities permitted by law. The Mountain Resort Activities may occur during daytime and nighttime. (ii) Construction Activities. The Commercial Lot and the Residential Lot are located in an area that is subject to or near current and/or future construction activities relating to the development of Adjacent Properties and the Mountain Resort .Areas (the "Construction Activities"). The Construction Activities are expected to generate an unpredictable amount of visible, audible and odorous impacts and disturbances. The Construction Activities may include. without limitation: (I) construction traffic (including, without limitation: construction vehicles, equipment and vehicles used or owned by the Commercial Owner. adjacent landowners, and the employees, agents and contractors of either of them); and (2) construction activities (including. without limitation. grading, excavation. clearing, site work and construction of indoor and outdoor improvements) relating to the Residential Lot. the Commercial Lot. nearby properties or the Mountain Resort Areas. (iii) Commercial Activities. A variety of commercial activities are and will be conducted in and adjacent to the Commercial Lot and adjacent to or near the Residential Lot (the "Commercial Activities"). The Commercial Activities are expected to generate an unpredictable amount of visible, audible and odorous impacts and disturbances. The Commercial Activities may include. without limitation: (1) retail sales; (2) sales and rentals of �g clothing. skis, ski-related equipment, other over-the-snow equipment, bicycles, and other recreational equipment_ (3) indoor and outdoor restaurant and bar operations (including. without limitation. the sale of food and alcoholic and non-alcoholic beverages for consumption on and immediately adjacent to the Commercial Lot and at other locations) and preparation of hot and cold food (through the use of barbecue Mills, fire pits and other smoke and/or odor producing means) and beverages at indoor and outdoor facilities on and immediately adjacent to the Commercial Lot: (4) sales of services relating to skiing. other over-the-snow activities. and other recreational activities (including. without limitation, tuning, waxing. repairing, mounting of bindings on. renting. storing and transporting skis. snowboards and similar equipment); (5) parking activities; (6) the installation, operation and maintenance of illuminated and non- illuminated signage; and (7) any other uses or activities permitted by law. The Commercial Activities may occur during daytime and nighttime. (iv) Traffic Activities and Parkin . The Commercial Lot and Residential Lot are located adjacent to certain heavy traffic areas, including. without limitation, Cooper Avenue and Hunter Street (the "Traffic Areas"). The Traffic Areas are expected to generate an unpredictable amount of visible, audible and odorous impacts and disturbances (the "Traffic Activities"). The Traffic Activities may include, without limitation; (1) noise and pollution associated with the use and maintenance of the Traffic .Areas; (ii) peak-time traffic congestion; and (iii) public parking on Cooper Avenue and Hunter Street. The Traffic Activities may occur during day me and nighttime. (v) Historical Preservation Status. Each Owner, for itself and its successors and assigns acknowledges that the Residential Project and Commercial Project are subject to a Historic Designation defined in the Land Use Code (the "Historical Preservation Status"). Accordingly, components within the Commercial and Residential Projects, including, but not limited to, structural, mechanical, electrical, plumbing and insulation components (i) may not and will not meet current Land Use Code requirements or those implemented from time to time. (ii) may not and will not function or operate like newly constructed components which may have financial and other impact to Owners, and (iii) improvements located thereon shall not be modified, repaired or replaced except and unless applicable approvals are obtained in writing from the City and any applicable national registry entity. (vi) Waiver and Release. The Residential and Commercial Owners, for themselves and their successors and assigns. acknowledge that the Mountain Resort Activities. the Construction Activities, Traffic Activities, Commercial Activities, and Historical Preservation Status. and the effects, impacts and disturbances generated by them. may occur in and around the Residential Lot and Commercial Lot. Neither the Residential Owner nor the Commercial Owner may assert or claim anv violation of this Agreement based on the existence or occurrence of the Mountain Resort Activities.. the Construction Activities. Traffic Activities. the Commercial Activities. the Historical Preservation Status, or the effects, impacts and disturbances generated by them. Both the Residential Owner and Commercial Owner, for themselves and their successors and assigns, forever waive and release any actions or claims either of them may have against the Commercial Owner and its successors and assigns which in any wav arise out ofthe effects, impacts and/or disturbances generated from the Mountain Resort Activities. the Construction Activities; Traffic Activities, Commercial Activities. and the Historical Preservation Status. 29 (b) Disclaimer. The Commercial Owner makes no representations. covenants or warranties to the Residential Owner concerning the nature, scope. schedule or continuation of activities operated or conducted in or relating to the Mountain Resort Areas or the Commercial Improvements. The Residential Owner, for itself and its successors and assigns, acknowledges that: (1) the activities may be discontinued from time to time or permanently after the date of this Agreement: (2) the activities may not be operated or conducted during the same hours, days or months as any schedule in effect or contemplated on the date of this Agreement: (3) the activities may be conducted during more hours (during both daytime and nighttime), days. and months than any schedule in effect or contemplated on the date of this Agreement; and (4) more activities may be operated or conducted in the Mountain Resort Areas or the Commercial Improvements than occur or are contemplated on the date of this Agreement. 16. PROPERTY MANAGEMENT SERVICES. The Residential Owner acknowledges and agrees that the Commercial Owner, in connection with the operation of the Commercial Improvements; may. but is not obligated to. offer property management services to the Residential Owner. its tenants, and their respective Permittees from time to time. To the extent the Commercial Owner elects to provide such services. the terms and conditions regarding the provision of such services will be addressed in a separate property management agreement. By way of illustration only, the property management services may include items such as cleaning and maintenance of residential common elements. 17. REDEVELOPMENT OF ASPEN. The Residential Owner, for itself and its successors and assigns. acknowledges that Aspen properties may be developed or redeveloped pursuant to the land uses permitted by the zoning resolutions adopted from time to time by the City and other applicable ordinances, rules and regulations. Without limiting the foregoing; the Residential Owner. for itself and its successors and assigns, specifically acknowledges that the Commercial Owner or any of its affiliates or assignees may redevelop certain Aspen properties pursuant to the applicable Land Use Code. Such redevelopment activities are referred to as the 'Aspen Redevelopment' in this Agreement. The Residential Owner will not take any action to oppose. impair or delay in any manner any Aspen Redevelopment undertaken pursuant to the then current Master Plan. As part of the Aspen Redevelopment. the Commercial Owner or any of its affiliates or assignees may seek to include the Aspen Properties.. the Commercial Lot and/or Improvements and the Residential Lot in the boundaries of one or more existing or newly organized special districts, which may impose taxes. assessments or other fees or charges upon property within its boundaries. The Commercial Owner makes no representations or warranties regarding the types or locations of improvements that will be constructed as part of the Aspen Redevelopment, the timing of commencement and completion of the Aspen Redevelopment or whether or not the Commercial Owner or its affiliates or assignees will proceed with the Aspen Redevelopment at all. 18. NO VIES' EASEMENT. Notwithstanding any representation made to the Residential Owner to the contrary by the Commercial Owner. any real estate agency or any agent. employee or representative of the Commercial Owner or any real estate agency. and by signing this Agreement the Residential Owner acknowledges and agrees. there is no easement or other right e-,:press or implied, for the benefit of the Residential Owner or the Residential Lot for Light, view or air included in or created by this Agreement or as a result of the Residential Owner owning the Residential Lot. 30 19. RESERVATION OF DENSITY. ANY AND ALL DENSITY RIGHTS, INTERESTS AND VALUE THEREFOR ATTRIBUTABLE TO THE COMIl4ERCLAL LOT OR RESIDENTIAL LOT WHICH ARE GRANTED BY THE APPROPRIATE GOVERNMENTAL AUTHORITY UPON THE EFFECTIVE DATE OF THIS AGREEIv/IENT (SUBJECT TO THE ALLOCATION OF DENSITY TO THE COMMERCIAL LOT AND RESIDENTIAL LOT FROM APPLICABLE AUTHORITY FROM TIME TO TIME) AND SUBSEQUENT TO THE EFFECTIVE DATE HEREOF ARE HEREBY RESERVED IN FAVOR OF THE COMMERCIAL OWNER. ITS SUCCESSORS AN"D/OR ASSIGNS. BY AND TO THE EXTENT PERMITTED BY L.AW. THE RESIDENTIAL OWNER HEREBY ACKNOWLEDGES AND AGREES THAT THE DENSITY RESERVATION DESCRIBED HEREIN SHALL BE EVIDENCED IN THE CONVEYANCE DEED FOR EACH CONDOMINIUM UNIT VdITHLNT THE RESIDENTIAL LOT AND COMMERCIAL LOT AS A RESTRICTION APPURTENANT TO AND RUNNING N%ITH THE RESIDENTIAL LOT AND COMMERCIAL LOT AND EACH CONDOMINIUM UNIT V,TTHLN THE RESIDENTIAL LOT AND COMMERCIAL LOT UNTIL SUCH TIME AS THE COMMERCIAL OWNER TERMINATES OR FULLY EXERCISES ITS RESERVED INTEREST HEREIN. IF THIS RESERVATION OF DENSITY FROM SUCH APPLICABLE AUTHORITY SHALL BE UNLAWFUL OR VOID FOR VIOLATION OF: (A) THE RULE AGAINST PERPETUITIES OR SOME ANALOGOUS THEORY, (B) THE RULE RESTRICTING RESTRAINTS ON ALIENATION OR (C) ANY OTHER STATUTORY OR COMMON LAW RULES IMPOSING LIKE OR SIMILAR TIME LIMITS.. THEN THIS PROVISION SHALL TERMINATE IF IT DOES NOT BECOME A VESTED (RATHER THAN CONTINGENT) INTEREST IN ACCORDANCE WTTH COLORADO LAW PRIOR TO THE DATE WHICH IS 21 YEARS AFTER THE DEATH OF THE LAST SURVIVOR OF BARACK OBAMA. THE 44TH PRESIDENT OF THE UNITED STATES, OR HIS RESPECTIVE DESCENDENTS (BY BLOOD OR ADOPTION) LIVING AS OF THE MAKING OF THIS AGREEMENT. 20. TAX PARCELS. To the extent the Residential Lot and/or Commercial Lot is not presently defined by Pitkin County, Colorado, as a separate tax parcel independent and distinct from the other. the Commercial Owner and the Residential Owner gill cooperate with one another and diliaently take all actions reasonably necessary to so establish the Residential Lot and Commercial Lot. each as a separate tax parcel. 21. SMALL PLANTNTED COMMUNITY EXEMPTION. The Parties hereby acknowledge and agree that this Agreement constitutes a "declaration" and creates a "common interest comunity" under CCIOA. Specifically. this Agreement creates a "planned community" under m CCIOA. and not a "condominium," as those terms are defined by CCIOA. The planned communin, created by this Agreement contains on 1v two (2) lots. the Commercial Lot and the Residential Lot, and is therefor exempt from CCIOA's provisions pursuant to the exemption contained in Section 38-33.3-116(2) of CCIOA for planned communities containing no more than 20 lots. The Parties acknowledge and agree that the Commercial Lot and the Residential Lot will not be bound by or subject to the provisions of CCIOA. except as expressly required under CCIOA. as in effect as of the date of this Agreement. In addition. the parties acknowledge and agree that neither the Commercial Owner nor the Residential Owner shall. be deemed a "master association" within the meaning of Section 38-33.3-220 of CCIOA. Without limitation on the Generality of the foregoinb. the Parties acknowledge and agree that the Residential Lot =1 and Commercial Lot each constitute an estate above the surface within the meaning of Section 38-32-101. etseg._ C.R.S., and not a condominium within the meaning of CCIOA; the Residential Owner Easements constitute the sole property interest in the Commercial Improvements that is held by the Residential Owner as appurtenances to the Residential Lot:. the Commercial Owner Easements constitute the sole property interest in the Residential Improvements that is held by the Commercial Owner as appurtenances to the Commercial Lot and there are not anv "common elements" or other portions of the Commercial Improvements or Residential Improvements in which the Residential Owner or Commercial Owner respectively holds any undivided or other ownership interest. 22. CONDO- IINTIUMIZATION OF RESIDENTIAL LOT. Notwithstanding but without limiting the provisions of Section 21 above. the Parties acknowledge and agree that the Residential Owner may. at its election, subject the Residential Lot to a condominium regime under CCIOA. Regardless of any such condominiumization. the Residential Lot will continue to be a single lot for all purposes under this Agreement. Any residential owners' association formed pursuant to CCIOA (the "Bowman Residential Association") will be deemed the "Residential Owner." all owners of such condominium units will act and be treated collectively through the Bowman Residential Association under this Agreement and each owner of a condominium unit. by taking title to a condominium unit, irrevocably and unconditionally appoints the Bowman Residential Association as its duly authorized representative and attorney- in-fact for all purposes under this Agreement. Notwithstanding that the Bowman Residential Association shall be deemed the "Residential Owner." the Residential Owner Easements will be deemed granted to the Bowman Residential Association for the benefit of its members and the use restrictions on the Residential Lot will apply to and may be enforced against all or any portions of the Residential Lot and the owners thereof, as the Commercial Owner may elect from time to time. In any event, each owner of a portion of the Residential Lot, whether condominiumized or not, is subject to all provisions of this Agreement. 23. CONTDOMINTIUMIZATION OF COMMERCIAL LOT. Notwithstanding but writhout limiting the provisions of Section 21 above. the Parties acknowledge and agree that the Commercial Owner may. at its election, subject the Commercial Lot to a condominium regime under CCIOA. Regardless of any such condominiumization. the Commercial Lot will continue to be a single lot for all purposes under this Agreement. Any commercial owners association formed pursuant to CCIOA (the 'Bowman Commercial Association") will be deemed the "Commercial Owner." all owners of such condominium units will act and be treated collectively through the Bowman Commercial Association under this Agreement and each owner of a condominium unit, by taking title to a condominium unit, irrevocably and unconditionaD appoints the Bowman Commercial Association as its duly authorized representative and attorney-in-fact for all purposes under this Agreement. Notwithstanding that the Bowman Commercial Association shall be deemed the "Commercial Owner." the Commercial Owner Easements will be deemed granted to the Bowman Commercial Association for the benefit of its members and the use restrictions on the Commercial Lot will apply to and may be enforced against all or any portions of the Commercial Lot and the owners thereof. In any event, each owner of a t?ortion of the Commercial Lot, whether condominiumized or not, is subject to all provisions of this Agreemerrn. 24. REMEDIES. (a} General. upon the occurrence of any default hereunder by either Part-,, the non-defaulting Parvv. in addition to any remedies provided for in this Agreement, has such remedies as may be available at law or equity for such default, and all such remedies are cumulative and non-exclusive. Any and all such remedies may be pursued by the non-defaulting Party. either successively or concurrently. and the exercise of any one remedy will not bar the exercise of an-,- other remedy. In the case of a default by a Party, such remedies as may be afforded by law or equity are specifically cumulative with, and non-exclusive of, the other Part's rights under the other provisions of this Agreement to exercise the Expense Lien. (b) Self-Help; Shared Service Elements. In the event of any material default, obstruction. or damage, as determined by the Commercial Owner in its reasonable discretion.. regarding any impact to the Shared Service Elements which in any way diminishes; interferes with or terminates use thereof by the Commercial Owner without cure by the Residential Owner for a period not to exceed forty-eight (48) hours, the Commercial Owner may elect, in addition to all other rights and remedies set forth in this Agreement and Section 24 (a) above, to repair, maintain, replace or reconstruct, as applicable, the Shared Service Elements, at the Commercial Owner's cost and expense and provide written notice to the Residential Owner of its proportionate share thereof due. Upon such repair, maintenance.. replacement or reconstruction by the Commercial Owner.. the Residential Owner shall pay its proportionate share thereof within three (3) days' after written request therefore from the Commercial Owner. In the event the Residential Owner fails to provide payment to the Commercial Owner in accordance herewith, the Commercial Owner may elect to: (1) restrict access to any, easements located on the Commercial Lot; and (ii) reduce the amount of any amounts due and owing to the Residential Owner by the amount required to repair.. maintain, replace or reconstruct the Shared Service Elements from time to time, including. but not limited to, any Shared Expense Payment and Capital Payments. 25. ATTORNEYS' FEES. In the event any litigation or legal proceeding arises out of this Agreement and is prosecuted to final judgment. the prevailing Party will be entitled to recover from the other all of the prevailing Part-'s costs and expenses incurred in connection therewith, including reasonable attornevs' fees. 26. RUN WITH THE LAND. Except as otherwise expressly provided herein; this Agreement and all the provisions of this Agreement will run with the land and the ownership of the Residential Lot and the Commercial Lot, and the Residential Owner Easements, Commercial Owner Easements and Shared Service Elements and other provisions of this Agreement will act as an appurtenant benefit and burden for each property which is intended to be benefited and/or burdened thereby and the oxyner of that respective property. References herein to each Party will include the initial Pare named in this Agreement and its successors in interest in the ownership of its property, except as provided for above in Sections 22 and 23 with regard to the Associations. If a Part- conveys its interest in its property by an instrument recorded in the Records. then the transferee will automatically be deemed to have assumed and agreed to be bound by this Agreement and will have personal liabilii-y for all obligations hereunder accruing from and after the transfer. and the transferor will thereupon be released and discharged from any and all obligations under this Agreement applicable to the pertinent Uropem' which accrue after the date of transfer; provided. however. that the foregoing will not be construed to limit or impair the applicability or enforceability of the Expense Lien for Shared Expense Payments or Capital Pavments that are delinquent or owing at the time of transfer, subject to the provisions of Section 80)(11). the transferee will acquire subject to all such Expense Lien rights (whether or not anv specific evidence thereof has been recorded). 27. ESTOPPELS AND CONFIRMATIONS. Each Party. within 20 days after receiving a notice requesting the same from any other Party or from a Lien Holden will deliver a written estoppel certificate setting forth that. to the knowledge of the responding Party, the other Party- is not in default in the performance of any its obligations under this Agreement, or, if in default, setting forth the nature of such default, and setting forth the status of such other matters related to this Agreement as the requesting Party or Lien Holder may reasonably specify for disclosure. Any incorrect statement in a certificate which is tendered in response will only preclude the corresponding claim or defense by the responding Party, as appropriate, and the responding Party will not otherwise have anv liabilit\1 therefor. If the responding Part- fails to deliver the requested estoppel certificate within the requisite time period. then it will be conclusively deemed that the other Party is not then in default of any obligations under this Agreement, and that any other matters requested for disclosure are in the status most favorable to the other Pam', as determined by the other Party. Lenders (prospective or existing) to any Party and prospective purchasers or lessees of any Party shall be entitled to rely on estoppel certificates delivered, or deemed delivered, pursuant to this Section. If any Pam' requests and receives from any other Party more than two sets of estoppel certificates during any period of 12 successive: months; then the requesting Party (other than Lien Holder) will reimburse the responding Party upon demand for the reasonable out-of-pocket costs and expenses (including attorneys' fees) incurred by the responding Party in connection with each additional certificate requested by the requesting Pam' during that same 12-month period. 28. TERM; AMENDMENT. The term of this Agreement is perpetual, unless terminated by the Parties. provided, however. to the extent (and only to the extent) the Rule Against Perpetuities applies to anv provision of this Agreement under Colorado law, then such provision shall terminate if it does not become a vested (rather than contingent) interest in accordance with Colorado law prior to the date which is 21 years after the death of the last survivor of Barack Obama. the 44th President of the United States, or his respective descendents (by blood or adoption) living as of the making of this Agreement. Any amendment, modification or termination of this Agreement may be effectuated only by the Parties' mutual execution of a written instrument recorded in the Records. Any provision hereof may be waived only to the extent set forth in a written instrument executed by the Party against whom enforcement of the claimed waiver is sought. 29. BUSINESS DAYS, NOTICES. If any date or the expiration of any period referenced in this Agreement falls on a dav which is not a United States business day (i.e., Saturday, Sunday or legal holiday for which U.S_ mail service is not provided). then the pertinent date or period will be deemed extended to the next succeeding business day. Any notice required under this Agreement -,vnll be in wrIting and will be deemed given (a) upon receipt by the Party to be notified when sent by (1) hand delivenr_ (ii) facsimile: or (iii) national courier such as Federal Express, when confirmation of delivery or transmission is available and used with anv such means; or (b) three business days after being deposited in the United States Postal Service, 4 postage prepaid. for first class delivery. A Party may change its address or facsimile number for notice purposes by giving notice thereof to the other Parties in accordance with the foregoing. and legal counsel for a Pam 7 may give notice on such Party's behalf. For notice purposes, the address and facsimile information for each Partv is initially as follows: If to the Commercial Owner: c/o Katie Reed Mgmt. LLC Attu: Andrea Regan Ave..418 E. Cooper #207 Aspen, CO 81611 Facsimile: (970) 927-2834 If to the Residential Owner: c/o Katie Reed Mgmt, LLC Attn: Andrea Regan 418 E. Cooper Ave.. #207 Aspen. CO 81611 Facsimile: (970) 927-2834 30. SEVERABILITY. If any provision of this Agreement as applied to any particular circumstance i11 be adjudicated as or otherwise become illegal and unenforceable, such illegality will not affect the enforceability of any other provision of this Agreement, or the offending provision as applied to circumstances for which it is enforceable, it being intended that all provisions of this Agreement be valid and enforceable to the fullest extent legally permissible. 31. CAPTIONS; GENDER. The captions and headings of the various provisions of this Agreement are for convenience and identification only, and will not be deemed to limit or define the operative provisions of this Agreement. References herein to the singular will include the plural, and the plural the singular. and references herein to any one gender will be deemed to include all genders. 32. NO PUBLIC DEDICATION. Nothing herein contained will be deemed to be a grant or dedication of any portion of the Commercial or Residential Improvements to or for the general public or for any public purposes whatsoever, it being the intention of the Part ies hereto that this Agreement be strictly limited to the purposes herein expressed. Furthermore. the Commercial Owner may limit or preclude vehicular or pedestrian access over the Commercial or Residential Improvements to the extent reasonable necessary to prevent or defend against any third party claim of an implied public dedication or of the acquisition of prescriptive easement or ownership rights impacting the Commercial or Residential Improvements (notwithstanding the other provisions of this Agreement which would indicate or require to the contrary). 33. GOVERNING LAW. This Agreement and all of its provisions will be governed by and construed in accordance with the lavers of the State of Colorado. 34. INTEGRATION. This, Agreement constitutes the entire understanding and agreement between the Parties with respect to the subject matter hereof.. and any prior or extrinsic understandings or agreements concerning the same subject matter are superseded hereby and will be of no force or effect. 35. NO MERGER OF IINTTERESTS. The rights and interests of the Commercial Owner are separate and distinct from its rights and interests under this Agreement as the Residential Owner. The fact that all interests in the Commercial Lot and the Residential Lot are. as of the date of this Agreement. vested in the same entity will not cause a merger of those interests or anv extinguishment of this Agreement or the rights and interests created by this Agreement. It is intended that no such merger occur and this Agreement remain in full force and effect from and after the date hereof. 36. DEFINITION. For purposes of this Agreement, the term "including," and related terms such as "include," shall in all cases mean "including without limitation." 37. COVENANT NOT TO SUE. Each of the Commercial Owner and Residential Owner, for themselves and their respective agents, attorneys-in-fact. heirs; representatives,. assigns, successors, members, executors. administrators. directors. officers, employees, friends, relatives. tenants. L-uests and invitees (collectively. the "Releasing Parties") do hereby irrevocably and unconditionally release, acquit and forever discharge and indemnify and hold harmless the Commercial Owner. Residential Owner.. and the current and former owners, shareholders, employees. directors. officers, partners, managers, members. agents.. attorneys. representatives. and insurers of the Commercial and Residential Owners and any corporations. limited liability companies or other firms or entities comprising or related to or affiliated with the Commercial Owner, Residential Owner and their respective successors, administrators and assigns (collectively. the Commercial Owner and Residential Owner, the "Released Parties") from and against any and all present and future complaints. claims; liabilities, obligations, agreements, damages. causes of action. costs. losses. and attorneys' fees and expenses whatsoever, whether known or unknown. including those attributable to the negligence. gross negligence or willful misconduct of the Released Parties, incurred in any manner or way in connection with or arising out of or from or in any wa_y, related to any of the activities associated with or related to the Commercial Project and Residential Project. including, without limitation. any annoyance. noise or odor transmission. nuisance or trespass or any other perceived or actual harm.. threat or distress related to or arising out of any one or more of the elements comprising the Commercial Project and Residential Project. Further. the Releasing Parties expressly acknowledge and agree that the Commercial Project by its very nature will generate crowds and attendant noise; odors and refuse and that the prospective purchasers of Residential Project condominium units, for themselves and the other Releasing Parties. by acceptance of title to their respective units; do hereby accept the risks attendant to the activities conducted in or around the Commercial Project. Each of the Releasing Parties acknowledges and agrees that it is expressly releasing all claims now, or hereafter known and suspected as well as all those unknown or not suspected at this time and that its release hereunder includes and contemplates the extinguishment of all claims and complaints they may now or hereafter have against the Released Parties in any way or manner _related to activities associated with or related to the Commercial Project and Residential Project under any and all applicable laws. Each of the Releasing Parties does hereby also covenant not to sue, or otherwise participate in any action or class action against, any of the Released Parties based upon any of the matters set forth above. [Balance of Page Intentionally Left Blank] 36 IN WITNESS W7HEREOF. the Co=ercial Owner and the Residential Owner have made this Agreement as of the day. month and vear first above written. "COMMERCLA-L OWNER" NJ Stein LLC. a Colorado Ilmited liability company as to an undivided 52.9811/c, interest Bv: Name: Title: COUNTY OF PITKIN ) 1 ss: STATE OF COLORADO ) The foregoing instrument was acknowledged before me this day of 2010. by as of NJ Stein LLC, a Colorado limited liability company as to an undivided 52.98% interest in the "Commercial Owner." RVTTINrESS my hand an official seal. My commission expires: Notary Public 4:3618v]-SF4,-BowmanBu ldm2-FII\IAL 7 "CONMERCLAL OVFTrER" Stein Building LLC. a Colorado limited liability company as to an undivided 23.11% interest Bv: Name: Title: COUNTY OF PITKrN ) ss: STATE OF COLORADO ) The foregoins instrument was acknowledged before me this day of 2010, by as of Stein Building LLC, a Colorado limited liability company as to an undivided 23.11% interest in the "Commercial Owner." WITNESS my hand an official seal. My commission expires: Notary Public 3s "CONUAERCL4L OWNER" AV Stein LLC. a Colorado limited liability, company, as to an undivided 19.09% interest B-,-: Name: Title: COUNTY OF PITkIN ) ss: STATE OF COLORADO ) The foregoing instrument was acknowledged before me this day of 2010. b-,7 as of .4V Stein LLC; a Colorado limited liability company as to an undivided 19.09% interest in the "Commercial Owner." WFFNTESS my hand an official seal. My commission expires: Notary Public 9 "CONMERCL4L ONVSI-ER" RG Cooper Street LLC. a Colorado limited liability company, as to undivided 4.83% interest Bv: Name: Title: COUNTY OF PITK N ) j ss: STATE OF COLORADO The fore6oina instrument was acknowledaed before me this dav, of 2010. by as of RG Cooper Street LLC; a Colorado limited liability company as to an undivided 4.83% interest in the "Commercial Owner." VdITNESS my hand an official seal. My commission expires: Notary Public 40 "RESIDENTIAL WW>tER" 1.��J Stein LLC. a Colorado limited liability company as to an undivided 52.98% interest Bv: Name: Title: COUNTY OF PITRIN 1 ss: STATE OF COLORADO ) The foregoing instrument was acknowledged before me this — day of 2010. by as of NJ Stein LLC.. a Colorado limited liability company as to an undivided 52.98% interest in the "Residential Owner." VdITNESS my hand an official seal. My commission expires: Notary Public 41 "RESIDENTI_AL OVVAER" Stein Building LLC, a Colorado limited liability company as to an undivided 23.11% interest Bv: Name: Title: COUNTY OF PITkI-N ) j ss: STATE OF COLORADO ) The foreaoina instrument �,°as acknowledged before me this day of 2010, by as of Stein Building LLC, a Colorado limited liability° company as to an undivided 23.11% interest in the "Residential Owner." WIT NESS my hand an official seal. My, commission expires: Notary- Public "RESIDENTIAL OWNTER" AV Stein LLC. a Colorado limited liability company. as to an undivided 19.08% interest By: Name: Title: COU NM, OF PITKIN ) ss: STATE OF COLORADO ) The foregoing instrument was acknowledged before me this day of 2010. by as of AV Stein LLC, a Colorado limited liability, company as to an undivided 19.08% interest in the "Residential Owner." WITNESS my hand an official seal. My commission expires: Notary Public 4� "RESIDENTLAL ON"ER" RG Cooper Street LLC. a Colorado limited liability company. as to undivided 4.83% interest By: Name: Title: COU'N'TY OF PITKI ' ) ss: STATE OF COLORADO ) The foreQoina instrument was acknowledged before me this day of 2010. by as of RG Cooper Street LLC, a Colorado limited liability company as to an undivided 4.83% interest in the "Residential Owner." WITNESS my hand an official seal. My commission expires: Notan7 Public 44 EXHIBIT A CONLNIERCL4L LOT Commercial Condominium Lot A, according to the Condominium Plat of Bo�man Project. a Residential and Commercial Airspace Lot Condominium. a Resubdivision of Lots I and H. and the easterly 5 feet of Lot 6. Block 96, City and Town of Aspen.. Section 7. Township 10 South. Range 84 West of the 6tr' P.M.. Count�7 ofPitkin. State of Colorado. EXHIBIT B RESIDENTIAL LOT Residential Condominium Lot B. according to the Condominium Plat of Bowman Project. a Residential and Commercial Airspace Lot Condominium. a Resubdivision of Lots I and H, and the easterly 5 feet of Lot 6. Block 96. City and To Am of Aspen, Section 7, Township 10 South. Ramie 84 West of the 6t�' P.M.. Countv of Pitkin. State of Colorado. 47 EXFIIBIT C PERMITTED EXCEPTIONS 1. Reservations and exceptions as set forth in the Deeds from the Cite of Aspen recorded in Book 5,9 at Page. 221. 287 &- 453 providing as follows: "That no title shall hereby acquired to any mine of gold. silver. cinnabar or copper or to any valid mining claim or possession held under existinE laws." 2. Notice of Historic Designation recorded 3anuary li. i975 in Book 29� at Page X15. 3. Terms, conditions, provisions, obligations and all matters as set forth in Resolution of the Aspen Historic Preservation Commission. denying an application for Minor Development recorded Mai 17. 1999 as Reception No. 431139 as Resolution No. 18. Series of 1999. 4. Easements, rights of way, encroachments and all matters as disclosed on Survey of subject property recorded December 8. 2008 in Plat Book 89 at Page 49. �. The rights of tenants, as tenants only, under leases. 48 JOINDER & CONSENT U.S. BANK NATIONAL- ASSOCIATION. for itself. its successors and/or assigns ("Lender"). is the beneficiary under that certain Deed of Trust granted by NJ Stein LLC. a Colorado limited liability company. as to an undivided 52.98% interest. Stein Building LLC. a Colorado limited liability company. as to an undivided 23.11% interest. AV Stein LLC. a Colorado limited liabilit<, company, as to an undivided 19.08% interest. and RG Cooper Street LLC.. a Colorado limited liabilinT company. as to an undivided 4.931/c interest. for the benefit of Lender and recorded in the real property records of Pitkin Counn'. Colorado at Reception No. 546687 (as amended from time to time. the "Deed of Trust"). Lender hereby consents to this Shared Facilities Agreement. and acknowledges and agrees that the Deed of Trust and the lien evidenced thereby shall at all times be and remain subordinate to the Shared Facilities Agreement. Lender acknowledges and agrees that in the event of anv foreclosure of the Deed of Trust. the Shared Facilities Agreement shall remain in priorin- effect and not be divested thereby. LENDER: US Bank National Association, a national banking association By: Name: Title: STATE OF COLORADO ) )ss. COUNTY OF PITKIN } The foregoing instrument was acknowledged before me this day of 2010. by as of US Bank National Association. a national banking association. Witness my hand and official seal. My commission expires: Notary Public (SEAL} 49