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HomeMy WebLinkAboutLand Use Case.501 W Hopkins Ave.0031.2008.ASLU THE CITY OF ASPEN City of Aspen Community Development Department CASE NUMBER PARCEL ID NUMBER PROJECTS ADDRESS PLANNER CASE DESCRIPTION 0031.2008.ASLU 2735 12 4 66 001 501 W. HOPKINS ANDERA HINKLELY SUBDIVISION AAP REPRESENTATIVE DATE OF FINAL ACTION OATES 6/27/08 CLOSED BY Angela Scorey on 05/19/2009 QaJr~ ~~ 2'l35 -~2- 4~ (Pro --©o I ~-esrn~U~t c~3l~2oog..>~s~~t °~ r ~ ~ ~ ~It: File Edit @ecord (yaviga~ Farm Reporss Farlriat Tab Help X14 ' nypkotbn (CUSrom Fields ~Acda0s Fea¢ Parcels Fee summry ~e~ Attachments ROyltNq status ROUbnp 4 Permit Type aslu .Aspen Land Use Permit M 0031.2008.ASLU Address 501 W HOPKINS AVE J ApCfSUite CRy ASPEN 5ta[e CO . Zip 81631 J fermi[ Information.. -. - _. _. Mester PermR ~ Z~ Routing Queue aslu07 Applied 06f1912008 J Project J Status pending Approved ~-J Desviption BOOMERANG LOT SPLIT -SUBDIVISION APPROVAL FOR A PLANNED COMMUNITY Issued ~ J FOR THE PROJECT & CONDOMINIUMIZATION OF THE AH UNITS Fnal ~-J suWritted OATES,KNEZEVICH,GARDENSWARTZ Clock unning Days ~ Expires 06)14J2009 J ~. -Owner.-. -. _.. -: - _. _ _.. Last Name HOPKIN6 LLC ~ Firsk Name ~ 306 SHUNTER ST ASPEN CO 81611 Phone ~- ~, rOwner IS ppp4cant? ___ __.. _... ..... Last Name HOPKINS LLC J Frst Name ~ 306 5 HUNTER ST ASPEN CO 81611 Phone ~ Cust X 28241 J Vender- _.... _. _. -__ ;T' Last Name r~Z First Name ~-- ens Phone ~- ~-c, ~ c,Cc ~ ~ `73 S ~ 6~ CSC ~ 27goo ~~~ ~- 2.36(45 -- AmenGoldlbl Edd i Record: 1 r ,... .-.. ..; LAW OFFICES OF GATES, KNEZEVICH, GARDENS~VARTZ Bt KELLY, P.C. PHOFE SSIONAL GORPORATICN TH1R0 FLOOR, ASFEN PLAZA BUII DING tiJJ E. HOPNINS A'JE NUE ASPEN, COLORADO. 81611 LEI NAPDM PATES 91CHPR0 A NNEZEVIGH fEOD GARDENSWARTZ DAt D R FELLV ^.1A ,'~A MORROW COUNSEL MJHNT NELLV i I FPHEN H. GONNOR ANNE MARIE MCPHEE STAGV FEINBE RG WENDY FOSNEDT July 7. 2008 Jennifer Phelan, Deputy Director HAND DELIVERY City of Aspen Community Development Department 130 S. Galeua St. Aspen. CO 81611 =:-n~a okg'aw cam Re: 501 W. Hopkins LLC Application for Planned Community Plat and Condominium ~bfap Dear Jen: Enclosed please Find copies of the revised condominium map for 521 and 523 W. Hopkins and plan!~ed community plat for Lot 2, Boomerang Lot Split for your review. I have also enclosed as an example the plat for the 234 West Hallam/302 North Second Common Interest Community which was approved by the Community Development Department in 2000. There are numerous others which we have submitted and which have been approved which are similar. This plat has a similar configuration to the Lot 2, Boomerang Subdivision Lot Split Planned Community Plat in that there are no "Limited Common Elements' designated as part of the individual traits. C.R.S. 38-33.3-103 defines both °condominimn' and "planned community" ownership interests in land. By virtue of the C.R.S. 38-333-103(5). "common elements" for a condominium are defined as "all portions of dle cundominium or cooperative other than the unit' whereas, for a planned community, "common elements" are defined as "any real estate within a planned community owned or teased by the association, other than the unit." hi a planned community, if there is no real estate owned or leased by the association then there are no common elements. With respect to the configuration the Lot ?, Boomerang Subdivision Planned Community, the only common elements are the parking spaces for the affordable housing units located on [,'nit C, which have been properly dzsignated as such on the plat ~ ~~~~~~~p 1!n ~ ~~1 TELEPHONE 19]01 YLU L 00 FACSIMILE ,9101 920-1 1 2 1 CITY O ASf~Eti OM"~~UNITv rr~ri ^PpfF~; ,.'+, Additionally, under C.R.S. 33-33.3, the designation of Units A, B and C as pmt of a planned community and the two units in Unit C as a condominium are appropriate when applying the definitions of "plat" and "map" as defined in the statute. ~~ "map" is "part of a declaration that depicts all ur any portion of a ronunun interest community in du~ee dimensions." Since Unit C is an over/under configuration consisting of Unit I (~? I W. Hopkins) on the ground floor and Unit 2 (523 W. Hopkins) on the second tloor, a condominium map is the most appropriate vehicle to divide ownership of the property. On the other hand, a "plat' is a land survey plat that "depicts all or any portion of a common interest conunwiity in nro dimensions." This is the case with the proposed planned community plat for Lot 2, Boomerang Lut Split as the ownership interest of is divided in two dimensions and not three. The Colorado Revised Statues clearly permit a planned community under Colorado law and the City of Aspen has approved similar configurations as part of the condominiumization approval process. Please let me know if the revised plat and map are satisfactory and feel free to contact me with guy questions. Very Truly Yours, O.~TES, IkNEZEVICH, GARDENSW,~RTZ & KELLY, P.C. By Sarah M. SMO RECEIVED ., t~ ~ ~ zoos CITY OF F~S~EN COMMUN~iY DEVELOPMEN-i ,.. ~ ~~ ~ ~'~"' ,=t .~ aft ~~i ~_ FF s k 7 ~ ~ ~ Tc e~ J y ~ f ~ ` . r e r - 4e s ~' s ~ ~~. >K ' w, .. ~ r}~ . ` t V:'1 ii `_~ 'p 2 .:.^ .. _.... ~~ ~ ~~~p~ ~ ,.u ~'~ '~ n i n °.d '. ('(''p'' r ~ ~ ~~ ~ ~ ,, ~ ~ ~ ~ N ,.~ u -. ~~ft r _._. x 1~~ ~ + I i -, n A f, ~ y C ~~ : _ z ~ ~ ~ ~ x p ~,s1 k ~ "' w- ~ .• ' ~ t r I , w ~. ~y ` iOn~i ~ c i N D = z I~ !A ~ ~i w e e' Inn ~ ~ ~ ~ ~ ' "6c "~ x ~ r C tit :~ ...: s ~ i~ _ 111 r g ° ~~ fir' ti _ ~'_ ~ °'~r : =.+ _ ? 3 ~ i . i < '~ ~ 1.. rSS Cs. C : ~ O o ~ '] Z ~ ~ CN G ge ~ `''~ a ~~~ iz o ~. ''^~~ ~: f« O i ~ ;yam ~ '. ~ ~ i,~ '~ '74 °t ~t~- E ~~ / ', - ~n~ '3 ^, ~r ~ ..~~crs a ~F~irso ~I ?~ p li N C ` D n O m3 ~o ~,,i ~z ;..,rt r;I'a1,1 p m CC44~~SS ~ ~ 1 9~8e~ § s ° ~ ~ ~ ~ ~ ('~ x vS ev'~ i 3~ z ~ D C~ p t aa' 3 ~ ~j"~ 1 ~ ~ ~# 4~ ~ t ~ s 6 ~1`~ 1 C rrV~` .,, m f~ 4 gX, ¢[" i v ;~~£ S Est q i~ p ) _ r J } L ~ 1 ;M,~ 2 $ ~4 t v y t~' ~ 2 5~.A ~< t I;F1 ~;A3 I.r j~v ~j. yyyy k ' f ~Ct6t~Hk% * t N~ J... a 9 6 ! oz S F'Y, rY µ L ~ .+M1~ .. '. ~ ~ I' II ~i ~ ~LU~B CITY OF ASPEN COMMUNITY DEVELOPMENT ~f, APPLICANT: ATTACHMENT 2 -LAND USE APPLICATION Name: 501 W. Hopkins, LLC LOCatlnn: Lot 2, Boomerang Lot Split [501 W. Hopkins Ave.] (Indicate street address, lot & block number, legal descripti ParcellD#(REOUIRED) 2735-124-66002 I"1^~ REPRESENTATIVE: Name: Leonard Oates, Oates, Knezevich, Gardenswartz & Kelly, P.C. Address: 533 E. Hopkins Ave., Aspen, CO 81611 Phone #' (970) 920-1700/ email• lmo@okalaw com _ Name: Lot 2, Boomerang Lot Split Planned Community & 521-523 W. Hopkins AH Condominiums AddiesS: 501 W. Hopkins Avenue Phone#: c/o OKGK; (970) 920- TYPE OF AePL[CATION: (please check all that apply): ^ Conditional Use ^ Conceptual PUD ^ Conceptual Historic Devt. ^ Special Review ^ Final PUD (& PUD Amendment) ^ Final Historic Development ^ Design Review Appeal ^ Conceptual SPA ^ Minor Historic Devt. ^ GMQS Allotment ^ Final SPA (& SPA Amendment) ^ Historic Demolition ^ GMQS Exemption ^ Subdivision ^ Historic Designation ^ ESA - 8040 Greenline, Stream ^Q Subdivision Exemption (includes ^ Small Lodge Conversion/ Margin, Hallam Lake Bluff, condominiumization) Expansion Mountain View Plane ^ Lot Split ^ Temporary Use ^ Other: ^ Lot Line Ad'ustment ^ TexUMa Amendment ExISTING CONDITIONS' (description of existing buildings uses previous ap provals etc.) Two new free market residences and two new AH residences PROPOSAL' (description of proposed buildings uses modifications etc.) Subdivision approval for a planned community for the project and condominiumization of the AH units Have you attached the following? FEES DUE: $ 947 ^ Pre-Application Conference Summary ^ Attachment #l, Signed Fee Agreement ^ Responsc to Attachment #3, Dimensional Requirements Form ^ Response to Attachment #4, Submittal Requirements- Including Written Responses to Review Standards All plans that are larger than 8.5" x 11" must be folded and a floppy disk with an electronic copy of all written text (1licrosoft Word Format) must be submitted as par[ of the application. CITY OF ASPEN COMMUNITY DEVELOPMENT DEPARTMENT RE C E fVE A¢reement for Payment of Cirv of Aspen Development Application Fees ,JUN 19 2008 CITY OF ASPEN (hereinafter CITY) and 5 of w. xopkins, LLC (ITV n~ ASHEN (hereinafter APPLICANT) AGREE AS FOLLOWS: UNjn ~EU~~QPM~NT 1. APPLICANT has submitted to CITY an application for Lot 2 Boomerang Lot Split Planned Community & 521-523 W. Hopkins AH Condominiums (hereinafter, THE PROJECT). 2. APPLICANT understands and agrees that City of Aspen Ordinance No. 48 (Series of 2006) establishes a fee structure for Land Use applications and the payment of all processing fees is a condition precedent to a determination of application completeness. 3. APPLICANT and CITY agree that because of the size, nature or scope of the proposed project, it is not possible at this time to ascertain the full extent of the costs involved in processing the application. APPLICANT and CITY further agree [hat it is in the interest of the parties that APPLICANT make payment of an initial deposit and to thereafrer permit additional costs to be billed to APPLICANT on a monthly basis. APPLICANT agrees additional costs may accrue following their hearings and/or approvals. APPLICANT agrees he will be benefited by retaining greater cash liquidity and will make additional payments upon notification by the CITY when they are necessary as costs are incurred. CITY agrees it will be benefited through the greater certainty of recovering i[s full costs to process APPLICANT'S application. 4. CITY and APPLICANT further agree that it is impracticable for CITY staff to complete processing or present sufficient information to the Planning Commission and/or City Council to enable the Planning Commission and/or Cicy Council to make legally required findings for project consideration, unless current billings are paid in full prior to decision. 5. Therefore, APPLICANT agrees that in consideration of the CITY's waiver of its right to collect full fees prior to a determination of application completeness, APPLICANT shall pay an initial deposit in the amount of $ which is for _ hours of Community Development staff time, and if actual recorded costs exceed the initial deposit, APPLICANT shall pay additional monthly billings to CITY to reimburse the CITY for the processing of the application mentioned above, including post approval review at a rate of $235.00 per planner hour over the initial deposit. Such periodic payments shall be made wi[hin 30 days of the billing date. APPLICANT further agrees that failure to pay such accrued costs shall be grounds for suspension of processing, and in no case will building permits be issued until all costs associated with case processing have been paid. CITY OF ASPEN By: Chris Bendon Commtmity Development Duector APPLICANT ` By' --f Date: Billing Address and Telephone Number. RR^°uired C:\Documents and Settings\johannahr\Desktop\LUFeeAgree.doc Lk`tJ iJEF ICES up O~l~rs. I{~trzF~;~lrll, GARDI~,NStt-ARTZ., & KrLI.~'. P.C. P(~iOFES5IU\f AI i~.ieFUA?TI'.)tl r~-~,FO ~iorti. asEC:•v c't.,z r. curt c~;ec~ 5?7 E. kC:P4m~ i 4vc'"JGE :Si'i3G,(:6tnFAtX; Biriti FOfaH 1(.5TF5 nG!i%. t:pKrEZEJIG.1 ' nti Df fJJVJ:.RTZ ~biL~E b'c LLY ... ,,.,=. `.1:JRn0`N :.H•y ~iiiL1.Y STEF~IEN F. vONtlC R -':E 1 c t i~ ANEE Fu'I IfJE ~P June 17, 2008 Jen Phelan, Deputy Director City of Aspen Community Development 130 S. Galena Street Aspen, CO 81611 ~ t E ,_ - t , RECEIVE® ~ JUN 19 Zp08 CITY OF ASPEN ~4MUNITY DEVELOPMENT Re: Lot 2, Boomerang Lot Split Planned Community Plat and 521-523 W. Hopkins Condominium Map Dear Jen: Enclosed please find a draft plat for the Lot 2, Boomerang Lor Split Planned Community and the accompanying draft condominium map for 521-523 W. Hopkins Condominiums, the affordable housing component of the Planned Community. The application also includes the land use cover sheet, required fee, fee agreement, representation letter and proof of ownership. The Cite of Aspen Planning Staff reviewed a copy of the plat in late May and staff's comments are reflected in the draft plat enclosed. Should you have any questions with respect to this application please feel free to contact me at smo@okglaw.com or (970) 920-1700. Thanks for your help. Very Truly Yours, GATES, KNEZEVICH, GARDENSWARTZ & KELLY, P.C. By ~~ Sarah M. Oates, Summer Associate SMO June 2, 2008 City of Aspen Community Development Department 130 S. Galena St. Aspen, CO 81611 RE: Lot 2, Boomerang Lot Split Planned Community and 523 W. Hopkins Affordable Housing Condominiums Association To Whom It May Concern: I hereby authorize Leonard Oates of Oates, Knezevich, Gardenswartz, and Kelly, P.C. to act as my designated and authorized representative with respect to the land use application being submitted to your office for property located at 501 E. Hopkins Avenue owned by 501 W. Hopkins, LLC. Leonard Oates is authorized to submit an application for approval of a common interest planned community for Lot 2, Boomerang Lot Split Planned Community and condominiumization of 521-532 W. Hopkins Affordable housing. He is also authorized to represent 501 W. Hopkins, LLC in meetings with City of Aspen staff, the Planning and Zoning Commission and City Council. Should you have any need to contact me during the course of your review, please do so through Leonard Oates whose address and telephone number is included in the application. ~~ ~~ John Provine 501 W. Hopkins, LLC Member RECEfVED JUN 19 2006 CITY ®l= ASPEN COMMUNITY DEVELOPMENT ,,., Americ.`~, Cand Title Association Owner's Policy (10-17-92) ~ Coloraw Issued By Attorneys'l~itle Insm•ance Agency of Aspen, LLC (Member's Name) 71 ~ W'est Main Street, Suite 305 (Address) Aspen, Colorado 81611 (970) )2~-7328 (Telephone) ~un~, Inc. The Colorado Lawyers' Organization /or Title Insurance EIVED OWNER'S 19 2pU8 POLICY OF TITLE INSURANCE C?F r~SPEN TY !1kVELQPMENT SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE EXCEPTIONS FROM COVERAGE CONTAINED IN SCHEDULE B AND THE CONDITIONS AND STIPULATIONS, Attorneys Tile Guaranty Fund, Inc., a Colorado corpo- ration, herein called the Company, insures, as Date of Policy shown in Schedule A, against loss or damage, not exceed- ing the Amount of Insurance stated in Schedule A, sustained or incurred by the insured by reason of: 1. Title to the estate or interest described in Schedule A being vested other than as stated therein; 2. Any defect in or lien or encumbrance on the title; 3. Unmarketability of the title; 4. Lack of a right of access to and from the land. The Company will also pay the costs, attorneys' fees and expense incurred in defense of the title, as insured, but only to the extent provided in the Conditions and Stipulations. IN WITNESS WHEREOF the Company has caused this Policy to be signed and sealed, to ba valid when Schedule A is countersigned by an authorized officer or agent of the Company all in accordance with its 8y-l aws. ATTEST: ~•^"`n,y ATTOR/N^EvYS//~JTjITLE GUARANTY FUND, INC. rA /~-c-rte'`- 5 ~ 5 F.11L :' ~, ~~ a„ Judith A. Har[, Assistant Secretary ~""~~~:;..~~ Christopher J. Condie, President This poll ust ~ dule A nd B and be duly validated by this signature: Authorized Olficer or ent Attorneys Title Guaranty •,®,OP 581332 °~ ~tECE~VEI JUN 19 2006 ~;iY`/ ;t= fa~l~~ C1MP~UNITe` pa~(FI;7PaRFld~ OWNER'S POLICY SCHEDULER Order No: PC070025d2 Amount of hisurance: 59,250,000,00 Date of Policy: October 31, 2007, 3:22pm I. Name of Insured: 501 W. Hopkins, LLC,~a Colorado limited liability company 2. The estate or interest in the land which is covered by [his policy is: Fee Simple 3. Title to the estate or interest in the land is vested in: 501 W. Hopkins, LLC, a Colorado limited liability company a. 'fhe land referred to in this policy is described as follows: Pulicy Nu.: 01'581332 Issued with Pulicy No.: MPI 1U9231 Premium: 57,178.75 Lots 1 and 2 Boomerang Lot Split Subdivision Ezemption Plat accordng to the Plat thereof recu rded Jmte 16, 2006 in Plat Book 79 at Page 70 as Reception No. 525370, Pi[kin County, Colorado. Attorneys Title Insurance Agency of Aspen, LLC By A orized Officer or Agen~ ember Number 2622 Attorneys Title Guaranty Fund, Inc. This policy is invalid unless [he cover sheet, Paoc I Schedule A and Schedule B are attached. OWNER's POLICY SCHEDULE B Dale of Policy: October 3t, 2007 Policy No. OP581332 RECEI!/ED JUN 19 2008 ~17Y C7'~ A5PEN t:QMMUNITY DEVELOPMENT Order No: I'C07UU2542 't'his policy does not insure against loss or damage (and the Company will no[ pay costs, attorneys' fees or expenses) which arise by reason of: I. Rights or claims of parties in possession not shown by [he public records. 2. Easements or claims of easements, not shown by [he public records. 3. Discrepancies, conflicts in boundary lines, shortage in area, encroachments and any facts which a correct survey and inspection of the premises would disclose and which are not shown by the public records. 4. Any lien, or right to a lien, for services, labor or material heretofore or hereafter furnished, iwposcd by law and not shown by the public records. 5. Taxes for the year 2UU7 and subsequent years. Taxes no[ ye[ due or payable. 6. Deed of Trust dated October 30, 2007 from 501 W Hopkins, LLC, a Colorado Limited Liability Company to the Public Trustee of Pitkin County for the use of Alpine Bank, A Colorado Banking Company to secure tl:e sum of $7,400,000.OU recorded October 31, 2UU7 as Reception Nu. 5437U5. 7. Terms, conditions, obligations and provisions as contained in Deeds recorded June 28, ISBG in Book 41 at Page 18, July 26, 1888 in Book 59 at Page 476, July 26, 1888 in Book 59 a[ Page 586, and April 4, 1892 in Book 79 al Page 43. 8. 'terms, conditions, obligations and provisions as contained in Deed Restriction recorded Seplewber 7, 1999 as Reception No. 435272. 9. Terms, conditions, obligations and provisions as contained in Easement recorded April I8, 2UU3 as Reception No. 481651. lU. Any rights, easements, interests or claims which may exist by reason of or reflected by the following facts shown on the survey dated July IU, 1998, by Aspen Survey Engineers recorded in Plat Book 51 at Page 28. 11. Any rights, casements, interests or claims which may exist by reason of or reflected by the following facts shown on the survey dated December 18, 2000, by Aspen Survey Engineers recorded in flat Book 65 at Page 45. 12. Easements, rights of way and other matters as set forth on [he Plat of Boomerang I'.U.D., 131ock 32, City of Aspen, Colorado recorded Plat Book 65 at Page 37. 13. Terms, conditions, obligations and provisions as contained in 1'UD Agreement for the Boomerang Lodge F.ztension Project recorded May 14, 2003 as Reception No. 482688. Attorneys Title Guaranty Fund, Inc. ~'~~~'~ ~ Policy No.: OP581332 14. 'Penns, conditions, obligations and provisions as contained in Ordinance No. G, Series of 2UU6 recorded Jmre 16, 2005 as Reception No. 525368. I5. Terms, conditions, obligations and provisions as contained in Subdivision Exewp[iun Agreement for Boomerang Lot Split recorded .lone 16, 2006 as Reception No. 525369. 16. Easements, rights of way and other matters asset forth on the Plat o(Buomerang Lut Split Subdivision Exemption Plat recorded Plat Book 79 at Page 70. RECEII/E® JUN 19 2008 CITY f~~ ASF'EIV ~IlihiUNITY )EU~IC?pMENT Attorneys Title Guaranty Fund, Inc. I'a8 ENDORSEMENT Attached to Policy No. OP581332 Issued by ATTORNEYS TITLE GUARANTY FUND, INC. COLORADO FORM 130 Provided there is situated on the land described under Schedule A of the Policy a single family residence, the Policy is hereby amended as follows: Notwithstanding anything therein to the contrary, the Policy insures against loss or damage by reason of the following: 1. Any unfilled lien for labor or material furnished for improvements on the land (except for any such lien arising out of construction contract for or assumed by the Insured), provided construction of all improvements are completed at Date of Policy. 2. Rights or claims of parties in possession of the principal dwelling. 3. The enforced removal of the principal dwelling on account of: (a) any encroachment of said principal dwelling onto adjoining lands or onto any easement shown as an exception in Schedule B or onto any unrecorded subsurface easement, (b) any violation of building setback lines or covenants, conditions or restrictions referred to in Schedule B of the Policy, (c) any violation of any zoning ordinance if the land is used only for a single family residence. The term "principal dwelling" means any single family residential structure on the land whether detached or not. If the principal dwelling is a condominium unit it refers to the space within the boundaries of the unit. Additional improvements and areas such as outbuildings, detached garages, fences, driveways, retaining walls, plants and common areas are not included within this definition. The term "zoning ordinance" does not include building codes, occupancy regulations and subdivision laws. This endorsement is made a part of said policy and is subject to all the terms and provisions thereof and of any prior Endorsements thereto. Except to the extent expressly stated, it neither modifies any of the terms and provisions of this Policy and any prior Endorsements, nor does it extend the effective Date of Policy and any prior Endorsements, nor does it increase the face amount thereof. ATTORNEYS TITLE GUARANTY FUND, INC. Dated: October 31, 2007 By JUN 19 1008 CITY ®;~ ASPEN C(M4MUNIT~` ~EVFL~PMENT ATTORNEYS TITLE INSURANCE AGENCY OF ASPEN, LLC 715 WEST MAIN STREET, SUITE 305 ASPEN, COLORADO 81 61 1 November 29, 2007 501 W. Hopkins, LLC a Colorado limited liability company c/o John Provine PO Box 8769 Aspen, CO 81612 RE: 501 West Hopkins Avenue Aspen, CO Dear Sir: We are pleased to deliver the Owner's Title hrsurance Policy issued on 501 West Hopkins Avenue. This policy is a valuable document and should be kept in a secure place. It protects the insured from a variety of title risks. The policy can even protect the insured after they no longer have an interest in the property. We have reviewed the policy for completeness and accuracy. However, you should also review the policy and ensure [hat all the information is correct. Contact us in the event that any error or omission is found so that we can correct the policy. Thank you very much for giving Attorneys Title Insurance Agency of Aspen, LLC, the opportunity to be of service. I look forward to working with you in the future. Sincerely, Attorneys Title Insurance Agency of Aspen, LLC P. TELEPHONE (970) 925-7328 ~ ~ ~ FACSIMILE (970) 925.7348 ti..- w PLANNED COMMUNITY DECLARATION FOR LOT 2, BOOMERANG LOT SPLIT NAME OF THE PLANNED COMMUNITY LOT 2, BOOMERANG LOT SPLIT PLANNED COMMUNITY NAME OF THE ASSOCIATION LOT 2, BOOMERANG LOT SPLIT OWNERS ASSOCIATION OWNERSHIP ENTITY EXECUTING THE DECLARATION 501 W. HOPKINS, LLC DESCRIPTION OF PROJECT Lot 2, according to the Boomerang Lot Split Exemption Plat recorded June 16, 2006, in Plat Book 79 at Page 70 as Reception No. 525370 of the records of Pitkin County, Colorado ..~, r~ PLANNED COMMUNITY DECLARATION FOR LOT 2, BOOMERANG LOT SPLIT THIS DECLARATION is made as of 2008, by 501 W. HOPKINS, LLC, a Colorado limited liability company, (the "Declarant"). 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 "Planned Community"): Lot 2, Boomerang Lot Split Exemption Plat, according to the Plat thereof filed for record in Plat Book 79 at Page 70, as Reception No. 525370 of the records of Pitkin County, Colorado, together with all of the common elements thereof ("Lot 2") B. Declarant wishes to re-subdivide Lot 2 to create and confirm a Planned Community consisting of three (3) units ("Units") in which portions of the Real Property are designated for separate ownership, two of which (Units A and B) may each be improved with a single family residence thereon (the "Single Family Units") the third (3`d) (Unit C) to be further subdivided into two (2) deed restricted affordable housing units ("Units 1 and 2") under the name and style of 521- 523 W. Hopkins Affordable Housing Condominiums; and, the remainder of which Lot 2 is designated for common ownership solely by the Owners of the separate ownership portions. The Units shall be shown on atwo-dimensional Plat to be recorded in the real property records of Pitkin County, Colorado ("Plat") THEREFORE, Declarant states as follows: ARTICLE 1 DEFINED TERMS 1.1 Submission of Real Property. Declazant hereby declazes that all of Lot 2 and improvements aze hereby made subject to the following easements, restrictions, covenants and conditions which shall run with Lot 2 and be binding on all parties having any right, title or interest in Lot 2 or any part thereof, their heirs, legal representatives, successors, grantees and assigns, and shall inure to the benefit of each Owner thereof Declazant 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. Such exemption notwithstanding, mandatory provisions of the Act requied by 38-33.3-116.3, Colorado Revised Statutes and the application of the Act to specific provisions hereof shall apply. 1.2 Defined Terms. Each capitalized term not otherwise defined in this Declazation 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 Planned Community. ~~ ,_ .. ARTICLE 2 NAMES; DESCRIPTION OF REAL PROPERTY 2.1 Names. a. Planned Community. The name of the Planned Community shall be Lot 2, Boomerang Lot Split Planned Community (the "Community"). b. Association. The name of the Association is Lot 2, 501 W. Hopkins Planned Community Association, anon-profit Colorado corporation. ARTICLE 3 THE ASSOCIATION 3.1 Authori .The affairs of the Community shall be managed by the Association which shall govern the Common Elements of the Common Interest Community. 3.2 Member Groups. The Association shall have three (3) member groups, the Unit A Member Group which is attached to Unit A, the Unit B Member Group which is attached to Unit B and the Unit C Member group which is attached to the Affordable Housing Condominium Parcel. 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 shall automatically cease when such individual(s) or entity(ies) no longer have an ownership interest therein. All the members of a Member Group shall constitute an Owner. 3.3 Powers. The Association shall have all of the powers, authority, duties, rights and benefits permitted to a corporation pursuant to the Act. Except as otherwise provided in this Declazation, when approval of the members ofthe Association is required, the Association may only act upon the unanimous consent of its Unit A Member Group and its Unit B Member Group, and neither member group acting alone shall have the power to act for or bind the Association. The Unit C shall have no vote in the affairs of the Association, but no action of the Unit A and Unit B Members Group shall deprive the Unit C and the Unit C Member Group of the right to use the Common Elements. 3.4 Limitation on Powers. The Association shall not have the right to adversely affect the right of the Unit C Owners to access and use the parking spaces designated on the Plat for the use of the Unit C Owners. 3.5 Executive Boazd. Except as otherwise provided in this Declaration, the Association shall act through its Executive Board. The Executive Board will consist of two (2) Executive Boazd Members. The Unit A Member Group and the Unit B Member Group shall each appoint one (1) Executive Board Member. Except as otherwise provided in this Declaration, the Executive Boazd may only act by unanimous decision, subject to the terms set forth in Section 3.7 below. The Unit C shall have no representation on the Executive Board. 3.6 Notice to Owners. Any notice to an Owner of matters affecting the 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 regulaz first-class postage prepaid mail delivery. All notices so given shall be considered received on the third business day after deposit in the mail regulaz 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 by an owner to the other owner shall be deemed received on the date of such delivery. 3.7 Waiver of Lien Priority Rights. 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. 3.8 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 Boazd 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 over which the Board shall have jurisdiction. b. Breakine 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 azbitrator(s) maybe entered in any court having jurisdiction thereof. ARTICLE 4 UNITS 4.1 Number of Units. The number of Units in the Community is three (3), Unit A, Unit B and Unit C. 4.2 Definition of Units. The identifying name of each Unit is shown on the Plat. Each of Units A and B shall include an undivided 50% fee simple interest in and to the Common Elements as described in this Declaration and on the Plat, and Unit C an undivided 0% therein. However, the Unit C owners shall have anon-exclusive permanent easement over the Common Element access driveway and an exclusive easement for use of the pazking spaces shown on the Plat for vehiculaz pazking. Any reference to a Unit in this Declaration or the Plat shall automatically include that Unit's undivided interest in the Common Elements, and all interest in the Common Elements shall be deemed inseparable from the respective Units. 4.3 Unit Boundaries. The boundaries of each Unit aEe a as o n the Plat. The Community has only vertical boundaries and does not a horizontal boundazi s. The Units include land and structural building improvements no or hereafter existing. a foregoing notwithstanding, the Unit C has been or will be subjected eclazation creating horizontal and vertical boundaries for the two (2) condominium units thereon 4 1 ;~ ARTICLE 5 COVENANT FOR COMMON EXPENSE ASSESSMENTS 5.1 Common Expenses. The only Common Expenses of the Association aze for (a) maintenance, repair, replacement and utility service to and for General Common Elements as shown on the Plat and defined in Section 6.2 of Article 6 consisting of the driveway, the snowmelt systems servicing the driveway and the parking for Unit C, and (b) Insurance on the General Common Elements, as defined in Section 6.3 of Article 6 below. 5.2 Creation of Association Lien and Personal Oblisation to Pay Common Expense 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 (including a condominium unit in 521-523 W. Hopkins Affordable Housing Condominiums) unless and until all sums due the Association and not asswned by the transferee are cun•ently 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 Apportionment of Common Expenses. Common Expenses, if any, shall be assessed against the Units A and B equally. Unit C shall have no responsibility therefor. 5.4 Annual Assessment/Commencement of Common Expense Assessments. The Common Expense Assessments, if any, 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 Special Assessments. A special assessment is any assessment that is not levied pursuant to an approved budget. The Executive Boazd 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 ofNon-Pavment ofAssessments. Any assessmentprovidedfor inthis Declazation, or any installment thereof, which is not fully paid within fifreen days after the due date thereof shall bear interest at the rate oftwelve percent (12%) 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 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 Responsibility. The Association shall be responsible for the operation, maintenance, repair and replacement of all those portions of the Community whose maintenance and repair has not been assigned to the Owners by the remaining provisions of this Section 6.1, specifically, the vehicular access, including, without limitation; grading and paving the snowmelt for the access drives and pazking azea is divided into two (2) systems, the boilers for which are located in each of Unit A and Unit B. Each of Units A and B shall be obligated to maintain its snowmelt boiler on its Unit in good working order, to operate the same at all times necessary so as to keep the access drives and Unit C pazking free of snow and ice, and to pay the utility charges therefor. b. Owner's Responsibility. 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 constituting such Owner's 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 other Units, except in common with the other benefitting Owners. Each Owner shall, at such Owner's sole cost and expense: i. keep and maintain in good order and repair and replace the equipment and those Utilities located in or on such Owner's Unit, which serve that Unit exclusively; ii. keep in good order and repair and replace any exterior finishing or other materials removed with high quality materials and workmanship; 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 the roof and structural components serving such Unit; iv. maintain in a neat and clean condition, free and cleaz of snow, ice and water accumulation all the decks, yard, porches, balconies or patio areas, which have elsewhere in this Declazation been reserved to and for the exclusive use of such Owner, including the Limited Common Elements that have been so reserved. 6.2 Common Elements. Responsibility for the maintenance, repair and replacement of Common 6 ~ ,_ ;, Elements shall be a Common Expense. No Owner shall do or permit anything to be done to the area constituting the Common Elements, which will affect the integrity thereof. 6.3 Insurance. a. Association's Insurance. The Association shall 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. 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 at all times such property and liability insurance with respect to such Owner's Unit as the Association may establish from time to time. Such policy shall provide that the Association be named as an additional insured 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. Obligation to Renair or Replace. In the event of a casualty with respect to the Common Elements, the Association shall repair orreplace the improvements as necessary to restore them to their condition before the casualty event. As provided by the Act, 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 awazds 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 Boazd shall reallocate such assessment between the Unit Member Groups to the extent that the restoration benefits do not benefit the 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. 6.4 Restoration Upon Condemnation. a. Total Taking. In the event of a taking of all of the Real Property by eminent domain, 7 f.. each Owner shall be entitled to receive the awazd of such taking for that Owner's Unit, after all mortgages and liens on the Unit have been satisfied or otherwise dischazged. After acceptance of the awazd of the taking by the Owners and their mortgagees and lienholders, the Owners, their mortgagees and lienholders shall be divested of all interest in the Units and the Owners shall vacate the Units as a result of such taking. b. Partial Taking. In the event of a partial taking of the Real Property by eminent domain, the Owner of any affected Unit or its mortgagees or lienholders, as applicable, shall be entitled to receive the awazd of such taking and after acceptance of the awazd 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 Boazd shall reallocate such assessment between the Member Groups to the extent that the restoration benefits do not benefit both Units A and B substantially proportionately to their allocated interests. ARTICLE 7 RESTRICTIONS ON USE 7.1 Nuisances and Negligence; 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 Planned Community. Nothing shall be done in the Planned Community which may be or become an unreasonable annoyance or a nuisance to any other Owner or any occupant of any Unit. The Executive Boazd 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 provisions of this Article directly 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. 7.2 Structural Integrity. Nothing shall be done to any Unit or the Common Elements that will impair the structural integrity of any improvements on the other Units 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 Upon Occunancy. 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, except any home occupation which maybe 8 .~,., , ,. permitted by the City of Aspen Land Use Code. 7.4 No Unsightliness. No unsightliness or waste shall be permitted on or in any part of the Planned Community. All trash shall be collected in azeas designated by the Association. No wiring, television antennae or satellite dish (except 18" DSS dishes), or other items may be installed which protrude through windows, walls or roof areas, except as expressly authorized by the Association or this Declazation. 7.5 Owner Caused Damages. If, due to the act or neglect of an Owner or such Owner's tenants, guests or invitees, loss or damage shall be caused to any person or property, including the Planned 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 collected by the Association from such Owner as an assessment against such Owner by legal proceedings or otherwise, and such amount (including reasonable attorneys' fees) shall be secured by a lien on the Unit of such Owner, as provided hereinabove, for assessments or other charges. 7.6 Leases. No Owner may lease less than that Owner's entire Unit, and all leases shall be in writing. All leases shall provide that the terms of the lease are subject, in all respects, to the provisions of this Declaration. 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 collect 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 Recording 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 shall pass with the title to every Unit subject to the provisions contained herein. Every Owner shall have anon-exclusive 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 Boazd, 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 9 ,,... .. ~, injury to persons or property and for mechanics' and materialmen's liens. 8.3 Easements for Improvements, Maintenance and Utilities. Reciprocal Easements (among the Units and Common Elements) aze hereby declared to exist over and under the Real Property and all azeas thereofnot occupied by building improvements 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 and/or the individual Units. Each Owner has the right, at such Owner's sole expense and after giving written notice for at least fifteen (15) 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 intermpting 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. All disturbances shall be promptly repaired by the Owner relocating utility lines to their original condition at the expense of such owner. 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 the Units and the Common Elements) aze hereby declazed 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. ARTICLE 9 MISCELLANEOUS 9.1 When Consent or Authorization Not Necessary. Notwithstanding anything in this Declazation 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 10 ~ ~> 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 Owners' Unit, entirely lien free through payment or suitable substitution bond and, upon the failure of the Indemnifying Owner to so do, the Other Owners shall have the right to do that which they, in their 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 annum 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 Owners 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 Ri¢hts of Enforcement. Each of the covenants, obligations and undertakings in this Declaration contained on the part of the respective Unit Owners to be kept, dischazged or performed is intended to and shall be deemed to be for the specific benefit of the other Unit Owners. In the event of the failure or inability of the Association to enforce any provision of this Declazation against a delinquent or defaulting Owner, the remaining Owners, 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 Owners and on such remaining Owners' 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 Owners 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. 9.4 No Declarant Reserved Development Riehts. There are no development rights reserved to the Declazant. IN WITNESS WHEREOF, the Declarant has caused this Declazation to be executed this day of , 2008. 501 W. HOPKINS, LLC STATE OF COLORADO ) )ss. COUNTY OF PITKIN ) By Name Title 11 .°- The foregoing instrument 2008 by 501 W. HOPKINS, LLC. ~~. was acknowledged before me this day of WITNESS MY HAND AND OFFICIAL SEAL. My commission expires: [Seal] Notary Public CONSENT OF MORTGAGEE as of The undersigned holder of a mortgage, deeds of trust or other lien (collectively "Security Interest")recorded , as Reception No. and of the County Colorado real property records against and encumbering the Real Property herein above described hereby consents to the within and foregoing Planned Community Declaration and agrees that the lien of its deed of trust is and shall be subject to the terms conditions and provisions thereof as fully, for all intents and purposes, as though such Declarat ion had been placed of record prior to the recordation of its deed of trust. ALPINE BANK By: its Name Title STATE OF COLORADO COUNTY OF PITKIN The foregoing instrument was acknowledged before me this _ day of 2008, by as of Alpine Bank. WITNESS MY HAND AND OFFICIAL SEAL. My commission expires: [Seal] Notary Public 12 CONDOMINIUM DECLARATION FOR 521-523 W. HOPKINS AFFORDABLE HOUSING CONDOMINIUMS Name of the Condominium Community: 521-523 W. Hopkins Affordable Housing Condominiums Name of the Association: Entity executing this Declaration 521-523 W. Hopkins Affordable Housing Condominiums Association 501 W. Hopkins, LLC, a Colorado limited liability company ~^ ~. 521 - 523 W. HOPKINS AFFORDABLE HOUSING CONDOMINIUMS TABLE OF CONTENTS ARTICLE I ........................................................................................................................ 1 General Purposes, Submission, Defned Terms ............................................................. 1 Section 1.1 General Purposes ........................................................................................... l Section 1.2 Submission of Real Estate ............................................................................. l Section 1.3 Defined Terms ................................................................................................ 2 ARTICLE II ...................................................................................................................... 2 Names, Recording Data, Certain Descriptions, and Development Rights ................... 2 Section 2.1 Name of Common Interest Community ..................................................... 2 Section 2.2 Type of Common Interest Community ....................................................... 2 Section 2.3 Name of Association ..................................................................................... 2 Section 2.4 County in which Common Interest Community is Situated .................... 2 Section 2.5 Recording Data ............................................................................................. 2 Section 2.6 Special Declarant Rights .............................................................................. 2 ARTICLE III ..................................................................................................................... 2 Units/Common Elements .................................................................................................. 2 Section 3.1 Number of Units ........................................................................................... 2 Section 3.2 Identification of Units ................................................................................... 2 Section 3.3 Description of Units ...................................................................................... 2 Section 3.4 Unit Boundaries ............................................................................................ 3 Section 3.5 Common Elements and Limited Common Elements ................................ 3 Section 3.6 No Partition of Units from Condominium ................................................. 3 Section 3.7 Separate Assessment .................................................................................... 3 Section 3.8 No Mechanic's Liens .................................................................................... 4 Section 3.9 Subdivision of Units and Relocation of Boundaries Between Units ........ 4 Section 3.10 Parking Spaces ............................................................................................ 4 ARTICLE IV ..................................................................................................................... 4 The Association, Declarant Control, Indemnification, Notice ...................................... 4 Section 4.1 Purposes ......................................................................................................... 4 Section 4.2 Specific Powers ............................................................................................. 5 Section 4.3 Membership Qualifications ......................................................................... 5 Section 4.4 Executive Board ............................................................................................ 5 Section 4.5 Declarant Control ......................................................................................... 6 Section 4.6 Indemnification ............................................................................................. 6 Section 4.7 Notice to Owners ........................................................................................... 7 ARTICLE V ...................................................................................................................... 7 Easements and Licenses ................................................................................................... 7 Section 5.1 Unit Owners' Easements .............................................................................. 7 Section 5.2 Easement or Encroachments ....................................................................... 7 ARTICLE VI ..................................................................................................................... 7 Allocated Interests ............................................................................................................ 7 Section 6.1 Allocated Interests ......................................................................................... 7 Section 6.2 Determination of Allocated Interests ........................................................... 7 °~ ARTICLE VII ................................................................................................................... 8 Covenant for Common Expense Assessments ............................................................... . 8 Section 7.1 Obligation to Pay Common Expense Assessments ................................... . 8 Section 7.2 Apportionment of Common Expenses ....................................................... . 8 Section 7.3 Purpose of Assessments ............................................................................... . 9 Section 7.4 Adoption of Budget ..................................................................................... . 9 Section 7.5 Annual Assessment/Commencement of Common Expense ..................... . 9 Section 7.6 Effect of Non-Payment of Assessments ...................................................... . 9 Section 7.7 Special Assessments .................................................................................... 10 Section 7.8 The Association's Lien ............................................................................... 10 Section 7.9 Statement of Unpaid Assessments ............................................................. l l Section 7.10 Working Fund ........................................................................................... 11 ARTICLE VIII ................................................................................................................ 11 Use and Other Restrictions ............................................................................................ 11 Section 8.1 Use of Units ................................................................................................. 11 Section 8.2 Ownership of Units .................................................................................... l l Section 8.3 Maintenance of Units ................................................................................. 12 Section 8.4 Restrictions on Animals and Pets .............................................................. 12 Section 8.5 Zoning, Nuisances, Hazards ...................................................................... 12 Section 8.6 Compliance with Insurance Requirements .............................................. 12 Section 8.7 Restriction on Signs and Advertising Devices .......................................... 12 Section 8.8 Restrictions on Floor Loads ....................................................................... 12 Section 8.9 Leasing of Units .......................................................................................... 12 Section 8.10 No Rights of First Refusal ........................................................................ 13 Section 8.11 No Restrictions on Mortgaging of a Unit ............................................... 13 Section 8.12 No Time Shares ......................................................................................... 13 Section 8.13 Rules and Regulations .............................................................................. 13 ARTICLE IX ................................................................................................................... 13 Design Review .................................................................................................................. 13 Section 9.1 Required Approvals ................................................................................... 13 Section 9.2 Periods of Restricted Construction ........................................................... 13 Section 9.3 Variances .....................................................................................................14 Section 9.4 Waivers ........................................................................................................14 Section 9.5 Liability ....................................................................................................... 14 Section 9.6 Records ........................................................................................................14 Section 9.7 Enforcement ................................................................................................ 14 ARTICLE X .................................................................................................................... 14 Insurance ......................................................................................................................... 14 Section 10.1 Insurance Carried .................................................................................... 14 Section 10.2 Property Insurance on the Units and Common Elements .................... 15 Section 10.3 Liability Insurance ................................................................................... 16 Section 10.4 Fidelity Insurance ..................................................................................... 16 Section 10.5 Worker's Compensation and Employer's Liability Insurance............ 16 Section 10.6 Officers' and Directors' Personal Liability Insurance .......................... 16 Section 10.7 Other Insurance ........................................................................................ 16 Section 10.8 Insurance Premiums ................................................................................ 16 ii r^ ~.. Section 10.9 Managing Agent Insurance ..................................................................... 16 Section 10.10 Waiver of Claims Against Association ................................................. 16 Section 10.11 Annual Insurance Review ......................................................................17 Section 10.12 Adjustments by the Association ............................................................17 Section 10.13 Duty to Repair .........................................................................................17 ARTICLE Xl ...................................................................................................................17 Special Rights of Holders of First Lien Security Interests ..........................................17 Section 11.1 General Provisions .....................................................................................17 ARTICLE XII .................................................................................................................17 Enforcement ....................................................................................................................17 Section 12.1 Enforcement ..............................................................................................18 ARTICLE XIII ................................................................................................................18 Amendments ....................................................................................................................18 Section 13.1 Amendment to Declaration or Map ........................................................18 ARTICLE XIV ................................................................................................................18 Restoration and Termination ......................................................................................... 18 Section 14.1 Restoration ................................................................................................18 Section 14.2 Termination ................................................................................................18 ARTICLE XV .................................................................................................................18 Condemnation .................................................................................................................18 Section 15.1 Appointment of Association as Attorney-In-Fact .................................. 19 Section 15.2 Entire Taking ............................................................................................ 19 Section 15.3 Partial Taking ...........................................................................................19 ARTICLE XVI ................................................................................................................19 Miscellaneous ...................................................................................................................19 Section 16.1 Severability ................................................................................................19 Section 16.2 Term of Declaration ................................................................................. 20 Section 16.3 Singular Includes the Plural .................................................................... 20 Section 16.4 Captions ..................................................................................................... 20 Section 16.5 Colorado Law ........................................................................................... 20 Section 16.6 Disclaimer ..................................................................................................20 Section 16.7 Limited Liability ....................................................................................... 20 Section 16.8 Conflicts with Act, Articles, Bylaws or Rules of Association ............... 20 Section 16.9 Covenants Running with the Land ......................................................... 20 Section 16.10 Matters of Record ................................................................................... 20 iii r CONDOMINIUM DECLARATION FOR THE 521- 523 W. HOPKINS AFFORDABLE HOUSING CONDOMINIUMS This CONDOMINIUM DECLARATION ("Declaration") is made this day of , 2008 by 501 W. HOPKINS, LLC, a Colorado limited liability companies ("Dec azant' ,whose address is 617 W. Mam St., Aspen, CO 81611. ARTICLE I General Purposes, Submission, Defined Terms Section 1.1 General Purposes. Declazant is the owner of certain improved, real estate known as the "521-523 W. Hopkins Affordable Housing Condominiums" located in the City of Aspen, County of Pitkin, Colorado on the property more particularly described as Unit 3, Lot 2, Boomerang Lot Split Planned Community Plat according to the Plat thereof filed for record June 16, 2006 in Plat Book 79 at Page 70 of the records of Pitkin County, Colorado, as re-subdivided by the Planned Community Plat for Lots 2, Boomerang Lot Split filed for record 2008 in Plat Book at Page _ of those records. Declazant desires to create a condominium under the name "521-523 W. Hopkins Affordable Housing Condominiums," pursuant to which a portion of the Real Estate will be designated for sepazate deed restricted ownership and use of a residential nature with the right for home occupations (as limited thereby m the City of Aspen Land Use Code) ("Project"). Section 1.2 Submission of Real Estate. Declarant hereby submits and subjects Unit 3 of Lot 2, Boomerang Lot Split Planned Community (the "Real Estate") together with all easements, rights-of--way and appurtenances thereto and the building and improvements erected thereon (collectively, the "Real Estate") to this Declazation. The provisions of the Colorado Common Interest Ownership Act, Section §38.33.3-101 et sec .., of the Colorado Revised Statutes (the "Act") shall not apply at the express direction of the Declarant, except those provisions required by the Act to apply to exempt common interest communities and except where this Declazation provides that the Act shall apply. Declazant hereby declazes that all of the Real Estate shall be held, leased, mortgaged, sold and conveyed subject to the following terms, easements, reservations, restrictions, covenants, and conditions. Declazant further declares that this Declaration is made for the purpose of protecting the value and desirability of the Real Estate; that this Declazation shall run with the Real Estate and shall be binding on all parties having any right, title or interest in the Real Estate or any part thereof, their heirs, devisees, legal representatives, successors and assigns and shall inure to the benefit of each and every Owner. Section 1.3 Remainder of Lot 2, Boomerane Lot Split. 521-523 W. Hopkins Affordable Housing Condominiums shall be a part of a lazger planned community constituting all of Lot 2, Boomerang Lot Spplit ("Lot 2") called Lot 2, W. Hopkins Planned Community upon which Lot 2 shall be constructed, in addition to the 521-523 W. Hopkins Affordable Housing Condominiums, two (2) free market single family residences, subject to the Lot 2, Boomerang Planned Community Declazation (the "Planned Community Declaration") recorded 2008 as Reception No. of the records of Pitkin County, Condo and the Planned Community P at et~foi wTiich is filed for record in Plat Book at Page of those records. The Real Estate shall be subject to the Planned Community DecCazation. 521-523 W. Hopkins Affordable Housing Condominiums are described and shown as Unit C under the Planned Community Declaration and Plat. Section 1.4 Defined Terms. Each capitalized term not otherwise defined in this Declaration or on the Condominium Map of the 521-523 W. Hopkins Affordable Housing Condominiums (the "Map" or the "Condominium Map") shall have the meanings specified or used in the Act. ARTICLE II Names Recording Data, Certain Descriptions, and Develoament Rights Section 2.1 Name of Proiect. The name of the Condominium is the "521-523 W. Hopkins Affordable Housing Condominiums" and is referred to herein as the "Project." Section 2.2 ~e of Planned Community. The Project is a condominium. Section 2.3 Name of Association. The name of the Association is the "521-523 W. Hopkins Affordable Housing Condominium Association" a Colorado non-profit corporation (the "Association"). Section 2.4 County in which Project Planned Community is Situated. The Project is located entirely within the County of Pitkin, State of Colorado. Section 2.5 Reco~rdin Data. The recording data for all recorded easements and licenses appurtenant to or included in the Project is set forth in Exhibit "A." In addition, the Common Interest Community may be subject to the easements or licenses granted or reserved pursuant to this Declaration. Section 2.6 S ecial Declarant Ri hts. The Declarant hereby reserves only the Special Declarant Rig is enumerated in Section §38-33.3-103 (29) of the Act, including, but not limited to the right to develop and sell the remainder of Lot 2, Boomerang Split Planned Community not within the Condominium Parcel, i.e. Units A and B thereof as a planned community with two (2) free market single family dwelling thereon. ARTICLE III Units/Common Elements Section 3.1 Number of Units. The number of Units in the Project is two (2) consisting of two (2) deed restricted Affordable Housing Units, being Umts 1 (the lower Unit) and 2 (the upper Unit), (both being "Units"). The Condominium Map reflects the location of the two (2) Units. Section 3.2 Identification of Units. The identification number of each Unit is shown on the Condominium Map. Section 3.3 Description of Units. Every contract for sale, deed, lease, security interest and every other legal document or instrument shall legally describe a Unit as follows: Unit 521-523 W. Hopkins Affordable Housing Condominiums, a Condominium Common Interest Community according to the Condominium Map thereof recorded in Plat Book at Page and the Condominium Declaration for 521-523 W. Hopkins A~'lordable Housing Condominiums recorded at Reception No. all r.. of the real estate records of Pitkin County, Colorado Section 3.4 Unit Boundazies. The boundazies of each Unit aze shown on the Condominium Map. Unless otherwise shown on the Condominium Map, as required by the Act or as set forth below, Unit boundaries consist of unfinished walls, floors and ceilings. (a) All lath, furring, wallboazd, plasterboazd, plaster, paneling, tiles, wallpaper, paint, and finished flooring and any other materials constituting any part of the finished surfaces thereof are a part of each Umt; (b) Any shutters, 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 boundazies, are Limited Common Elements allocated exclusively to that Unit; and (c) All built-in air handling, ventilation and heating systems including chutes, flutes, ducts, wire, conduit and all other mechanical systems of the 521-523 W. Hopkins Affordable Housing Condominiums wherever situated that serve only one Unit are Limited Common Elements allocated solely to that Unit and any portions thereof that serve more than one Unit or the Common Elements are Common Elements. (d) Any spaces or improvements outside the boundazies of any Unit that do not serve any particulaz Unit shall be Common Elements. (e) Any structural elements, beazing walls or columns wherever situated to the unfinished surfaces thereof shall be Common Elements. Section 3.5 Common Elements and Limited Common Elements. Portions of the Real Estate shown on the Condominium Map are either Common Elements or Limited Common Elements. The Association shall be responsible for the maintenance, repair and replacement of all Common Elements. Unless provided otherwise in this Declazation, the Association shall also be responsible for the maintenance, repair and replacement of all Limited Common Elements. Section 3.6 No Partition of Units from Condominium. No Owner may assert any right of partition with respect to such Owner's Unit. By becoming an Owner, each Owner waives any and all rights of partition such Owner may hold with respect to such Owner's Unit desiring to separate it from the Condominium. This Section 3.6 shall not, however, limit or restrict the right of the Owners of a Unit to bring a partition action pursuant to Section 3 of 8-28-101 et se ., of the Colorado Revised Statutes requesting the sale of the Unit and the division of the proceeds among each Owners; provided that no physical division of the Unit shall be permitted as a part of such action and no such action shall affect any other Unit. Section 3.7 Separate Assessment. Declazant shall give written notice to the Assessor of Pitkin County, Colorado requesting that the Units be sepazately assessed and taxed and that the total value of the Common Elements be assessed and taxed proportionate)y in accordance with the Allocated Interest of such Unit in the Common Elements. After this Declazation has been recorded in the real estate records of Pitkin County, Colorado, Declarant shall deliver a copy of this Declaration as recorded to the Assessor of Pitkin County, Colorado. Section 3.8 No Mechanic's Liens. (a) If any Owner shall cause or permit any material to be furnished to such Owner's Unit or any labor or services to be performed therein, no Owner of any ~~- other Unit shall be liable for the payment of any expense incurred or for the value of any work done or material furnished All such work shall be at the expense of the Owner causing it to be done, and such Owner shall be solely responsible to contractors, laborers, materialmen and other persons furnishing labor, services or materials to such Owner's Unit. Nothing herein contained shall authorize any Owner or any person dealing through, with or under an Owner to charge the Common Elements or any Unit other than that of such Owner with any mechanic's or materialmen's lien or other lien or encumbrance whatsoever. Notice is hereby given that the right and power to chazge any lien or encumbrance of any kind against the Common Elements or against any Owner or any Owner's Unit for work done or materials furnished to any other Owner's Unit is hereby expressly denied. (b) If, because of any act or omission of any Owner, any mechanic's or materialman's lien or other lien or order for the payment of money shall be filed against any of the Common Elements or against any other Owner's Umt or against any other Owner or the Association (whether or not such lien or order is valid or enforceable as such), the Owner whose or which act or omission forms the basis for such lien or order shall, at such Owner's own cost and expense, cause such lien or order to be canceled or bonded over in an amount and by a surety company reasonably acceptable to the party or pazties affected by such lien or order within twenty (20) days after the filing thereof, and further such Owner shall indemnify and save harmless all such parties affected from and against any and all costs, expenses, claims, losses or damages, including reasonable attorney fees resulting therefrom. Section 3.9 Subdivision of Units and Relocation of Boundaries Between Units. There is hereby reserved to Owners of Units the right in accordance with the Act, but subject to the land use regulations of the City of Aspen Colorado, to subdivide a Unit into two or more Units or to relocate the boundaries between adjoining Units. Section 3.10 Parkine Spaces. The two (2) off-street outside Parking Spaces shown on the Plat of the Lot 2, Boomerang Lot Split Planned Community shall be a Limited Common Elements appurtenant to the Units (even though not located on the Real Estate) with the right to the use thereof provided by easement m the Lot 2 Boomerang Lot Split Planned Community Declazations, and the use thereof restricted to one (1) for each of the Units as designated on such Plat. ARTICLE IV The Association, Declarant Control, Indemnification. Notice Section 4.1 Purposes. The Association, through its Executive Boazd, shall perform the functions and manage and administer the Common Interest Community as provided in this Declazation so as to further the interests of the members of the Association. The Association shall be governed by its Articles of Incorporation and Bylaws, as amended from time to time. The Executive Boazd may, by written resolution, delegate authority to a manager or managing agent for the Assocratron, provided no such delegation shall relieve the Executive Boazd of final responsibility. Section 4.2 Snecific Powers. The Association shall have all the powers, authority and duties as necessary and proper to manage the business and affairs of the Common Interest Community. The Association shall have all of the powers, authority and duties permitted or set forth in the Act. The Association shall have the power to assign its right to future income, including the right to receive Common Expense assessments, but only upon the affirmative vote of the Unit Owners of Units to which at least sixty-six and two- thirds percent (66 2/3%) of the votes in the Association are allocated at a meeting called for such purpose. r^~ Section 4.3 Membership Qualifications. Each individual, corporation, partnership, limited liability company, joint venture, trust or other legal entity capable of holding title to real property in Colorado shall automatically become a member of the Association upon becoming an Owner of a Unit. Membershipp shall be continuous throughout the period that such ownership continues and shall be appurtenant to and insepazable from ownership of a Unit. Ownership of a Unit shall be the sole qualification for such membership. Membership shall terminate automatically without any Association action whenever any Owner ceases to own any Unit. No Owner may pledge or otherwise hypothecate its membership in the Association and no such pledge or hypothecation shall be effective or binding on the Association. Where more than one pperson or legal entity holds an interest in any Unit, all such persons or legal entities shall be members and the voting of such membership shall be in accordance with the Act. Section 4.4 Executive Boazd. The affairs of the Association shall be governed by an Executive Board consisting of two (2) members only; one of whom shall be elected by each of the Unit. All controversies, claims or disputes between the Executive Boazd members which cannot be resolved through negotiations between the Executive Board members, shall be submitted to an Advisor or an Advisory Panel, as appropriate, in accordance with the procedure set forth in subpaza~raph (a) below. If the Executive Board members or any of them do not wish to abide by the recommendation of the Advisor or Advisory Panel, the matter or matters in dispute shall be submitted to binding arbitration in accordance with subparagraph (b) below. (a) Advisory Panel. The process shall be commenced by an Executive Board member giving to the other Executive Board member written notice that a matter or matters in dispute (as briefly described in the notice) are to be submitted to an Advisor or Advisory Panel. If the Executive Boazd members unanimously agree on the identity of an Advisor, who is willing to act as such, within 10 days of the giving of such written notice, then the issue(s) shall be submitted to the Advisor. If the Executive Board members do not unanimously agree on the identity of an Advisor, then the Advisory Panel shall consist of three (3) persons. Each Board member shall appoint one (1) member of the Advisory Panel, and the two (2) members so appointed shall appoint the third (3rd) member. Each Advisor or member of an Advisory Panel must be a person with expertise and experience regazding the matter(s) in dispute. No Advisor or member of an Advisory Panel shall be an employee, agent or affiliate of any Executive Board member. Each Advisor or member of an Advisory Panel shall, prior to heazing any discussion regarding the disputed issue(s), agree m a form satisfactory to the Executive Boazd members to keep all information learned as a result of rendering advice to the Executive Boazd members absolutely confidential. The issue(s) in dispute shall be informally presented to the Advisor or the Advisory Panel, as the case may be, no later than 10 business days following appointment of the Advisory Panel. Within five business days after the conclusion of such presentation, the Advisor or Advisory Panel hearing the issue(s) shall render a recommendation to the Executive Board members. In the event of a disagreement amongst the members of an Advisory Panel as to the proper recommendation, the vote of two out of three or other majority of members of such Panel shall prevail. The recommendation of the Advisor or Advisory Panel shall not be binding upon the Executive Boazd members. An Advisor or member of an Advisory Panel may be paid such amounts and provided such technical or other professional assistance as the Executive Board members deem appropriate. The Executive Board members each shall pay their respective pro rata shaze of all such costs. (b) Arbitration. If the Executive Boazd members or any of them do not wish to abide by the recommendation of the Advisor or Advisory Panel, the matter or matters in dispute shall be submitted to binding arbitration before a panel of three azbitrators in Aspen, Colorado, according to the rules and practices of the American Arbitration Association from time to time in force, except that the Executive Board members shall be entitled to the full scope of and procedures for discovery, as defined by ~^^ the Colorado Rules of Civil Procedure. The azbitrators shall have the full powers and functions of a federal district court judge with respect to such discovery to the extent permitted by law. In addition, the Executive Boazd members may apply to any court or courts of competent jurisdiction in the aid of and in enforcement of such nghts of discovery. This submission and agreement to azbitrate shall be specifically enforceable. Arbitration may proceed in the absence of any Executive Boazd member if notice of the proceedings has been given to such Executive Boazd member. The Executive Boazd members agree to abide by all awards rendered in such proceedings. Such awards shall be final and binding on all Executive Boazd members to the extent and in the manner provided by the Colorado Rules of Civil Procedure. All awards may be filed with the clerk of any state or federal court having jurisdiction over the Executive Boazd members or their property as a basis of declaratory or other judgment and of the issuance of execution. No Executive Boazd member shall be considered in default hereunder during the pendency of arbitration proceedings relating such default. The costs incurred by the Executive Board members in connection with any arbitration proceedings shall be borne by the members as determined by the arbitrators. Section 4.5 Declazant's Control. The Declarant shall have the reserved power, pursuant to the Act, to appoint and remove officers and members of the Executive Board. This power of Declarant (the " eriod of Declazant's Control") terminates upon the sale and conveyance of the last of the Units. At such time as the first of the Unrts shall be sold and conveyed the Owner of that Unit shall be entitled to appoint one (1) member of the Executive Board. At the time the last of the Units shall be sold and conveyed, that Unit Owner shall appoint the other member of the Executive Board. The Declarant may voluntazily surrender the right to appoint and remove officers and members of the Executive Board before termination of the period of Declazant's Control, but, in that event, the Declarant may require, for the duration of the period of Declazant's Control, that specified actions of the Association or Executive Boazd, as described in a recorded instrument executed by the Declazant, be approved by the Declazant before they become effective. Section 4.6 Indemnification. To the fullest extent permitted by law, each officer and Executive Board member of the Association shall be and is hereby indemnified by the Unit Owners and the Association against all expenses and liabilities including attorney's fees, reasonably incun•ed by or imposed upon them in any proceeding to which they may be a party, or in which they may become involved, by reason of being or having been an officer or Executive Board member of the Association, or any settlements thereof, whether or not they aze an officer or Executive Board member of the Association at the time such expenses are incurred; except in such cases wherein such officer or Executive Board member is ad)'udged guilty of willful misfeasance or malfeasance in the performance of his or her duties; provrded that in the event of a settlement the indemnification shall apply only when the Executive Board approves such settlement and reimbursement as being m the best interests of the Association. Section 4.7 Notice to Owners. Notice to an Owner of matters affecting the Common Interest Community by the Executive Board or another Unit Owner shall be sufficiently given if such notice is in writing and is delivered personally, by courier or private service delivery or on the third business day after deposit in the mails for registered or certified mail, return receipt requested, at the address of record for real property tax assessment notices with respect to that Owner's Unit. ARTICLE V Easements and Licenses Section 5.1 Unit Owners' Easements. Each Unit Owner shall have a right of r enjoyment and easement for access to such Unit Owner's Unit and to the pazking azea on Units A and B of Lot 2, Boomerang Lot Split Planned Community through or over the access drive as shown on the Plat thereof and such easement shall a appurtenant to and shall pass with the title to every Unit, subject to the following provisions: (a) The right of the Association to promulgate and publish reasonable rules and regulations which each Unit Owner and their guests shall strictly comply with. (b) The right of the Association to suspend the voting rights and rights to use the Common Elements by any Unit Owner for any period during which any assessment against such Owner's Unit remains unpaid; and, for a period not to exceed sixty (60) days for any Infraction of its rules and regulations. (c) The right of the Association to grant easements, leases, licenses and concessions through or over the Common Elements. (d) The right of the Association to convey or subject a Common Element to a security interest in accordance with and to the extent permitted by the Act. (e) The right of the Association to close or limit the use of the Common Elements while maintaining, repairing or replacing such Common Elements. (f) Any Unit Owner may delegate such Owner's right of enjoyment to the Common Elements and facilities to the members of their family, their tenants or guests who reside or rent at such Owner's Unit. Section 5.2 Easement or Encroachments. To the extent that any Unit or Common Element encroaches on any other Unit or Common Element, a valid easement for the encroachment exists. ARTICLE VI Allocated Interests Section 6.1 Allocated Interests. The Common Expense liability, percentage ownership interest of each Unit Owner in the Common Elements and votes in the Association allocated Unit are equal. Section 6.2 Determination of Allocated Interests. The interests allocated to each Unit have been calculated as follows: (a) By allocating the interests based on the approximate same square footage of the Units (within 50 squaze feet). (b) The percentage of ownership interest of each Unit Owner in the Common Elements is based upon the approximate same square footage (within 50 squaze feet) of each Unit. The percentage of ownership of 50% of each Unit is that Unit's allocated interest ("Allocated Interest" or "Allocated Interests" as to both of the Units). (c) The number of votes in the Association is such that each Unit has that percentage of the total votes equal to its Allocated Interest. ARTICLE VII Covenant for Common Expense Assessments .,. .~ Section 7.1 Oblieation to Pay Common Expense Assessments. Declazant, for each Unit, shall be deemed to covenant and agree, and each Unit Owner, by acceptance of a deed therefore, whether or not it shall be so expressed in any such deed or other conveyance, shall be deemed to covenant and agree to pay to the Association Common Expense assessments imposed by the Association against said Unit. Such assessments, including fees, charges, late chazges, attorney's fees, fines and interest charged by the Assocratron shall also be the personal obligation of the Unit Owner of such Unit at the time when the assessment or other charges become due. Where there are multiple Owners of a Unit, the obligation to pay assessments shall be joint and several. The personal obligation to pay any past due sums due the Associatron shall not pass to a successor in title unless expressly assumed by them. No Unit Owner may become exempt from liability for payment of the Common Expense assessments by waiver of the use or enjoyment of the Common Elements or by abandonment of the Unit against which the Common Expense assessments are made. All assessments shall be payable in the amounts sppecified in the levy thereof, and no offsets or reduction thereof shall be permitted by any reason including, without limitation, an claim that the Association or the Executive Board is not properly exercising its duties and powers under this Declazation. Section 7.2 Apportionment of Common Expenses. Except as provided in this Section 7.2 or elsewhere in this Declazation, Common Expense assessments shall be assessed against the Units in accordance with their respective Allocated Interests which is based on the relative square footage of each of the units. (a) Any Common Expense associated with the maintenance, repair, or replacement off a Limited Common Element shall be assessed against the Unit to which that Limited Common Element is assigned; (b) Any Common Expense or portion thereof benefiting only one (1) of the Units shall be assessed exclusively against the Unit benefited; (c) Any Common Expense for services provided by the Association to an individual Unit at the request of the Unit Owner may be assessed against that Unit only; (d) The cost of insurance shall be assigned in proportion to risk. Any insurance premium increase attributable to a particular Unit by virtue of activities in or construction of the Unit shall be assessed against that Unit; (e) If a Common Expense is caused by the misconduct of a Unit Owner, the Association may assess that expense exclusively against that Unit Owner and their Unit; (f) Fees, charges, taxes, impositions, late charges, fines, collection costs and interest charged against a Unit Owner pursuant to Section 7.5 below or elsewhere in the Declaration shall be collectable as Common Expense assessments; Section 7.3 Purpose of Assessments. The assessments levied by the Association through its Executive Boazd shall be used exclusive)y for the purposes of promoting the health, safety, and welfare of the members of the Association. Such purposes shall include, but shall not be limited to the following: (a) the improvement, maintenance, repair, upkeep and reconstruction of the Common Elements; or (b) for the painting, landscape care and snow removal and any other maintenance obligations which maY be deemed desirable for the common benefit of the Unit Owners; or (c) for the maintenance of property values; or (d) for payment of expenses which may be incurred by virtue of agreement with or requirement of any governmental authority; or (e) to hire a manager to perform all of the tasks of the Associatron which are legally delegable to a i.. manager. The assessments may also be used to provide insurance of vazious types and in such amounts deemed appropriate by the Executive Board. Also, a portion of the assessments may be used to provide a reserve fund for the replacement, repair, and maintenance of Common Elements which must be replaced or refurbished on a penodre basis. Section 7.4 Adoption of Budeet. Within thirty (30) days after adoption of any proposed budget for the Project, the Executive Boazd shall mail, by ordinary first-class mazl or otherwise deliver, a summary of the budget to both the Unit Owners and shall set a date for a meeting of the Unit Owners to consider ratification of the budget not less than fourteen (14) nor more than sixty (60) days after mailing or other delivery of the summary. Unless at that meetingg, the affirmative vote of the Unit Owners to which sixty- six and two-thirds percent (66 2/3%) or more of the votes in the Association are allocated reject the budget, the budget is ratified, whether or not a quorum is present. In the event that the proposed budget is rejected, the last periodic budget as ratified by the Unit Owners will be continued until such time as the Unit Owners ratify a subsequent budget proposed by the Executive Board. Section 7.5 Annual AssessmenbCommencement of Common Expense. Common Expense assessments may be made on an annual basis against both Units and shall be based upon the Association's budget of the cash requirements needed by it to provide for the administration and performance of its duties during such assessment yeaz. Common Expense assessments shall be due and payable in monthly, quarterly, or annual installments, or in any other manner, as determined by the Executive Board. Common Expense assessments may begin on the first day of the month in which conveyyance of the first Unit to a Unit Owner other than the Declazant occurs. The omission or future of the Executive Boazd to levy assessments for any period shall not be deemed a waiver, modification or a release of the Unit Owners from their obligation to pay assessments for such period. Section 7.6 Effect of Non-Payment of Assessments. Any assessments, changes or fees provided for in this Declazatron, or any monthly or other installments thereof, which is not fully paid within ten (10) days after the due date thereof, as established by the Executive Board, shall beaz interest at the rate of eighteen percent (18%) per annum from the due date, and the Association may assess a reasonable late chazge thereon as determined by the Executive Board. Failure to make payment within sixty (60) days of the due date thereof shall cause the total amount of such Unit Owner's Common Expense Assessment for the remainder of that fiscal yeaz to become immediately due and payable at the option of the Executive Board. Further, the Association may bring an action at law or in equity, or both, against any Unit Owner personally obligated to pay such overdue assessments, chazges or fees, or monthly or other installments thereof, and may also proceed to foreclose its lien against such Unit Owner's Unit. An action at law or in equity by the Association agunst a Unit Owner to recover a money judgment for unpaid assessments, charges or fees, or monthly or other installments thereof, may be commenced and pursued to the Association without foreclosing, or in any way warvmg, the Association's hen therefor. Foreclosure or attempted foreclosure by the Association of its lien shall not be deemed to stop or otherwise preclude the Association from thereafter again foreclosing or attempting to foreclose its lien for any subsequent assessments, chazges or fees, or monthly or other installments thereof, which are not fully paid when due. Section 7.7 Special Assessments. In addition to the annual or regulaz Common Expense assessments, the Association may establish at any time a special assessment for the purpose of paying or creating a reserve for, in whole or in part, the cost of any expense which the Association is entitled to incur pursuant to the provisions of the Declazation, the Articles or the Bylaws and which is not scheduled to be paid in a budget adopted by the Association. No special assessment may be levied by the Association i°^ ...- unless such special assessment has been approved by the Executive Board and by the majority vote of the Owners present in person or proxy at a meeting called for such purpose at which a quorum was present. Section 7.8 The Association's Lien. The Association shall have from the date of recording of this instrument a lien against each Unit to secure payment to the Association of all assessments with respect to such Unit, interest thereon and all costs and expenses of collecting such assessments and charges including reasonable attorney's fees. The Association's lien shall be prior and superior to all other liens and encumbrances on a Unit except: (a) liens and encumbrances recorded prior to the recordation of this instrument; (b) the security interest of a first lien or wrth respect to such Unit except to the extent specified in the Act; (c) liens for real estate taxes and other governmental charges against such Unit; and (d) mechanic's and materialman's liens which by law may be pnor to the Association's lien. The Association's lien shall attach from the date of recording of this instrument and shall be considered perfected without the necessity of recording a notice of lien. Nevertheless, the Associatron may record in the real estate records of Pitkin County, Colorado, a notice of lien which shall be executed by an officer or Executive Board Member of the Association and which shall contain substantially the following information: (i) the legal description of the Unit against which the lien is claimed; (ii) the name of the defaulting Owner of such Umt as indicated by the Association's records; (iii) the total unpaid amount together with interest thereon and costs of collection as of the date of such notice; (iv) a statement that the notice of lien is made by the Association pursuant to the Declaration; and (v) a statement that a lien is claimed and will be foreclosed against such Unit in an amount equal to the amount stated as then due and any additional amounts thereafter becoming due. No failure or omission of the Association to file any notice of lien shall affect the validity, priority or enforceability of such lien. The Association's lien may be foreclosed upon m the manner provided by Colorado for the foreclosure of mortgages encumbering real property. In any such foreclosure, the Owner of the Unit subject to such foreclosure shall be required to pay the costs and expenses of such proceedings, including reasonable attorney's fees. The Association shall be entitled to purchase the Umt at any foreclosure sale, and to hold, lease, mortgage or convey the same. In any such foreclosure action, the Court may appoint a receiver to collect all sums alleged to be due from the Owner prior to or during the pendency of such foreclosure or action. The Court may order the receiver so appointed to pay any sums held by such receiver to the Association during the pendency of such foreclosure to the extent of the unpaid assessments and charges. Section 7.9 Statement of Un aid Assessments. The Association shall famish to an Owner of a Unit or such Unit Owner's designee or to a holder of a security interest or its designee, upon written request, delivered personally or by certified mall, first-class postage prepaid, retain receipt requested to the Association's registered agent, a written statement setting forth the amount of the unpaid assessments, if any, with respect to such Unit. Such statement shall be furnished within fourteen (14) calendar days after receipt of the request and is binding upon the Association, the Executive Board and every Unit Owner. If no statement is furnished to the requesting party delivered personally or by certified mail, first-class postage prepaid, return receipt requested, to the inquiring party, then the Association shall have no right to assert a lien upon the Unit for unpaid assessments which were due as of the date of the request. Section 7.10 Workin¢ Fund. The Association or Declarant may require each initial Unit Owner (other than Declarant) to make anon-refundable payment to the Association in an amount equal to twenty-five percent (25%) of the annual Common Expense assessment against that Unit in effect at the initial closing thereof, which sum shall be held, without interest, by the Association as a working fund. Said working fund shall be collected and transferred to the Association at the time of closing of the initial sale by Declarant of each Unit, as aforesaid, and shall be maintained for the use and benefit of the Association. Such payment shall not relieve a Unit Owner from making 10 ~^ w. regular payments of assessments as the same become due. Upon the transfer of an Owner's Unit, such Owner shall be entitled to a credit from transferee of the Unit for any unused portion of the aforesaid working fund. This account may be updated annually as of December 31st, and notice shall be given to all Unit Owners whose individual account does not equal twenty-five percent (25%) of the current annual assessment. Payment of any shortage shall be due with the next regular assessment payment, following written notice. ARTICLE VIII Use and Other Restrictions Section 8.1 Use of Units. No Unit within the Project shall be occupied for living or sleeping purposes by more persons than the Unit was designed to safely accommodate. Units shall be used and occupied primarily for a residence and secondazily for a home office if the home office complies with the following criteria: (i) no goods or merchandise may be produced, stored, displayed or sold as a part of the business conducted at the home office; (ii) only one other person not a resident in the Unit may be employed or associated with the business conducted at the home office; (iii) no sepazate entrance to the home office shall be permitted; (iv) no signs identifying the home office shall be permitted; and (v) such use complies with the land use regulation of the City of Aspen Colorado. Section 8.2 Ownership of Units. Units 1 and 2 shall be owned, sold, conveyed, leased and occupied under the rules, regulations, requirements and guidelines of APCHA and the provisions of the Subdivision Exemption Agreement for Boomerang Lot Split recorded as Reception No. 525369 of the Records of Pitkin County, Colorado ("SIA"). Pursuant to the SIA and the Master Deed Restriction for the Project recorded as Reception No. of those records. Section 8.3 Maintenance of Units. Each Unit at all times shall be kept in a clean, sightly and wholesome condition. No trash, litter, junk, machinery, lumber or other building materials shall be permitted to remain exposed in any Unit so that the same are visible from any neighboring Unit or any street. Section 8.4 Restrictions on Animals and Pets. No more than two (2) pets (either dogs or cats or any combination thereof) shall be allowed in each of the Free Mazket Units; provided, however, dogs shall not be allowed to bazk so as to constitute a nuisance to other Owners; may not be tied up, kept or allowed unattended on decks or any other Common Elements and shall be subject to such further rules as the Association may from time to time promulgate. No other animals shall be raised, bred, kept or regulazly brought to the Project (mcludin~, without limitations, any birds, fish or other household pets) except for those animals (if any) permitted under the provisions of the rules of the Association and except for animals which are trained to and aze in fact assisting persons with disabilities. Renters of the Units shall be prohibited from having any pets. Section 8.5 Zoning, Nuisances, Hazards. No Unit within the Project shall be used for any purpose other than as allowed by the local zoning codes. No nuisance shall be permitted within the Project, nor any use, activity or practice which is a source of unreasonable annoyance or embarrassment to, or which unreasonably offends or disturbs, any Unit Owner or which may unreasonably interfere with the peaceful enjoyment or possession of the proper use of a Unit or Common Element, or any portion of the ProJ'ect by Unit Owners. Further, no unsafe, hazardous, offensive, or unlawful use shall be permitted within the Project or any portion thereof. All valid laws, ordinances and regulations of all governmental bodies having jurisdiction over the Project or a portion thereof shall be observed. 11 .~-. .~,- Section 8.6 Compliance with Insurance Requirements. Except as may be approved in writing by the Executive Boazd, nothing shall be done or kept on the Project which may result in a material increase in the rates of insurance or would result in the cancellation of any insurance maintained by the Association. Section 8.7 Restriction on Sins and Advertising Devices. No signs (which term shall include posters, billboards and advertising devices) of any kind shall be erected or maintained anywhere within the Project except such sign or signs as may be approved in writing by the Executive Board. Section 8.8 Restrictions on Floor Loads. No Owner of a Unit may place a load on any floor which exceeds the floor load for which the floor was designed to support. No Owners of a Unit shall install, operate or maintain any item of heavy equipment or make any other installation, except in a manner designed to achieve a proper distrrbution of weight. Section 8.9 Leasin of Units. Any Unit Owner shall have the right to lease such Owner's Unit subject to t e limitations imposed b the APCHA upon such terms and conditions as suchlUnit Owner may deem advisable, subject to the following: (a) Every lease or rental agreement shall be in writing and shall provide that the lease or rental agreement is subject to the terms of this Declaration, the Bylaws of the Association and the Articles of Incorporation and the rules and regulations of the Association and shall state that the failure of the tenant or renter or guest to comply with the terms of the Declazation or Bylaws of the Association, Articles of Incorporation or the rules and regulations of the Association shall constitute a default of such lease or rental agreement and such default may be remedied by the Association which remedy may include eviction. Notwithstanding the foregoing requirements, short term rentals (i.e., not to exceed Fourteen (14) days) need not be m writing but shall nevertheless remain subject to the terms of the Declaration, the Bylaws of the Association and the Articles of Incorporation and rules and regulations of the Association. Section 8.10 No Rights of First Refusal. The rights of a Unit Owner to lease, sell, transfer or otherwise convey its Unit shall not be subject to any right of first refusal or similaz restriction and such Unit may be sold free of any such restrictrons. Section 8.11 No Restrictions on Mortgaging of a Unit. There are no restrictions on the right of the Unit Owners to mortgage or otherwise encumber their Units. There is no requirement for the use of a specific lending institution or particulaz type of lender. Section 8.12 No Time Shares. No Unit shall be submitted to or conveyed pursuant to a timesharing or interval ownership arrangement. Section 8.13 Rules and Re ulations. Consistent with and in furtherance of the intent, purposes and provisions o this Declaration governing the Project rules and regulations may be adopted, amended, or repealed from time to time by the Executive Board. All rules adopted by the Association shall be reasonable and uniformly applied, and in accordance with any APCHA requirements. The Executive Boazd may also establish and enforce penalties and fines for the infraction thereof which fines shall be collectable as assessments in the manner provided in Article VII above. ARTICLE IX Design Review 12 ..~, Section 9.1 Re uired A royals. No structural improvements to the interior of a Unit or any structure or any attac ent to the exterior of the buildings or to other existing structure, shall be constructed, erected, placed or installed within the Project, including but not limited to, a change in painting and/or staining of exterior siding, unless complete plans and specifications thereto (said plans and specifications to show design, matenals, color, location, as well as such other information as may be required) shall have been first submitted to and approved in writing by the Executive Board. The approval or consent of the Executive Boazd on matters properly coming before it shall not be unreasonably withheld or delayed, and actions taken shall not be arbitrary or capricious and decisions shall be conclusive and binding on all interested parties. Upon its review of any plans, specifications or submittals, the Executive Boazd may require that the applicant(s) reimburse the Association for actual expense incurred by it m its review and approval process. The Executive Board shall not refuse to permit any Unit Owner to make reasonable modifications to such Owner's Unit or to any Limited Common Element which the Unit Owner has the right to use, if such modifications are necessary under the Americans with Disabilities Act. Section 9.2 Periods of Restricted Construction. No major remodeling, renovations or other substantial construction work may commence, occur or be carried out in the Units during the period beginning December 1 and ending April 1 or between July 1 and Labor Day of each yeaz unless the written consent of the Owners of the other Units (i.e., the Units that aze not the subject of such remodeling, construction or renovations) is first obtained. Nothing herern shall prevent any emergency or other repairs or routine maintenance or cleaning being made or performed at any trine. Section 9.3 Variances. The Executive Board may grant reasonable variances or adjustments from any conditions and restrictions imposed by this Declazation in order to overcome practical difficulties and unnecessary hardships arising by reason of the application of the conditions and restrictions contained in this Declazation. Such variances or adjustments shall be granted only when the granting thereof shall not be materially detrimental or injurious to the other Units or Common Elements nor deviate substantially from the general intent and purpose of this Declazation. Section 9.4 Waivers. The approval or consent of the Executive Boazd to any application for design approval shall not be deemed to constitute a waiver of any right to deny approval or consent as to any application on other matters subsequently or additionally submitted for approval or consent. Section 9.5 Liabili Neither the Association nor the Executive Board nor any members thereof, nor any representative of any committee designated to act on its behalf, shall be liable for damages to any person submitting requests for approval for any failure to approve or disapprove any matter within its jurisdiction under this Declazation. Section 9.6 Records. The Executive Boazd shall maintain written records of all applications submitted to it and of all actions taken by it with respect thereto, such records shall be open and available for Inspection by any interested party during nonnal business hours. Section 9.7 Enforcement. Enforcement of the provisions of this Article IX, may be by any proceeding at law or in equity against any person or persons violating or attempting to violate any such provision. The Association and any interested Unit Owner shall have the right, but not the obligation, to institute, maintain and prosecute any such proceedings. In any action instituted or maintained under this Article, the Assocration shall be entitled to recover its costs and reasonable attorney's fees incurred pursuant thereto, as well as any and all other sums awazded by the Court. Failure of the Association or any Unit Owner to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter. 13 ARTICLE X Insurance Section 10.1 Insurance Carried. The Association shall obtain and maintain in full force and effect to the extent reasonably available, and at all times, the insurance coverage set forth herein and as set forth in the Act, which insurance coverage shall be provided by financially responsible and able insurance companies duly authorized to do business in the State of Colorado. Commencing not later than the time of the first conveyance of a Unit to a person other than Declarant, the Association shall maintain, to the extent reasonably available, policies with the following terms or provisions: (a) All policies of insurance shall contain waivers of subrogation and waivers of any defense based on invalidity azising from any acts of a Unit Owner and shall provide that such policies may not, unless otherwise provided by statute, be canceled or not renewed without at least thirty (30) days prior written notice to all of the Unit Owners, holders of first lien security interests and the Association. (b) If requested, duplicate ongfinals of all policies and renewals thereof or certificates or memoranda of insurance, together with goof of payments of premiums, shall be delivered to any Unit Owner or holder of a first lien security interests. (c) All liability insurance shall be carried in blanket form covering Declazant, the Association, the Executive Board, the managing agent, if any, and their respective employees, agents and all persons acting as agents. (d) Prior to obtaining any policy of property insurance or renewal thereof, pursuant to the provisions hereof, the Executive Board may obtain an appraisal from a duly qualified real estate or insurance appraiser, which apprazser shall reasonably estimate the full replacement value of the Units and the Common Elements, without deduction for depreciation and shall review any increases in the cost of living, and/or consider other factors for the purpose of determining the amount of the insurance to be effected pursuant to the provisions hereof. The total amount of property insurance must not be less than full insurable replacement cost (at the time of purchase of insurance and at each renewal date) less applicable deductions exclusive of land, excavations, foundations and other items normally excluded. (e) Unit Owners may carry and are advised to carry other insurance for their benefit and at their expense, provided that the liability of the carriers issuing insurance obtained by the Association shall not be affected or diminished by reason of any such additional insurance carried by Unit Owners and provided, further, that the policies of insurance carried by the Association shall be primary, even if a Unit Owner has other insurance that covers the same loss or losses as covered by policies of the Association. In this regard, Declazant discloses that the Association's insurance coverage, as specified hereunder and under the Act, does not obviate the need for Unit Owners to obtain insurance for their own benefit. (f) All policies of insurance obtained by the Association shall provide that the insurance thereunder shall be invalidated or suspended only in respect to the interest of any particulaz Unit Owner guilty of a breach of wazranty, act, omission, negligence or non-compliance of any provision of such policy, including payment of the tnsurance premium applicable to the Unit Owner's interest, or who permit or fails to prevent the happening of any event, whether occurring before or after a loss, which under the provisions of such policy would otherwise invalidate or suspend the entire policy, but the insurance under any such policy, as to the interests of all other insured Unit Owners not 14 guilty of any such act or omission, shall not be invalidated or suspended and shall remain m full force and effect. Section 10.2 Pro a Insurance on the Units and Common Elements. The Association shall obtain a equate property insurance covering loss, damage or destruction by fire or other casualty to the Units, to the Common Elements and the other property of the Association. The insurance obtained by the Association is not required to include improvements and betterments installed by Umt Owners. If coverage purchased by the Association includes improvements and betterments installed by Unit Owners, the cost thereof shall be assessed to each Unit in proportion to risk. All policies shall contain a standazd non-contributory mortgage clause in favor of each holder of first lien security interests, and their successors and assigns, which shall provide that the loss, if any thereunder, shall be payable to the Association for the use and benefit of such holders of first lien security interests, and their successors and assigns, as their interests may appeaz of record in the records of the office of the Clerk and Recorder of the County of Prtkm, Colorado. Section 10.3 Liability Insurance. The Association shall obtain adequate comprehensive policy of public liability insurance against claims and liabilities azising in connection with the ownership, existence, use and management of the Common Elements, in such limits as the Executive Boazd may from time to time determine, but not in any event less than One Million Dollazs ($1,000,000.00) per injury, per person, and per occurrence, and in all cases covering all claims for bodily m~ury or property damage. All liability insurance shall name the Association as the insured. Section 10.4 Fidelity Insurance. The Association shall obtain adequate fidelity coverage or fidelity bonds to protect against dishonest acts on the parts of its officers, Executive Board members, trustees and emplo ees and on the part of all others who handle or are responsible for handling the funds of the Association, including persons who serve the Association with or without compensation. The clause "officers, Executive Boazd members, trustees and employees" shall not include any officer, Executive Board member, agent or employee of any independent, professional manager or managing agent heretofore or hereafter employed by the Associatton. The fidelity coverage or bonds should be in an amount sufficient to cover the maximum funds that will be in control of the Association, its officers, Executive Board members, trustees and employees. Section 10.5 Worker's Com ensation and Em to er's Liabili Insurance. The Association shall obtain worker's compensation and employer's liabi ity insurance and all other similaz insurance with respect to its employees in the amounts and forms as may now or hereafter be required by law. Section 10.6 Officers' and Directors' Personal Liability Insurance. The Association may obtain officers' and Executive Board members' personal liability insurance to protect the officers and Executive Board members from personal liability in relation to their duties and responsibilities in acting as officers and Executive Board members on behalf of the Association. Neither the term "officers" nor the term "Executive Boazd member" shall include any officer, Executive Boazd member, agent or employee of any independent professional manager or managing agent heretofore or hereafter employed by the Association. Section 10.7 Other Insurance. The Association may obtain endorsements to policies or additional insurance against such other risks, of similaz or dissimilaz nature, as rt shall deem appropriate with respect to the Association responsibilities and duties. Section 10.8 Insurance Premiums. Except as assessed in proportion to risk as permitted under the terms of this Declazation, insurance premiums for the above provided 15 ~~ `v... insurance shall be a Common Expense to be included as a part of the annual Common Expense assessments levied by the Association. Section 10.9 ManaglnQ Apent Insurance. The manager or managing agent, engaged by the Executive Board, if any, shall be insured to the same extent as the Association, as herein provided, and as provided in the Act, for the benefit of the Association, and shall maintain and submit evidence of such coverage to the Association. Section 10.10 Waiver of Claims Asainst Association. As to all policies of insurance maintained by or for the benefit of the Association and Unit Owners, the Association and the Unit Owners hereby waive and release all claims against one another, the Executive Board and Declarant, to the extent of the insurance proceeds available, whether or not the insurance damage or injury is caused by the negligence of or breach of any agreement by said person. Section 10.11 Annual Insurance Review. The Executive Board shall review the insurance carried by and on behalf of the Association at least annually for the purpose of determining the amount of insurance required. Section 10.12 Adjustments by the Association. Any loss covered by an insurance policy described above shall be adjusted with the Association, and the insurance proceeds for that loss shall be payable to the Association, and not to any holder of a first lien security interests. The Association shall hold any insurance proceeds in trust for the Association, Unit Owners and holders of first lien security interests as their interests may appear. The proceeds must be distributed first for the repair or restoration of the damaged property, and the Association, Unit Owners and holders of first lien security interests are not entitled to receive pa ment of any portion of the proceed unless there is a surplus of proceeds after the damaged property has been completely repaired or restored. Section 10.13 Duty to Repair. Any portion of the Common Interest Community for which insurance is required under this Article which is damaged or destroyed must be repaired or replaced promptly by the Association, except as provrded in the Act. ARTICLE Xl Special Rights of Holders of First Lien Security Interests Section 11.1 General Provisions. The provisions of this Article are for the benefit of all beneficiaries or holders of first lien security interests recorded within the Common Interest Community. To the extent applicable, necessary or proper, the provisions of this Article XI apply to both this Declaration and to the Articles and Bylaws of the Association. A holder or beneficiary of a first lien security interest who has delivered a written request to the Association containing its name, address and the legal description and the address of the Unit upon which its holds a security interest, shall be entitled to: (a) receive timely written notice from the Association of any default by a mortgagor of a Unit in the performance of the mortgagor's obligations under this Declaratron, the Articles of Incorporation, the Bylaws or the rules and regulations, which default is not cured within sixty (60) days after the Association learns of such default; (b) examine the books and records of the Association during normal business hours; (c) receive a copy of financial statements of the Association; (d) receive written notice of all meetings of the Executive Board or Members of the Association; (e) desigpate a representative to attend any such meetings; and (f) receive written notice of any lapse, cancellation, or material modification of any insurance policy or fidelity bond mamtamed by the Association. ARTICLE XII 16 ,^ ..~ Enforcement Section 12.1 Enforcement. The Association or a Unit Owner or Unit Owners of any of the Units may enforce the restrictions, conditions, covenants and reservations imposed by the provisions of this Declaration by proceedings at law or in equity against any person or persons, either to recover damages for such violation, including reasonable attorney's fees incurred in enforcing these covenants, or to restrain such violation or attempted violation. Failure of the Association or of any Unit Owner to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter. ARTICLE XIII Amendments Section 13.1 Amendment to Declazation or Mau. Except in the case of amendments that may be executed by Declazant or the Association as allowed by the Act or as provided below, this Declaration, including the Map, may be amended only by the vote or agreement of Owners of Units owning sixty-seven percent (67%) of the Allocated Interests. Every amendment to the Declazatton must be: (i) recorded in the real estate records of Pitkin Countyty, Colorado and is effective only upon recordation; (ii) indexed in the grantee's index in the name of the Common Interest Community and the Association and in the grantor's index in the name of each pperson executing the Amendment. Except to the extent expressly permitted or required by the Act, no amendment may create or increase the number of Units, or change the boundaries of any Unit or the Allocated Interests of a Unit, or the uses to which any Unit is restricted, in the absence of unanimous consent of the Unit Owners. Amendments to this Declazation 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 designatton, by the President of the Association. All expenses associated with preparing and recording an Amendment to the Declaration shall be the sole responsibility of the Association, except as may otherwise be provided in the Act. ARTICLE XIV Restoration and Termination Section 14.1 Restoration. If at any time all Owners and all holders of first lien security interests shall agree that the Project has become obsolete and shall approve a plan for its renovation or restoration, the Association shall promptly cause such renovation or restoration to be made according to such plan. All Owners shall be bound by the terms of such plan and the costs of the work shall be a Common Expense. Section 14.2 Termination. If at any time an agreement to terminate the Project is obtained from sixty-six and two-thirds percent (66 2/3%) of the Allocated Interests of the Owners and all holders of first lien security interests in accordance with the provisions of the Act, the Association shall promptly undertake the actions required of the Association under the provisions of the Act. Upon completion of such actions by the Association, this Declaration shall automatically terminate without any further action. ARTICLE XV Condemnation 17 Section 15.1 A ointment of Association as Attorne -In-Fact. Each Owner, on such Owner's behalf an on behalf of such Owner's heirs, devisees, legal representatives, successors and assigns, does irrevocably constitute and appoint the Association with full power of substitution, as such Owner's true and lawful attorney in-fact such Owner's name, place and stead to deal with such Owner's Interest in such Owner's Unit upon condemnation of such Owner's Unit with full power, right and authorization to execute, acknowledge and deliver any contract, deed or other document affecting the interest of such Owner, and to take any other action which the Association may consider necessary or advisable to give effect to the provisions of this Section 15.1. If requested to do so by the Association, each Owner shall execute and deliver a written instrument confirming such appointment. The action of the Association in settling any condemnation claim shall be final and binding on all Owners. Section 15.2 Entire Takine. If the entire Project is taken under any statute, by right of eminent domain, or by purchase in lieu thereof, or if any part of the Project is taken and the part remaining may not practically or lawfully be used for any purpose permitted by thrs Declaration, the Association (as attorney-in-fact for the Owners) shall collect the award made in such taking and shall sell the part of the Real Estate remarmng after the taking, if any, free and cleaz of the provisions of this Declaration which shall automatically terminate upon the recording of a notice by the Association setting forth all of such facts without any further action. The award and the proceeds of such sale, if any, shall be distributed by the Association in the manner provided m the Act. Section 15.3 Partial Taking. If a taking occurs other than a takin specified in Section 15.2 hereof, then the Association (as attorney-in-fact for the Owners shall collect the awazd made in such taking, shall promptly cause the portion of the Project not so taken to be restored as nearly as possible to rts condition prior to the taking, and shall preppare, execute and record an amendment to the Declaration which confirms any reallocaton of the Allocated Interests made pursuant to the provisions of the Act. The costs of such restoration shall be a Common Expense payable by the Owners in accordance with respective Allocated Interests after any reallocation referred to in the preceding sentence. The award paid to the Association as a result of any such taking shall be disbursed by the Association as follows: (a) If a Unit is taken, the portion of such award attributable to such Unit shall be disbursed to the Owner of such Unit or the lienholder(s) with respect to such Unit, as their interests may appeaz; and (b) Any portion of such awazd not disbursed pursuant to the provisions of Section 15.3(a) hereof shall be disbursed to the Owner of each Unit or the lienholder(s) with respect to such Unit, as their interests may appeaz, in accordance with the reallocation of such Allocated Interests as referred to m Section 15.3 above. ARTICLE XVI Miscellaneous Section 16.1 Severability. Each of the provisions of this Declazation shall be deemed independent and severable. If any provision of this Declaration or the application thereof to any person or circumstances ~s held invalid, the invalidity shall not affect other provisions or applications of this Declaration which can be given effect without the invalid provisions or applications. Section 16.2 Term of Declaration. This Declazation shall continue and remain in full force and effect in perpetuity as the same may be amended from time to time in accordance with the provisions of Article XIII, unless this Declaration be terminated in 18 ..,. w accordance with the Act. Section 16.3 Singular Includes the Plural. Unless the context otherwise requires, the singular shall include the plural, and the plural shall include the singulaz, and each gender referral shall be deemed to include the masculine, feminine and neuter. Section 16.4 Captions. All captions and titles used in this Declazation are intended solely for convenience of reference and shall not enlarge, limit or otherwise affect that which is set forth in any paragraph, section or article hereof. Section 16.5 Colorado Law. The interpretation, enforcement and any other matters relative to this Declaration shall be construed and determined in accordance with the laws of the State of Colorado. Section 16.6 Disclaimer. Unless otherwise provided by the Act, no representations or warranties of any kind, express or implied, have been given or made by Declazant, or its agents or employees, m connection with this Common Interest Community, or any portion thereof, or any improvement thereon, its physical condition, zoning, compliance with applicable laws, fitness or intended use or operation, cost of maintenance or taxes except as expressly set forth in this Declaration. Section 16.7 Limited Liability. A Executive Board Member or an officer of the Association shall not be liable for actions taken or omissions made in the performance of his or her duties except for wanton and willful acts and except for acts specified in §7-24- 111 of the Colorado Revised Statutes. Unless otherwise required by the Act, Declarant and any agent or employee of Declazant shall not be liable to any party for any action or for any failure to act with respect to any matter arising in connection with the Declaration if the action taken or failure to act was m good faith and without malice. Section 16.8 Conflicts with Act Articles, Bylaws or Rules of Association. In the event of any conflict or inconsistency between provisions of this Declazation the mandatory provisions of the Act shall govern and as between the Articles, Bylaws or Rules and Regulations of the Association, the provision of this Declazation shall govern and control, and then the Articles, Bylaws and Rules and Regulations in that order. Section 16.9 Covenants Running with the Land. Each provision of this Declaration, and any agreement, promise, covenant and undertaking to comply with each provision of the Declaration shall be deemed a covenant running with the land as a burden with and upon the title to each Unit for the benefit of all the Real Estate. Section 16.10 Matters of Record. Matters of Record affecting the Real Estate aze set forth on Exhibit "A" attached hereto. IN WITNESS WHEREOF, the Declarant has signed this Declaration this day of , 2008. DECLARANT: 501 W. HOPKINS, LLC, a Colorado limited liability company By: Name Title 19 ~.. STATE OF COLORADO ) )ss. COUNTY OF PITHIN ) The foregoing Condominium Declaration for the 521-523 Housing Condominiums was acknowledged before me on 2008, by as Hop~ms, LLC. WITNESS my hand and official seal My commission expires: Notary W. Hopkins Affordable this day of -for 501 W. 20 ~~ 4... EXHIBIT A Matters of Record 21 Jennifer Phelan From: Jennifer Phelan Sent: Thursday, June 26, 2008 12:37 PM To: 'Sarah Oates' Subject: want to meet on plat tomorrow? Sarah: I have some comments that I want to go over on the Boomerang lot. I'm available anytime before noon tomorrow. Are you available? Jeau~.%fer ~helA.w, Deputy Director Community Development Department City of Aspen 130 S. Galena Street Aspen, CO 81611 PH: 970.429.2759 FAX: 970.920.5439 www.asoenoitkin.com