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HomeMy WebLinkAboutFile Documents.121 E Hyman Ave.0149.2018 (95).ARBK 4579fi9 11111111111111111111111111141 08924/2001 03:01P SILVIR DAVIS PITKIN COUNTY CO R 65.00 D 0.00 AMENDED AND RESTATED COMMON INTEREST COMMUNITY DECLARATION FOR UTE WEST TOWNHOMES THIS AMENDED AND RESTATED DECLARATION is made this 44 day of August, 2001 by RK LAND&CATTLE COMPANY,LLC, a Colorado limited liability company("RK Land"; RK Land shall be referred to herein as the"Initial Owner"). RECITALS A. The Initial Owner is the owner of the following described real property in the City of Aspen, County of Pitkin, State of Colorado (herein, the "Property" or "Common Interest Community"): Lots A and B, at 121 and 123 East Hyman Avenue, respectively, according to the Ute West Townhomes Plat, previously recorded on July 18, 2001 in Plat Book 58 at Page 17, Reception No.456615,of the real estate records of Pitkin County,Colorado(the"Plat"). B. The Initial Owner has created a Common Interest Community consisting of two(2)lots which are governed by the Common Interest Community Declaration for Ute West Townhomes, recorded on July 18, 2001, at Reception No. 456614, of the real estate records of Pitkin County, Colorado (the"Declaration"). C. The Initial Owner, as the Owner of both Lots, desires to amend and restate the Declaration in its entirety by recording this Amended and Restated Common Interest Community Declaration for Ute West Townhomes. From and after the date of recording, this Amended and Restated Common Interest Community Declaration shall control, and the originally recorded Declaration shall be superceded in its entirety and shall not govern the Common Interest Community. ARTICLE 1 PROJECT PURPOSES 1.01 Submission of Real Property. The Initial Owner hereby declares that all of the Property and improvements are hereby made subject to the following easements, restrictions, covenants and conditions which shall run with the Property and be binding on all parties having any right, title or interest in the Property or any part thereof, their heirs, legal representatives, successors and assigns, and shall inure to the benefit of each Owner thereof. The Initial Owner expressly does not submit the Property to the provisions of the Colorado Common Interest Ownership Act, C.R.S. § 38-33.3-101, et seq., as amended from time to time, as the Project is exempt therefrom by election of the Initial Owner,all as permitted by the Act. 1.02 General Purposes. The Initial Owner desires to establish a means to ensure the proper use and appropriate development of the Project as a high quality,aesthetically pleasing and harmoniously designed Townhome project by means of mutually beneficial covenants, conditions and restrictions imposed on the Project for the benefit of the Initial Owner and all future owners of the Lots. 1.03 Declaration. To further the purposes expressed in Section 1.02 hereof, the Initial Owner, for itself, its successors and assigns, hereby declares that the Property shall, at all times, be owned, held, used and occupied subject to the provisions of this instrument, to the covenants, conditions and restrictions contained herein and to all amendments and supplements hereto. 1 RECEIVE!). 5/23/2018 ASPFN ��� BUILDING DEPARTMENT SILVIA DAVIS PITKIN COUNTY CO1111111111114111111111111101;11!;:eiP 1.04 Creation and Name of the Project. The Initial Owner hereby creates the Project by the name of the Ute West Townhomes(the"Project"). 1.05 Location and Tvpe of Project. The Project is situated in the City and Townsite of Aspen, Pitkin County, Colorado. Each Lot is designated for separate ownership. Because the Project is not a common interest community, as defined under the Act, the Act shall not govern the Project and the terms of this Declaration shall govern the Project. 1.06 No Declarant. The Initial Owner is entering into this instrument in its capacity as owner of the Property and declares that it is its intention that it shall not be considered a "declarant" (as such term is defined in the Act) and, accordingly,it shall not have either the rights or obligations of a declarant under the Act. However, the Initial Owner has the obligation to deliver a copy of this instrument as recorded to the Assessor of Pitkin County, Colorado. This instrument does, however, create certain rights and obligations of"Developer" (as such term is defined in Section 2.07 hereof) with respect to the Project which are similar to rights and obligation of a declarant under the Act,but the rights and obligations of Developer are governed by this "Declaration" (as such term is defined in Section 2.06 hereof)and not by the Act. 1.07 No Development Rights. The Initial Owner declares that it is its intention not to reserve any development rights which may include the rights to: (a) add real estate to the Project; (b) create additional"units" or"lots" or"common elements"or"limited common elements" (as such terms are defined in the Act) within the Project; (c) subdivide "lots" or convert "lots" into "common elements"or(d)withdraw real estate from the Project. ARTICLE 2 CERTAIN DEFINITIONS In addition to the definitions set forth above or below, the following terms shall have the following meanings when used herein: 2.01 Accessory Dwelling Unit. "Accessory Dwelling Unit" or "ADU" shall mean a portion of each Townhome which the City of Aspen, Colorado permits to be used as a dwelling unit separate from and in addition to the Townhome in which it is contained. 2.02 Act. The "Act" shall mean the Colorado Common Interest Ownership Act (Article 33.3 of Title 38 of Colorado Revised Statutes). 2.03 Breaking a Deadlock. "Breaking a Deadlock" shall mean that in the event of a Deadlock, the Owner whose consent is sought shall reconsider the requesting Owner's proposal. If after reconsideration, the requesting Owner is not satisfied with the outcome, the Owners shall mutually appoint a person, if they can so agree within seven(7)business days,to act as arbitrator ("the Arbitrator"), or thereafter at the request of either Owner, the then-current President of the Aspen Board of Realtors shall appoint the Arbitrator. Each Owner shall submit a written proposal to resolve the Deadlock to the Arbitrator within seven (7) business days after the appointment of the Arbitrator. The Arbitrator shall have not less than five(5)years experience in residential property management, shall not be related to either Owner, shall make a decision in good faith and using reasonable judgment but only by selecting the entire proposal submitted by one of the Owners, and shall allocate the costs of the proceeding to one Owner or between them both, as the Arbitrator deems equitable. The decision of the Arbitrator shall be final and binding on the Owners. If the president of the Aspen Board of Realtors fails or refuses to make such 2 RECEIVED 5/23/2018 _ _ ASPEN BUILDING DEPARTMENT 457969 Page: 3 of 13 08/24/2001 03:01P SILVIA DAVIS PITKIN COUNTY CO R 65.00 D 0.00 appointment, or if the person so appointed fails or refuses to act, then the Arbitrator shall be selected according to the rules of the American Arbitration Association. 2.04 Common Wall. "Common Wall"shall mean the lower floor wall and the patio wall shared by the Owners or any portion of the foundation walls or patios which have the potential to structurally affect the neighboring Townhome. 2.05 Deadlock. "Deadlock" shall mean a written statement that there is a "Deadlock" made by an Owner to the other Owner, after any changes or requests proposed under Article 5 are rejected by an Owner or are accepted with conditions that make the change or request prohibitive. 2.06 Declaration. "Declaration" shall mean this instrument, the Plat and all amendments and supplements to this instrument and the Plat hereafter recorded in the real property records of Pitkin County,Colorado. 2.07 Developer. "Developer" shall mean the Initial Owner. 2.08 First Lienor. "First Lienor" shall mean: (a) a Lienholder holding a Security Interest encumbering any portion of the Property which is recorded on the date of recording of this instrument and (b) a Lienholder holding a Security Interest encumbering a Lot which is recorded after the date of recording of this instrument and which has priority over all other Security Interests encumbering such Lot. 2.09 Guest. "Guest" shall mean any individual who is present at the Property at the express or implied invitation of an Owner including, without limitation, friends, relatives, agents, contractors, employees,tenants or business invitees of an Owner. 2.10 Improvements. "Improvements" shall mean any construction, including,but not limited to, walls, roofs, foundations, skylights, telephone boxes, electrical transformers, fixtures, utilities, outdoor painting, windows and window coverings, flower boxes, drains, gutters, patios, and patio walls, that is constructed on a Lot which is intended to benefit each individual Lot. 2.11 Lienholder. "Lienholder" shall mean: (a) the holder of a Security Interest encumbering any portion of the Property which is recorded on the date of this instrument and (b) the holder of a Security Interest encumbering a Lot which is recorded after the date of this instrument without regard to the priority of such Security Interest with respect to all Security Interests encumbering the same Lot. A First Lienor is also a Lienholder. 2.12 Lot. "Lot" shall mean the parcels of land comprising the Property and designated as a lot on the Plat. Each Lot is identified by Lot A or B as shown on the Plat. An individual Lot may be referred to in this Declaration by such Lot's letter as shown on the Plat. 2.13 Owner. "Owner" shall mean any individual, corporation, partnership, limited liability company, joint venture, trust or other legal entity capable of holding title to real property in Colorado that is the record owner of a fee simple interest in one or more Lots according to the real property records of Pitkin County, Colorado. RK Land is the Initial Owner of Lots A and B. Every subsequent Owner of a Lot shall, upon acquiring title to a Lot, give notice to the other Lot Owner (in accordance with Section 7.03, below) of such new Owner's name, address and evidence of insurance required in Section 6.04,below. RECEIVE 3 5/23/2018 ASPEN BUILDING DEPARTMENT Page: 4 of 13 08/24579694/2001 03:01P SILVIA DAVIS PITKIN COUNTY CO R 66.00 0 0.00 2.14 Plat. "Plat" shall mean a "plat" (as such term is defined in the Act) of the Project which shall meet the requirements of Section 209 of the Act and shall be recorded in the real estate records of Pitkin County, Colorado contemporaneously with the recording of this instrument, and all amendments and supplements thereto thereafter recorded in the real estate records of Pitkin County,Colorado. 2.15 Townhome. "Townhome" shall mean a fully or partially enclosed structure located on a Lot, including the foundation, the Common Wall, all decks, all fixtures, all utility facilities and equipment,and all other Improvements located on that Lot which serve only that Lot. 2.16 Security Interest. "Security Interest" shall mean an interest in real estate or personal property created by contract or conveyance securing payment or performance of an obligation which encumbers any portion of the Property and is recorded on the date of this instrument or which encumbers a Lot and is recorded after the date of this instrument. A Security Interest includes a lien created by a mortgage, deed of trust, trust deed, security deed, contract for deed, land sales contract,lease intended as security,assignment of lease or rents intended as security,pledge of an ownership interest in an association, and any other consensual lien or title retention contract intended as security for an obligation. ARTICLE 3 PROPERTY RIGHTS 3.01. Lots and Improvements. By this instrument,the Initial Owner has created the Project by dividing the Property into two Lots. The Initial Owner has not reserved the right to add additional Lots to the Project so that the maximum number of Lots which may be made subject to this Declaration is two. 3.02 Easements. (a) The Initial Owner hereby makes,establishes,declares,grants and reserves a blanket easement in favor of each Owner and any governmental, quasi-governmental or private entity providing utility services to any Lot, over, under, across, upon, and through the Lots for installing, replacing, repairing, maintaining and providing all utility services to the Townhomes, including, without limitation, water, gas, electric, storm sewer, sanitary sewer, cable television, satellite communications and telephone services; provided, however, that any facilities and equipment utilized to provide such utility services which may be located on a Lot or within a Townhome shall be installed in a location reasonably approved by the Owner of the burdened Lot and in a manner which is designed to minimize any interference caused by such facilities and equipment with the use of such Lot or Townhome for residential purposes. The Owner of the burdened Lot may request, for example, that such facilities be installed along the boundary lines to the extent possible. By virtue of this grant of easement, it shall be expressly permissible for the providing entity to erect and maintain the necessary facilities and equipment in the Project. Any entity providing such utility services shall be responsible for any damage caused by such entity to the Project while utilizing the Easement created by this Section 3.02(a) and for any costs incurred by an Owner as a result of such damage and shall be further required to promptly repair or restore any portion of the Project disturbed or damaged by such entity's utilization of the Easement created by this Section 3.02(a). The Easement created by this Section 3.02(a) shall be appurtenant to each Lot so that a transfer of title to any interest in such Lot shall automatically transfer a proportionate interest in such Easement. 4 RECEIVED 5/23/2018 ASPEN BUILDING DEPARTMENT 457969 Page: 5 of 13 08/24/2001 03:01P SILVIP DAVIS PITKIN COUNTY CO R 85.00 D 8.00 (b) The Initial Owner hereby makes, establishes, declares, grants and reserves mutual reciprocal easements in favor of the Owners of the Lots and the right to authorize use of the same by others in, over, under and across each Lot in order to maintain and repair any Improvement on the outside of either Townhome,including,but not limited to outdoor painting,windows and window coverings, gutters, flower boxes,patios, patio walls and roofs. Such easements are granted only to the extent use of the other Owner's Lot is necessary for such maintenance and shall be exercised in a manner which does not interfere with the burdened Owner's enjoyment of his Lot. Reasonable notice of the exercise of such easement, except in cases of emergency, shall be provided to the Owner of the Lot burdened by such easement. (c) The Initial Owner hereby makes, establishes, declares, grants and reserves an easement in favor of the tenants, if any, and guests occupying the ADU attached to each Townhome to allow emergency access on, over or across the Townhome to which the ADU is attached for the purpose of emergency access to the power and water utilities which service the ADU. (d) The Initial Owner hereby makes, establishes, declares, grants and reserves mutual reciprocal easements in favor of the Owners of the Lots to allow access on, over or across each Lot so that each Owner may fulfill its obligation to remove ice and snow from each Owner's roof, gutters, eaves,etc., and to maintain in good repair all downspouts on each Owner's Townhome. (e) The Initial Owner hereby makes, establishes, declares, grants and reserves mutual reciprocal easements in favor of the Owners of the Lots over and across the other Owner's Lot on that portion of the Lot which is the staircase and the stairwell situated between the two Townhomes for ingress and egress,and access to and from the ADU's. 3.03 Title to Lots. Title to a Lot may be held individually or by any entity or in any form of concurrent ownership recognized in Colorado. In case of any such concurrent ownership, each co-owner shall be jointly and severally liable for performance and observance of all the duties and responsibilities of an Owner with respect to the Lot in which such Owner owns an interest. 3.04 Legal Description. Any contract of sale, deed, lease, deed of trust, mortgage, will or other instrument affecting a Lot(Lot A or Lot B) shall legally describe it substantially as follows: "Lot ,according to the Ute West Townhomes Plat,recorded on July 18, 2001 in Plat Book 58 at Page 17, Reception No. 456615, of the real estate records of Pitkin County, Colorado, and subject to the Amended and Restated Declaration of Covenants and Restrictions for the Ute West Townhomes recorded August 2 4 , 2001, as Reception No. j 1-`i bq of the real estate records of Pitkin County, Colorado." Every such description shall be good and sufficient for all purposes to sell, convey, transfer, encumber, lease or otherwise affect not only the Lot, but also the interest in the easements made appurtenant to such Lot by this Declaration. The interest in the Easements made appurtenant to any Lot shall be deemed conveyed or encumbered with that Lot,even though the legal description in the instrument conveying or encumbering such Lot may only refer to that Lot. The reference to this Declaration in any instrument shall be deemed to include any supplements or amendments to this Declaration,without specific reference thereto. 3.05 Separate Assessment. The Initial Owner shall give written notice to the Assessor of Pitkin County,Colorado requesting that the Lots be separately assessed and taxed. After this instrument RECEIVE 5 5/23/2018 ASPEN BUILDING DEPARTMENT 457969 Page: 6 of 13 08/24/2001 03:01P SILVIA DAVIS PIT IN COUNTY CO R 65.00 D 0.00 has been recorded in the real estate records of Pitkin County, Colorado, the Initial Owner shall deliver a copy of this instrument as recorded to the Assessor of Pitkin County, Colorado. 3.06 Use Compliance. The use of the Lots shall comply with: (a) the terms, conditions and obligations set forth in this Declaration; (b) the matters set forth on the Nat; (c) the terms, conditions and obligations of those documents of record encumbering the Property; and (d) all present and future laws, rules, requirements, orders, directions, ordinances and regulations (including zoning regulations) affecting the Lots of any governmental authority having jurisdiction over the Lots and of their departments,bureaus or officials; provided, however, that nothing contained in this Section 3.06 shall limit, impair or otherwise affect any vested rights conferred upon the Project by the City of Aspen, Colorado and nothing herein shall prevent Owners from contesting or challenging any new laws, rules, requirements, orders, directions, ordinances or regulations(including zoning regulations). 3.07 No Partition of Lots. No Owner may assert any right of partition with respect to such Owner's Lot. By becoming an Owner, each Owner waives any and all rights of partition such Owner may hold with respect to such Owner's Lot. This Section 3.07 shall not, however, limit or restrict the right of the Owners of a Lot to bring a partition action pursuant to Section 38-28-101 et seq. of Colorado Revised Statutes requesting the sale of the Lot and the division of the proceeds among such Owners; provided that no physical division of the Lot shall be permitted as a part of such action and no such action shall affect any other Lot. 3.08 Encroachments. Upon acceptance of a deed conveying a Lot, an Owner consents to existing encroachments for any Improvements, including but not limited to, footings, eaves, drains, outward opening windows and doors, balconies, or any other exterior feature constructed to overhang or extend over the Property. 3.09 No Mechanic's Liens. (a) If any Owner shall cause any material to be furnished to such Owner's Lot or any labor to be performed therein or thereon, the Owner of the other Lot shall not under any circumstances be liable for the payment of any expense incurred or for the value of any work done or material furnished. All such work shall be at the expense of the Owner causing it to be done, and such Owner shall be solely responsible to contractors, laborers, materialmen and other persons furnishing labor or materials to such Owner's Lot. Nothing herein contained shall authorize any Owner or any person dealing through, with or under any Owner to charge any Lot other than that of such Owner with any mechanic's or materialman's lien or other hen or encumbrance whatever. On the contrary (and notice is hereby given) the right and power to charge any lien or encumbrance of any kind against any Owner or any Owner's Lot for work done or materials furnished to the other Owner's Lot is hereby expressly denied. (b) If, because of any act or omission of any Owner, any mechanic's or materialman's lien or other lien or order for the payment of money shall be filed against the other Owner's Lot or against the Initial Owner,the Owner whose or which act or omission forms the basis for such lien or order shall at such Owner's own cost and expense cause the same to be canceled and discharged of record or bonded in an amount and by a surety company reasonably acceptable to the party or parties affected by such lien or order within 20 days after the filing thereof, and further shall indemnify and save all such parties harmless from and against any and all costs, expenses, claims, losses or damages, including reasonable attorney's fees resulting therefrom. RECEIVE 6 5/23/2018 ASPEN BUILDING DEPARTMENT 1113111111111111111111111 ;i7:/c171401!33:0113 SILVIA DAVIS PITKIN COUNTY CO R 65.00 3.10 No Dedication. Nothing contained in this Declaration(which includes the Plat) shall be deemed a grant or dedication of all or any portion of the Project to the public or for public use unless such grant or dedication is expressly provided for in this Declaration. ARTICLE 4 RESTRICTIONS 4.01 Use Restrictions. Only Townhomes may be constructed on the Lots. Only one Townhome and one ADU may be constructed on each Lot. After a Townhome has been constructed on a Lot,no modification of such Townhome which would have the effect of increasing the floor area of such Townhome shall be permitted unless said modification receives approval from the City of Aspen. Each Townhome constructed on a Lot shall be used and occupied primarily for residential use by the Owner of such Lot and such Owner's Guests. The ADU may also be used or occupied for residential use by an individual or individuals to whom such Owner has leased such ADU in accordance with the provisions of this section 4.01. Each Townhome constructed on a Lot may be used and occupied secondarily for a home office by the Owner of such Lot or such Owner's Guests or by a person whose principal residence is in the Townhome if the home office complies with the following criteria: (i) no goods or merchandise may be produced, stored, displayed or sold as a part of the business conducted at the home office; (ii) the home office shall be operated by an Owner or a person whose principal residence is in the Townhome and only one other person not a resident in the Townhome may be employed or associated with the business conducted at the home office; (iii)no separate entrance to the home office shall be permitted; and (iv) no signs identifying the home office shall be permitted. All of the uses and occupancies described in this Section 4.01 shall be only as permitted by and subject to the appropriate and applicable governmental zoning and use laws from time to time in effect. An Owner shall have the right to lease such Owner's Lot upon such terms and conditions as such Owner may deem advisable;provided,however,that: (i)any such lease shall be in writing and shall provide that the lease is subject to the terms of this Declaration, (ii) a Lot may be leased only for the uses and occupancies described in this Section 4.01,(iii)any failure of a lessee to comply with the terms of this Declaration shall constitute a default by such Owner and (iv) any lease of an ADU must comply with the housing guidelines of the Aspen/Pitkin County Housing Authority and the other requirements of the Accessory Dwelling Unit Deed Restrictions entered into between the Developer and the Aspen/Pitkin County Housing Authority and recorded in the real estate records of Pitkin County, Colorado, or any other similar deed restriction hereinafter recorded in the real estate records of Pitkin County, Colorado. The use and occupancy restrictions contained in this Section 4.01 shall not apply to Developer to the extent Developer exercises any of the rights of Developer set forth in Section 4.02 hereof. 4.02 Developer's Use During Construction and Sales. During the period of construction of the Townhomes, Developer and Developer's agents,employees and contractors shall be permitted to maintain on any portion of any Lot owned by Developer, such facilities as in the sole discretion of Developer may be reasonably required, convenient or incidental to such construction, including, without limitation, storage areas, parking areas and lighting and temporary parking facilities. During the period of sales of the Lots, Developer and Developer's agents, employees and contractors shall be entitled to maintain signs on any Lot owned by Developer advertising the Project. Developer and Developer's agents, employees and contractors hereby reserve an easement over,across, through and upon any Lot for the purposes of(a) discharging Developer's obligations under this Declaration or (b) exercising any of Developer's other rights under this Declaration. RECEIVE!). 5/23/2018 ASPEN 4 Page: 82 of 13 08/24/200579691 03:0IP SILVIA DAVIS PITKIN COUNTY CO R 55,00 D 0.00 4.03 Animals. No animals shall be raised, bred, kept or regularly brought to the Project except for animals which are trained to and are in fact assisting persons with disabilities and except for the following pets which may be kept at a Lot: (a)no more than two dogs; (b)no more than two cats; and (c) any number of other small ordinary household pets which are confined to the Townhome such as parakeets,parrots,canaries, gerbils and fish. 4.04 Signs. (a) Except for the signs which Developer is entitled to maintain on the Project as described in Section 4.02 hereof, and except for a "for sale" sign maintained by a Lot Owner, no signs of any kind or nature shall be placed on any portion of the Project by any Owner without the prior written approval of the neighboring Lot Owner of the size and design of any proposed sign, which approval may be granted or withheld by the neighboring Lot Owner based upon the standard that all signs must be compatible with the architecture of the Project. The process for obtaining the approval of the neighboring Lot Owner of any proposed sign is set forth in Section 5.02 hereof and the liability of the neighboring Lot Owner with respect to such approval process is limited in the manner set forth in Section 5.03 hereof. (b) Each Lot Owner shall have the right to cause no trespassing signs, or signs concerning traffic and parking regulations, to be placed within his or her Lot in order to affect the purpose of the sign. 4.05 Parking. No vehicles shall be parked on any portion of a Lot except in the driveway or the area of the Lot designed for parking. No buses, trucks larger than pickup trucks, trailers, mobile homes, truck campers, detached camper units, boats or commercial vehicles may be parked anywhere on the Project except while making deliveries or providing services to Townhomes or in connection with the construction of the Townhomes. 4.06 Unsightly Conditions Dumping and Outside Storage. No unsightly objects or materials shall be placed on the exterior portions of a Lot. No part of a Lot shall be used as a dumping ground for garbage, trash or waste and the same shall be stored in a covered container and disposed of in a sanitary manner. No outside storage shall be permitted on any Lot except in connection with the construction of the Townhomes or except with the prior written permission of the neighboring Lot Owner. 4.07 No Noxious,Offensive Hazardous or Annoying Activities. No noxious or offensive activity shall be carried on upon any part of the Project nor shall anything be done or placed on any part of the Project which is or may become a nuisance or cause any unreasonable disturbance or annoyance to others. No activities shall be conducted on any part of the Project which are or might be unsafe or hazardous to any person or property. No glaring light, loud or annoying sound or vibration, smoke or unpleasant odor arising from the use of a Lot shall be permitted. 4.08 No Imperiling of Insurance. No Owner and no Owner's Guests shall do anything or cause anything to be kept in or on the Project that might result in an increase in the premiums of insurance obtained by a neighboring Lot Owner or which might cause cancellation of such insurance without the prior written consent of the neighboring Lot Owner first having been obtained. 4.09 No Violation of Law. No Owner and no Owner's Guests shall do anything or keep anything in or on the Project which would be in violation of any statute,rule, ordinance, regulation, permit or other validly imposed requirement of any governmental body. RECEIVE 8 5/23/2018 ASPEN BUILDING DEPARTMENT Page: 92 of 08/24/2001457969 0133:01P SILVIA DAVIS PITKIN COUNTY CO R 65.00 D 0.00 4.10 No Resubdivision, Condominium Form of Ownership or Time Share Estate. No Lot shall be resubdivided into smaller tracts or lots nor shall any Lot be combined with any other Lot. No Lot shall be subjected to a declaration which creates a"condominium" (as such term is defined in the Act)form of ownership with respect to such Lot. Without limiting the generality of the foregoing restriction against the condominium form of ownership, no Accessory Dwelling Unit may be subjected to the condominium form of ownership, which restriction is also contained in the Accessory Dwelling Unit Deed Restriction described in Section 4.01 hereof. No Lot shall be made subject to a "time share estate" (as such term is defined in Section 38-33-110 of Colorado Revised Statutes). 4.11 Mining and Drilling. No Lot shall be used for the purpose of mining, quarrying, drilling, boring or exploring for or removing oil, gas or other hydrocarbons, minerals, rocks, stones, gravel or earth. No water wells shall be drilled on a Lot. 4.12 Solar Applications. The installation or use of either active or passive solar equipment shall not be prohibited or restricted solely on the basis of aesthetic considerations unless such considerations are reasonable and do not significantly increase the cost of such installation or use. 4.13 Temporary Structures, Occupancy and Incomplete Structures. No temporary structures, mobile home or trailer shall be allowed on any Lot other than in connection with and during the period of construction, alteration or demolition of a Townhome on a Lot. No space in a Townhome on a Lot shall be occupied in any manner prior to completion of construction and the issuance of a temporary or permanent certificate of occupancy by the appropriate governmental authority with respect to such space. No partially completed structure shall be allowed to remain on a Lot except during the period of construction, alteration or demolition of such structure and providing that the completion of such construction, alteration or demolition is being pursued with reasonable diligence. 4.14 Denial of Certain Rights with Respect to the Lots. The Owners shall not have the following rights with respect to their Lots as described in the Act: (a) the right to relocate boundaries between adjoining Lots in accordance with the provisions of Section 212 of the Act; and (b) the right to subdivide a Lot in accordance with the provisions of Section 213 of the Act. ARTICLE 5 ARCHITECTURAL CONTROL 5.01 Approval of Construction and Exterior Modifications. Except for construction by Developer, no building, fence, wall or other structure may be constructed on a Lot and no modifications to the exterior of a structure already constructed on a Lot (including without limitation an addition to the Townhome or the painting of the Townhome a different color) may be undertaken without, in each case, obtaining the prior written approval of the proposed construction or modification from the other Lot Owner. Upon receipt of a request for construction or modification, an Owner must consider whether the proposed changes are architecturally compatible and in a compatible color scheme to the Project, and has an obligation to consent to reasonable, and tasteful deviations which do not materially affect the architectural design and style of the Project. 5.02 Approval Procedures. An Owner shall have 30 days to approve the request in writing as submitted, to approve the request with reasonable conditions or to reject the request and, if the Owner does not so act within such 30 day period, the request shall be deemed approved as RECEIVE 9 5/23/2018 ASPEN i th ENi 457969 Page: 10 of 13 08/24/2001 03:01P SILVIA DAVIS PITKIN COUNTY CO R 65.00 D 0.00 submitted. If the request is approved, the matter approved shall be undertaken by the Owner in accordance any conditions placed upon such approval by the neighboring Lot Owner. 5.03 No Liability. A neighboring Owner shall not be responsible nor liable for damages because of any failure to act, disapproval nor failure to approve or disapprove any request for approval described in Section 5.01 hereof. Any Owner requesting approval by a neighboring Owner by so doing agrees and covenants not to bring any action or suit to recover damages against the neighboring Owner or its advisors, employees or agents. 5.04 Deadlock. In the event of a Deadlock following any Lot Owner's request for construction or modification, the procedure found at Section 2.03,Breaking a Deadlock,shall apply. ARTICLE 6 MAINTENANCE AND INSURANCE 6.01 Maintenance and Repairs by Owners. Each Owner shall be responsible, without limitation, for maintaining in a clean, safe, attractive and sightly condition, and in good order and repair, all portions of such Owner's Lot and the Townhome and ADU on the Owner's Lot. Notwithstanding the foregoing,the Owners shall use a single contractor for landscaping and snow removal within both Lots, and maintenance of the common courtyard and stairs, with each Owner paying one-half of the total expenses. In the event the Owners cannot agree on the contractor for such services, the Owner of Lot B shall select the contractor. However, if the Owner of Lot A can demonstrate that the fees charged by the contractor chosen by the Lot B Owner exceed the normal charges for such services in the Aspen, Colorado area, through written proposals from other contractors delivering the same services, the Owner of Lot A shall be allowed to hire their own contractor, with each Owner paying for their own services, unless the Lot B Owner shall choose a contractor agreed to by the Lot A Owner. 6.02 Ice and Snow. Each Owner shall be responsible, without limitation, for the removal of all ice and snow from such Owner's roof, eaves, gutters, and downspouts in order to safeguard the neighboring Owner, his guests, invitees, agents and employees, and the neighboring Lot, Townhome and ADU. 6.03 Common Wall, Stairs and Courtyard. Each Owner shall be responsible, through repair or replacement, for any acts which cause damage to the Common Wall, the stairs which lead to the ADUs, and the common courtyard situated between the Townhomes. An Owner who damages or in any way imperils the structural integrity of the Common Wall shall repair or replace the Common Wall and shall be responsible for repairing or replacing any portion of a Townhome that is damaged due to damages to the Common Wall. Except where an Owner causes damage to the Common Wall, the maintenance and repair of the Common Wall shall be a common expense to be shared equally by the Owners. 6.04 Insurance. (a) Property Insurance. Property Insurance will be maintained by each Owner covering that Owner's Lot, Townhome, and ADU, including all fixtures, equipment, Improvements, that portion of the Common Wall on the Owner's Lots and betterments, for loss or damage by fire and extended coverage perils for the maximum appreciated replacement value of the Property. (b) Liability Insurance. Liability insurance, including medical insurance shall be maintained by each Owner in an amount of not less than $2,000,000.00 to cover all occurrences, including RECEIVE 10 5/23/2018 ASPFN BUILDING DEPARTMENT Pa e 11 0 /24/20014579598 of 0313:01P SILVIR DAVIS PITKIN COUNTY CO R 65.00 D 0.00 death, bodily injury and property damage arising out of or in connection with use, ownership or maintenance of each Townhome and all fixtures, equipment, Improvements, that portion of the Common Wall on the Owner's Lots and betterments. Upon the request of either Owner, the Owners shall review the amounts of insurance customarily carried in the Aspen, Colorado area, and shall increase this insurance coverage to such customary levels. Each Owner shall name the other Lot Owner as an additional insured party under such policy. (c) Cancellation. No policy of insurance may be cancelled or substantially modified until after 30 days prior written notice is first given to each Owner and First Lienholder. (d) Certificate. Each owner shall deliver to the other Owner, upon written request by such Owner, certificates evidencing all insurance required to be carried. Such certificate shall be updated upon the transfer of any Lot. ARTICLE 7 MISCELLANEOUS PROVISIONS 7.01 Enforcement and Remedies. The provisions of this Declaration which create certain rights in Developer shall be enforceable by the party or parties entitled to such rights and the other provisions of this Declaration shall be enforceable by each Owner. In enforcing this Declaration, an Owner shall be entitled to any remedy at law or in equity including without limitation, an action seeking a prohibitive or mandatory injunction or damages or both. In any action for the enforcement of this Declaration, the party or parties against which or whom enforcement is sought shall pay the reasonable attorneys' fees and costs, including the reasonable attorneys' fees and costs of any appeal, incurred by the party enforcing this Declaration in the amount determined by the Court if the party enforcing this Declaration is the prevailing party in such action. The issuance of a building permit or certificate of occupancy which may be in contravention of this Declaration shall not prevent enforcement of this Declaration. Notwithstanding the foregoing,if an Owner, at any time, shall neglect or refuse to perform or pay his share of any obligation required hereunder, the other Owner may, but shall not be obligated to, after twenty-one (21) days written notice to the other Owner, unless the circumstances require immediate action, make such payment or, on behalf of such other Owner, expend such sum as may be necessary to perform such obligation, including but not limited to, the payment of any insurance premiums required hereunder for repair, restoration or maintenance, and such other Owner shall have an easement in and to that part of such defaulting Owner's Lot as is reasonably necessary for such repair, restoration or maintenance. All sums so paid or expended by an Owner, with interest thereon at the rate of eighteen percent (18%) per annum from the date of such payment or expenditure, shall be payable by the Owner so failing to perform (the "Defaulting Owner")upon demand of the other Owner. All sums so demanded but unpaid by the Defaulting Owner shall constitute a lien on the Lot of the Defaulting Owner in favor of the other Owner prior to all other liens and encumbrances, except: (i) liens for taxes and special assessments; and (ii) the lien of any first mortgage or first deed of trust of record encumbering such Lot. The lien shall attach from the date when the unpaid sum shall become due and may be foreclosed in like manner as a mortgage on real property. To evidence such a lien, written notice of the lien shall be prepared, setting forth the amount of the unpaid indebtedness, the name of the Defaulting Owner,and description of the Lot to which the lien shall attach. Such notice shall be signed by the Owner in whose favor the lien shall be filed, and the lien shall be recorded in the office of the Clerk and Recorder of the County of Pitkin, Colorado. If an Owner incurs costs or expenses in connection with the collection of RECEIVED 11 5/23/2018 ASPEN BUILDING UEPAk I MENT 457969 Page: 12 of 13 08/24/2001 03:01P SILVIA DAVIS PITKIN COUNTY CO R 65.00 D 0.00 sums expended by such Owner, including any costs and expenses of recording a lien or those of any foreclosure or other collection proceedings, the Defaulting Owner shall be required to pay such costs and expenses,including reasonable attorney's fees. Sale or transfer of either Lot as the result of court foreclosure or a mortgage foreclosure through the public trustee,or any proceeding in lieu of foreclosure, shall extinguish the lien as to payments thereof which become due prior to such sale or transfer, but shall not relieve any former Owner of personal liability therefor. The first mortgagee of such Lot who acquires title by way of foreclosure or the taking of a deed in lieu thereof shall not, however, be liable for any past due amounts and/or obligations due hereunder and shall only become liable for future amounts and/or obligations on the date it becomes the owner of such Lot. No such sale or transfer as described herein shall relieve such Lot from liability for any amounts and/or obligations thereafter becoming due or from the lien thereof. In the event of the sale or transfer of a Lot with respect to which sums shall be unpaid by a Defaulting Owner,except transfers to a first mortgagee in connection with a foreclosure of its lien or a deed in lieu thereof, the purchaser or other transferee of an interest in such Lot shall be jointly and severally liable with the seller or transferor thereof for any such unpaid sums. 7.02 Duration. This Declaration shall continue and remain in full force and effect in perpetuity, as the same may be amended from time to time in accordance with the provisions of Section 7.04 hereof. 7.03 Notice. Any notices required or permitted to be given to an Owner shall be delivered regular mail or overnight courier directed to the address on file at the Pitkin County Assessor's Office for said Owner, unless another address has been previously designated in writing and delivered to the other Owner. All notices so given will be considered effective, if delivered by courier, one business day after timely deposit with the courier service; or if mailed, three days after deposit, first class postage prepaid,with the United States Postal Service. 7.04 Amendment. The Owners shall be entitled to amend this Declaration with the written consent of both Owners. The provisions of this Declaration which create certain rights in the Developer may be amended only with the prior written consent of the party entitled to such rights. Any amendment shall be effective only upon the recording of a written instrument specifying and evidencing the amendment. 7.05 Covenants Running with the Land. Each provision of this Declaration, and any agreement, promise, covenant and undertaking to comply with each provision of this Declaration shall be deemed a covenant running with the land as a burden with and upon the title to each parcel of real property within the Project for the benefit of any other real property within the Project. 7.06 Successors and Assigns. Except as otherwise provided herein, this Declaration shall be binding upon and shall inure to the benefit of the Initial Owner and each subsequent Owner and their respective heirs, devisees, personal representatives, successors and assigns. The Initial Owner and each subsequent Owner shall be fully discharged and relieved of liability with respect to the obligations of such party under this Declaration upon ceasing to own an interest in a Lot. 7.07 Severability. Invalidity or unenforceability of any provision of this Declaration in whole or in part shall not affect the validity or enforceability of any other provision or any valid and enforceable part of a provision of this Declaration. 7.08 Captions. The captions and headings in this Declaration are for convenience only and shall not be considered in construing any provisions of this Declaration. RECEIVED 12 5/23/2018 ASPEN hull vu ut'PARTIatt11 4527409 Page: of13SILVIA DAVIS PITKIN COUNTY CO R 85.00 8/� D0.00 3.01P 7.09 Construction. When necessary for proper construction, the masculine of any word used in this Declaration shall include the feminine or neutered gender, and the singular the plural and vice versa. 7.10 No Waiver. Failure to enforce any provisions of this Declaration shall not operate as a waiver of such provision or of any other provision of this Declaration. 7.11 Governing Law. This Declaration shall be governed by and construed under Colorado law. EXECUTED as of the date first set forth above. RK LAND & CATTLE COMPANY,LLC a Colorado limited liability company By: �6L('r t✓i Garret S. Brandt,Manager STATE OF COLORADO ) � Jcir1) ss. COUNTY OFT-A ) The foregoing instrument was acknowledged before me this 2.Ntday of August, 2001,by Garret S. Brandt, as Manager of RK Land&Cattle Company,LLC,a Colorado limited liability company. Witness my hand and official seal. My commission expires: `?.-a[y 05 .. """",,,,, C 4--\ 1 1 !1 otary Public = O Ci 'Pc c� Ic • • RECEIVED 13 5/23/2018 ASPEN BUILDI NC1DE84gI.MEAIT