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HomeMy WebLinkAboutcoa.lu.co.1390 Snowbunny Ln.A105-02 r, CASE NUMBER PARCEL In # CASE NAME PROJECT ADDRESS PLANNER CASE TYPE OWNER/APPLICANT REPRESENTATIVE DATE OF FINAL ACTION CITY COUNCIL ACTION PZ ACTION ADMIN ACTION BOA ACTION DATE CLOSED BY r'1 A 105-02 2735-013-11007 1390 Snowbunny Ln Condominiumization 1390-1392 Snowbunny Ln James Lindt Condominiumization Alice Brien 12/20102 Approved-Plat Record 1/6/03 J, Lindt f \ ~ I '~1~ (6 Lj I) / ' R ~etAl~!1 f b 7 q?- ~ h t""l M~~teJ +D Lv CAI5 ~Jt-V1 <?l/ ov\ 12/ r!/a 2-- MEMORANDUM To: Alice Brien From: James Lindt, Plllllner \) L Date: December 17, 2002 Re: 1390 & 1392 Snowbuuny Lane Condo Plat- Community Development Department's Comments Please make the following changes to the draft condominium plat: 1, Include Vicinity Map. 2. Show location of driveway, 3, Show designated snow storage area. 4. In surveyor's certificate, indicate that the survey was performed or verified within the last 12 months. 5. Change Community Development Approval on signature block to state Community Development Engineer. 6. Label the posted street address for both of the units. 7. Obtain all signatures with the exception of the City Community Development Director, Community Development Engineer, and Pitkin County Clerk and Recorder prior to submitting 2 mylar copies to Community Development Department. ii ("") ~ 6 n CJlv., /Vi (!... J /' 'lh. Le>-u....y 1 Resolution No. 05 (SERIES OF 2003) RESOLUTION OF THE ASPEN PLANNING AND ZONING COMMISSION ACTING AS THE DESIGN REVIEW APPEALS COMMITTEE APPROVING A RESIDENTIAL DESIGN STANDARD VARIANCE TO ALLOW FOR DOUBLE STALL GARAGE DOORS AT 1390 ANDlj92SNOWBUNNYLANE, LOT 1, BLOCK 2, SNOWBUNNY SUBDIVISION, PITKIN COUNTY, COLORADO. Parcel No. 2735-013-11-007 WHEREAS, the Community Development Department received an application from Alice Brien, seeking a variance from Section 26.410, Residential Design Standards, requesting relief from the single stall garage door requirement for 1390 and 1392 Snowbunny Lane, Lot 1, Block 2, of the Snowbunny Subdivision, Aspen, Colorado; and, WHEREAS, the subject property contains 16,662 sq, ft. and is improved with a duplex and two accessory dwelling units; and, WHEREAS, pursuant to Section 26.410.020 of the Aspen Municipal Code, Community Development Department staff reviewed the applicant's proposed application for compliance with the Residential Design Standards Section of the Aspen Municipal Code and found the submitted development application to be inconsistent with the residential design standard set forth in Land Use Code Section 26.41 0(C)(2)(f), Garage; and, WHEREAS, Section 26.4l0.020(C) of the Aspen Municipal Code provides that if an 'application is found by Community Development Department staff to be inconsistent with any item of the Residential Design Guidelines, the applicant may either, amend the application or appeal staffs findings to the Design Review Appeal Committee pursuant to Chapter 26.222, Design Review Appeal Committee; and, WHEREAS, pursuant to Section 26.4l0,020(B) of the Aspen Municipal Code, the applicant submitted a request for a variance from Standard 26.410,040(B)(1) of the Aspen Municipal Code to the Design Review Appeal Committee as it applies to garages; and" WHEREAS all applications for appeal from the Residential Design Standards of Section 26.410.040 must meet one of the following review standards in order for the Planning and Zoning Commission acting as the Design Review Appeal Committee or other decision making, administrative body to grant an exception, namely the proposal must: a) Yield greater compliance with the goals of the Aspen Area Community Plan; and, b) More effectively address the issue or problem a given standard or provision responds to; or c) Be clearly necessary for reasons of fairness related to unusual site specific constraints; WHEREAS, the Community Development Director, after review of the requested variance, recommended approval of the requested variance from the residential design standards to allow for double stall garage doors; and, r-. ! A WHEREAS, during a duly noticed public hearing at a regular meeting on January 21, 2003, the Planning and Zoning Commission acting as the Design Review Appeal Committee, appr~ved variances from the single stall garage door standard of Section "26.410,040(C)(2) of the Aspen Municipal Code as it applies to Residential Design Standards for Lot 1, Block 2, of the Snowbunny Subdivision by a vote offour to one (4-1), NOW, THEREFORE BE IT RESOLVED by the Commission: Section 1 That the proposed variance from the single stall garage door residential design standard for the duplex located at 1390 and 1392 Snowbunny Lane, is hereby approved pursuant to Land Use Code Section 26.410,040(C)(2), to allow for the double stall garage doors to be maintained on both duplex units. APPROVED by the Commission at its regular meeting on January 2 I, 2003, APPROVED AS TO FORM: n, lJ~ City Attorney DESIGN REVIEW APPEALS COMMITTEE: ~vn-uA/U?~~ Jasmine Tygre, Chair Planning and Zoning Commission ATTEST: , . DE LUCA HOWARD & MARJORIE 1030 CEMETERY LN ASPEN, CO 81611 ALLEN RONALD & CARROL A PMB 427 7349 N VIA P ASEO DEL SUR STE 515 SCOTTSDALE, AZ 85258 TAYLOR MICHAEL A & KATHY A 1027 CEMETERY LN ASPEN, CO 81611 PITKIN EXCHANGE HOLDINGS OF ASPEN LLC 601 E HOPKINS 3RD FLOOR ASPEN, CO 81611 DESENBERG KAREN L 1355 MOUNTAIN VIEW DR ASPEN, CO 81611 STITT HAROLD L & AUSTINE N 1450 SILVER KING DR #1 ASPEN, CO 81611 REESE JOHN W REESE BEVERLY 1340 SNOWBUNNY LN ASPEN, CO 81611 BECK PAUL S BECK GLENNIS GEORGE 2928 SNOWMASS CREEK RD SNOWMASS, CO 81654 SCHROEDER THOMAS J & BETSY ANNE 1375 SNOWBUNNY LN ASPEN, CO 81611 GRANT ANTHONY J & KATHRYN J 1305 SNOWBUNNY LN ASPEN, CO 81611 r-" V ANT HOFF ADRIAAN H PO BOX 10247 ASPEN, CO 81612 AMORY DAVID S & MARGARET MC CARTHY 1:3 70 MOUNTAIN VIE'W DR ASPEN, CO 81611 CIPRIANO ELIZABETH A 1025 CEMETERYLN ASPEN, CO 81611 DEBOER LYNN & SKYLER 1325 MOUNTAIN VIEW DR ASPEN, CO 81611-1029 HORNING ROBERT P & KHARA M 1005 CEMETERYLN ASPEN, CO 81611-1015 SILVER QUEEN LLLP 1450 SILVER KING DR - #2 ASPEN, CO 81611 SPALDING MICHAEL L 1360 SNOWBUNNY LN ASPEN, CO 81611 SKY ISLAND ENTERPRISES LLC PO BOX 555 SNOWMASS, CO 81654 B & L PARTNERSHIP C/O CRAIG L BURR 1333 SNOWBUNNY LN ASPEN, CO 81611 BROWN DONNA L 1425 SILVERKING DR ASPEN, CO 81611 f'") V ANT HOFF ADRIAAN PO BOX 10247 ASPEN, CO 81612 FERRY WILLIAM J JR PO BOX 1298 ST JOHN, VI 00831 KERR W BRUCE & SHERRIL D 1015 CEMETERY LN ASPEN, CO 81611 CARISCH GEORGE L & SHARON G 641 E LAKE ST STE 226 WAYZATA, MN 55391 BRIEN ALICE M PO BOX 11915 ASPEN, CO 81612 BARBATELLI ELIZABETH L & LOVEDY PEDLOW 1362 SNOWBUNNY LAND ASPEN, CO 81611 REESE JOHN W REESE BEVERLY 1340 SNOWBUNNY LN ASPEN, CO 81611 GROSSMAN JOHN GARY 4/15 INT CIO TOBY ANN CRONIN 8748 DORRINGTON AVE LOS ANGELES, CA 90048-1724 LEVY DENISON S 1335 SNOWBUNNY LN ASPEN, CO 81611 FOULARD MICHAEL W & GEORGIA GA TOURA 2930 REVERE HOUSTON, TX 77019 SIMPSON ELEANOR P REVOCABLE TRUST 25% PO BOX 25425 DALLAS, TX 75225-1425 LEACH WILLIAM & CLARE PO BOX 212 ASPEN, CO 81612 BERTHOLF HEIDI M QPRT PO BOX 165 ASPEN, CO 81612 ('\ MCDONALD STEPHEN PO BOX 3751 ASPEN, CO 81612 LEVITTRACY 2511 REBA DR HOUSTON, TX 77019 SCFIIFFERSPENCERF 985 CEMETERY LN ASPEN, CO 81611 (') TWEL VETREES ROBERT J REV TRUST PO BOX 5001 ASPEN, CO 81612 MODELL F AMIL Y LP 1350 SIERRA VISTA ASPEN, CO 81611 -_.,), r-, n i~,LoH-X I~ :2-/,.. 03 ~c; ..; ATTACHMENT 7 AFFIDAVIT OF PUBLIC NOTICE REQUIRED BY SECTION 26.304.060 (E), ASPEN LAND USE CODE ADDRESS OF PROPERTY: /390 S V\O\JblAV1/11Y 1/21/03 laVt. ~pen, co SCHEDULED PUBLIC HEARING DATE: ,200_ STATE OF COLORADO ) ) ... County of Pitkin ) I, Eoi' b Ave I e ( (name, please print) being or representing an Applicant to the City of Aspen, Colorado, hereby personally certify that I have complied with the public notice requirements of Section 26.304.060 (E) of the Aspen Land Use Code in the following manner: _ Publication oj notice: By the publication in the legal notice section of an official paper or a paper of general circulation in the City of Aspen at least fifteen (15) days prior to the public hearing. A copy oj the publication is attached hereto. X posting oj notice: By posting of notice, which form was obtained from the . Community [)evelopment Department, which was made of suitable, waterproofl;J.alerials, which was not less than twenty-two (22) inches wide and twenty-six '(~6) inches high, and which was composed ofletters not less than one i};lc~ in height. Said notice was posted at least fifteen (15) days prior to the public hearing and was continuously visible from the .:2]!lay of _D e~ <!.- , 200 '2, to and including the date and time of the public hearing. A photograph oJthe posted notice (sign) is attached hereto. ~ Mailing oj notice. By the mailing of a notice obtained from the Community Development Department, which contains the information described in Section 26.304.060(E)(2) of the Aspen Land Use Code. At least fifteen (15) days prior to the public hearing, notice was hand delivered or mailed by first class postage prepaid U.S. mail to any federal agency, state, county, municipal govemment, school, service district or other governmental or quasi-governmental agency that owns property within three hundred (300) feet of the property subject to the development application. The names and addresses of property owners shall be those on the current tax records of Pitkin County as they appeared no more than sixty (60) days prior to the date of the public hearing. A copy oJthe owners and governmental agencies so noticed is attached hereto. I I I i j I I (continued on next page) " 1"""1 ,.-, , $ Rezoning or text amendment. Whenever the official zoning district map is in any way to be changed or amended incidental to or as part of a general revision of this Title, or whenever the text of this Title is to be amended, whether such revision be made by repeal of this Title and enactment of a new land use regulation, or otherwise, th~ requirement of an accurate survey map or other sufficient legal description of, and the notice to and listing of names and addresses of owners of real ,property in the area of the proposed change shall be waived. However, the proposed zoning map has been available for public inspection in the planning agency during all business hours for fifteen (15) days prior to the public hearing on such amendments. --~ d -r~ -- ~iZMA~ 19nature /7 I The foregoing "Affidavit of Notice" w, as aclmowledged befo~s I1f~day of ~ ,200~by~<, L, j , WITNESS MY HAND AND OFFICIAL SEAL My commission expires: y/ ~/ .:,:L.=:D.::s ATTACHMENTS: COpy OF THE PUBLICATION PHOTOGRAPH OF THE POSTED NOTICE (SIGN) LIST OF THE OWNERS AN]) GOv:E:R.NMENTAI. AGENCIES NOTICED BY MAIL 1> ... I I , I I I 1 I I i I I I i I , " ._.~" '", f' r""\ '( j ~'Il J1; f:::L k;,I/(6 ATTACHMENT 7 AFFIDAVIT OF PUBLIC NOTICE REQUIRED BY SECTION 26.304.060 (El, ASPEN LAND USE CODE ADDRESS OF PROPERTY: /390 ::;; v16vJkJtA.tA~Y SCHEDULED PUBLIC HEARING DATE: --..:.1 /7J / {)~ ! I , Aspen, CO ,200_ STATE OF COLORADO ) ) ss. County of Pitkin ) I, ~'t,<< ~ ,1~ 'tAd+- (name, please print) being or representing an Appficant to the City of Aspen, Colorado, hereby personally , certifY that I have complied with the public notice requirements of Section 26.304.060 (E) of the Aspen Land Use Code in the following manner: ~ Publication oj notice: By the publication in the legal notice section of an official paper or a paper of general circulation in the City of Aspen at least fifteen (I 5) days prior to the public hearing. A copy oj the publication is attached hereto. _ Posting oj notice: By posting of notice, which form was obtained from the Community Development Department, which was made of suitable, waterproof materials, which was not less than twenty-two (22) inches wide and twenty-six (26) inches high, and which was composed of letters not less than one inch in height. Said notice was posted at least fifteen (15) days prior to the public hearing and was continuously visible from the _ day of ,200-, to and including the date and time of the public hearing. A photograph oj the posted notice (sign) is attached hereto. _ Mailing oj notice. By the mailing of a notice obtained from the Community Development Department, which contains the information described in Section 26.304.060(E)(2) of the Aspen Land Use Code. At least fifteen (I 5) days prior to the public hearing, notice was hand delivered or mailed by first class postage prepaid U.S. mail to any federal agency, state, county, municipal government, school, service district or other governmental or quasi-governmental agency that owns property within three hundred (300) feet of the property subject to the development application. The names and addresses of property owners shall be those on the current tax records of Pitkin County as they appeared no more than sixty (60) days prior to the date of the public hearing. A copy oJthe owners and governmental agencies so noticed is attached hereto. (continued on next page) '- .. ~ Rezoning or text amendment. Whenever the official zoning district map is in any way to be changed or amended incidental to or as part of a general revision of this Title, or whenever the text of this Title is to be amended, whether such revision be made by repeal of this Title and enactment of a new land use regulation, or otherwise, the requirement of an accurate survey map or other sufficient legal description of, and the notice to and listing of names and addresses of owners ofreal property in the area of the proposed change shall be waived. However, the proposed zoning map has been available for public inspection in the planning agency during all business hours for fifteen (15) days prior to the public hearing on such amendments. ~~t?^ ,:1?df S ature ~I-, The foregoing "Affidavit of Notice" was acknowledged befqre)TIe ~I.f day of ~""'-"-- ,200~by '--)~S 1-...)", ,- WITNESS MY HAND AND OFFICIAL SEAL if ).:J.3):lcp?-, My commission expires: S~ Notary Public ATTACHMENTS: COPY OF THE PUBLICATION PHOTOGRAPH OF THE POSTED NOTICE (SIGN) LIST OF THE OWNERS AND GOVERNMENTAL AGENCIES NOTICED BY MAIL ""'.' <'-'1'?,'iH c.',. :;::'$ .~ J"'~ JAN.13.2003._~:pP'- ~E~~. M.,.;o~ ./ "l!.t-:'. I~'>> J""-'" -"J ~1. ::)~,... f1\K.- 1-0 ~1C.. ~'-\\ct ; '~~~~~C:' , , . ~'~'( ,~,,,,! ,,'" :}F';~'~" '. ' PtJBUC NOTICE ' . ,t' .'RE; 1391] & IS92 SNOWBUNNY LANE RESIDllN. ~ i' >,. . "Tl4L DES,ION STANDARD VARIANCE FOR ClOUBLE ' ,:',~ :.. , STAlL GJlRAGE DOORS,' , . "..:1 " '''. NOTICE lIS HEREBY QIVEN that a public hearing ;'. .')"< w11111e held on :ruesd~, January 21, 2003. at a . .- ';, ,', meetllllllo begin at 4:SO p.m. belor. the Aspen '. :':i'," . Plannlng and Zorilng Commission, Slaler CIties . ',' Room. IllO S. Galena ~t. to co~lder an appli. . .,,:. callon submllted by Allee lIrten, requestll\g ap. . ;;": Jlt.OVaI d' a variance from the City of Aspen's Resl. 0" dentlal Design Standards 10 allow lor double stan .! garage doors to be maintained on ,both units of . ',~, tile duplex at 1390 and IS92 SnowbunllY we. ,',' :, The Prolle1'ty Is leplly descrlbed as Lot 1, BlOck , 2, ollhe :Snowbunny Subdivision, " For lurther InlQrmatlon, contact James Undt at , .... Ihe City 01 Aspen Community Development De; . pmmelf!, ISO S. Oalena st, Aspen. CO (970) 920- S09S, janlaslkl.aspen.co.us. s{Jalmlne1'}1re, CMlr , Aspen Planning and Zonlna Comml$Slon :.- :' 'Published In nie Aspen Ttmes on January 4, 2003. (9SI92) ': . pllBuc NOTICE . NOTICE O~ i'UBUC TRUS'TEE SALE , ' Public ~ustee No. C2.21 ' To Whom It may Concern: Thil' Notice Is given wllh regard 10 thel'ollowlnll dl!Sc::rlbed Deed of Trull: 1 . llrantor (Borrower} , Greg Jurgensen an Pam Jursens'en Orllllnal Seneflclar : Me$a Nallortal Bank' , Current Owner 0/ t e EVIdence 0'1 Debl: ...~ 'At NOTI"'C ":r10 OC Countryw~ Hom !.oens. Inc. . ' A..,w, n .. , . Data 01 Deed of Tru I: March 15, 2001 nON 01' REvtNUEli \'Oft THE' ASPEN CONSO(.l. RecordIng Dale 01 nd of Trull: March 16, 2001 I)ATED SANITATION DISTRICT. . . ' lEd f Db" Tha Bollrd 01 DIrectors approved .. 2\\', rale il)o Orl~nai Principal rmounl 0 vi ence 0, e '': cm.se In servIce charQes lor members ollhe Ar-., $2D .740,00 'j I A I Evld of PeR COllsolldated sanltatlo, n Dlstrlct which, will Outstanding PrIne pa mounl 0 ence .' ' Debl as 01 the datetlereor: $20S.1:68.80 be el'ecltlve for the first quarter 2003 bllllnll. The County 01 Recordln'.ll: Pitkin Increase In cbarge. will provide revenues 10 olf. Book and Pase No. or Recepllo~1 No. 01 Recorded set lnflallon. ollset Increesad 11Ib;or COIbl and Deed of Trust: at eptlon No. 4~2457, " help pl'O...lde lor capital replacemenl. I 1"--' PI' ' .. a PUI EPA lII'ant recipient, the Dlltrlct I.... Le..1 Descrlpt on ""'" roper> y;' ,'.' no CO"NDOMINIUM N. PITKIN IRON, ACCORDING T'D qulred to notify ,member. annually 01 the cost of THE CON DO MINI M MAP OF PI'I'KIN IRON, A service ,lIId how service ch8l1e revenues are allo- COLORADO COND MINIUM COMMON INTEREST , catee! tll. ,COlts. In accordance with EI'A, ~gula. COMMUNITY, RDED JANUARY 4. 2001 IN II0rils ..lI'Vlce chars'" ~' baeed upon potential PUT' BOOK 55 ~ PAOE 56 AND TI:IE CONDO- use. which Is determIned primarily from a count MINIUM DECLA ON FOR PITKIN Ill-ON RE- of walel' uslnllllxtures. For _pIe, the monthly CORDED JANUARY 4. 2001 AS RECEmON NO. mlnlmw:n servtceolcharge losr5OOa three bedfro~~ 4SOU2. COUNTY QF PITKIN. S1i\TE OF COLOR.'" two ba<lh home up to square.. DO 'i $11. IS. 'rile service ch8l'llB Increases as water ur-. Which has Ihe ad rus 01 D271 PItkin Iron ~"d. lng ftlttlJres are added. (Jur monthly rale COlli- ' Woody Creek. CO 1656 . paru ~Iry lavC?rably on a local and stalewlde b.. THE PROPERTY EllCRIBED HEREIN IS AU. (IF sls.. THS l'ROJi!RTY CUftlBEltID BY THE UF.N OF The DIt,~r1d's 2003 service charve revenues Will THE DEED OF tR ST., " ba a110l~ated In Ill" following manner: 51% for THE YEN FORE ED MAY NOT BE A f1llST treatment faclllty operatlOhl, 26'X.. {or sawer line UEN. ' malnterillJlCe, 11$% lor admlnlslrallon anei 5% I~ Countrywide Hom~ Loans, Inc.. the owner of the capital Improvllment8. Evidence of Debt 'Secured by the Deed 01 Tl'Ult For mllre Inlermatlon"about, Aspen'S public described hereln','has Illed written election and wastew,ller t\'ealmenll)'Ctem contactlhe Dlatrict demand lor .ale s provjded by law and In said ofll~eal: (970) 925-3601. , Deed 01 Ttust. . , ,,' Published In The Aopen TImes January 4 and \I, 'TtmREFO~ Notl~ Is He,rebY Given lhal~ ( 2OOS. (9894) . will, al 10100 AM 'clock III tlte Ior!mooll of Wed. _ needIlY. Fe t2, _3. tt the S01JTH 1111111 It' Nn'l'll'lI. . ....nN'l' nnnR. 11Idn. c-ft". Cmwth_ 506 ~w ,':'; . '. ~ " ,,:' .:' '" I' \ r-4~'D: 1.485 , \ i , I, ,I " . ," com:lder an appll tlon submllled by Aspen" , Land Fund; u.c' re eSllni appnlv" lor a GMQS exemption to con trucl two (2) free' market town home unlls, a one (J) a/ll~rdable houllng 'unit. Tile sublecl property Is (Cleated on Lot '2 Tlp\lie Woods Sub~lV\sIOn, 0'" 01 Aspen. For , furlher Inlormallo~. contact s"ull WClDdf01'd al Ihe Cll)' 01 Aopel! Community Devalopmen\ Department, 130 S: Galena St.. i\sp~n. CO (910) , 92o.s102, scoll"'@<: .aspen.co.us. II Jasmine Tygre, Chair , annlng & lOlling CommissiOn! pen Tlmell, on J~UIll'Y 4. ,.,.. ' , 0.,,:"""1"", .' " ,upen Published In The 2003. (9902) P.l PlJBU . ' PUJlLl NOTICE T Estale of J. Nichols Me:< Probate No. 02 P~ 20, ~ All pe",,?ns havlng c named estale are req Molly E. Campbell or County, Colorado, on ( sucll claims may be lor " Molly Eo Campbell. ' clo OATES; KNEZEVlC Allentlon: Rlcha: Attorneys for Pel 533 East Hopkll , Alpen - (970: , Publl8h811 In The Asp' 21. 28, 2002. Janulll'Y . PUBL NOTICE 1 Eliate 01 FOWLER P. S1 FOWLER PENFIELD ST' FP STONE l/kIa roWLER p:STONt, De, Cale No: 02PR28 All personl havIng . named estate are requ personal rep..e.enlall' ollhe Counly of Pllkll or the claims may be I Personal, , Rutl 611 Aspe, , (970 Publllhed In The ,uf '28, 2002, January 4, : PUBI NOTICE OF Pl P\ll>UcTI To Whom It may COI with regard to the I< Trust: Granlor (Borrower): . Orlglhal Beneficiary: Currenl Owner 01 Country- , 'WIde Home Loans, lno Date of Deed 01 TruSI Recording Date 01 De, Oiilllnal 'principal, A,r "7,000.00. ' ". OUlItinCl11i1l PrlnC::lp, Debt as oIlhe date h, ,.._............ID_..."'.....I...... r'\ f":' ,..1 , .~ DECLARATION FOR SNOWBUNNY LANE TOWNHOMES PITKIN COUNTY, COLORADO ALICE BRIEN (the "Declarant"), with an office at 1390 Snowbunny Lane, Aspen, Colorado, 81611 as the owner of that certain r,eal property located in Pitkin County, Colorado, more , .. '. ..... ". ',. particularly described in Exhibit A, which exhibit is attached hereto and incorporated herein by this reference (hereinafter the "Property"), together with the Improvements thereon as defined below, hereby makes the following grants, submissions and declarations: ARTICLE I STATEMENT OF INTENT AND PURPOSE 1.1 Authoritv. This Townhome Condominium Declaration, as defined below is executed to submit the Property and all improvements constructed thereon to townhome condominium ownership and use in the manner provided in the Colorado Common Interest Ownership Act, Title 38, Article 33.3, Colorado Revised Statutes, 1992, as amended, hereinafter referred to as "CIOA" or "Act" or "Condominium Laws." 1.2 Declaration. Declarant hereby declares that the following terms, covenants, conditions, easements, restrictions, uses, reservations, limitations and obligations shall be deemed to run with the land and shall be binding upon and accrue to the benefit of Declarant, its successors and assigns, and any person or entity acquiring and holding an interest in the Project, as defined below, its grantees, successors, heirs, personal representatives, or assigns. 1.3 Puroose. Declarant has caused to be incorporated under the laws of the State of Colorado the Association defined below, for the purpose of exercising the functions of the Association as herein set forth, Declarant desires to create a townhome condominium common interest community on the Property, the name of which is Snowbunny Lane Townhomes, in which portions of the Property will be designated for separate ownership and the remainder of which will be designated for common ownership solely by the owners of the separate ownership portions. Declarant executes this De.claration for Snowbunny Lane Townhomes to define the character, duration, rights, duties, obligations and limitations of townhome condominium ownership. ARTICLE 2 DEFINITIONS The following definitions shall apply in this Townhome Condominium Declaration and the exhibits attached hereto unless the context shall expressly provide otherwise: ' 2.1 Allocated Interest. "Allocated Interest" means the undivided interest in the Common Elements, the Common Expense liability, the expansion of floor area, and the votes in the Association, appurtenant to each Townhome Condominium Unit as set forth on Exhibit B hereto, 2.2 Articles ofIncorooration. "Articles ofIncorporation" means the Articles ofIncorporation for the Association filed with the Colorado Secretary of State, as amended from time to time. 2.3 Association. "Association" means Snowbunny Lane Townhomes Owners Association, Inc., a Colorado nonprofit corporation without stock, its successors and assigns, of which each Owner of the Townhome Condominium Units shall be Members as provided in Article 12 hereof, and which Association shall be charged with the management and maintenance of the Project. The Association shall be governed by its Board of Directors (the "Board") pursuant to the Colorado Nonprofit Corporation Act. 2.4 Buildings. "Buildings" means the portion of the Improvements comprised of two free-market townhomes, as depicted on the Townhome Condominium Map. 2.5 Bvlaws. "Bylaws" means the Bylaws of the Association, as adopted by the Association and amended from time to time. 2.6 Common Elements. "Common Elements" means and refers to the General Common 1""'\ (, DRAFT DATED 12/02/02 Elements and Limited Common Elements. 2.7 Common Expenses. "Common Expenses" means and includes: 2.7,1 Expenses declared Common Expenses by provisions of this Townhome Condominium Declaration; 2.7.2 Expenses of administration, operation and management, maintenance, repair or replacement of the Common Elements, including, but not limited to, insurance, security and utilities attributable to the operation of the Common Elements, except as otherwise provided herein; 2.7.3 All sums lawfully assessed against the Townhome Condominium Units by the Association as Common Expenses; and 2.7.4 Other expenses agreed upon as Common Expenses by all the Owners or the Board. 2.8 Declarant. "Declarant" means Alice Brien, her successors and assigns. 2.9 Declaration or Townhome Condominium Declaration. "Declaration or Townhome Condominium Declaration" means this Declaration of Grants, Covenants and Restrictions Establishing a Plan for Townhome Condominium Ownership of Snowbunny Lane Townhomes, a Townhome Condominium Common Interest Community, and any and all duly executed amendments, supplements, or additions of this Declaration, recorded in the office of the Clerk and Recorder of Pitkin County, Colorado, and flIed including any maps or plats recorded in connection therewith. 2.10 First Mortgagee. "First Mortgagee" means the holder of any recorded Mortgage under which the interest of any Owner is encumbered and which Mortgage has first and paramount security-interest priority. 2.11 General Common Elements. "General Common Elements" means and includes all of the following except portions of the Improvements contained entirely within and servicing only one Townhome Condominium Unit, and portions of the Townhome Condominium Property which are designated as Limited Common Elements under this Declaration or on the Townhome Condominium Map: 2.11.1 The Property described in Exhibit A; 2.11.2 The structural components of the Improvements, the main or bearing walls of the Buildings and the main or bearing sub-flooring and roofs of the Buildings, including, but not limited to: the foundations, columns, girders, beams, supports, fire walls, roofs, fire escapes, entrances and exits, delivery docks, structural floors, structural walls, crawl space, basements, attic space, storage space, and heat ducts; 2.11.3 The exterior walls, the main or bearing walls within the Buildings including such bearing walls as are located within a Unit, and the main load bearing sub-flooring and roofs of the Buildings, windows and exterior doors of an individual air space Unit; 2.11.4 All sidewalks, driveways, yards, gardens, planters, decks and patios designated as General Common Elements; 2.11.5 Any installations consisting of equipment and materials making up any central utility and communication services (including all pipes, ducts, flues, wires, cable and conduit used in connection with such items, whether located in common areas or within Units), including such services as power, light, gas, hot and cold water, heating, refrigeration, central air conditioning, incinerating, and such central service support structures as are located within or without a Unit; the elevators, tanks, pumps, motors, fans, compressors and ducts; 2 "......, f""'tl , DRAFT DATED 12/02/02 2.11.6 In general, all apparatus and installations existing or provided for common use, including any underground or common sprinkler systems; and 2.11. 7 All other parts of the Project, the Property, and the Improvements necessary or convenient to the existence, maintenance and safety of the Project, or normally in common use. 2.12 Improvements. "Improvements" means all structures and improvements located above, on or below the surface of the Property, including the Buildings and structural components thereof and all sidewalks and utility installations. 2.13 Limited Common Elements. "Limited Common Elements" means those Common Elements designated and reserved for the exclusive use by the Owner or Owners of a particular Townhome Condominium Unit or Units, but less than all of the Townhome Condominium Units, which Limited Common Elements are deemed to be an inseparable appurtenance to such Townhome Condominium Unit or Units. In describing a Townhome Condominium Unit, no separate reference to Limited Common Elements need bi;l made in any lease, assignment of lease, sublease, deed, mortgage, or other instrument. 2.14 Marketing Period. "Marketing Period" means the period of Declarant control over the Association and is further defined in Section 15.3 hereof. 2.15 Mortgage. "Mortgage" means any real estate mortgage, deed of trust, or security instrument by which a Townhome Condominium Unit is encumbered. 2.16 Owner. "Owner" means any person, firm, corporation, partnership, association, or other entity, including Declarant, or any number of combinations thereof (hereinafter "Persons") who own one or more Townhome Condominium Units. The term "Owner" shall not refer to any Mortgagee as defined herein, unless such Mortgagee has acquired title pursuant to foreclosure or any proceeding in lieu of foreclosure. 2.17 Proiect. "Project" means the Property and all Improvements thereon, together with all rights, easements, and appurtenances belonging thereto, submitted to condominium ownership by this Declaration and which may be subsequently submitted to condominium ownership under the terms of this Declaration or any supplemental declaration as hereinafter provided. 2.18 Townhome Condominium Laws. "Townhome Condominium Laws" means the Colorado Common Interest Ownership Act, Title 38, Article 33.3, Colorado Revised Statutes, 1992, as amended, and the City of Aspen's Land Use Code, as amended from time to time. 2.19 Townhome Condominium Map, "Townhome Condominium Map" means the map for the Project and includes the engineering surveyor surveys of the Property, locating thereon the Buildings, the Improvements, the floor plans and other drawings or diagrammatic plans, including, without limitation, charts or schedules depicting all or part of the Improvements on the Property, and such other information as may be included thereon, in the discretion of the Declarant. The Townhome Condominium Map will be filed for record in the office of the Clerk and Recorder of Pitkin County, Colorado. The Townhome Condominium Map may be filed for record in parts or sections and may be supplemented or amended as provided herein. 2.20 Townhome Condominium Propertv. "Townhome Condominium Property" means the Property, the Buildings and all Improvements and future Improvements, if any, and all appurtenant rights thereto created by this Declaration. 2,21 Townhome Condominium Unit. "Townhome Condominium Unit" means an individual air space Unit as defined in Section 2.22and designated as a Townhome Condominium Unit on the Townhome Condominium Map, together with the undivided interest in the Common Elements appurtenant to said Unit (expressed as a percentage of the entire ownership interest in the Common Elements), and the Limited. Common Elements designated and reserved for such Unit. 3 r-, (""'\) DRAFT DATED 12/02/02 2.22 Unit. "Unit" means an individual air space unit, designated for separate ownership, the boundaries of which are defined on the Townhome Condominium Map and further described in Section 6.2 hereof. 2.23 Managing Agent. "Managing Agent" means the person, or persons, including any business entity, employed by the Board to perform the management and operational functions of the Project. 2.24 Related Partv. "Related Party" means any guest, invitee, licensee, tenant, customer, agent or employee of an Owner, any member of the family of an Owner, or other person who uses the Condominium Unit, and any person or entity, not an Owner, who has acquired any title or interest in a Condominium Unit by, through or under an Owner, including a lessee, licensee or mortgagee, and any guest, invitee, licensee, subtenant, customer, agent or employee of such a person or entity, ARTICLE 3 ESTABLISHMENT OF TOWNHOME CONDOMINIUM OWNERSHIP Declarant hereby divides, grants and submits to condominium ownership all of the Property and Improvements thereon related to or incidental thereto located upon the Property, providing for and creating the following condominium regime: 3.1 Townhome Condominium Units. Each Townhome Condominium Unit shall be a fee simple estate, each consisting of: a separately designated Townhome Condominium Unit, together with an undivided percentage interest in the Common Elements being held by all of the Owners of the Townhome Condominium Units as tenants in common, a share of Common Expenses, a share of the allowable remaining floor area expansion, and votes in the Association according to the Allocated Interest assigned to each Unit are set forth on Exhibit B, and any Limited Common Elements designated and reserved to such Unit as set forth on the Townhome Condominium Map. Each Townhome Condominium Unit shall be identified on the Townhome Condominium Map by the number shown in Exhibit B. 3.2 Use of General Common Elements. Subject to the limitations herein contained, any Owner shall have the nonexclusive right to use and enjoy the General Common Elements. 3.3 Covenants Running with the Property. All provisions of this Declaration shall be deemed to be covenants running with the land, or as equitable servitudes, as the case may be, and shall inure to the benefit of and be binding upon Declarant, its transferees, successors, and assigns, and to all persons hereafter acquiring or owning any interest in the Project or any Townhome Condominium Unit, regardless of how such interest may be acquired. ARTICLE 4 INSEPARABILITY OF A TOWNHOME CONDOMINIUM UNIT Each Unit and its Allocated Interests, any easements appurtenant thereto, and the exclusive use of the Limited Common Elements designated for such Unit shall together comprise one Townhome Condominium Unit which shall be inseparable and may be conveyed, assigned, leased, devised or encumbered only as a Townhome Condominium Unit. ,'^"~ ARTICLE 5 TOWNHOME CONDOMINIUM MAP 5.1 Filing of Map. Prior to any conveyance by Declarant of a Townhome Condominium Unit, Declarant shall cause to be filed for record in the office of the Clerk and Recorder of Pitkin County, Colorado, a Townhome Condominium Map, which shall contain a description of the air space of each Unit so as to locate the same accurately and properly. The Townhome Condominium Map may be filed in whole or in parts or sections, from time to time, as stages of construction of the Units and other improvements are substantially completed. Each section of the Townhome Condominium Map filed subsequent to the first-filed Townhome Condominium 4 /""""l. () DRAFT DATED 12/02/02 Map shall be termed a "Supplement" to such Map and the numerical sequence of such Supplement shall be shown thereon. The Townhome Condominium Map shall depict and show at least the following: 5.1.1 The name and a general schematic map of the entire Project; 5.1.2 The location and dimensions of all existing Improvements; 5.1.3 A legally sufficient description of the Property; 5.1.4 The extent of any existing encroachments across any Property boundary; 5,1.5 To the extent feasible, a legally sufficient description of all easements serving or burdening any portion of the Property; 5.1.6 A legally sufficient description of any real estate, if any, in which the Owners or the Association will own only an estate for years, labeled as "Leasehold Property"; 5.1.7 The approximate location and dimensions of Limited Common Elements, including porches, balconies, and patios, other than the Limited Common Elements described in Sections 6.2.3 and 6.2,5 hereof; 5.1.8 The location and dimensions of the vertical boundaries of each Unit and that Unit's identifying number; 5.1.9 Horizontal Unit boundaries, except as described in Section 5.2, with reference to all established data, and that Townhome Condominium Unit's identifying number; and 5.2 Outside Horizontal Boundaries. The horizontal boundaries of any part of a Unit located outside of a Building have the same elevation as the horizontal boundaries of the inside part and need not be depicted on the plats and maps. 5.3 Certification of Map. All plats or maps must contain a certification by a registered land surveyor that the plat or map contains all the information required by the Act. ARTICLE 6 DESCRIPTION OF TOWNHOME CONDOMINIUM UNIT 6.1 Legal Description of Townhome Condominium Unit. Every instrument affecting the title to a Townhome Condominium Unit shall describe that Townhome Condominium Unit by its identifying Townhome Condominium Unit designation followed by the words "Snowbunny Lane Townhomes" with further reference to the Townhome Condominium Map and the Declaration. Every such description shall be good and sufficient for all purposes to sell, convey, transfer, encumber or otherwise affect not only the Townhome Condominium Unit, but also the Allocated Interests and any Limited Common Elements appurtenant thereto. Each such description shall be construed to include a nonexclusive easement for ingress to and egress from the Townhome Condominium Unit, and use consistent with the Townhome Condominium Map and this Declaration of the General Common Elements and the designated Limited Common Elements. An example of such description is as follows: (North)(South) Unit, Snowbunny Lane Townhomes, according and subject to the Townhome Condominium Declaration thereof recorded as Reception No. , and the Townhome Condominium Map for Snowbunny Lane Townhomes, filed for record in Plat Book _ at Page _, Aspen, Pitkin County, Colorado. 6.2 Townhome Condominium Unit Eloundaries. 6.2.1 In interpreting the Townhome Condominium Map or any part thereof, the existing 5 1""'\ (""', DRAFT DATED 12/02/02 physical boundaries of each separate Unit as constructed shall be conclusively presumed to be its boundaries. 6.2.2 If walls, floors, or ceilings are designated as boundaries of a Unit, all lath, furring, wallboard, plasterboard, plaster, paneling, tiles, wallpaper, paint, and finished flooring and any other materials constituting any part of the finished surfaces thereof are part of the Unit, and all other portions of the walls, floors, or ceilings are part of the Common Elements. 6.2.3 If any chute, flue, duct, wire, conduit, bearing wall, bearing column or other fixture lies partially within and partially outside the designated boundaries of a Unit, any portion thereof serving only that Unit is a Limited Common Element allocated solely to that Unit, and any portion thereof serving more than one Unit or any portion of the Common Elements is a part of the General Common Elements. 6.2.4 Subject to the provisions of Section 6.2.3 hereof, all spaces, interior partitions, other fixtures and improvements within the boundaries of a Unit are a part of the Unit. 6.2.5 Any shutter, awnings, window boxes, doorsteps, stoops, porches, balconies, and patios and all exterior doors and windows or other fixtures designed to serve a single Unit, but located outside the Unit's boundaries, are Limited Common Elements allocated exclusively to that Unit. 6.2.6 Any utility or communication facilities running through a Unit that serve more than one Unit, any structural component of the Improvements, including foundations, columns, girders, beams, or any other Common Element or part thereof, located within the air space, shall not be included as part of a Unit. 6.3 Amendments Deemed Included. The reference to the Townhome Condominium Map and the Townhome Condominium Declaration in any instrument shall be deemed to include any supplements or amendments to the Townhome Condominium Map or the Townhome Condominium Declaration, whether or not specific reference is made thereto. 6.4 Convevance of a Townhome Condominium Unit. Upon the purchase of any Townhome Condominium Unit from Declarant, a copy of each instrument of conveyance shall be furnished by Declarant to the Association. Upon any subsequent conveyance of a Townhome Condominium Unit, a copy of the instrument of conveyance shall be furnished to the Association by the grantee. 6.5 Relocation of Boundaries Between Adioining Units. Subject to the Townhome Condominium Laws, the boundaries between adjoining Units may be relocated by an amendment to the Declaration, upon the prior written consent of the Association. 6.5.1 In order to relocate the boundaries between the two Units, the Owners of those Units, as the applicant, must submit an application to the Board, which application shall be executed by those Owners and shall include: (a) Evidence sufficient to the Board that the applicant has complied with all local rules and ordinances and that the proposed relocation of boundaries does not violate the terms of any document evidencing a security interest; (b) The proposed reallocation of Allocated Interests, if any; (c) The proposed form of amendments to the Declaration, including the Townhome Condominium Map, as may be necessary to show the altered boundaries between adjoining units, and their dimensions and identifying numbers; (d) A deposit against attorney fees and costs which application, in an amount 6 1"""'\ .t"'\ , ;:fJ DRAFT DATED 12/02/02 reasonably estimated by the Board; and (e) Such other information as may be reasonably requested by the Board. ARTICLE 7 TITLE AND OWNERSHIP 7.1 Title. A Townhome Condominium Unit may be held and owned by more than one Owner as j oint tenants, tenants in common, or in any other real property tenancy or estate recognized under the laws of the State of Colorado. 7.2 Term of Ownership. The separate estate of an Owner of a Townhome Condominium Unit created by this Declaration shall continue until revoked in the manner contained in this Declaration or by operation of law. 7.3 Nonpartitionabilitv of Common Elements, The Common Elements shall be owned in common by all of the Owners of the Townhome Condominium Units and shall remain undivided. By the acceptance of such Owner's deed or other instrument of conveyance, each Owner specifically waives such Owner's right to institute and maintain a partition action or any other action designed to cause a division of the Common Elements., Each Owner specifically agrees not to institute any action therefore. Furthermore, each Owner agrees that this Section 7.3 may be pleaded as a bar to the maintenance of such an action. A violation of this provision shall entitle the Association to collect, jointly and severally, from the parties violating the same, the actual attorneys fees, costs and other damages the Association incurs in connection therewith. 7.4 Transfer of Common Elements. All Owners and the Association covenant that they shall neither by act nor omission, seek to abandon, subdivide, encumber, sell or transfer the Common Elements without the consent of the Owners representing all of the Allocated Interests; and, during the Marketing Period, the consent of the Declarant. Any such action without the written consent of the Owners, and, if applicable, the Declarant, shall be null and void. Notwithstanding the foregoing, nothing contained in this Section 7.4 shall be construed to limit or prohibit a proportionate adjustment in the percentage ownership in the Common Elements in connection with the combination or division of any Townhome Condominium Unit pursuant to the right of combination, division, or partition of a Townhome Condominium Unit by the Owner or between Owners thereof for the purpose of sale, use, or improvement of such Townhome Condominium Unit. Such agreement to abandon, subdivide, encumber or sell or transfer all or part of the Common Elements must be evidenced by the execution of an agreement, or ratifications thereof, In the same manner as a deed, by the requisite number of Townhome Condominium Unit Owners. The agreement must specify a date after which the agreement will be void unless recorded before that date. The agreement and all ratifications thereof must be recorded in the office of the Clerk and Recorder of the County of Pitkin and is effective only upon retardation, 7.4.1 Unless in compliance with this section, any purported conveyance, encumbrance, judicial sale, or other voluntary transfer of Common Elements is void. 7.4.2 A conveyance or encumbrance of Common Elements pursuant to this Section 7.4 shall not deprive any Townhome Condominium Unit of its rights of ingress and egress of the Townhome Condominium Unit and support of the Townhome Condominium Unit. 7.4.3 A conveyance or encumbrance of Common. Elements pursuant to this Section 7.4 does not affect the priority or validity of preexisting encumbrances. ARTICLE 8 USE AND OCCUPANCY 8.1 Use of Common Elements. Each Owner shall be entitled to exclusive ownership and possession of such Owner's Townh()me Condominium Unit. Each Owner may use the General 7 ~ DRAFT DATED 12/02/02 and Limited Common Elements in accordance with the purpose for which they are intended, without hindering or encroaching upon the lawful rights of the other Owners, and subject to the use and occupancy restrictions set forth in Section 8.3. 8.2 Use of General Common Elements. There shall be no obstruction of General Common Elements, nor shall anything be kept or stored on any part of the General Common Elements without the prior written consent of the Association, except as specifically provided herein. No restriction, impairment, or interference with any right of ingress or egress provided for in this Declaration shall be permitted at any time without the prior written consent of the Owner thereof. Nothing shall be altered on, constructed in, or removed from the General Common Elements except upon the prior written consent of the Association. 8,3 General Use Restrictions. 8.3.1 No animals, livestock or fowl of any kind shall be raised, bred or regularly kept in on the Project except dogs and cats as pets. An Owner (or such Owner's guest or tenant) may keep as pets no more than two (2) dogs in such Owner's Unit. No pet shall be allowed that is a physical threat to the welfare of the inhabitants of the other Townhome Condominium Unit, unless kept under restraint at all times. 8.3,2 Neither the Common Elements nor any part or appurtenance of or to any Townhome Condominium Unit which is visible outside the Townhome Condominium Unit (i.e., doors), including paint color, shall be altered in appearance or modified without consent of the Association. No unsightly object or nuisances shall be erected, placed or permitted to remain on the Project, nor shall the Project be used in any way for any purpose which may endanger the health or unreasonably disturb the Owner of any Townhome Condominium Unit or any resident or tenant thereof. 8.3.3 No nuisances shall be allowed in the Project, nor any use or practice which is the source of annoyance to residents or tenants or which interferes with the peaceful enjoyment or possession and proper use of the Project by the Owners. All parts of the Project shall be kept in a clean and sanitary condition and no rubbish, refuse or garbage shall be allowed to accumulate nor any fire hazard to exist. No Townhome Condominium Unit Owner shall permit any use of such Owner's Townhome Condominium Unit or make any use of the General Common Elements or Limited Common Elements which will unreasonably increase insurance rates upon the Townhome Condominium Property, In the event any Owner violates the requirements of this Paragraph 8.3.3, that Owner will be provided a written warning and twenty-four (24) hours to cure such violation. After being provided a written warning, if such violation continues, then such Owner will be fined $50.00 for the next twenty-four (24) hour period of violation and $100.00 for each subsequent twenty-four (24) hour period of violation. If such violation continues for seven (7) consecutive days, the Association will have the right, after twenty-four (24) hours prior written notice, to enter the Townhome Condominium Unit that is the source of the violation between 8:00 a.m. and 5:00 p.m., Monday through Friday, excluding holidays, to conduct an inspection of such Unit and/or to evaluate the source of the violation. Thereafter, a written report will be issued to the Owner violating this Section 8.3.3, describing the cause of the violation, and setting forth the Association's requirements for abatement of the violation, based upon the conclusions of a qualified consultant. Such written report will direct the Owner to remedy the violation by the recommended means within ten (10) days of such notice, or such longer time as reasonably required for abatement of the violation. After such deadline, the Owner will be assessed a fine (in addition to all other accumulated fines) equal in amount to the estimated costs for such recommended means of abatement. Unless otherwise agreed to by the Association, the first mentioned daily fines will accrue until the determination and notice to the Owner of the cost of abatement is provided and the abatement is satisfactorily completed. All fines will be considered Special Assessments - Individual Owners pursuant to Section 11.13 below and enforceable in accordance with Article 11 of this Declaration. The above penalties cannot be modified unless there is the vote of a majority of the Unit Owners majority approving such change. s r; ("'\ ) DRAFT DATED 12/02/02 8.3.4 All valid laws, ordinances and regulations of all governmental bodies having jurisdiction over the Project shall be observed. 8.3.5 Rules and regulations may be adopted by the Association concerning and governing both the use of the General and Limited Common Elements and the appearance of the Improvements. Copies of the rules and regulations shall be posted or furnished to Townhome Condominium Unit Owners prior to the time they become effective. The Association shall be responsible for taking all acts and making any rules and regulations as will ensure the maintenance of the Common Elements to high standards of safety, cleanliness and pleasing appearance. 8.3.6 Except for those Improvements caused to be erected orinstalledby Declarant, no exterior additions or alterations to or of the Improvements, nor changes in the fences, no changes in paint color, plantings, walls and other structures, shall be commenced, erected or maintained until the plans and specifications showing the nature, kind, shape, heights, materials, location and approximate cost of the same, shall have been submitted to and approved in writing by the Association and any necessary local governmental agency or body so as to insure conformity and harmony of external design and relative location with existing structures comprising the Project. Upon completion of approved alterations or additions to the Improvements or completion of Owner build-out within a Townhome Condominium Unit, said Owner shall cause to be delivered to the Association a complete set of as-built plans. 8.4 Signs. No "For Sale" or "For Rent" signs, advertising, or other displays shall be maintained or permitted on any part of the property, except at such location and in such form as shall be approved in writing by the Board or the Managing Agent. The right to reserve by the Declarant, or its agent or agents, to place "For Sale" or "For Rent" signs on any unsold or unoccupied Units owned by it, and on any part of the Common Elements with respect to the availability of such Units, and the right is hereby given to any mortgagee, who may become the Owner of any Unit, to place such signs on any Unit owned by such mortgagee, So long as any Unit is owned by it, the Declarant shall be entitled to access, ingress, and egress to the building and property as it shall deem necessary in connection with the construction or sale of the building or the Unit. The Declarant shall have the right to use any unsold Unit or Units as a model, or for sales or display purposes in accordance with C.R.S. 938-33.3-215. 8.5 Use and Obstruction of Common Elements. There shall be no obstruction of the Common Elements, nor shall anything be stored in the Common Elements, without prior consent of the Board except as herein expressly provided. For purposes of maintenance, repair, alteration, and remodeling, an Owner of a Unit shall be deemed to own the interior non-supporting walls and materials therein (such as, but not limited to, plaster, drywall, paneling, wallpaper, paint, wall and floor tile). There shall be no furniture, bicycles, wagons, vehicles, benches, chairs, skis or sporting equipment, tethered dogs or cats, or other personal property on any part of the Common Elements, except in spaces expressly provided thereof, without the prior written consent of, and subject to the regulations of, the Board. Except as specifically provided otherwise herein, the Board may permit or authorize use of any of the General Common Elements in the Project as the Board deems best and may, at the request of all of the Owners of a Townhome Condominium Unit with the exclusive right to use a particular Limited Common Element, convert, that Limited Common Element to a General Common Element or authorize other use of such Limited Common Element by such Owners or other Owners, subject to any and all applicable governmental regulations. Each Owner may use the General Common Elements and appurtenant Limited Common Elements, subject to the terms and provisions of this Section, in accordance with the purpose for which they are intended, without hindering or encroaching on the lawful rights of the other Owners. Each Owner, by the acceptance of such Owner's deed or other instrument of conveyance or assignment, agrees to accept and be bound by any such adopted rules and regulations. In the event any Owner violates the requirements of this Section that Owner will be provided a written warning and twenty-four (24) hours to cure such violation. After being provided a warning, if such violation continues, then such Owner will be fined $50.00 for the next twenty-four (24) hour period of violation and $100.00 for each subsequent 9 f""""" ~ iF DRAFT DATED 12/02/02 twenty-four (24) hour period of violation. Such fines will be considered Special Assessments pursuant to Section 11.13 below and enforceable in accordance with Article 11 of this Declaration. The above penalties cannot be modified unless there is the vote of a majority of the Unit owners approving such change. 8,6 Lease of Unit: Short-Term Rental Restriction. No Owner may lease less than such Owner's entire Unit without the permission of the Association, and all such leases shall be in writing. All leases shall provide that the terms of the lease are subject, in all respects, to the provisions of this Declaration, and to the provisions of the Articles of Incorporation Bylaws, rules and regulations, decisions and resolutions ofthe Association and the Board. Each Unitissubject to a covenant prohibiting the leasing of such Unit for a term of less than six (6) months and specifically prohibiting the assignment of the lease or subletting the Unit in violation of this provision. Notwithstanding the preceding clause, a Unit may be leased for no more than four "short-term" tenancies during a calendar year, with a "short term" tenancy being a tenancy not exceeding two weeks in duration. ARTICLE 9 EASEMENTS FOR ENCROACHMENTS 9.1 Encroachments. In the event that any portion of the Common Elements encroaches upon any Townhome Condominium Unit or Townhome Condominium Units, or in the event that any portion of a Townhome Condominium Unit encroaches upon any other Townhome Condominium Unit or Townhome Condominium Units or upon any portion of the Common Elements, or in the event any encroachment shall occur in the future as a result of the build-out of a Townhome Condominium Unit by an Owner thereof following the completion of the base shell of a Building, the settling of a Building or other Improvements, an alteration or repair to the Common Elements or the repair or restoration of the Improvements or Townhome Condominium Unit or Units after damage by fire or other casually, or condemnation or eminent domain proceedings; a valid easement shall exist for the encroachment and for the maintenance of the same so long as the Building stands or the encroachment exists. 9.2 Destruction. In the event that anyone or more of the Townhome Condominium Units or other Improvements comprising part of the Common Elements are partially or totally destroyed and are subsequently rebuilt or reconstructed in substantially the same location, and as a result of such rebuilding any portion thereof shall encroach as provided in the preceding sentence, a valid easement for such encroachment shall then exist. 9.3 Marketabilitv. Such encroachments and easements shall not be considered or determined to be encumbrances either on the Common Elements or on the Townhome Condominium Units for purposes of marketability of title or other purposes. 9.4 Liabilitv. The easement does not relieve a Townhome Condominium Unit Owner ofliability in case of willful misconduct nor relieve the Declarant or any other person of liability for failure to adhere to the Townhome Condominium Map. 9.5 Variations. In interpreting any and all provisions of the Declaration and subsequent deeds to or Mortgages relating to Townhome Condominium Units, the actual location of a Townhome Condominium Unit shall be deemed conclusively to be the property intended to be conveyed, reserved or encumbered notwithstanding any minor deviations, either horizontally, vertically or laterally from the location of such Unit indicated on the Townhome Condominium Map, ARTICLE 10 RESERVATION FOR ACCESS - MAINTENANCE REPAIR AND EMER.GENCrES 10.1 Association Right of Access. The Association, its officers, independent contractors, agents and employees, shall have the irrevocable right to have access to each Unit and all Common Elements during reasonable hours as may be necessary from time to time for the maintenance, repair or replacement of any of the Common Elements therein or accessible therefrom, or at any 10 r"'1 (") DRAFT DATED 12/02/02 hour for making emergency repairs, maintenance or inspection therein necessary to prevent damage to the Common Elements or to another Unit. 10.2 Damage. Damage to the interior or any part of a Unit, including damage to Owner installed or constructed improvements within a Unit, resulting from the maintenance. repair emergency repair or replacement of any of the Common Elements or as a result of emergency repairs within another Unit at the direction of the Association, shall be the Common Expense of all of the Owners; provided, however, that if such damage is caused by the negligence of the Owner of the Unit, such Owner's agents, employees, invitees or tenants, then such Owner shall be assessed by the Association and liable for all of. such damage and the cost thereof shall be the Owner's obligation and shall be immediately paid upon demand therefore 10.3 Association's Responsibilitv. Maintenance, repair or replacement of any drainage structure or facilities, or other public improvements required by the local governmental entity as a condition of development of the Project or any part thereof shall be the responsibility of the Association, unless such improvements have been dedicated to and accepted by the local governmental entity for the purpose of maintenance, repair, or replacement or unless such maintenance, repair, or replacement has been authorized by law to be performed by a special district or other municipal or quasi-municipal entity. lOA Restoration. All damaged described in Section 10.2 hereof shall be restored substantially, to the extent reasonably practical, to the same condition in which they existed prior to such damage. 10.5 Common Expenses. All maintenance, repair and replacement of the General Common Elements, whether located inside or outside of any Unit unless caused by the negligence, misuse or deliberate act of an Owner, shall be the Common Expense of all of the Owners, 10.6 Emergencv Services Easement. An easement for ingress and egress is hereby granted to all police, sheriff, fire protection, ambulance, and other similar emergency services or persons to enter upon the Project in performance of their duties. ARTICLE 11 ASSESSMENTS - COMMON EXPENSES 11.1 Separate Assessments and Taxation - Notice to Assessor. Upon the filing for recording of this Declaration, the Declarant shall provide notice to the Pitkin County Assessor by the delivery of a copy of this Declaration. 11.2 Assessments and Taxation. Each Townhome Condominium Unit, together with its undivided interest in the Common Elements and its interest in the Limited Common Elements appurtenant thereto, shall be deemed a separate parcel and subject to separate assessment and taxation. For purposes of such assessment, the valuation of the Common Elements shall be apportioned among the Townhome Condominium Units in proportion to the percentage undivided interest in the Common Elements appurtenant to such Townhome Condominium Units as set forth on Exhibit B hereto. ' In the event of any dispute regarding the necessity of amenities or services in connection with the Project, the Owners shall submit any such dispute to binding arbitration through the American Arbitration Association for a final determination. 11.3 Assessments Generallv. Declarant, for each Townhome Condominium Unit owned by it, and for and as the owner of the Project and every part thereof, hereby covenants, and each Owner of any Townhome Condominium Unit by the acceptance of a deed therfor, whether or not it is so expressed on such deed, shall be deemed to covenant and agree with each other and the Association to pay the Association monthly assessments made by the Association for the purposes provided for in this Declaration, and Special Assessments for capital improvements and other matters as provided for in this Declaration. Such assessments shall be fixed, established and collected from time to time in the manner provided for in this Declaration, and by the 11 r\ ("'\ DRAFT DATED 12/02/02 Articles ofIncorporation and Bylaws of the Association. Subject to the provisions hereof, the Board of the Association shall have the power and authority to determine all matters in connection with the assessments, including the power and authority to determine where, when and how assessments shall be paid to the Association, and each Owner shall be required to comply with any such determinations. 11.4 Expenses to be Assessed. The total monthly assessments against all Townhome Condominium Units shall be based upon advance estimates of cash requirements by the Association to provide for the payment of all expenses arising out of or connected with the maintenance and operation of the Gen,eral Cornmon elements, or furnishing such utility services as shall not be separately furnished and metered to the Townhome Condominium Units, which estimates may include, among other things: (1) taxes and Special Assessments, until the Townhome Condominium Units are separately assessed as provided herein; (2) premiums for all insurance which the Association is required or permitted to obtain, except such premiums as are paid for by the Association for which direct reimbursement is made by an Owner or Owners; (3) landscaping and care of grounds, including snow removal; (4) cornmon lighting, heating and water charges; (5) any utility charges to the individual Townhome Condominium Unit that are jointly metered; (6) trash collection: (7) sewer service charges; (8) repair and maintenance of the General Common Elements; (9) wages and benefits for the Association employees; (10) security services; (II) management fees and expenses; (12) legal and accounting fees; (13) any deficit remaining from a previous period; (14) the creation ofa reasonable contingency reserve, surplus, and/or sinking fund; and (15) any other expenses and liabilities which may be incurred by the Association for the benefit of the Owners under or by reason of this Declaration; provided, however, that all expenses of the Limited Common Elements, not limited to repairing, striping, snow removal, and maintenance of the parking spaces shall be assessed only to the Owner or Owners of the Limited Common Element parking spaces in proportion to the number of parking spaces which they respectively own. All expenses will be assessed to the Townhome Condominium Units, as determined by the Board in accordance with applicable guidelines set out in this Declaration determined by the Board in its reasonable discretion. 11.5 Assessments - Common Expenses. Annually it shall be the responsibility of the Board to establish and adopt an operating budget for the Association's fiscal year. The budget shall be estimated based on the previous year's budget and projected expenses for the coming year. The budget shall provide for the allocation of any surplus funds remaining from any prior budget period and will identify and set apart those expenses which are to be borne by the Owners of the Townhome Condominium Units. Within sixty (60) days after adoption of the proposed budget by the Board, the Board shall mail, by ordinary first class mail, or otherwise deliver a summary of the budget to all Owners and shall set a date for a meeting of the Owners to consider ratification of the budget which date shall not be less than thirty (30) days nor more than ninety (90) days after the date of mailing or delivery of the summary, Unless at that meeting a majority of all Owners reject the budget, the last budget ratified by the Owners must be continued until such time as the Owners ratify a subsequent budget proposed by the Board. Regular assessments shall be collected by the Association initially on a monthly basis, but may be collected on a different timetable in the discretion of the Board. Except as emergencies may require, the Association shall make no commitment or expenditures in excess ofthe funds reasonably expected to be available to the Association. 11.6 Payment of Assessments. Said .annual budget shall be assessed to the Owners according to each Owner's percentage of ownership in the Common Elements as set forth in Exhibit B, or as such percentages may be modified as provided hereunder, or as may be modified in accordance with the provisions of this Declaration. Any and all such assessments shall be due on the first (1 st) day of each month of said year. The Board or Managing Agent shall supply to all Owners an itemized accounting of the Common Expenses for the preceding calendar year actually incurred and paid, together with a tabulation of the amounts collected pursuant to the estimates provided, and showing the net amount over or short of the actual expenditures plus reserves. 11.7 Excesses. Shortages and Reserves. Any amount accumulated in excess of the amount required for actual expenses and reserves shall be credited according to each Owner's percentage 12 t""'\ t""\ " ) "".../ , i' DRAFT DATED 12/02/02 of ownership in the Common Elements as set forth in Exhibit B, or as such percentages may be modified as provided hereunder to the next monthly installments due from Owners under the current year's estimate, until exhausted, and any net shortage shall be added, according to each Owner's percentage of ownership in the Common Elements, to the next two installments due after rendering of the accounting. However, if budgeted, such excesses may serve to fund a reasonable reserve for contingencies and replacements. Extraordinary expenditures not originally included in the annual budget which may become necessary during the year shall be charged first against such reserve. If said annual budget proves inadequate for any reason, including nonpayment of any Owner's regular or Special Assessment, the Board may at any time levy a further assessment, which shall be assessed to the Owners according to each Owner's percentage of ownership in the Common Elements as set forth in Exhibit B, or as such percentages may be modified as provided hereunder, under the circumstances necessitating the adjustment. The Board or Managing Agent shall serve notice of further assessment on all Owners by a statement in writing giving the amount and reasons therefor, and such further assessment shall become effective with the next monthly payment which is due more than ten (10) days after the delivery or mailing of such notice of further assessment. All Owners shall be obligated to pay the adjusted monthly amount. 11.8 Failure to Prepare or Ratify Budget. The failure of the Board to prepare or serve the annual or adjusted budget on the Owners shall not constitute a waiver or release in any manner of the Owner's obligation to pay the maintenance and other costs and necessary reserves, as herein provided, whenever the same shall be determined, and in the absence of any annual budget or adjusted budget, the Owners shall continue to pay the monthly assessment charges at the then existing monthly rate established for the previous period until the next monthly assessment payment which is due more than ten (10) days after such new annual or adjusted budget shall have been mailed or delivered. 11.9 Inspection of Budget. In addition to the other provisions of this Declaration, the Board (or the Managing Agent acting for and on behalf of the Board) shall maintain copies of the budget, and accurate books and records of receipt, expenditures, assets, and liabilities of the Association, and the obligations of each and all Owners thereto, and the same shall be open for inspection by any Owner required to pay assessments during any financial report period for which inspection is sought, or any representative of such Owner duly authorized in writing, at such reasonable time or times during normal business hours as may be requested by such Owner. 11.10 Assessments Held in Account of Declaration or Association. All funds collected hereunder. shall. be held' arid' expended solely for the purposes designed herein, and (except for such special assessments as may be levied hereunder against less than all the Owners, and for such adjustments as may be required to reflect delinquent or prepared assessments) shall be deemed to be held in trust for the benefit, sue and account of all the Owners in the percentages set forth in Exhibit B, or as such percentages may be modified as provided hereunder. 11,11 Pre-Budget. Until such time as the Board shall have provided its first annual budget to the Owners, or for such other period as the Board may determine, the Board shall have the right to assess the Common Expenses, as herein provided on a monthly basis, and all Owners shall pay such monthly assessments as advised by the Board or Managing Agent. The first annual budget may, at the option of the Association, be based upon the historical expenses of the Buildings prior to the condominiumization. 11.12 Special Assessments. A "Special Assessment" is any assessment that is not levied pursuant to an approved budget. The Association may levy one or more Special Assessments to provide for the renovation, repair replacement, to the extent not covered by insurance, or to provide for extraordinary maintenance, if the Board so determines, to the General Common Elements. Owners shall have the right to ratify, by majority vote, any Special Assessment using the procedures set forth herein as if the Special Assessment proposal were an annual budget, except to the extent that a Special Assessment is necessary or appropriate for repair or replacement to the extent of an uninsured casualty or loss by condemnation as provided for by the Act or except as necessary for emergency repairs, or except as necessary to assess against an 13 r""1 f"""'\ , ;.1 DRAFT DATED 12/02/02 Owner the expenses caused by such Owner's misconduct as determined by the Board. Special Assessments levied for roof repair or replacement shall be kept in a fund for that purpose. Such fund may be established in advance of such expenditures. 11.13 Special Assessments - Individual Owners. The following expenses or charges incurred by the Board (and/or Owners) shall be specially assessed to the individual Owner to which such expense or charge is applicable (in addition to any other costs, charges or expenses which by law, or the terms of this Declaration are payable by an individual Owner): 11.13.1 The amount by which any premium for insurance maintained by the Board and/or Owner is increased as a result of any business or other activity or act of such Owner, or Related Party. The written statement of the insurance carrier to the effect that a specific increase is attributable to such business or other activity shall be conclusive as to such increase and the amount thereof; and 11,13.2 Any other assessment against and Owner provided for in this Declaration. 11.14 Commencement of Assessments, An Owner's obligation to pay assessments shall commence on the first day of the month after the recording of this Declaration by Declarant in the Office of the Pitkin County Clerk and Recorder. The first monthly payment for regular assessments for each Townhome Condominium Unit may include an additional assessment in order to establish an initial working capital fund for the Association (the "Working Capital Contribution"). The Working Capital Contribution shall be retained by the Association and shall not be refundable to an Owner, whether upon the sale of such Owner's Townhome Condominium Unit or otherwise. 11.15 Right of Inspection. Any Owner required to pay assessments and seeking inspection of the Association's records, or first or junior mortgagee may, pursuant to c.R.S. Section 38-22-107 (1973, as amended), inspect the Association's records of receipts and expenditures, once per year, at any reasonable time during convenient weekday business hours; and, on twenty (20) days notice to the Board or Managing Agent, if any, and on payment of a reasonable fee not to exceed Fifty Dollars ($50.00), any Owner or first mortgagee of such Owner shall be furnished a statement of account setting forth the amount of any unpaid assessments, or other charges due and owing from such Owner. 11.16 Assessment Reserves. The Association may require an Owner, other than Declarant, to deposit with the Association an amount not to exceed two (2) times the amount of the original estimated monthly common assessment, which sum shall be held, without interest, by the Association as a reserve to be used for paying such Owner's monthly common assessment, and for working capital. Such an advance payment shall not relieve an Owner from making the regular monthly payment of the common assessment as the same comes due. On the transfer of his Townhome Condominium Unit, an Owner shall be entitled to a credit from his transferee for any unused portion thereof. Such reserves shall, at all times, remain as capital of the Association, 11.17 Collection and Enforcement Remedies, 11.17.1 All assessments or any installment thereof shall be due and payable at the time or times designed by the Board by written notice delivered to the Owners. Overdue assessments shall bear interest at 18% per annum, or such other lawful rate or charge as the Board may determine from time to time. The payment of any assessment payable in installments may be accelerated by the Board for failure to pay any installment when due. 11.17.2 An assessment shallpe the. individual obligation of the Owner of the Townhome Condominium Unit at the time the assessment is levied against the Townhome Condominium Unit. A suit to recover a money judgment for unpaid assessments may be maintained against any Owner without waiving or otherwise prejudicing the Association's right to pursue its remedies otherwise provided herein. The Association shall be entitled to recover the costs, expenses and reasonable attorney's fees as additional sums due under any lien which may be 14 r-. r1 DRAFT DATED 12/02/02 filed or otherwise which are incurred in bringing any action for payment of assessments or to enforce compliance with any provision contained herein including those set forth in the Rules and Regulations adopted by the Association and shall become additional assessments due from the delinquent Owner and shall be added to the lien described below. 11.17.3 For the purposes of this Article 11, the term "assessments" shall include any amounts due in accordance with the terms of this Declaration. I 1. 17.4 The Association shall have a lien and a right to foreclose such lien against a Townhome Condominium Unit for any assessments against the Townhome Condominium Unit which are due and unpaid from the date of the assessment. Costs of collection and foreclosure of the lien of the assessment, including without limitation, reasonable attorney fees and other court costs, shall be added to the assessment lien amount. All anlOunts unpaid may be evidenced by a statement executed by the Association and recorded in the Office of the Clerk and Recorded of Pitkin County, Colorado. The assessment lien shall be a continuing lien upon the Townhome Condominium Unit against which any assessment is made. The assessment lien is prior to all other liens ands encumbrances on a Townhome Condominium Unit except: (I) liens and encumbrances recorded before the recordation of the Declaration; (2) the lien of a First Mortgagee on the Townhome Condominium Unit recorded before the date on which the assessment sought to be enforced became delinquent; and (3) liens for real estate taxes and other governmental assessments or charges against the Condominium Unit. The assessment lien shall also be prior to the lien of a First Mortgagee to the extent of an amount equal to the assessment based on the periodic budget adopted by the Association which would have become due, in the absence of any acceleration during the six months immediately preceding institution, by either the Association or any party holding a lien senior to the assessment lien, of an action or a non-judicial foreclosure either to enforce or to extinguish the lien, In no event shall the priority afforded by this Subsection to such lien for assessments exceed one hundred and fifty percent (150%) of the average monthly assessment during the immediately preceding fiscal year, multiplied by six. This Article does not prohibit an action to recover sums for which this Article creates a lien or prohibit the Association from taking a deed in lieu of foreclosure, Sale or transfer of any Townhome Condominium Unit shall not affect the Association's lien except that sale or transfer of any Townhome Condominium Unit pursuant to foreclosure of any first lien security interest, or any proceeding in lieu thereof, including deed in lieu of foreclosure, or cancellation or forfeiture shall only extinguish the Association's lien to the extent required by the Act. No such sale, transfer, foreclosure, or any proceeding in lieu thereof including deed in lieu of foreclosure, nor cancellation or forfeiture shall relieve any Townhome Condominium Unit from continuing liability for any Assessments thereafter becoming due, nor from the lien thereof. 11.18 Liabilitv of Owners. Purchasers and Encumbrancers. The amount of any assessment, charge, fine or penalty payable with respect to any Townhome Condominium Unit by the Owner or a Related Party of such Owner, shall be a joint and several obligation to the Association of such Owner and such Owners's heirs, personal representatives, successors and assigns. A party acquiring fee simple title to a Townhome Condominium Unit shall be joint and severally liable with the former Owner for all such amoupts which had aC9rued and were payable at the time of the acquisition of fee simple title to the Townhome Condominium Unit by such party without prejudice to such party's right to recover any of such amounts paid from the former Owner. Each such amount, together with interest thereon, may be recovered by suit for a money judgment by the Association without foreclosing or waiving any lien securing the same. Subject to Section 11.17 above, a First Mortgagee of a Townhome Condominium Unit shall not be liable for any such assessment, charge, fine or penalty and the lien for any such assessments, charges, fines or penalties shall be junior to the lien of a First Mortgagee on a Townhome Condominium Unit taken in good faith for value if the lien of such First Mortgagee is perfected by recording in the office of the County Clerk and Recorder of Pitkin County, Colorado, prior to the time a notice oflien for failure to pay any such amount is recorded in such office by the Association. 11.19 Statement of Unpaid Assessments. On payment of a reasonable fee specified in rules and regulations adopted by the Board, and on twenty (20) days prior written notice from any Owner, 15 n ("') DRAFT DATED 12/02/02 or any mortgagee or prospective mortgagee of a Townhome Condominium Unit, the Association, by its Managing Agent or Board, shall issue a written statement setting forth the amount of the unpaid Common Expenses, if any, with respect to the subject Townhome Condominium Unit, the amount of the current monthly assessment, the date such assessment becomes due, the amount of any assessment reserve on deposit with the Association, and any credit for advanced payments for prepaid items, including, but not limited to, insurance premiums, which statement shall be conclusive on the Association in favor of all persons and mortgagees. On payment of a reasonable fee specified in rules and regulations adopted by the Board, on written request, any heir, personal representative, successor and/or assign shall be entitled to a statement from the Managing Agent or Board setting forth the amount of the unpaid Common Expenses and special assessments, if any, with respect to the subject Townhome Condominium Unit, the unpaid Common Expenses and special assessments, if any, with respect to the subject Townhome Condominium Unit, the amount of the current monthly assessment, the date that such assessment becomes due, the amount of any assessment reserve on deposit with the Association, and any credit for advanced payments for prepaid items, including, but not limited to, insurance premiums, which statement shall be conclusive on the Association in favor of all persons who rely thereon in good faith. The provisions contained in this Section shall not apply on initial transfer of the Townhome Condominium Units by Declarant, and such sales shall be free from any liens or common or special assessments to the date ofthe conveyance by the Declarant. 11.20 No Further Recordation, Recording of this Declaration constitutes record notice and perfection of the lien. No further recordation of any claim of lien for assessment under this Article II is required. 11.21 Rights of Encumbrancers. Subject to this Article 11, any encumbrancer holding a lien on a Townhome Condominium Unit may pay any unpaid Common Expenses payable with respect to such Townhome Condominium Unit, and upon such payment, such encumbrancer shall have a lien against such Townhome Condominium Unit for the amount paid of the same priority as the lien of his encumbrance. 11.22 Notice to First Mortgagees. The Association, upon written request, shall deliver written notice to the first mortgagee of a Townhome Condominium Unit of any assessments remaining unpaid for longer than sixty (60) days after the same are due, as well as of any other default of an Owner under this Declaration known to the Association and which is not uncured within sixty (60) days of the Association's delivery of notice of such default to the Owner. 11.23 Rights of Other Liens. Declarant states, in accordance with the requirements of Act, that it is possible that liens other than mechanic's liens, assessment liens, and tax liens may be obtained against the General Common elements, including judgment liens and mortgage liens. 11.24 Release of Lien. Any recorded lien for nonpayment of the Common Expenses may be released by the Board's recording a release of lien. 11.25 Costs and Attornev Fees. The Association shall be entitled to costs and reasonable attorney fees incurred by the Association in judgment or decree in any action or suit brought by the Association under this Article 11. 11.26 Additions, Alterations and Improvements-General and Limited Common Elements. There shall be no capital additions, alterations, or improvements of or to the General Common Elements or Limited Common Elements by the Association requiring expenditure(s) in excess of Twenty Five Thousand Dollars and no/100 ($25,000.00) (adjusted for inflation by the Consumer Price Index (all Urban Consumers), for the United States, all cities, all items (as published by the U.S. Department of Labor's Bureau of Labor Statistics) for the years 1999 forward) or in excess of any amount as determined by the Board at any time to reflect economic realities, in anyone (1) calendar year, without, in each case, prior approval by a unanimous vote of the Owners of the Townhome Condominium Units. The limitations set forth above shall not apply to any expenditures made by the Association for maintenance and repair of the Common Elements as specifically provided for in this Declaration, for repair in the event of damage or destruction of the Buildings as provided for in Article 17 below, for repair in the event of obsolescence of the 16 r"\. ~ if DRAFT DATED 12/02/02 Buildings as provided for in Article 18 below, or in the event of condemnation of the Buildings as provided for in Article 19 below. 11.27 Interest. Any past-due common-expense assessment or installment thereof shall bear interest at the rate established by the Association not exceeding twenty-one percent (21 %) or the maximum interest rate allowed by Colorado law, whichever is less. 11.28 No Waiver or Abandonment. No Townhome Condominium Unit Owner may be exempt from liability for payment of the Common Expenses by waiver of the use or enjoyment of any of the Common Elements or by abandonment of the Townhome Condominium Unit against which the assessments are made. ARTICLE 12 TOWNHOME CONDOMINIUM OWNERS ASSOCIATION 12.1 The Association. The administration of the Project shall be governed by this Declaration and by the Articles of Incorporation and Bylaws. The Declaration shall control over the Articles ofIncorporation and Bylaws of the Association. The Articles ofIncorporation shall control over the Bylaws. 12.2 Membership. Each Owner of a Townhome Condominium Unit shall automatically become a Member of the Association and shall remain a Member of the Association for the period of the Owner's Unit ownership. Each Owner shall be entitled to one membership for each Townhome Condominium Unit owned. Each membership shall be appurtenant to the Townhome Condominium Unit and shall be transferred automatically by conveyance of the Townhome Condominium Unit. No person or entity other than an Owner may be a member of the Association, but the rights of membership may be assigned to a Mortgagee as and for the security for a loan secured by a mortgage on a Townhome Condominium Unit. Any corporation, partnership, association, trust or other legal entity acquiring such an interest in a Townhome Condominium Unit shall automatically become a Member of the Association. 12.3 Voting Rights. Members shall be entitled to one vote for each of their respective Townhome Condominium Units as setforth on Exhibit B attached hereto. 12.3.1 If a Unit is owned by more than one person, those persons shall agree among themselves how the vote for that Unit's membership is to be cast. Individual co-owners may not cast fractional votes. A vote by a co-owner for the entire Unit's membership interest shall be deemed to be pursuant to a valid proxy as provided for in Section 12.5 below unless another co-owner of the same Unit objects at the time the vote is cast, in which case such membership's vote shall not be counted. 12.3.2 Except as may be otherwise provided in this Declaration, all matters that come before the vote of the members of the Association, whether the matters are required to be voted on by the Members of the Association or are submitted to the vote of the Members of the Association, shall be determined by a unanimous vote of the Members. 12.3.3 Notwithstanding any provisions set forth in this Declaration, the Articles of Incorporation or the Bylaws for the Association, the Association shall not be empowered nor entitled to modify, amend, terminate, or extend this Declaration or any provision thereof without the consent of one hundred percent (100%) of the votes entitled to be cast by the Members and, during the Marketing Period, the consent of the Declarant. 12.4 Transfer. Except as otherwise expressly stated herein, any of the rights, interests and obligations of the Association set forth herein or reserved herein may not be transferred to or assigned to any other person or entity. No transfer or assignment shall relieve the Association of any of the obligations set forth herein. Any such transfer or assignment shall not revoke or change the rights or obligations of any Owners as set forth herein. 12.5 Vote bv Proxy The vote allocated to a Unit may be cast pursuant to a proxy duly executed 17 r.. t""'\ DRAFT DATED 12/02/02 by a Unit Owner. If a Unit is owned by more than one person, each Owner of the Unit may vote or register protest to the casting of votes by the other Owners of the Unit through a duly executed proxy. Upon a Member's designation of a proxy, the secretary of the Association shall maintain the list of the persons entitled to vote on behalf of each Member and, until the Association is notified to the contrary, any action taken by a person purporting to act on behalf of a Member shall be binding upon the Member, A Unit Owner may not revoke a proxy given pursuant to this Section except by actual notice of revocation to the person presiding over a meeting of the Association. A proxy is void if it is not dated or purports to be revocable without notice. A proxy as provided for herein shall terminate eleven (II) months after its date, unless it expressly provides otherwise. ARTICLE 13 PURPOSES AND POWERS OF ASSOCIATION 13,1 Nonprofit Purpose. The Association shall not operate for pecuniary gain or profit, shall not issue capital stock, and no part of the net earnings of the Association shall inure to the benefit of any member or individual except that reasonable compensation may be paid for services rendered by an Owner or an affiliate thereof. 13.2 Association Powers. The Association is hereby granted all powers necessary to govern, manage, maintain, repair, administer, and regulate the Project and to perform all of the duties required of it. Notwithstanding the above, the Association shall not be empowered nor entitled to do the following without the consent of the Unit Owners representing all of the Allocated Interests. 13.2.1 In furtherance of the Association purposes, the Association, by action of its Board of Directors, unless otherwise noted in the Articles ofIncorporation or in the Declaration, shall have full power to: (a) Adopt and amend Bylaws and rules and regulations; (b) Adopt and amend budgets for revenues, expenditures, and reserves and collect assessments for common expenses from Unit owners; (c) Hire and terminate managing agents and other employees, agents, and independent contractors; (d) Institute, defend, or intervene in litigation or administrative proceedings in its own name on behalf of itself or two or more Unit owners on matters affecting the Project; (e) Make contracts and incur liabilities; (f) Regulate the use, maintenance, repair, replacement, and modification of Common Elements; (g) Cause additional Improvements to be made a part of the Common Elements; (h) Acquire, hold, encumber, and convey in its own name any right, title, or interest to real or personal property, subject to the provisions of Sections 7.4 and 25.1 hereof; (i) Grant easements, leases, licenses, and concessIOns through or over the Common Elements; G) Impose and receive any payments, fees, or charges for the use, rental, or operation of the Common Elements other than Limited Common Elements described in Sections 6.2.3 and 6.2.5 hereof; (k) Impose charges for late payment of assessments, recover reasonable attorney 18 I""") ("') DRAFT DATED 12/02/02 fees and other legal costs for collection of assessments and other actions to enforce the power of the Association, regardless of whether or not suit was initiated, and, after notice and an opportunity to be heard, levy reasonable fines for violations of the Declaration, Bylaws, and rules and regulations of the Association; (1) Impose reasonable charges for the preparation and recordation of amendments to the Declaration or statements of unpaid assessments; (m) Provide for the indemnification of its officers and Board and maintain director's and officer's liability insurance; (n) Assign its right to future income, including the right to receive Common Expense assessments, but only to the extent this Declaration expressly so provides; (0) Exercise any other powers conferred by the Declaration or Bylaws; (p) Exercise all other powers that may be exercised in the State of Colorado by legal entities of the same type as the Association; and (q) Exercise any other powers necessary and proper for the governance and operation of the Association. 13.3 Limitations on Association's Powers During the Marketing Period. Notwithstanding any provisions in this Declaration, the Articles of Incorporation or Bylaws for the Association, the Association shall not be entitled nor empowered to do following during the Marketing Period without the consent approval of the Declarant: 13.3.1 Make design review decisions; 13.3.2 Make amendments, modifications, terminations, or extensions to this Declaration, including any plats or maps, and the Articles or Incorporation and Bylaws for the Association; 13.3.3 Prepare annual budgets; 13.3.4 Do any of the acts listed in Section 13.2 hereof; 13.3.5 Transfer the Common Elements pursuant to Section 7.4 hereof; and 13.3.6 Adopt a plan for reconstruction or sale pursuant to Article 18 hereof. 13.4 Association As Attornev-in-Fact. The title to any Townhome Condominium Unit is hereby declared and expressly made subject to the terms and conditions hereto, and acceptance by any grantee of a deed or other instrument of conveyance from the Declarant or any prior Owner shall constitute the appointment of the Association as the Owner's attorney-in-fact for the purposes expressly set forth in this Declaration. The Association, as attorney-in-fact, shall have full and complete authorization, right and power to make, execute and deliver any contract, deed or other document with respect to the interest of the Owner or a Townhome Condominium Unit for the purposes expressly set forth in this Declaration; and execute, deliver and file of record with the office of the Clerk and Recorder of Pitkin County, Colorado, such instruments, deeds, Townhome Condominium Maps and Townhome Condominium Declaration amendments and supplements as are necessary or desirable for the purposes expressly set forth in this Declaration. 13,5 Owner Compliance. Each Owner shall comply strictly with the provisions of this Declaration, any supplement or amendment hereto, the Articles of Incorporation and Bylaws of the Association and all decisions, resolutions, rules and regulations of the Association adopted in accordance with this Declaration and the Articles of Incorporation and Bylaws of the 19 ('c, ~.. . .. t"""\ DRAFT DATED 12/02/02 Association. Failure to comply with any of the same shall be grounds for an action to recover any amounts due, for damages or injunctive relief or both, together with attorneys' fees and costs incurred in connection therewith, brought by the Association on behalf of the Owners, or, in a proper case, by any aggrieved Owner. 13,6 Maintenance of Common Elements. The Association shall have the duty of maintaining and repairing all of the Common Elements within the Project. The cost of maintenance and repair of General Common Elements shall be a Common Expense of all of the Owners. The cost of maintenance and repair of Limited Common Elements shall be a Common Expense, unless the Board, in its reasonable discretion, determines that the cost of such maintenance or repair shall be allocated and assessed to the Unit Owners to which such Limited Common Elements are appurtenant. The Association shall not be required to obtain the prior approval of the Owners to cause such maintenance or repairs to be accomplished, 13.7 Other Duties of the Association. In addition to all other rights, duties, privileges and liabilities of the Association, as provided by this Declaration and its Articles of Incorporation and amendments, the Association shall provide to the Owners the following duties and services, all of which shall be paid as a part of the Common Expense assessment: 13.7.1 Maintenance, repair and restoration of the Common Elements, except only as otherwise provided; 13.7.2 Administration and management of the Common Elements; 13,7.3 Heating, lighting and other utility services for all common areas; 13.7.4 Obtaining and maintaining of all required insurance as hereafter provided; 13.7.5 The enforcement of all of the provisions of this Declaration and the Association's rules and regulations and the collection of all obligations and assessments owed to the Association by the Owners; 13.7.6 Acting as attorney-in-fact for the Owners in accordance with this Declaration; 13.7.7 Performing all other acts required by this Declaration, or the Articles of Incorporation and Bylaws of the Association, or any amendments thereto; and 13,7,8 In addition to the foregoing, the Association shall have the right to hire one or more persons including a management agent, to perform such services. No contract or agreement for the employment of a management agent or professional manager for the Project shall be for a term in excess of one year and any such agreement shall provide that the same may be terminated with or without cause and without payment of any termination fee on ninety (90) days prior written notice. ARTICLE 14 MAINTENANCE RESPONSIBILITY FOR UNIT 14.1 Owner's Responsibilitv. Each Owner shall have the obligation to maintain and keep in good repair all improvements installed or constructed by the Owner within such Owner's Unit, including, but not limited to, the interior surfaces of walls, ceilings and floors (including any Owner interior finish, dry wall or wall board surfaces, carpeting, tile, wallpaper, paint or other covering), internally installed utility distribution services such as water, light, gas, power, sewer, telephone and air conditioning, and all doors, windows, and window panes, lamps and accessories installed by an Owner, as well as all fixtures and appliances located within such Owner's Unit. 14,1.1 An Owner shall not be responsible for repair occasioned by damage as defined in Article 17 hereof, unless such damage is due to the act or negligence of Owner, or the Owner's guests, invitees, or tenants. 20 o (') DRAFT DATED 12/02/02 14.1.2 An Owner shall reimburse the Association for any expenditure incurred for replacing and repairing of any Common Element and related facility, damaged through fault of Owner, or the Owner's guests, invitees, or tenants, and the Association shall be entitled to assess such Owner for such amounts which shall be payable, collectible and enforceable in the same manner as assessments pursuant to Article II hereof. 14.1.3 No Owner shall alter any General or Limited Common Element without the prior written consent of the Association. 14.2 Owner Remodeling. An Owner shall have the right to redecorate, remodel or reconstruct the interior of such Owner's Townhome Condominium Unit, provided that no reconstruction, redecoration or remodeling shall be made without the prior written consent of the Board if it would affect structural members, Common Elements, or the exterior appearance of the Buildings. Such right to repair, alter and remodel shall carry the obligation to replace any finished materials removed with similar or other types or kinds of finishing materials. In these instances where the prior written consent of the Board is required, the Owner, upon completion of the remodeling shall deposit with the Association a complete set of as-built plans describing the Owner remodeling. 14.3 Utility Lines. The Owner shall not be deemed to own any utilities or communication systems running through such Owner's Unit which serve one or more other Units except as tenants in common with the other Owners. No utilities shall be altered, changed, relocated or disturbed without the prior written consent of the Association. 14.4 No Impairment of Structural Soundness. An Owner shall neither perform nor permit any act or work that will impair the structural soundness or integrity or the Building or impair an easement or utility, ARTICLE 15 ADMINISTRATION AND MANAGEMENT 15.1 Board of Directors. The Association, by and through the Board elected in accordance with the Articles of Incorporation and the Bylaws of the Association, shall have the duties of the general management, operation, and maintenance of the Project and the enforcement of the provisions of this Declaration and of the Articles of Incorporation and the Bylaws of the Association and rules and regulations adopted thereunder. 15.1.1 If appointed by the Declarant, in the performance of their duties, the officers and members of the Board are required to exercise the care required of fiduciaries of the Unit Owners. If not appointed by the Declarant, no member of the Board and no officer shall be liable for actions taken or omissions made in the performance of such member's duties except for wanton and willful acts or omissions. 15.1.2 The Board may not act on behalf of the Association to amend the Declaration, to terminate the common interest community, or to elect members of the Board or determine the qualifications, powers and duties, or terms of office of Board members, but the Board may fill vacancies in its membership for the unexpired portion of any term. 15,1.3 The Board may delegate any of its duties, powers and functions to any person or firm which will act as the Managing Agent at an agreed compensation. 15.2 Managing Agent. The Managing Agent, if any, shall perform the management, operation and maintenance functions delegated to it by the Board. 15.3 Marketing Period. This Declaration provides for a period of Declarant control of the Association (the "Marketing Period"), during which period the Declarant, or persons designated by it, may appoint and remove the officers and members of the Board. The Marketing Period shall terminate no later than either sixty (60) days after the conveyance of both Units to owners 21 r1 ('j DRAFT DATED 12/02/02 other than the Declarant or two (2) years after the conveyance of one (1) of the two (2) Units by the Declarant, in the ordinary course of business. 15.3.1 The Declarant may voluntarily surrender the right to appoint and remove officers and members of the Board before termination of the Marketing Period, but, in that event, the Declarant may require, for the duration of the Marketing Period, that specified actions of the Association or Board be approved by the Declarant before they become effective. 15.4 Election of the Board During Marketinq Period. Not later than sixty (60) days after conveyance of one (I) of the two (2) Units to persons other than the Declarant, one (1) Member of the two (2) Member Board must be elected by a Unit Owner other than the Declarant. Not later than sixty (60) days after the conveyance of all of the two (2) Units to Unit Owners other than the Declarant, all of the members of the Board must be elected by Unit Owners other than the Declarant. 15.5 Election of Board after Marketing Period. Except as otherwise provided herein or by law, no later than the termination of the Marketing Period, the Unit Owners shall elect a Board of two members all of which must be Unit Owners other than the Declarant or designated representatives of Unit Owners other than the Declarant. The Board shall elect the two (2) officers of the Association, The Board Members and officers shall take office upon termination of the Marketing Period. 15.6 Removal of Board Member. The Members by a unanimous vote of all Members may remove any member of the Board with or without cause, other than a member appointed by the Declarant. 15.7 Delivery of Association Documents. Within sixty (60) days after the Unit Owners other than the Declarant elect a majority of the members of the Board, the Declarant shall deliver to the Association all property of the Unit Owners and of the Association held by or controlled by the Declarant, including without limitation the following items: 15.7.1 The original or a certified copy of the recorded Declaration as amended, the Association's Articles of Incorporation, Bylaws, minute books, other books and records, and any rules and regulations which may have been promulgated; 15.7.2 An accounting of Association funds and financial statements, from the date the Association received the funds and ending on the date the Marketing Period ends. The financial statements shall be audited by an independent certified public accountant and shall be accompanied by the accountant's letter, expressing either the opinion that the financial statements present fairly the financial position of the Association in conformity with generally accepted accounting principles or a disclaimer of the accountant's ability to attest to the fairness of the presentation of the financial information in conformity with generally accepted accounting principles and the reasons therefor. The expense of the audit shall be paid for or charged to the Association; 15.7.3 The Association funds or control thereof; 15.7.4 All of the Declarant's tangible personal property that has been represented by the Declarant to be the property of the Association or all of the Declarant's tangible personal property that is necessary for, and has been used exclusively in, the operation and enjoyment of the Common Elements, and inventories of these properties; 15.7.5 A copy of any plans and specifications used in the construction of the Improvements in the Project which were completed within two (s) years before the Declaration was recorded; 15.7.6 All insurance policies then in force, in which the Unit Owners, the Association, or its directors and officers are named as insured persons; 22 t ,....,., r'"") DRAFT DATED 12/02/02 15.7.7 Copies of any certificates of occupancy that may have been issued with respect to any Improvements comprising the Project; 15,7.8 Any other permits issued by governmental bodies applicable to the Project and which are currently in force or which were issued within one year prior to the date on which Unit Owners other than the Declarant took control of the Association; 15.7.9 Written warranties of any contractor, subcontractors, suppliers, and manufacturers that are still effective; 15.7.10 A roster of Unit Owners and First Mortgagees and their addresses and telephone numbers, if known, as shown on the Declarant's records; 15.7.11 Employment contracts in which the Association is a contracting party; and 15.8.12 Any service contract in which the Association is a contracting party or in which the Association or the Unit Owners have any obligation to pay a fee to the persons performing the services. ARTICLE 16 APPORTIONMENT OF CERTAIN EXPENSES 16.1 Limited Common Elements. Each Owner shall be responsible for the day-to-day cleaning and upkeep of the Limited Common Elements reserved for the use of such Owner and any other Owners. Any and all costs associated with the day-to-day care, cleaning and upkeep of said Limited Common Elements shall be paid and discharged by the Owner or Owners entitled to the exclusive use of the Limited Common Elements. The expense of maintaining, repairing, replacing or reconstructing a Limited Common Element shall be assessed equally against the Unit or Units to which such Limited Common Element is as made. 16.2 Misconduct. If any Common Expense is caused by the misconduct of any Unit Owner, the Board may assess that expense exclusively against such Owner's Unit. ARTICLE 17 INSURANCE 17.1 Insurance Required. Commencing not later than the time of the first conveyance of a Townhome Condominium Unit to a person other than a Declarant, the Association shall maintain, to the extent reasonably available. 17.1.1 Property insurance on the Common Elements for broad form covered causes of loss; except that the total amount of insurance must be not less than the full insurable replacement cost of the insured property less applicable deductibles at the time the insurance is purchased and at each renewal date, exclusive of land, excavations, foundations, and other items normally excluded from property policies; and 17.1.2 Commercial general liability insurance against claims and liabilities arising in connection with the ownership, existence, use, or management of the Common Elements, insuring the Board, the Association, the Managing Agent, and their respective employees, agents, and all persons acting as agents. The Declarant shall be included as an additional insured in such Declarant's capacity as a Unit Owner and Board member. The Unit Owners shall be included as additional insureds but only for claims and liabilities arising in connection with the ownership, existence, use, or management of the Common Elements. The insurance shall cover claims of one or more insured parties against other insured parties. The amount of coverage shall be determined by the Board. At the option of the Association, such insurance may also cover additions, alterations, or Improvements to a Townhome Condominium Unit made by an Owner if the Owner reimburses the Association for any additional premiums attributable to such coverage. The Association shall not be obligated to apply any insurance proceeds to restore a Townhome Condominium Unit to a 23 t r">, ;-1 DRAFT DATED 12/02/02 condition that is better than the condition existing prior to the making of additions, alterations, or improvements by an Owner, in the absence of insurance covering such additions, alterations or improvements as aforesaid. Each Owner shall be a named insured under these policies. 17.2 Scope of Insurance. In the case of a Building that contains Townhome Condominium Units having horizontal boundaries described in the Declaration, the insurance maintained under Section 17.1(a) hereof must include the Townhome Condominium Units but need not include the finished interior surfaces of the walls, floors, and ceilings of the Townhome Condominium Units. The insurance need not include improvements and betterments installed by Townhome Condominium Unit Owners, but if they are covered, any increased charge shall be assessed by the Association to those Owners, 17.3 Cancellation ofInsurance. Ifthe insurance described in Sections 17.1 and 17.2 hereof is not reasonably available, or if any policy of such insurance is canceled or not renewed without a replacement policy therefore having been obtained, the Association promptly shall cause notice of that fact to be hand delivered or sent prepaid by United States mail to all Townhome Condominium Unit Owners, 17.4 Specific Provisions. Insurance policies carried pursuant to Sections 17.1 and 17.2 must provide that each Townhome Condominium Unit Owner is an insured person under the policy with respect to liability arising out of such Townhome Condominium Unit Owner's interest in the Common Elements or membership in the Association; the insurer waives its rights to subrogation under the policy against any Townhome Condominium Unit Owner or member of such Owner's household; no act or omission by any Townhome Condominium Unit Owner, unless acting within the scope of such Unit Owner's authority on behalf of the Association, will void the policy or be a condition to recovery under the policy; and if, at the time of a loss under the policy, there is other insurance in the name of a Townhome Condominium Unit Owner covering the same risk covered by the policy, the Association's policy provides primary insurance. 17,5 Adiustment of Claims. Any loss covered by the property insurance policy described in Section 17.1(a) and Section 17.2 must be adjusted with the Association, but the insurance proceeds for that loss shall be payable to any insurance trustee designated for that purpose, or otherwise to the Association, and not to any holder of a security interest. The insurance trustee or the Association shall hold any insurance proceeds in trust for the Association, Townhome Condominium Unit Owners and lienholders as their interests may appear. Subject to the provisions of Section 17.8, the proceeds must be disbursed first for the repair or restoration of the damaged property, and the Association, Townhome Condominium Unit Owners, and lienholders are not entitled to receive payment of any portion of the proceeds unless there is a surplus of proceeds after the property has been completely repaired or restored or the Project is terminated. 17.5.1 The Association may adopt and establish written nondiscriminatory policies and procedures relating to the submittal of claims, responsibility for deductibles, and any other matters of claims adjustment. To the extent the Association settles claims for damages to real property, it shall have the authority to assess negligent Townhome Condominium Unit Owners causing such loss or benefitting from such repair or restoration all deductibles paid by the Association. In the event that more than one Townhome Condominium Unit is damaged be a loss, the Association in its reasonable discretion may assess each Townhome Condominium Unit Owner a pro-rata share of any deductible paid by the Association. 17.6 Owner's Responsibilitv for Insurance. An insurance policy issued to the Association does not obviate the need for Townhome Condominium Unit Owners to obtain insurance for their own benefit. 17.7 Certificates of Insurance. An insurer that has issued an insurance policy for the insurance described in Sections 17.1 and 17.2 of this Article shall issue certificates or memoranda of insurance to the. Association and, upon request, to any Townhome Condominium Unit Owner or holder of a security interest. Unless otherwise provided by statute, the insurer issuing the policy 24 ~ () /.l DRAFT DATED 12/02/02 may not cancel or refuse to renew it until thirty (30) days after notice of the proposed cancellation or non-renewal has been mailed to the Association, and each Townhome Condominium Unit Owner and holder of a security interest to whom a certificate or memorandum of insurance has been issued, at their respective last-known addresses. 17.8 Damage Repair. Any portion of the Project for which insurance is required under this Article which is damaged or destroyed must be repaired or replaced promptly by the Association as provided for below unless: the Project is terminated as a common interest community pursuant to the provisions of this Declaration and the Act; repair or replacement would be illegal under any state or local statute or ordinance governing health or safety; the Owners representing Allocated Interests of eighty percent (80%) or more, including every Owner of a Townhome Condominium Unit or assigned Limited Common Element that will not be rebuilt, vote not to rebuild; or prior to the conveyance of any Unit to a person other than the Declarant, the holder of a deed of trust or mortgage on one Damaged portion of the Project rightfully demands all or a substantial part ofthe insurance proceeds. 17.8.1 Damage/Seventv Five Percent (75%) ofProiect or Less. In the event of damage or destruction to the Project to the extent of not more than seventy-five percent (75%) of the square footage of the Buildings to fire or other disaster, the insurance proceeds, if sufficient to reconstruct the Improvements, shall be applied by the Association, as attorney-in-fact, to such reconstruction, and the Improvements shall be promptly repaired and reconstructed. The Association shall have full authority, right, and power, as attorney-in-fact, to cause the repair and restoration of the improvements. If the insurance proceeds are insufficient to repair and reconstruct the Improvements, and if such damage is to the extent of not more than seventy-five percent (75%) of the square footage of the Buildings, such damage or destruction shall be promptly repaired and reconstructed by the Association, as attorney-in-fact, using the proceeds of insurance and the proceeds of an assessment to be made against all of the Owners and their Townhome Condominium Units. Such deficiency assessment shall be a common expense and made pro rata according to each Owner's interest in the Common Elements, as set forth on Exhibit B attached hereto, and shall be due and payable within thirty (30) days after written notice thereof. The Association shall have full authority, right and powers, as attorney-in-fact, to cause the repair or restoration of the Improvements using all of the insurance proceeds and such assessments, notwithstanding the failure of an Owner to pay an assessment. The assessment provided for herein shall be a debt of each Owner and lien on such Owner's Townhome Condominium Unit, and may be enforced and collected as is provided for hereinabove. In addition thereto, the Association, as attorney-in-fact, shall have the absolute right and power to sell the Townhome Condominium Unit of any Owner refusing or failing to pay such deficiency assessment within the time provided, and, ifnot so paid, the Association shall cause to be recorded a notice that the Townhome Condominium Unit of the delinquent Owner shall be sold by the Association, as attorney- in-fact. The proceeds derived from the sale of such Townhome Condominium Unit shall be used and disbursed by the Association, as attorney-in-fact, in the following order: (a) For payment of taxes and Special Assessment liens in favor of the assessing entity and customary expenses of sale; (b) For payment of the balance of the lien of any first mortgage; (c) For payment of unpaid Common Expenses, including the prorated share ofthe deficiency assessment, attorney's fees, and costs of collection; (d) For payment of junior liens and encumbrances in the order of and to the extent of their priority; and (e) The balance remaining, if any, shall be paid to the Owner whose Units is sold. 25 f'\ ("\ , DRAFT DATED 12/02/02 17.8.2 Damage/More Than Seventy-Five Percent (75%) of Proiect. If the Project is destroyed or damaged to the extent of more than seventy-five percent (75%) ofthe square footage of the Buildings, and the Owners representing Allocated Interests of eighty percent (80%) or more, as set forth on Exhibit B attached hereto, adopt a written plan for reconstruction, then all of the Owners shall be bound by the terms and other provisions of such plan. Any assessment made in connection with such plan shall be a common expense, and shall be made pro rata according to each Owner's Allocated Interests in the Common Elements, as set forth on Exhibit B attached hereto, and shall be due and payable as provided in the terms of such plan, but not sooner than thirty (30) days after written demand thereof. The Association shall have the right to use, in accordance with such plan, all proceeds of insurance for such destruction or damages, as well as the proceeds of an assessment to be made against all of the Owners and their Townhome Condominium Units. The Association shall have full authority, right, and power, as attorney-in-fact, to cause the repair and restoration of the improvements using all of the insurance proceeds and assessments for such purposes, notwithstanding the failure of an Owner to pay the assessment. 'The assessment provided for herein shall be a debt of each Owner and a lien on such Owner's Townhome Condominium Unit, and may be enforced and collected as is provided herein above. In addition thereto, the Association, as attorney-in-fact, shall have the absolute right and power to sell the Townhome Condominium Unit of any Owner refusing or failing to pay such assessment within the time provided, and if not so paid, the Association shall cause to be recorded a notice that the Townhome Condominium Unit of the delinquent Owner shall be sold by the Association. The proceeds derived from the sale of such Townhome Condominium Unit shall be used and disbursed by the Association, as attorney-in-fact, for the same purposes and in the same order as is provided in Subsections 17.8.l(a) through l7.8.l(e) of Section 17.8.1. If the Project is damaged or destroyed to the extent of more than seventy-five percent (75%) of the square footage of all the Buildings, and if all of the Owners of the Common Elements, as set forth on Exhibit B attached hereto, vote not to adopt a plan for repair and reconstruction, the Association shall forthwith record a notice setting forth such fact or facts, and, on the recording of such notice by the Association's President and Secretary, the entire remaining Project shall be sold by the Association, as attorney-in-fact for all of the Owners, free and clear of the provisions contained in this Declaration, the Map, the Articles of Incorporation and the Bylaws. The insurance settlement proceeds shall be collected by the Association, and such proceeds shall be divided by the Association according to each Owner's interest in the Common Elements, as set forth on Exhibit B attached hereto, and such divided proceeds shall be paid into separate accounts, each such account representing one (1) of the Townhome Condominium Units, Each such account shall be in the name of the Association, and shall be further identified by the Unit designation and the name of the Owner. Thereafter, each such account shall be supplemented by the apportioned amount ofthe proceeds derived from the sale of the entire Project. Such apportionment shall be based on each Owner's percentage interest in the Common Elements, as set forth on Exhibit B attached hereto. The total funds of each account shall be used and disbursed, without contribution from one account to another by the Association, as attorney-in-fact, for the same purposes and in the same order as is provided in Subsections l7.8.l(a) through l7.8.l(e) of Section 17.8.1. The provisions contained in this Section shall not hinder the protection given to a first mortgagee or first deed of trust holder under a mortgagee or deed of trust endorsement. 17.9 Fidelitv Insurance. If any Unit Owner or employee of an Association controls or disburses funds of the Association, the Association must obtain and maintain, to the extent reasonably available, fidelity insurance. Coverage shall not be less in aggregate than two (2) months' current assessments plus reserves, as calculated from the current budget of the Association. 17.9.1 Any person employed as an independent contractor by the Association for the purposes of managing the Project must obtain and maintain fidelity insurance in an amount not less than the amount specified In Section 17.9, unless the Association names such person as an insured employee in a contract of fidelity insurance, pursuant to Section 17.9. 26 n (""\ ,. ./ DRAFT DATED 12/02/02 17.9.2 The Association may carry fidelity insurance in amounts greater than required in Section 17.9 and may require any Independent contractor employed for the purposes of managing the Project to carry more fidelity insurance coverage than required in Section 17.9. 17.1 0 Insurance Premiums are Common Expenses. Premiums for insurance that the Association acquires and other expenses connected with acquiring such insurance are Common Expenses. ARTICLE 18 OBSOLESCENCE 18.1 Renewal and Reconstruction. The Owners representing Allocated Interests of all of the Unit Owners and fifty percent (50%) of the First Mortgagees, may agree that the Project is obsolete and adopt a plan for the renewal and reconstruction. 18.1.1 If a plan for the renewal or reconstruction is adopted, notice of such plan shall be recorded, and the expense of renewal and reconstruction shall be payable by all of the Owners as Common Expenses; provided, however, that an Owner, who is not a party to such a plan for renewal or reconstruction, may give written notice to the Association within fifteen (15) days after the date of adoption of such plan that such Owner's Townhome Condominium Unit shall be purchased by the Association for the fair market value thereof. The Association shall then have thirty (30) days within which to cancel such plan. If such plan is not canceled, the Townhome Condominium Unit of the requesting Owner shall be purchased according to the following procedures: ( a) If such Owner and the Association can agree on the fair market value thereof, then such sale shall be consummated within thirty (30) days after such agreement; (b) If the parties are unable to agree on the fair market value, the date when either party notifies the other that he or it is unable to agree with the other shall be the "Commencement Date" from which all periods of time mentioned hereafter shall be measured. Within ten (10) days following the Commencement Date, each party shall nominate an appraiser in writing and give notice of such nomination to the other party. If either party fails to make such a nomination, the appraiser nominated shall, within five (5) days after default by the other party, appoint and associate with him another appraiser. If the two designated or selected appraisers are unable to agree on the fair market value of the Townhome Condominium Unit, they shall appoint another appraiser to be umpire between them, if they can agree on such person. If they are unable to agree upon such umpire, each appraiser previously appointed shall nominate two appraisers, and from the names of the four appraisers so nominated-one shall be drawn at random by any judge of any court of record in Colorado, and the name so drawn shall be such umpire. The nominations from whom the umpire is to be drawn by lot shall be submitted within ten (10) days of the failure of the two appraisers to agree, which, in any event shall not be later than twenty (20) days following the appointment of the second appraiser. The decision of the appraisers as to the fair market value, or in the case of their disagreement, then such decision of the umpire, shall be final and binding and a judgment based upon the decision rendered may be entered in any court having jurisdiction thereof. The expenses and fees of such appraisers shall be borne equally by the Association and the Owner; and (c) The sale shall be consummated within thirty (30) days thereafter, and the Association, as attorney-in-fact, shall disburse such proceeds to the Association, Owner, and lienholders, as their interests may appear. 18.2 Sale of Property. The Owners representing Allocated Interests of all of the Townhome Condominium Units may agree that the Project is obsolete and that the same should be sold. In such instance, the Association shall forthwith record a notice executed by the Association's 27 A () DRAFT DATED 12/02/02 president and secretary-treasurer setting forth such fact, and upon the recording of such notice the Project shall be sold by the Association, as attorney-in-fact for all of the Owners, free and clear of the provisions contained in this Declaration. The sales proceeds shall be collected and apportioned between the Owners on the basis of each Owner's Allocated Interest as set forth on Exhibit B and such apportioned proceeds shall be paid into separate accounts, each account representing one Townhome Condominium Unit. Each such account shall be in the name of the Association, and shall be further identified by the Townhome Condominium Unit designation and the name of the Owner. The Association, as attorney-in-fact, shall use and disburse the total amount of each separate account, without contribution from one account to another, to the Association, an Owner or the Owners and lienholders, as their interests may appear. ARTICLE 19 CONDEMNATION 19.1 Total Condemnation. Ifa Townhome Condominium Unit is acquired by eminent domain or part of a Townhome Condominium Unit is acquired by eminent domain, leaving the Townhome Condominium Unit Owner with a remnant which may not practically or lawfully be used for any purpose permitted by this Declaration, the condemnation award must include compensation to the Unit Owner for that Townhome Condominium Unit and its Allocated Interests whether or not any Common Elements are acquired. Upon acquisition, unless the decree otherwise provides, that Townhome Condominium Unit's Allocated Interests are automatically reallocated to the remaining Townhome Condominium Units in proportion to the respective Allocated Interests of those Townhome Condominium Units before the taking. Any remnant of a Townhome Condominium Unit remaining after part of a Townhome Condominium Unit is taken under this Section 19.1 is thereafter a General Common Element. 19.2 Partial Condemnation. Except as provided in Section 19.1, if part of a Townhome Condominium Unit is acquired by eminent domain, the award must compensate the Unit Owner for the reduction in value of the Townhome Condominium Unit and its interest in the Common Elements whether or not any Common Elements are acquired. Upon acquisition, unless the decree otherwise provides that Townhome Condominium Unit's Allocated Interests are reduced in proportion to the reduction in the s.ize of the Townhome Condominium Unit; and the portion of Allocated Interests divested from the partially acquired Townhome Condominium Unit is automatically reallocated to that Townhome Condominium Unit and to the remaining Units in proportion to the respective interests of those Townhome Condominium Units before the taking, with the partially acquired Townhome Condominium Unit participating in the reallocation on the basis of its reduced Allocated Interests. 19.3 Condemnation of Common Elements. If part of the Common Elements are acquired by eminent domain, that portion of any award attributable to the Common Elements taken must be paid to the Association. Any portion of the award attributable to the acquisition of a Limited Common Element must be equally divided among the owners of the Units to which that Limited Common Element was allocated at the time of acquisition. For the purposes of acquisition of a part of the Common Elements, service of process on the Association shall constitute sufficient notice to all Unit Owners, and service of process on each individual Unit Owner shall not be necessary. 19.4 Recordation of Decree. The court decree shall be recorded in the office of the Clerk and Recorder of Pitkin County, Colorado.' 19.5 Confirmation of Reallocations. The reallocations of Allocated Interests pursuant to this section shall be confirmed by an amendment to the Declaration prepared, executed, and recorded by the Association. ARTICLE 20 TERMINATION OF MECHANIC'S LIENS AND INDEMNIFICATION 20.1 Mechanic's Liens. Subsequent to the completion of the Improvements described on the 28 ~ ("""\ >.: ..e, DRAFT DATED 12/02/02 Townhome Condominium Map, no labor performed or materials furnished and incorporated into a Townhome Condominium Unit with the consent or at the request of the Unit Owner or such Owner's agent or such Owner's contra,ctor or subcontractor shall be the basis for filing of a lien against the Townhome Condominium Unit of another Owner not expressly consenting to or requesting the same, or against the Common Elements, except as to the undivided interest of the Townhome Condominium Unit of the Owner for whom such labor or materials shall have been furnished, 20.2 Indemnification. Each Owner shall indemnify and hold harmless each of the other Owners from and against any and all liability, loss or damage, including reasonable attorney's fees, that the other Owners incur as a result of the claims of any lien against the indemnifying Owner's Townhome Condominium Unit or any part thereof for labor performed, or for materials furnished in work on such Owner's Townhome Condominium Unit. ARTICLE 21 MORTGAGING A UNIT - PRIORITY 21.1 Encumbrances. Any Owner shall have the right from time to time to mortgage or encumber such Owner's interest in a Townhome Condominium Unit by a Mortgage. The Owner of a Townhome Condominium Unit may create junior mortgages on the following conditions: 21.1.1 That any such junior mortgages shall always be subordinate to all of the terms, conditions, covenants, restrictions, uses, limitations, obligations, liens for Common Expenses and other obligations created by this Declaration, the Articles of Incorporation, and Bylaws of the Association. 21.1.2 That the holder of any junior mortgage shall release, for the purpose of restoration of any improvements upon the Project, all of such Owner's right, title and interest in and to the proceeds under insurance policies upon the Project wherein the Association is named insured. Such release shall be furnished upon written request by the Association. ARTICLE 22 PROPERTY FOR COMMON USE 22.1 Association Propertv. The Association may acquire for the use and benefit of all of the Owners, real and personal property and may dispose of the same by sale or otherwise, and any such property shall be deemed General Common Elements. ARTICLE 23 SPECIAL DECLARANT RIGHTS AND ADDITIONAL RESERVED RIGHTS 23.1 Special Declarant Rights. Declarant hereby reserves the following Special Declarant Rights during the Marketing Period: 23.1.1 Control of Association and Board of Directors. The right to appoint or remove any Officer of the Association or any Board member during the Marketing Period. 23.1.2 Amendment of Declaration. The right to amend the Declaration during the Marketing Period. 23.1.3 Amendment of Map. The right to amend the Townhome Condominium Map during the Marketing Period. 23.2 Additional Reserved Rights. In addition to the Special Declarant Rights set forth in Section 23.1 above, Declarant also reserves the following additional rights (the "Additional Reserved Rights") for a period often (10) years from the date of execution of this Declaration: 23,2,1 Dedications. The right to establish, from time to time, by dedication or otherwise, utility and other easements for purposes including but not limited to streets, paths, walkways, ski-ways, drainage, recreation areas, parking areas, ducts, shafts, flues, conduit installation areas, and to create other reservations, exceptions and exclusions for 29 ,~ .~~-,,-~ n , n DRAFT DATED 12/02/02 the benefit of and to serve the Unit Owners within the Project. 23.2.2 Use Agreements. The right to enter into, establish, execute, amend, and otherwise deal with contracts and agreements for the use, lease, repair, maintenance or regulation of facilities, which mayor may not be a part of the Project for the benefit of the Unit Owners or the Association. 23.2.3 Other Rights. The right to exercise any additional reserved right created by any other provision of this Declaration, 23.3 Rights Transferable, Any Special Declarant Right or Additional Reserved Rights created or reserved under this Article for the benefit of Declarant may be transferred to any Person by an instrument describing the rights transferred and recorded in every county in which any portion of the Project is located, Such instrument shall be executed by the transferor Declarant and the transferee. ARTICLE 24 REVOCATION OR AMENDMENT OF DECLARATION 24.1 Revocation. This Declaration shall not be revoked unless all of the Owners and all of the holders of the lien of a First Mortgagee covering or affecting any or all of the Townhome Condominium Units consent to such revocation by a duly recorded instrument filed for record in the real property records of Pitkin County, Colorado; except only as otherwise provided in Articles 11, 18 and 19 pertaining to the appointment of the Association as attorney-in-fact in the event of damage, destruction, obsolescence or condemnation of the Project. 24.2 Amendment. This Declaration shall not be amended except as otherwise herein provided, unless the Owners representing all Allocated Interests and fifty percent (50%) of the First Mortgagees, and, during the Marking Period, the Declarant, all consent and agree to such amendment by an instrument duly recorded; provided, however, that: 24.2.1 The percentage of the undivided interest in the Common Elements appurtenant to each Unit, as expressed in this Declaration, shall have a permanent character and shall not be altered without the consent of all of the Unit Owners expressed in an amended Declaration duly recorded; and 24.2.2 No such supplement shall increase the proportionate expenses chargeable against any Unit or Owner thereof without the unanimous consent of the Unit Owners affected thereby expressed in an amended Declaration duly recorded. 24.3 No Consent of Mortgagees. The consent of any mortgage holder or lien holder, including but not limited to the beneficiary of a deed of trust shall not be required under the provisions of this Article. 24.4 Challenge to Amendments, No action to challenge the validity of an amendment adopted by the Association pursuant to this section may be brought more than one (1) year after the amendment is recorded. 24.5 Recordation. Every amendment to the Declaration must be recorded in Pitkin County, Colorado and is effective only upon recordation, An amendment must be indexed in the grantee index in the name of the Project and the Association and in the grantor index in the name of each person executing the amendment. 24.6 Unanimous Consent Required for Certain Amendments. Except as otherwise provided in this Declaration or the Act, no amendment may create or increase special Declarant rights, increase the number of Townhome Condominium Units, or change the boundaries of any Unit or the allocated interests of a Townhome Condominium Unit, or the uses to which any Townhome Condominium Unit is restricted, in the absence of unanimous consent of the Townhome Condominium Unit Owners. 30 r-'"\ ! n DRAFT DATED 12/02/02 24.7 Association Certification. Amendments to the Declaration required by this Article to be recorded by the Association shall be prepared, executed, recorded, and certified on behalf of the Association by any officer of the Association designated for that purpose or, in the absence of designation, by the president of the Association. In the event of an amendment to the Declaration or the Townhome Condominium l\:Iap by the Owners, the Association shall record the amendment by the Owners with a certificate from the Association by any officer designated for that purpose, or, in the absence of the designation, by the president, that requisite number of Owners and First Mortgagees have consented to the amendment. 24.8 Expenses. All expenses associated with preparing and recording an amendment to the Declaration shall be the sole responsibility of: in the case of an amendment pursuant to reallocation of Limited Common Elements, relocation of boundaries between adjoining Townhome Condominium Units, and subdivision of Townhome Condominium Units, the Unit Owners desiring the amendment; n the case of an amendment pursuant to allocation of Common Element not previously allocated as a Limited Common Element, recordation of new plats and maps, and exercise of Development Rights, the Declarant; and in all other cases, by the Association. ARTICLE 25 RIGHT OF FIRST REFUSAL 25.1 Notice. In the event any Owner of a Townhome Condominium Unit shall wish to sell the same, and shall have received a bonafide offer from another person, the selling Owner shall give written notice thereof to Declarant, together with a copy of such offer and the terms thereof, or to the Board together with a copy of the terms thereof. The Board shall give written notice to each Owner of record of the notice of desire to sell, and the terms, within five (5) days of receipt of such notice. 25.2 Rights of Declarant. Declarant and each Owner have the right to purchase the subject Unit upon the same terms and conditions as set forth in the offer therefor; provided, however, that written notice of such election to purchase, together with a down payment, is given to the selling Owner, or such Owner's agent, during the fourteen (28) day period immediately following the receipt of the notice of the offer to purchase. The Declarant or Owner who provides the first such notice and deposit to the Owner desiring to sell shall be the purchaser. 25.3 Failure to Close. Closing of the purchase transaction pursuant to the exercise of a right of first refusal as provided herein shall be in accordance with this Article 25, but in no event shall it take place later than thirty (30) days following the receipt by the selling Owner of the notice of election to purchase. If closing does not occur within the thirty (30) day time period then the selling Owner may sell its Townhome Condominium Unit to the person and upon the terms and conditions as set forth in the offer at any time thereafter. 25.4 Right to Avoid Non-Complving Transfer. In the event any Owner shall attempt to sell its Townhome Condominium Unit without affording to the Declarant or to each Owner with the right of first refusal herein provided, such sale shall be voidable, and may be voided by a certificate of non-compliance duly recorded in the office of the Clerk and Recorder of Pitkin County, Colorado by the Managing Agent or Board, However, in the event the Managing Agent or Board has not recorded such certificate of non-compliance within one (1) year from the date of recording of a deed delivered in violation of this Section, such a conveyance shall be conclusively deemed to have been made in compliance with this Section and no longer voidable. The failure or refusal of the Declarant or any respective owner to exercise the right to so purchase shall not constitute or be deemed to be a waiver of such right to purchase when an owner receives any subsequent bonafide offer from a prospective purchaser. 25.5 General Conditions. In no case shall the right of first refusal reserved herein affect the right of an Owner to subject such Owner's Townhome Condominium Unit to a trust deed, mortgage, or other security instrument. 31 ~ ; () DRAFT DATED 12/02/02 The right of first refusal as provided herein shall extend and run for the life of Alice Brien, and her now living descendants, and the survivor of them, plus twenty-one (21) years. Except as otherwise provided in this Section, and except upon a transfer of title to a Public Trustee or to a first mortgagee, each grantor of a Townhome Condominium Unit, upon transferring or conveying such Owner's interest, shall incorporate in such instrument of conveyance an agreement that the grantee carry out the provisions of the "right of first refusal" as provided in this Section. 25.6 Foreclosure Sale Not Subiect Hereto. In the event of any default on the part of an Owner under any first mortgage which entitles the holder thereof to foreclose the same, any sale under such foreclosure, including delivery of a Public Trustee's Deed to the first mortgagee in lieu of such foreclosure, shall be made free and clear of the provisions of this Section. However, the grantee under the Public trustee's Deed or deed in lieu of foreclosure of such Townhome Condominium Unit shall thereafter be subject to the provisions of this Declaration and the Bylaws. If the grantee ofa Public Trustee's Deed or deed in lieu of foreclosure shall be the then holder of the first mortgage, or its nominee, the said holder or nominee may thereafter sell and convey the Townhome Condominium Unit free and clear of the provisions of this Section, but its grantee shall thereafter be subject to all of the provisions hereof. 25.7 Other Exempt Transfers. The following transfers of a Townhome Condominium Unit are also exempt from the provisions of this Section: 25.7.1 The transfer of operation of law, of a deceased joint tenant's interest to the surviving joint tenant(s); 25.7.2 The transfer of a deceased's interest to a devisee or devisees by will or to such Owner's heirs at law under intestacy laws; 25.7.3 The transfer of an Owner's interest, in whole or in part, to a blood relative; 25.7.4 The transfer of an Owner's interest by treasurer's deed pursuant to a sale for delinquent taxes; 25.7.5 The transfer of all or any part of a partner's interest as a result of withdrawal, death or otherwise, to the remaining partners carrying on the partnership business, and/or of a partner's or partners' interests between one or more partners, and/or to persons becoming partners; 25.7.6 The transfer ofa corporation's interest to the persons formerly owning the stock of the corporation as a result of a dissolution. A transfer to the resulting entity following a corporate merger or consolidation; provided, however, that at least fifty percent (50%) of the stock of the resulting entity is owned by the stockholders of the corporation formerly owning the Townhome Condominium Unit; and 25.7.7 The transfer between co-tenants of all or a part of a co-tenant's interest. If the Owner of a Unit can establish to the satisfaction of the Board that a proposed transfer is not a sale, then such a transfer shall not be subject to the provisions of this Section. 25.8 Certificate of Compliance. Upon written request of any prospective transferee, purchaser, or an existing or prospective mortgagee of any Townhome Condominium Unit, the Board shall forthwith, or where time is specified, at the end of the time, issue a written and acknowledged certificate in recordable form, evidencing: 25.8.1 With respect to a proposed sale under this Section that proper notice was given by the selling Owner, and that the Declarant and the Owners did not elect to exercise this 32 ~; f'""'l DRAFT DATED 12/02/02 option to purchase; 25.8.2 With respect to a deed to a First Mortgagee or its nominee by the Public Trustee pursuant to a foreclosure or a deed in lieu of foreclosure, and a deed from such First Mortgagee or its nominee, pursuant to this Section, that the deeds were given pursuant to a foreclosure or in lieu of foreclosure, and were not subject to the provisions of this Section; and 25.8.3 With respect to any contemplated transfer which is not in fact a sale, that the transfer will not be subject to the provisions of this Section. Such a certificate shall be conclusive evidence of the facts contained therein. ARTICLE 26 MISCELLANEOUS 26.1 Additional Allowable Floor Area and Garages. Under currently applicable laws, the Project is entitled to expand based upon available but unused allowable floor area pursuant to the Pitkin County Land Use Code. To the extent that floor area is available for expansion, the Owners may utilize such unused allowable floor area in proportion to the Owners' respective relative amounts of Allocated Interests for Assessments as set forth on Exhibit B attached hereto. The Owners of the Units shall be permitted to construct garages in connection with the Project, provided that Unit B of the Project (as defined on the Map) will be entitled to any exemption from floor area calculations afforded by the Pitkin County Land Use Code (as the same may be amended from time to time) for the construction of a garage on the Project. The exterior appearance of any garages in connection with the Project will be compatible in style and color with the Project. At the time of completion of construction of any expansion of floor area of the Project, Exhibit B will be automatically readjusted to correspond with the ratio of square footage of living area between the East Unit and the West Unit. 26.2 Registration bv Owner of Mailing Address. Each Owner shall register such Owner's mailing address with the Association, and except for monthly statements and other routine notices, all other notices or demands intended to be served upon an Owner shall be sent by United States Mail, first-class postage prepaid, aggressed in the name of the Owner at such registered mailing address. All notices, demands or other notices intended to be served upon the Board or the Association shall be sent by United States Mail, first class, postage prepaid, to the address of the Association as designated in the Articles ofIncorporation and Bylaws of the Association. 26.3 Additional Rights of First Mortgagees. In addition to any other rights provided in this Declaration any First Mortgagee who shall make a request in writing to the Association, shall have the following additional rights: 26.3.1 To be furnished a copy of the annual financial statement of the Association, such statement to be furnished at the time the same is furnished to the Owners. 26.3.2 To be given written notice by the Association of any meeting of the Association called for the purpose of the Association called considering any amendment, revocation or change to the Declaration or Articles of Incorporation. Such notice shall state the nature of any such change being proposed. 26.3.3 To be given written notice of any default by an Owner of a Townhome Condominium Unit encumbered in favor of the First Mortgagee in the performance of any duty or obligation required hereunder or under the Articles of Incorporation, Bylaws, or rules and regulations of the Association, which default remains uncured more than thirty (30) days following notice to the defaulting Owner. 26.3.4 Upon reasonable notice to examine the books and records of the Association during normal business hours, 33 n ,.-. I :! DRAFT DATED 12/02/02 26.4 Severabilitv. If any of the provisions of this Declaration or any paragraph, sentence, clause, phrase or word or the application thereof in any circumstances be invalidated, such invalidity shall not affect the validity of the remainder of this Declaration and the application of any such provision, paragraph, sentence, clause, phrase or word in any other circumstances shall not be affected thereby. 26.5 Applicabilitv of the Act. The provisions of this Declaration shall be in addition to and shall supplement the Act, as herein defined, 26.6 Gender. Whenever used herein, unless the context shall otherwise provide, the singular number shall include the plural, the plural the singular, and the use of any gender shall include all genders. 26.7 Applicable Law. This Declaration is filed in the records of Pitkin County, Colorado and it is agreed that the proper jurisdiction and venue of any action pertaining to the interpretation or enforcement of this Declaration shall be in the District Court of Pitkin County, Colorado. 26.8 Binding Agreement. It is understood and agreed that this Declaration shall be binding upon the heirs, executors, administrators and assigns of the parties hereto. 26.9 Reference to Ownership Interests. Whenever in this Declaration or in the Articles of Incorporation or Bylaws of the Association reference is made to a specific percentage interest of Owners, such reference shall be deemed to mean the Allocated Interests in and to the Common Elements as reflected in Exhibit B attached hereto and, unless the context otherwise requires, shall not be deemed to mean a percentage of owners by number of individual persons, partnerships, corporations or other entities, 26.1 0 Reservations bv Declarant. Declarant reserves to itself and hereby grants to the Association the right to establish from time to time by dedication or otherwise, so long as same does not unduly interfere with the rights of any Unit Owner, utility and other easements, for purposes including but not limited to paths, walkways, drainage or recreation areas, parking or land areas, ducts, shafts, flues, conduit installation areas, and to create other reservations, exceptions and exclusions consistent with the condominium ownership of the Project to the best interest of all the owners and the AssoCiation in order to serve all the Owners within the Project. 26.11 Association as Attornev-in-Fact and Power of Attornev. This Declaration does hereby make irrevocable the appointment of the Association as attorney-in-fact for all Owners to deal with the Townhome Condominium Property upon its destruction, obsolescence, repair or reconstruction or condemnation, and title to each Townhome Condominium Unit is declared and expressly made subject to the terms and conditions hereof and acceptance by the grantee of a deed from the Declarant or from any Owner shall irrevocably constitute and appoint the Association their true and lawful attorney in their name, place and stead for the purpose of dealing with the Townhome Condominium Property upon its destruction, obsolescence, repair or reconstruction. In the event the Townhome Condominium Property is sold by the Association, as attorney-in-fact, pursuant to Articles 19-21, the Association shall record a notice in the office of the Clerk and Recorder of Pitkin County, Colorado, setting forth the circumstances of such sale, and this Declaration shall wholly terminate and expire upon the recording of such notice. 26.12 Compliance with Declaration and Other Association Documents. Each Owner shall comply strictly with, and shall cause all of such Owner's guests, tenants and invitees to comply strictly with, all of the provisions of this Declaration, Articles, and Bylaws, and the decisions, rules, regulations and resolutions of the Association or the Board adopted pursuant thereto, as the same may be lawfully amended from time to time. The violation of any restriction or condition or regulation adopted by the Board, or the breach of any covenant or provision herein maintained, shall give the Board (in the name of the Association on behalf of the Owners) the right, in addition to any other rights provided for in this Declaration: 26.12.1 to enter upon the Unit, or any portion of the Property upon which, or as to which, such violation or breach exists, and to summarily abate and remove, at the expense of the 34 .. .~' f""'\ . DRAFT DATED 12/02/02 defaulting Owner, any structure, thing or condition that may exist thereon contrary to the intent and meaning of the provisions hereof, and the Board, or its employees or agents, shall not thereby be deemed guilty in any manner oftrespass; 26.12.2 to enjoin, abate or remedy by appropriate legal proceedings, either at law or in equity, the continuance of any breach; and/or 26.12.3 to recover sums due for damages. Such remedies shall be cumulative and not exclusive of one another, and shall be in addition to any other remedies available to the Board by law. Reasonable attorney's fees, and all other expenses of any relevant proceedings shall be levied against the Owner in said decree. 26.13 Parking. Owners, renters or guests shall only park automobiles on the Project in the areas specified on the Plat Map. The ingress and egress lane used by the East Unit shall not be used as temporary or additional parking by the West Unit. The East Unit Owner, or its renters or guests shall not block the ingress and egress area behind the West Unit parking area. Automobiles which are parked in violation of this Section 26.13 may be towed upon reasonable prior notification. IN WITNESS WHEREOF, the Declarant has executed this Declaration for Snowbunny Lane Townhomes as of this _ day of ,2002. Alice Brien STATE OF COLORADO) ) ss COUNTY OF PITKIN ) The foregoing Declaration for Snowbunny Lane Townhomes was subscribed and sworn to before me this _ day of , 2002 by Alice Brien. Witness my hand and official seal. My commission expires: Notary Public 35 r\ . DRAFT DATED 12/02/02 LEGAL DESCRIPTION PITKIN COUNTY, COLORADO. f"J EXHIBIT A 36 n r-, t.......} ~ DRAFT DATED 12/02/02 EXHIBIT B ALLOCATED INTERESTS FOR ASSESSMENTS Unit A (North UNIT) ??% Unit B (South UNIT) ??% ALLOCATED INTERESTS FOR VOTING Unit A (North UNIT) One (1) Vote Unit B (South UNIT) One (1) Vote ALLOCATED INTERESTS FOR EXPANSION OF FLOOR AREA Unit A (North UNIT) ??% Unit B (South UNIT) ??% 37 I>