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HomeMy WebLinkAboutLanduse Case.CO.234 W Hallam St.A104-99 ~ CASE NUMBER PARCEL ID # 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'\ A 104-99 2735-124-22004 234 West Hallam/302 North 2nd Common Interest Commu 234 W. Hallam/302 North 2nd James Lindt Condominiumization Barry Halperin/ West End Partnership LLC. Lenny Oates 2/8/00 Approved 2/8/00 2/8/00 J. Lindt ,-". ~ .1 . . ~Ai;u:iEL'iD:V3"-12"-22C:;4. . "CATE RCVC: I" :<3 li9 .' "# COPIES:r- ' CASE'NOI^"'<"'" CASE NAM'E' 23" I".le!:." H:J"':'- ""'2 N.......h 2n:l r;..~...,:"'I_ I.......HS. C,.........lU....' . PLNR'~- '. " . ...... .~. .,,,.. w. ,,-",, ..... .1.... ~ .... " ..J .'~ _", VI~qr PROJ ADCR:123< \'1 "I?I'.", 202 '-10'1" 2:;" CASE TYP:1C::"~::ITI'"'''ml7'~I:::: STEPS:l OWN/APP:~3C:'I.r' !-Ial:::~~in \r..les~ RE.P.j"......' ..,....-.., ~. -~. ..' "'~I.~...,. FEES DUE1m i'~ :5G " REfER~~LSI AORj52,] E. COO:;C. =:c.:':O:::; , C/S/Z:iA~perl CO 51';1 i ADR'=l':33 E t;."",'-, CISIZ:1As;:," CO b"!I' . FEES RCV~:145': " .: R~F4 ' BYl mTG DArE :E r r::= I , t-r-- 'DUE:l , . ~ , DATE ,of FINAL ACTION:, . CITY COUNCIL: , pi: BOA: ",~ri~I~:IApproved WOO REMARKSj , CLO~ECf:1tIrt5 BY' PLAT Su"Ju1i:r r-- ~, MEMORANDUM To: James Lindt, Planning Technician From: Chuck Roth, Project Engineer (!,te- Date: December 10, 1999 Re: 234 West Hallam/302 North Second Condominium Plat 1. Indicate zone district. -}.{.et 2. The title policy reference must include the date of the title policy. -.A~ ~+- 3. Show trees on the property and in't.he ~cent public rights-of-way that are subject to the tree removal ordinance. '-;(,1 ~ T , 4. Show improvements in the adjacent public rights-of-way, such as curb and gutter, edge of pavement, water valve boxes, utility pedestals. Indicate widths of adjacent public rights-of-way. Show 5' wide pedestrian space approximately 7Y:z' from property line, Indicate trash storage areas that are on private property for each unit. Show parking spaces (minimum 8'Wx18'). Show drainage improvements, such as drywells, if any, Indicate the area of the parcel to the nearest 0.001 acre. 7, The surveyor needs to state the date on which he performed the survey. 8. Separate water and electric meters need to be installed for each unit or water and electric service agreements need to be entered meeting the satisfaction of the City Utilities Director. Provide clearance letter to City Engineering prior to plat signing. 9, Separate service lines need to be installed or an agreement entered meeting the satisfaction of the Sanitation District. Provide clearance letter to City Engineering prior to plat signing. 99M183 1 ~ A \o~- qOj LAW OFFICES OF OATES, KNEZEVICH & GARDENSWARTZ, P.C. PROFESSIONAL CORPORATION THIRD FLOOR, ASPEN PLAZA BUiLDING 533 EAST HOPKINS AVENUE ASPEN, COLORADO 81611 LEONARD M. OATES RICHARD A. KNEZEVICH TED OdGAROENSWARTZ DAVID 13. KELLY TELEPHONE (970) 92.0-1700 FACSIMILE (970) 920-1 12.1 a-mallohkg@rof,net November 16, 1999 OF COUNSEL: MICHAEL FEIGENBAUM JOHN T. KELLY DAVID El. MU!l:LLER James Lindt Planning Technician City of Aspen Community Development Department 13 0 South Galena Street Aspen, CO 81611 HAND DELIVERED Re: Plat for 234 West Hallam/302 North 2nd Common Interest Community Dear James: This letter shall constitute an application for a subdivision exemption for a "Condominium Conversion" for approval by the Community Development Department Director pursuant to 26,88,030 A.3 and 26,88,070 of the Land Use Regulations of the City of Aspen, You will please find enclosed herewith two (2) copies of proposed Plat for the above project, developed as a townhome common interest community, The project is situate on Lots K, L and M, in Block 49, City and Townsite of Aspen, I would ask that the Plat be circulated to the required referral agencies for consideration and that I be advised as to what additions, deletions and modifications are required, Also enclosed is the application fee in the amount of $460,00 for a two (2) unit townhome project, The proj ect is developed with two (2) newly completed detached single family residences pursuant to validly issued building permits, There are no ADUs as cash in lieu was paid, Also enclosed is a copy of the proposed form of Declaration which will be recorded at the same time as the original Plat. Very truly yours, OATES, KNEZEVICH & GARDENSWARTZ, P.C. ~~~ By Leonard M. Oates LMO/amc Enclosures cc: Barry Halperin C:\DataICliemsIWeSl End PtrtLtr lindt 11.1S-99.wpd COMMON INTEREST COMMUNITY DECLARATION FOR 234 WEST HALLAM/302 NORTH SECOND NAME OF THE COMMON INTEREST COMMUNITY 234 WEST HALLAM 1 302 NORTH SECOND COMMON INTEREST COMMUNITY NAME OF THE ASSOCIATION 234 WEST HALLAM 1302 NORTH SECOND COMMON INTEREST COMMUNITY ASSOCIATION OWNERSHIP ENTITY EXECUTING THE DECLARATION WEST END PARTNERSHIP, LLC. DESCRIPTION OF PROJECT Units East and West, 234 West Hallam/302 North Second, according to the Common Interest Community Plat thereof recorde4 ~-;;.3 - d#---nJ , in Plat Book S.;l. at Page 0 I of the records of Pitkin County, Colorado FORMERLY KNOWN AS Lots K, L and M, Block 49, City and Townsite of Aspen, Pitkin County, Colorado. Ut'lll 1111I 1111I1 11111 11111 11I11111111 11I111111111 1111 799 02/23/2000 04:30P CONDO DE DAVIS SILVI 1 0' 13 R 65.00 D 0.00 N 0.00 PITkIN COUNTY CO COMMON INTEREST COMMUNITY DECLARATION FOR 234 WEST HALLAM/302 NORTH SECOND THIS DECLARATION is made as of .s:-~bYUl1.yt/ 3 ,2000, by West End Partnership, LLC., a Colorado limited liahility company (the "Dtclarant"). RECITALS A. Declarant is the owner of the following described real property in the City of Aspen, County of Pitkin, State of Colorado (herein, the "Real Property" or "Common Interest Community"): Units 234 and 302, at 234 West HaIlam/301 North Second Street, according to the Common Interest Community Plat thereof filed for record in Plat Book S' 2..... at Page & I , of the records of Pitkin County, Colorado (the "Plat"), together with all of the common elements thereof, all as more fully described as: Lots K, Land M, Block 49, City and Townsite of Aspen, Pitkin County, Colorado (the "Real Property"), improved with two (2) matched single family residences, B. Declarant wishes to subdivide the real property to create and confirm a Common Interest Community consisting of two (2) units in which portions of the Real Property are designated for separate ownership each with a single family residence thereon and the remainder of which is designated for common ownership solely by the Owners of the separate ownership portions. THEREFORE, Declarant states as follows: ARTICLE 1 DEFINED TERMS 1.1 Submission of Real Property. Declarant hereby declares that all of the Real Property and improvements are hereby made subject to the following easements, restrictions, covenants and conditions which shall run with the Real Property and be binding on all parties having any right, title or interest in the Real Property or any part thereof, their heirs, legal representatives, successors and assigns, and shall inure to the benefit of each Owner thereof. Declarant expressly does not submit the Real Property to the provisions of the Colorado Common Interest Ownership Act, C,R.S, ~ 38-33.3-101, et seq., as amended from time to time (the "Act"), as the development of the Real Property is exempt therefrom by election of the Declarant all as permitted by the Act. 111111I1111I1111I111111111111111111111111111111 11111111 440799 02/23/2000 04:30P CONDO DE DAVIS SILVI 2 of 13 R S!.00 D 0.00 N 0,00 PITKIN COUNTY CO 1.2 Defined Terms. Each capitalized term not otherwise defined in this Declaration or on the Plat and used herein or on the Plat shall have the meanings specified or used in the Act, notwithstanding that the Act does not govern the Common Interest Community. ARTICLE 2 NAMES; DESCRIPTION OF REAL PROPERTY 2.1 Names. a. Common Interest Community. The name of the Common Interest Community shall be 234 West Hallam/302 North Second Common Interest Community (the "Common Interest Community"). b. Association, The name of the Association is the 234 West Hallam/302 North Second Common Interest Community Association, an unincorporated association. ARTICLE 3 THE ASSOCIATION 3.1 Authority. The business affairs of the Common Interest Community shall be managed by the Association, 3,2 Member GrouDs. The Association shall have two (2) member groups, the Unit 234 Member Group which is attached to Unit 234 and the Unit 302 Member Group which is attached to Unit 302. Membership in a group shall be automatic on the part of any individual(s) or entity(ies) acquiring an ownership interest in a Unit and shaH automaticaHy cease when such individual(s) or entity(ies) no longer have an ownership interest therein. 3.3 Powers. The Association shaH have all of the powers, authority, duties, rights and benefits permitted to an unincorporated association pursuant to the Act. Except as otherwise provided in this Declaration, when approval of the members of the Association is required, the Association may only act upon the unanimous consent of its Unit 234 Member Group and its Unit 302 Member Group, and neither member group acting alone shall have the power to act for or bind the Association. 3.4 Executive Board. Except as otherwise provided in this Declaration, the Association shall act through its Executive Board, The Executive Board will consist of two (2) Executive Board Members. The Unit 234 Member Group and the Unit 302 Member Group shall each appoint one (1) Executive Board Member. Except as otherwise provided in this Declaration, the Executive Board may only act by unanimous decision, subject to the terms set forth in Section 3.7 below. Page 2 111111I1111I1111I111111111111111111111111I11111 1111 I11I 440799 02/23/2000 04:30P CONDO DE DAVIS SILVI 3 of 13 R 65.00 D 0.00 N 0.00 PITKIN COUNTY CO 3.5 Notice to Owners. Any notice to an Owner of matters affecting the Common Interest Community by the Association or by another Owner shall be sufficiently given if such notice is in writing and is delivered personally, by courier or private service delivery or by regular first-class postage prepaid mail delivery. All notices so given shall be considered received on the third business day after deposit in the mails regular first-class postage prepaid, at the address of record for real property tax assessment notices with respect to that Owner's Unit or two (2) business days after delivery to a courier or private service delivery, Any notice personally delivered shall be deemed received on the date of such delivery. 3.6 Waiver of Lien Priority Rie:hts. Declarant and each Owner understands and intends, by use of an unincorporated association, and because the Association is not governed by the Act, that the Association will not have the benefit of lien priorities provided in the Act for incorporated associations. 3.7 Deadlock. a, Definition. "Deadlock" shall mean a written statement that there is a "Deadlock" made by a member of the Executive Board to the other member of the Executive Board after a formal vote in which one member of the Executive Board votes for or against a proposition and the other member votes differently or refuses to vote, concerning any matter presented to the Executive Board. b. Breaking a Deadlock. In the event of a Deadlock, the Executive Board shall take another vote on the proposition. If that vote is not unanimous, then any matter in Deadlock, shall be settled by binding arbitration administered by the American Arbitration Association in Pitkin County, Colorado, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. ARTICLE 4 UNITS 4.1 Number of Units: Accessoty Dwellin@: Unit. The number of Units in the Common Interest Community is two (2), Unit 234 and Unit 302. . 4.2 Definition of Units. The identifying name of each Unit is shown on the Plat. Each Unit shall include an undivided 'h fee simple interest in and to the Common Elements as described in this Declaration and on the Plat. There are no limited Common Elements. Any reference to a Unit in this Declaration or the Plat shall include that Unit's undivided 'h interest in the Common Elements, and all interest in the Common elements as referenced herein shall be deemed inseparable from the respective Units. 4.3 Unit Boundaries. The boundaries of each Unit are located as shown on the Plat. The Common Interest Community has only vertical boundaries and does not have horizontal boundaries. The Units include land and structural building improvements now or hereafter existing, Page 3 111111111111111111111111111111I1111111111I1111111111111 440799 02/23/2000 04:30P CONDO DE DAVIS SILVI 4 of 13 R 65.00 0 0.00 N 0.00 PITKIN COUNTY CO ARTICLE 5 COVENANT FOR COMMON EXPENSE ASSESSMENTS 5.1 Common EXDenses. The only Common Expenses of the Association are for (a) maintenance of General Common Elements as shown on the Plat and defined in Section 6.2 of Article 6, and (b) Insurance, as defined in Section 6.3 of Article 6 below. 5.2 Creation of Association Lien and Personal Oblil!ation to Pay Common Exoense Assessments. Each Owner, by acceptance of a deed to a Unit, shall be deemed to covenant and agree to pay to the Association annual Common Expense assessments. Such assessments shall also include late charges, attorney fees and costs of collection charged by the Association. All Common Expense assessments shall be the personal obligation of the Owner at the time when the assessment becomes due. No Unit Owner shall convey a Unit unless and until all sums due the Association and not assumed by the transferee are currently paid, The Common Expense assessments shall be a continuing lien upon the Unit against which each such assessment is made and is subject to the Association's right to foreclose as provided by the Act. Acceleration of any installment of the annual Common Expense assessment shall be in the Association's sole discretion on a case by case basis. 5.3 Apoortionment of Common Exoenses. Common Expenses shall be assessed against the Units equally. 5.4 Annual AssessmentlCommencement of Common Exoense Assessments. The Common Expense Assessments shall be based upon the Executive Board's advance budget of the cash requirements needed by it to provide Insurance and Maintenance during such assessment year. 5.5 Soecial Assessments. A special assessment is any assessment that is not levied pursuant to an approved budget. The Executive Board may levy one or more special assessments only to provide, with respect to the Common Elements, for liability claims or for repair or replacement, to the extent not covered by Insurance, or to provide for extraordinary maintenance, if the Executive Board so determines, 5,6 Effect of Non-Payment of Assessments. Any assessment provided for in this Declaration, or any installment thereof, which is not fully paid within fifteen days after the due date thereof shall bear interest at the rate of twenty-one percent (21 %) per annum. Further, following ten (10) days' notice in writing given to the Owner, the Association may bring an action at law or in equity, or both, against any Owner personally obligated to pay such overdue assessment, or may accelerate the due date for payments of all installments remaining for the budget year , and may also proceed to foreclose its lien against such Owner's Unit. The Owner shall have the right, until the date of sale in the foreclosure proceeding, to cure the delinquency upon payment to the Association of the amount due, including interest and costs. An action at law or in equity by the Association against an Owner to recover a money judgment for unpaid assessments or installments thereof, may be commenced and pursued by the Association without foreclosing, or in any way waiving, the Association's lien therefor. For the purposes of collecting upon an unpaid assessment the provisions of Article 3 above need not apply and the non-delinquent Owner, acting alone, shall have the right in the name of the Association and Page 4 1111111111111111I111111 1111111I1111111111I1111111111111 440799 02/23/2000 04:30P CONDO DE DAVIS SILVI ! of 13 R &!.00 D 0.00 N 0,00 PITKIN COUNTY CO on its behalf or, as may be necessary, in the name of such non-delinquent Owner, to do and pursue all things that the Association is authorized to do under this Declaration in the case of a delinquent assessment. ARTICLE 6 MAINTENANCE AND INSURANCE 6.1 Maintenance. a. Association's ResDonsibility. The Association shall be responsible for the maintenance and repair of all those portions of the Common Interest Community whose maintenance and repair has not been assigned to the Owners by the remaining provisions of this Section 6.1. b. Owner's Resoonsibility. For purposes of maintenance, repair, alteration and remodeling, an Owner shall be deemed to own, and shall have the right and the obligation to maintain, repair, and the right to alter and remodel all property and improvements within a Unit together with any Limited Common Elements appurtenant thereto, An Owner shall not be deemed to own lines, pipes, wires, conduits or other systems (collectively herein "Utilities") running through such Owner's Unit but which serve both Units, except in common with all Owners, Each Owner shall, at such Owner's sole cost and expense: i. keep and maintain in good order and repair the equipment and those Utilities located in such Owner's Unit, which serve that Unit exclusively; ii. replace any finishing or other materials removed with materials of similar type; iii. maintain in a clean, safe and attractive condition and in good repair the exterior and interior of such Owner's Unit, including the fixtures, doors and windows thereof, the improvements affixed thereto, and that portion of the roof and structural components serving such Unit; iv. maintain in a neat and clean condition, free and clear of snow, ice and water accumulation all the decks, yard, porches, balconies or patio areas, which have elsewhere in this Declaration been reserved to and for the exclusive use of such Owner, including the Limited Common Elements that have been so reserved, 6.2 Common Element Driveway. The area between the driveways shown on the Plat as a Common Element shall constitute the sole Common Elements. Driveways are shown on the Platas General Common Elements. Responsibility for the maintenance, repair and replacement of the area between the driveways shall be a Common Expense, No Owner shall do or permit anything to be done to the area between the driveways which will affect the integrity thereof. Responsibility for the maintenance, repair and replacement of the Limited Common Element Page 5 111111I 1111I 1111I11111111111 III 11111111 III II11II1I11II1 440799 02/23/2000 04:30P CONDO DE DAVIS SILVI 6 of 13 R 65.00 D 0.00 N 0.00 PITKIN COUNTY CO driveways shall be that of the Owner of the Unit to which such driveway is appurtenant as a Limited Common Element. 6.3 Insurance, a, Association's Insurance. The Association may maintain property insurance on the Common Elements for not less than the full insurable replacement cost thereof and commercial general liability insurance in such minimum amounts as the Executive Board may establish from time.to time, as provided by C.R.S. ~ 38-33.3-313 of the Act, the provisions of which are incorporated herein by this reference, In the alterative, the Unit Owners may insure such area under the insurance to be carried pursuant to Paragraph 6.3.b immediately following. Each such insurance policy shall be written with an insurance company licensed to do business in the State of Colorado and shall have a rating of "A" or better as shown in the published rating of AM Best Company. b. Owners' Insurance, Each Owner shall maintain such property and liability insurance with respect to such Owners Unit in the amount of the full insurable value thereof. Such policy shall provide that the Association be named as an additional insured unless the Owners shall agree otherwise, and shall further provide that each Owner be provided with at least thirty (30) days written notice of the cancellation of the other Owner's policy. Each Owner shall use best efforts to cause each insurance policy obtained by that Owner, provide that the insurance company waives all right of recovery by way of subrogation against other Owners and the Association in connection with any damage covered by any policy. c. Waivers. The Owners release each other and the Association, and their respective authorized representatives, from any claims for damage to any person or to the Units that are caused by or result from risks insured against under any insurance policies carried by the Owners or the Association and in force at the time of any such damage. d. Oblilration to Reoair or Reolace. In the event of a casualty with respect to the Common Elements, the Association shall repair or replace the improvements as necessary to restore them to their condition before the casualty event. The proceeds of the insurance carried by the Association shall be used for such purpose and the Association shall be the trustee to receive the insurance awards and cause the repair or replacement to be accomplished. If the cost of repair or replacement exceeds the amount of insurance proceeds, the amount necessary to effect such restoration as determined by the Executive Board shall be a Common Expense assessed against the Owners as set forth in Section 5.3 above; provided, however, that the Executive Board shall reallocate such assessment between Units 234 and 302 Member Groups to the extent that the restoration benefits do not benefit both Units substantially proportionately to their allocated interests. Notwithstanding the foregoing, if the casualty was caused by the misconduct of an Owner, the amount needed to effect the restoration after use of the Association's and such Owner's insurance proceeds shall be assessed exclusively against such Owner's Unit. Page 6 Ut~~9'!W 1111I1/1111/111111I1/11111111I1111I11111111 7 0' 13 R/:~/~:e~ :4~:eNP eCONeDO DE DAVIS SILVI ___: _ _ _' .e PITKIN COUNTY CO 6.4 Restoration Upon Condemnation. a. Total Takinl!. In the event of a taking of the total Real Property by eminent domain, each Owner shall be entitled to receive the award of such taking for that Owner's Unit, after all mortgages and liens on the Unit have been satisfied or otherwise discharged, After acceptance of the award of the taking by the Owners and their mortgagees and lienholders, the Owners, their mortgagees and lienholders shall be divested of all interest in the Units and the Owners shall vacate the Units as a result of such taking. b. Partial Takinl!. In the event of a partial taking of the Real Property by eminent domain, the Owner of any affected Unit or its mortgagees or lienholders, as applicable, shall be entitled to receive the award of such taking and after acceptance of the award of the taking by the Owner and the Owner's mortgagees and lienholders, the Owner, the Owner's mortgagee and lienholders shall be divested of all interest in the Unit or portion of the Unit, as applicable, and such Owner shall vacate the Unit or portion thereof as a result of such taking. The remaining portion of the Unit shall be resurveyed and, if necessary, the Declaration shall be amended to reflect such taking. If the taking includes all or a portion of the Common Elements then, unless the Owners decide not to rebuild, the remaining Common Elements shall be restored by the Association using the condemnation proceeds. If the cost of restoration exceeds the amount of condemnation proceeds, the amount necessary to effect such restoration as determined by the Executive Board shall be a Common Expense assessed against the Owners as set forth in Section 5.3 above; provided, however, that the Executive Board shall reallocate such assessment between Units 234 and 302 Member Groups to the extent that the restoration benefits do not benefit both Units substantially proportionately to their allocated interests. ARTICLE 7 RESTRICTIONS ON USE 7.1 Nuisances and Ne~lil!ence: Environmental Conditions. There shall be no noxious or offensive activities carried on, in or upon any Unit or the Common Elements, and no loud noises or noxious odors shall be permitted anywhere in the Common Interest Community. Nothing shall be done in the Common Interest Community which may be or become an unreasonable annoyance or a nuisance to any other Owner or any occupant of any Unit. The Executive Board shall have the right to determine if any activity, noise or odor constitutes a nuisance or annoyance; provided, however, that nothing shall prevent any Owner from enforcing the provi- sions of this Article by bringing suit or otherwise. No Owner or occupant of any Unit shall permit or cause anything to be done or kept on the Unit which will increase the rate of insurance or which will result in the cancellation of such insurance. Each Owner shall be accountable to the Association and the other Owner for the uses and behavior of its tenants or guests. Page 7 1111111111111111111111111111111111111111111111111111111 440799 02/23/2000 04:30P CONDO DE DAVIS SILVI 8 of 13 R Se,00 D 0.00 N 0.00 PITkIN COUNTY CO 7.2 Structural Intee:rity. Nothing shall be done to any Unit or the Common Elements that will impair the structural integrity of any improvements on the other Unit or the Common Elements unless prior written unanimous authorization is obtained from the Executive Board or from the other Owner, as appropriate. 7.3 Restriction Uoon Occuoancy. Each Unit shall be used and occupied solely for, except as the Owners might otherwise agree, residential purposes only, and except as provided in this section, no trade or business of any kind may be carried on therein. 7.4 No Unsig:htliness. No unsightliness or waste shall be permitted on or in any part of the Common Interest Community. All trash shall be coIlected in areas designated by the Association. No wiring, television antennae or satellite dish (except 18" DSS or similar dishes), or other items may be instaIled which protrude through windows, waIls or roof areas, except as expressly authorized by the Association or this Declaration, 7.5 Owner Caused Damae:es. If, due to the act or neglect of an Owner or such Owner's tenants, guests or invitees, loss or damage shaIl be caused to any person or property, including the Common Interest Community or any Unit thereon, such Owner shall be liable or responsible for the same, except to the extent that such damage or loss is covered by insurance obtained by the Association, and the carrier of the insurance has waived rights of subrogation against such Owner, The amount of such loss or damage may be coIlected by the Association from such Owner as an assessment against such Owner by legal proceedings or otherwise, and such amount (including reasonable attorneys' fees) shaIl be secured by a lien on the Condominium Unit of such Owner, as provided herein above, for assessments or other charges. 7.6 Leases. No Owner may lease less than that Owner's entire Unit, and all leases shaIl be in writing, All leases shall provide that the terms of the lease are subject, in all respects, to the provisions of this Declaration. 7.7 Enforcement. The Association, any member of the Executive Board and any Owner shall have the right to enforce this Declaration and the right to coIlect costs and expenses (including without limitation attorneys' fees) incurred in any enforcement action in which such Owner prevails. ARTICLE 8 EASEMENTS AND LICENSES 8.1 Recordine: Data. All easements, licenses and title exceptions to which the Common Interest Community are presently subject are recited in Exhibit A. In addition, the Common Interest Community may be subject to other easements or licenses granted by the Declarant pursuant to this Declaration or on the Plat. 8.2 Common Elements and Easement. Each Unit Owner has a right and easement of enjoyment in and to the Common Elements, which shall be appurtenant to and shaIl pass with the title to every Unit subject to the provisions contained herein. Every Owner shall have a non-exclusive Page 8 111111111111111111111111111111111111111111111111111111I 440799 02/23/2000 04:30P CONDO DE DAVIS SILVI 9 of 13 R 65.00 D 0.00 N 0.00 PITKIN COUNTY CO easement over, under and across the Common Elements. In the event of future construction within a Unit, each Unit Owner shall also have the right, after giving written notice to the members of the Executive Board, to overdig into the Common Elements and adjoining Unit to the minimum extent necessary and temporarily brace any excavation or existing foundations within a Unit. After such temporary use, the constructing Unit Owner shall, at such owner's sole expense, restore and repair the Common Elements or adjoining unit to the condition existing prior to such construction work. By undertaking work within the Common Elements or adjoining unit, the constructing Unit Owner agrees to defend, indemnify and hold harmless the other Unit and the other Unit Owners from and against all claims arising out of or relating to such construction, including without limitation for injury to persons or property and for mechanics' and materialmen's liens, 8.3 Easements for Imorovements. Maintenance and Utilities. Reciprocal Easements (among both Units and Common Elements) are hereby declared to exist over and under the Real Property and all areas thereof for the existing electric, telephone, water, gas, and sanitary and storm sewer lines and facilities, exhaust, heating and air conditioning facilities, plumbing vent pipes, cable or master television antenna lines, drainage facilities, garbage chutes, stairs, walkways, and landscaping, and for the repair, replacement and maintenance of the same, as needed to service the Real Property andlor the individual Units. Each Owner has the right, at such Owner's sole expense and after giving written notice for at least one (1) business day to the other Owner, to relocate such lines and facilities within such Owner's Unit; provided, however, that such relocation shall be accomplished without interrupting the need of the other Owner for the use of such lines or facilities (including the providing of temporary service, if necessary), except as such other Owner specifically permits. 8.4 Encroachment Easements, Each Owner has an easement over the adjoining Unit for the purpose of accommodating any encroachment due to engineering errors, errors in original construction, reconstruction, repair, settlement or shifting or movement of the building, or any other similar cause. There shall be valid easements for the maintenance of such encroachments so long as they shall exist, and the rights and obligations of Owners shall not be altered in any way by such encroachment, settlement or shifting; provided, however, that in no event shall a valid easement for encroachment occur due to the willful misconduct of an Owner or Owners. In the event a structure is partially or totally destroyed, and then repaired or rebuilt in substantially the same manner as originally constructed, the Owners agree that minor encroachments over the abutting Unit shall be permitted and that there shall be valid easements for the maintenance of such encroachments so long as they shall exist. 8,5 Easement for Maintenance of Units, Reciprocal easements (among both Units and the Common Elements) are hereby declared to exist on each side of the common boundary line between the Units on areas not occupied by buildings to the extent reasonably necessary for the maintenance of the building exteriors facing said common boundary, Precautions shall be taken to ensure no damage to the Unit of the other shall be caused by the exercise of an Owner of such Owner's rights; however, any damage which shall be caused shall be indemnified under Section 9.2 hereof. Except in the event of an emergency, or routine items of maintenance such as window washing, such easement for maintenance shall be exercised only on ten (10) days advance written notice to the other Owner. Page 9 111111I1111I1111I1111111111111I1111111111I1111111111111 440799 02/23/2000 04:30P CONDO DE DAVIS SILVI 10 of 13 R Se.00 D 0.00 N 0.00 PITKIN COUNTY CO ARTICLE 9 MISCELLANEOUS 9,1 When Consent or Authorization Not Necessary. Notwithstanding anything in this Declaration to the contrary, whenever the consent or authorization of the Association or Executive Board shall be required under the provisions hereof, it shall suffice, and the consent or authorization of the Association shall thereby be deemed given, if the Owner seeking such consent or authorization has obtained the consent or authorization of the remaining Owner of the Common Interest Community. 9.2 Indemnity. Each Owner ("Indemnifying Owner") agrees to indemnify and hold the other Owner ("Other Owner") blameless and harmless of, from and against any loss, claim, demand or obligation (including costs of defense and attorneys' fees) of whatsoever nature occasioned by or in any manner resulting or emanating from any work done at the behest of the Indemnifying Owner on such Owner's Unit or labor, services or materials furnished to such Owner or such Owner's Unit and will maintain the Other Owner's Unit, entirely lien free through payment or suitable substitution bond and, upon the failure of the Indemnifying Owner to so do, the Other Owner shall have the right to do that which it, in its discretion, determines to be necessary to effect the release and discharge of the lien from such Other Owner's Unit and the applicable Common Elements. The costs and expenses incurred in so doing, together with interest at the per annwn rate of 21 % shall be repaid by the Indemnifying Owner upon demand, Until repaid, such obligation shall be secured by a lien against the Unit of the Indemnifying Owner, notice of which may be given by the Other Owner in the applicable real property records, and which may be foreclosed as in the case of a mortgage, In any such foreclosure proceedings, the Other Owner shall be entitled to recover its costs and reasonable attorneys' fees, 9.3 Additional Riehts of Enforcement. Each of the covenants, obligations and undertakings in this Declaration contained on the part of the respective Unit Owners to be kept, discharged or performed is intended to and shall be deemed to be for the specific benefit of the other Unit Owner. In the event of the failure or inability of the Association to enforce any provision of this Declaration against a delinquent or defaulting Owner, the remaining Owner, acting alone, shall have the right in the name of the Association and on such Owner's behalf or, as the case may be necessary or advisable, in the name of such remaining Owner and on such remaining Owner's behalf to commence, maintain and obtain judgment under an action for damages, for specific performance, or for both, as appropriate, and in connection with any proceedings against a delinquent or defaulting Owner, the remaining Owner shall be entitled to such remaining Owner's costs and reasonable attorneys fees as a part of any judgment entered for such Owner, and whether or not the relief obtained, including any damages, is less than what was sought. 111111I1111I11111111111 1111111I1111111111I1111111111111 440799 02/23/2000 04:30P CONDO DE DAVIS SILVI 11 0' 13 R Se.00 D 0.00 N 0.00 PITKIN COUNTY CO Page 10 WEST END PARTNERSHIP, LLC. , in, Managing Member ::"H.., v. --->,".., .~ ."....'..,"' - ~.':> ...,,~',.'. ,.~.. ,4 , / N G 7';" '2" _3,.! ,"",. --<"19 c:.'~ ".:Y~A;~ 'J-"'- STATE OF COLORADO} '; i\~~\ 4~'l~":'~:/ !.,C'"t. .....'":: ,,' SS. """ ( ',"'., .,' COUNTY OF PITKIN The foregoing instrument was acknowledged before me thiS~ay 0 2000, by Barry Halperin as the Managing Member of West End Partnership, LLC. WITNESS MY HAND AND OFFICIAL SEAL. My commission expires: My Commission Expires 08/10/2003 ,-) [Seal] 111111I1111I1111I1111111111111I1111111111I11111111I1111 440799 02/23/2000 04:30P CONDO DE DAVIS SILVI 12 of 13 R 65.00 D 0.00 N 0.00 PITKIN COUNTY CO f \\Lmos\Data\Clients\West End Ptr\Dcclaration - Common Interest Community.wpd Page 11 CONSENT OF MORTGAGEE The undersigned holqer [f a mortgage, ~dS of trust or other lienJcollectively "Security Interest") recorded (')C TO -e.1~~' /q~ , as Reception II'7!:T.3t::J ~and of the Pitkin County Colorado real property records aga nst and encumbering the Real Property herein above described hereby consents to the within and foregoing Common Interest Community Declaration and agrees that its Security Interest is and shall be subject to the terms conditions and provisions thereof as fully, for all intents and purposes, as though such Declaration had been placed of record prior to the recordation of its Security Interest, ALPINE BANK ASPEN By: ::::FO:O= }u ~~~~~:!~~\~~!'~l!!!llI~~~I~'~ ",>Co"!,,in, in_ ":l' 1"'-"",01 OOfM' ~ "',. ~" o~ 2000, by c!dl fLrL(Jn~ O/~:;: , as ~{,--~~~_of Alpine Bank Aspen. r WITNESS MY HAND AND OFFICIAL SEAL. My commission expires: Wrrt commiSSiOO Expires [Seal] 0811012003 r;/ , . 6' .,. ""'.., I .:-.~\,,\\..,l,:,> _' .~_ -' . .t \\Lmos\Oata\Clients\West End Ptr\Declaration - Common Interest eoJ?raglij.J,2 ~ L ,: .~ r-- :_:?-:~:-',~ " .. ;;)J. "\ '.. r, ,~ tl ,~ ..\' \~;'f<'~'-~",:. '. ,-' -<.,_... "!, "!(' :'r" e::'r.> ,,' ',#It/.,', ...... ",._,,; -."f<<I"""