Loading...
HomeMy WebLinkAboutcoa.lu.pu.Pitkin Reserve Amendment.1982 1983 Nor MEMORANDUM TO: Land Use Files FROM: Jessica Garrow, Planner RE: Pitkin Reserve PUD allowable FAR DATE: December 8, 2006 In the Pitkin Reserve Land Use Files there are discrepancies regarding the allowable FAR in the PUD. This Memorandum is intended to clarify the various documents in the Land Use Files. There were a number of PUD Amendments dealing with allowable FAR that do not appear to have been recorded. The findings in this Memo are intended to govern the allowable FAR in this PUD. On October 10, 1988, the City Council approved an FAR change between lots 3 and 4 on the consent agenda. Part of the motion stated that the total allowable FAR in the PUD is 40,350 square feet. Other items in the Land Use files indicate the total allowable FAR in the PUD is 45,850 square feet. There are no Planning or other City Official signatures , and there are no documents in the Land Use files stating this larger FAR number is correct. There are Planning Staff signatures on other documents, including a 1991 letter signed by Diane Moore, that agree the total allowable FAR in the PUD is 40,350 square feet. Based on these signatures the Community Development Staff has determined that the total allowable FAR in the PUD is 40,350 square feet. In a June 30, 1987 document, then Planning Director Alan Richman approved of the moving of 196 square feet FAR from Lot 1 to Lot 2. Based on this document, as well as the above referenced 1991 letter, the Community Development staff has determined the following FAR figures to be correct: Lot 1 6,528 sf Lot 2 6,920 sf Lot 3 6,724 sf Lot 4 6,724 sf Lot 5 6,724 sf Lot 6 6,724 sf • 0 U E " 447 P 4GE C9 ` € �{ _ L2 JU 3 C+ ;E'.''" E AMENDMENT TO PUD AND SUBDIVISION AGREEMENT PITM STC. FcolD cI`, .C� FOR THE PITKIN RESERVE Jun I y 23 THIS AMENDMENT is made and entered into as of the 10th day of January, 1983, by and between THE CITY OF ASPEN, COLORADO, a municipal corporation (hereinafter referred to as "City "), PITKIN LIMITED, a Colorado corporation (hereinafter referred to as "the Owner "), and ASPEN MOUNTAIN PARK, a Colorado general partnership (hereinafter referred to as "AMP ") RECITALS 1. The City, Owner and AMP are parties to that certain PUD and Subdivision Agreement for Pitkin Reserve re- corded in Book 423 at Pages 417- 446 of the Pitkin County, Colorado real property records (the PUD and Subdivision Agreement). 2. Pursuant to Section V of the PUD and Subdivision Agreement and to Section 24 -8.26 of the Municipal Code of The City of Aspen, Colorado, the Owner did by letter application dated October 12, 1982 (which letter was supplemented by the Owner's Memorandum of December 10, 1982), petition the City for an amendment to the PUD and Subdivision Agreement. 3. Following the recommendation of approval therefor of its Planning and Zoning Commission, the City, acting through its City Council at the duly constituted meeting thereof held January 10, 1983, approved the petition of the Owner to amend the PUD and Subdivision Agreement and the parties are desirous of confirming herein such approval and setting forth such amendments. NOW, THEREFORE, AMENDMENTS IN CONSIDERATION of the premises, the mutual covenants contained herein and in the PUD and Subdivision Agreement, the parties hereby agree to and do amend the PUD and Subdivision Agreement for Pitkin Reserve as follows, and notwithstanding anything therein to the contrary contained it is agreed that: I. Amended Final Plat. The parties have executed and caused to be recorded simultaneously herewith in Plat Book at Page of the Pitkin County, Colorado real property records the Amended Plat of The Pitkin Reserve (hereinafter "Amended Plat "), which the Owner has submitted and the City has accepted as being (a) superceding of the Final Plat for The Pitkin Reserve recorded in Plat Book 12 at Pages 91 -100 of the 80014 447 PAGE GO Pitkin County, Colorado real property records; and (b) in conformance with the proposed development for The Pitkin Reserve and the PUD approvals first given and, as above recited, as amended. II. Amendments to Section I - General Development Plan. A. The third sentence of subsection A - Devel- opment Parcel, is amended to read as follows: "Approximately 76% of the DevelopmentParcel has been subdivided into 9 fee simple lots with construction limited to approximately 50% of that area. Therefore all construction will take place to the north of the Greenbelt Line designated on the Plat, with all land to the south of that line remaining as open space to be commonly maintained as provided in Section VIII, paragraph C, below." B. Subparagraph 1 - Free Market Development - Lots 1 -12, is amended to read as follows: "(1) Free Market Development - Lots 1 through 9. The Development Parcel shall contain not more than nine separately designated fee simple lots, each as shown and noted on the Amended Plat. Each such fee simple lot shall be deemed augmented in size by an undivided one -ninth (1 -9th) interest in Lot 10 -- the Common Area component of the Development Parcel described below. Prior to its conveyance by the Owner to any third party, each fee simple lot shall be deed or covenant restricted upon such terms as shall provide that in the event an owner of such fee simple lot shall wish to lease the home constructed or to be constructed thereon any such lease terms shall, at a minimum, be of six (6) month duration with no more than two (2) shorter tenancies per year, and the docu- ments of conveyance to any such fee simple lot shall, as well, expressly recite that the property is so restricted." C. Subparagraph 3 - Common Area - Lot 13, of subsection A is amended to read as follows: -2- BOOR 447 PAGE 61 "(3) Privately Owned Common Area - Lot 10. Approximately 23.61% of the Development Parcel shall consist of commonly owned area, which shall be owned by the owners of Lots 1 -9 as a nonpartitionable undivided appurtenance to their lots. The Common Area shall be managed and maintained as provided in Section VIII, paragraph C, below. The deed restricted employee housing unit shall be located in Lot 10." D. The site data tabulations annexed to the PUD and Subdivision Agreement as Exhibit "C" are deleted and hereby superceded by the Summary and Site Data Tabulations hereto annexed as Exhibit "A ". E. The heading of Subsection B - Public Open Space - Lot 14, is amended to read Public Open Space - Lot 11, and the last full sentence of Subsection B is amended to read as follows: "Ownership of such open space shall be in Pitkin County, Colorado; provided, however, and always, that the benefit of the above - described open space restriction and dedication shall be specifically enforceable by (1) the City and /or (2) the Owner, its successors, grantees and assigns, including the owners (or an associa- tion thereof) of Lots 1 -9 within the Develop- ment Parcel." III. Amendments to Section II - Interrelation of The Pitkin Reserve and Smuggler Mobile Home Park. A. Subsection C - Development Allotments, is hereby amended to provide that nine (9) rather than twelve (12) of the nineteen (19) otherwise nonexempt free - market housing units resulting from the conversion and construction processes at the Smuggler Mobile Home Park are to be utilized in connec- tion with The Pitkin Reserve. B. Subsection C - Development Allotments, is hereby further amended by the addition of the following new sentence: "All of the nineteen (19) otherwise nonexempt free market housing unit development rights not utilized in connection with the actual construction of homes at The Pitkin Reserve shall be retained by Owner and shall be freely transferable to other properties, and -3- 8008 447 PAGE 62 alienable. For these purposes, however, any development proposal utilizing all or any portion of the free market housing unit development rights shall be subject to all the applicable review processes set forth in The Municipal Code of the City of Aspen, with the single exception of review under the Growth Management Quota System, which shall not be necessary." IV. Amendments to Employee Housing Dedication and Restriction. Section 3 - Employee Dedication Restriction, is hereby amended in its entirety to read as follows: "The Owner hereby covenants with the City that the employee unit described above in Section I, paragraph A(2) shall be restricted in terms of its use and occupancy to a resident caretaker- employee for and of the Owner of Lots 1 -9 (or a collective association thereof), to whom a monthly rental (which may be offset against salary) may be charged not to exceed "middle income" guidelines from time to time established by the City. In the event the owners of Lots 1 -9 (or a collective association thereof) shall determine not to employ a resident caretaker - employee, as above provided, they (or it) shall have the right to lease the unit to an individual(s) who shall otherwise meet the income and occupancy eligibility requirements generally established and applied by the City in respect of employee housing and who may be charged a rent not in excess of "middle income" guidelines from time to time established by the City, the proceeds of which shall be used to defray common maintenance and related costs associated with Lot 10 or other facilities used in common by the owners (or an association thereof) of Lots 1 -9. The fore- going covenant shall be deemed to run with Lot 10 as a burden thereto for the benefit of and shall be specifically enforceable by the City by any appropriate legal action including injunction, abatement, eviction or rescission of any non - complying tenancy, for the period of the life of the longest living member of the presently existing City Council of the City of Aspen, Colorado, plus twenty -one (21) years, or for a period of fifty (50) years from the date of recording hereof in the Pitkin County, -4- BOOK 447 PAGE 63 Colorado real property records, whichever period shall be less." V. Amendments to Section VI - Easements, Rights of Way, and Relocations. in Section VI is A. The prefatory language e P Y e i g 9 1 amended to read as follows: "The Amended Plat sets forth certain easements, rights of way, and anticipated relocations that will be necessary to cause the improvements anticipated thereon, which ease- ments, rights of way, and relocations include the following:" B. Subsection D - Access Easement, is hereby amended to read as follows: "The owner hereby dedicates and grants unto the owner(s) of Lots 1 -9 of The Pitkin Reserve the twenty -foot (20') access and utility easement shown and indicated on the Amended Plat for their sole and exclusive use and enjoyment and that of their guests, invitees and licensees." VI. Amendments to Section VII - Other Dedications. A. The second sentence of Subsection A - Exemption, is amended to read as follows: "In the event the Owner hereafter agrees to deed restrict the employee housing unit to be installed upon Lot 10 to low or moderate income and occupancy eligibility guidelines, the City agrees at that time, and upon the recording in the Pitkin County real property records of such a restriction, to exempt the employee housing unit from the application of Section 20 -18 of the Aspen Municipal Code." B. Subsection B - Land Dedication, is amended to read as follows: "In respect of the free - market development to occur on and within Lots 1 -9 and the employee housing unit to be installed upon Lot 10, the City hereby (1) accepts the dedication of Lot 11 in the manner and upon the terms and condi- tions set forth in Section I, Paragraph B, above, in lieu of the cash payment referred to -5- BOOK 447 RAGE 64 in Section 20 -18 of the Aspen Municipal Code; (2) confirms as accurate and accepts the valuation of Lot 11 and the calculation of the Park Dedication Fee based thereupon set forth in the Land Valuation and Park Dedication Fee calculation attached hereto as Exhibit "G "; and (3) agrees that the value of Lot 11 as such is sufficient at least to meet the requirements of Section 20 -18, aforesaid concerning the requirement of the dedication." VII. Amendment to Section VIII - Open Space and Common Area Management, Maintenance and Use. A. Subsection A - General, is amended to read as follows: "The Amended Plat provides for a parcel that includes open space dedicated for the benefit, inter alia, of the City and a common area component of the Development Parcel, the undivided ownership of which, as hereinabove provided, shall be in the owners of the sepa- rately designated fee simple lots, 1 -9. Respective responsibilities, limitations, covenants and agreements regarding the manage- ment, maintenance and use of the open space, including that to the south of the Greenbelt Line, and common area component of the Develop- ment Parcel include the following:" B. Subsection B - Publicly Owned Open Space -- Lot 14, is amended to read as follows: "Publicly Owned Open Space -- Lot 11. Lot 11 shall be owned by Pitkin County, Colorado, and, as such shall be managed and maintained perma- nently and entirely by Pitkin County within such framework as it may establish but which shall not be inconsistent with the open space purposes in perpetuity for which the land was dedicated as above set forth, and in this respect reference is specifically made to the rights of the City therein, as described in Section I, paragraph B, above." C. Subsection C - Common Area -- Lot 13, is hereby amended to read as follows: "C. Privately Owned Common Area -- Lot 10. Lot 10 and Area South of Greenbelt Line within -6- BOON 447 PAGE 65 Lots 1 -9 -- The common area component of the Development Parcel shall in its entirety be owned in common by the owners of Lots 1 -9, the owner(s) of each lot to own an undivided i interest therein as a non - severable appurte- nance to his or her lot. As indicated else- where herein and upon the Amended Plat, Lot 10 will be improved with an employee- caretaker unit of approximately 800 square feet of living space, together with approximately 800 square feet for storage space, will accommodate a twenty -foot (20') easement for access to the lots and for utility purposes and will support the landscaping plan. Management and mainten- ance of Lot 10 and of the area south of the Greenbelt Line within Lots 1 -9 shall be the responsibility of a collective homeowners' association consisting of the owners of Lots 1 -9 and shall by it be undertaken pursuant to such provisions as shall be set forth in recorded covenants providing for such policies and procedures governing the use and maintenance of the common area, including for necessary budgets and financial reserves to be assessed against association members, and shall insure permanently the fit and proper maintenance, repair, replacement and enduring first rate safety and quality of the entire development, including its landscaped features, common utility systems and paved areas. Responsibility of the association in this respect may by it be contractually delegated to a private property management company or to a salaried employee of the association. The following as well shall apply to the association hereinabove referred to:" D. Subparagraph (3) - Membership Mandatory, of Subsection C, is hereby amended to read as follows: "(3) Membership Mandatory. Membership in the association shall be mandatory for each owner of the fee simple lots (1 -9) and shall be automatic upon the recordation of any instru- ment transferring a legal or equitable interest (excluding standard security interests) in or to any of such lots." E. Subparagraph (5) of Subsection C, is hereby amended to read as follows: -7- BOOK 447 PAGE 66 "The homeowners' association shall have the power to levy assessments which will become a lien on individual fee simple lots (1 -9) for the purpose of paying the cost of operating and maintaining common facilities; F. Subparagraph (6) of Subsection C, is hereby amended to read as follows: "The Board of Managers of such homeowners' association shall consist of at least three (3) members who shall be owners of the fee simple lots (1 -9) within the development." G. The proposed covenants referred to in Subparagraph (6) of Subsection C are deleted and hereby super- ceded by the Declaration of Covenants, Conditions and Restric- tions for The Pitkin Reserve hereto annexed as Exhibit "B "; i provided that the owner reserves the right to amend the Declara- tion upon the same terms as provision therefor was made in the PUD and Subdivision Agreement. H. Subsection D - Building Restrictions, is hereby amended to read as follows: "The Owner agrees and hereby covenants that the number of units that will be built within The Pitkin Reserve shall not exceed nine (9) free market units plus one (1) employee- caretaker unit and that all areas shown on the plat as being open space or common area shall remain perpetually so." I. Subsection E - Party Wall Declaration, is deleted in its entirety. VIII. Amendments to Section IX - Water Rights and Availability. The first sentence of the second full paragraph of Section IX is amended to read as follows: "A 16" main waterline crosses the Development Parcel (as shown on the Amended Final Plat between Lots 8 and 9) and water service lines will be installed as shown on the utility sheets." IX. Exhibit G - Land Valuation and Park Dedication Fee Calculation is hereby deleted and superceded by the Land Valuation and Park Dedication fee calculation hereto annexed as Exhibit "C ". -8- BOON 447 PAGE 67 X. Remaining Provisions Unaffected. Except to the extent expressly hereinabove set forth, and except as manifestly inconsistent herewith, the remaining provisions of the PUD and Subdivision Agreement for Pitkin Reserve are unchanged and in effect as written and recorded in Book 423 at Pages 417 - 446 of the Pitkin County, Colorado real property records. IN WITNESS WHEREOF, the parties have executed this Amendment to PUD and Subdivision Agreement for Pitkin Reserve as of the 10th day of January, 1983. CITY OF ASPEN, a Municipal ATTEST: corporation t ae . s / � /� / ��/ . , By — $Giivaii LUel, Mayor • / - Jv , i /7s.w L. S AY/. - - jay 6 d PITKIN LIMITED, a Colorado ATIPEST: ' corporation 1 • ' visa 4 By U - be t W. Hu• es, 'ecre ary U ae Li in, President ASPEN MOUNT•IN PARK, a Colo do ge eral /... tn: r hip �AcG rr r. 1 B( ' W w 1 O U ?'exan:er E: ip in, a gen -ral partner, by Robe t W. Hughes, his attorney -in -fact STATE OF COLORADO ) • . - i ) ss. COUNTY OF PITKIN The foregoing instrument was acknowledged before me this )5f day of June, 1983, by WILLIAM L. STIRLING, as Mayor of the City of Aspen, and attested by K1 2IIRIN IOCII, City Clerk, City of Aspen. �2rm ¢GaaE a ti -. -- zzi.rteg,z„. - WYTNESS my hand and offigia� seal. My 'commission expires: 1/10/16 16 I till ll ll /y, (SEAL) o, ` o GC =- v Notary Public c i - • Address: /3U ‘.5 r � s -9- J J l ........ft4 A 7 6 BOOK 44 1 PAGE 68 STATE OF COLORADO ) ss. COUNTY OF PITKIN The foregoing instrument was acknowledged before me this 15th day of June, 1983, by Michael Lipkin, as President, and Robert W. Hughes, as Secretary, of PITKIN LIMITED, a Colorado corporation. WITNESS my hand and official seal. My commission expires:, /6/87 SEAL) A . ASV' Notary////Pub is • Addrefs: 600 E. Hopkc s Aspen, CO 8 611 STATE OF COLORADO ) ss. COUNTY OF PITKIN The foregoing instrument was acknowledged before me this 15th day of June, 1983, by Robert W. Hughes, as attorney- in -fact for Alexander E. Lipkin, a general partner of ASPEN MOUNTAIN PARK, a Colorado general partnership. WITNESS my hand and official seal. • My commission expires: 3 /87 Ad - 4SEAL) / � A/ . Iii /j Notar VSblic f Cp � J> Ad•ress! 600 E. Hopkin Aspen, CO 81611 -10- 80041 447 PAGE 69 DEVELOPMENT SUMMARY AND SITE TABULATIONS Name: The Pitkin Reserve Number of Units: 9 free market units 1 PMH rental unit Amenities: deed restricted caretaker /employee facility above storage *Unit Size: F.A.R. allows each house 6,050 sq. ft. of applicable area *Project Population: 42 (4.5 /unit plus caretaker) *Parking: 2 indoor spaces per unit and 2 guest parking spaces per unit in driveways *Structures: 9 single family houses with architec- tural controls established that pre- serve the integrity of the Master Plan, insure unobstructed views, and provide for the use of high quality building materials. Acreage: 20± acres plus 6 acres of railroad ROW Public Open Space: 13± acres Development Site: 7.064 acres * *Fee Simple Lots: 76.39% of development sites (Lots 1 -9) with approximately 50% of the area of the fee simple lots designated as additional open space Common Open Space: 23.61% of development site (Lot 10) *Building Coverage: 29,500 sq. ft. *Paved Areas: 30,000 sq. ft. (private drive, drive- ways and parking) * Estimate only due to custom nature of construction EXHIBIT "A" TO AMENDMENT TO PUD AND SUBDIVISION AGREEMENT FOR THE PITKIN RESERVE BOON 447 PAGE 70 DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS FOR THE PITKIN RESERVE This Declaration of Covenants, Conditions, and Restrictions is made this day of , 1982, by Pitkin Ltd., a Colorado corporation, (hereinafter referred to as "Declarant "). W I T N E S S E T H: Declarant is the owner of the real property described in Exhibit "A" attached hereto and incorporated herein by reference. Declarant intends by this Declaration to impose upon the property mutually beneficial restrictions under a general plan of improvement for the benefit of all . owners of residential property within The Pitkin Reserve. Declarant desires to provide a flexible and reasonable procedure for the overall development of the property and to establish a method for the administration, maintenance, preservation, use, and enjoyment of such property as is now or may hereafter be submitted to this Declaration. NOW, THEREFORE, Declarant hereby declares that all of the property described in Exhibit "A" and any additional property as may by subsequent amendment be added to and subjected to this Declaration shall be held, sold, and conveyed subject to the following easements, restrictions, covenants, and conditions which are for the purpose of protecting the value and desirability of and which shall run with the real property submitted to this Declaration and which shall be binding on all parties having any right, title, or interest in the described properties or any part thereof, their heirs, successors, successors -in- title, and assigns, and shall inure to the benefit of each owner thereof. ARTICLE I Definitions Section 1. "Association" shall mean and refer to The Pitkin Reserve Homeowners' Association, Inc., a Colorado nonprofit corporation, its successors and assigns. The "Board of Directors" or "Board" shall be the elected body having its normal meaning under Colorado corporate law. Section 2. "Properties" shall mean and refer to the real property described in Exhibit "A" attached hereto and shall further refer to such additional property as may hereafter be annexed by amendment to this Declaration or which is owned in fee simple by the Association. EXHIBIT "B" TO PUD AND SUBDIVISION AGREEMENT • BOOR 447 PAGE 71 Section 3. "Owner" shall mean and refer to the record owner, whether one or more persons or entities, of any lot which is part of the Properties, but excluding in all cases any party holding an interest merely as security for the performance of an obligation. Section 4. "Common Area" shall mean Lot 10, The Pitkin Reserve and all real and personal property now or hereafter owned by or otherwise coming under the responsibility of the Association for the common use and enjoyment of the owners. Section 5. "Residential Lot" shall mean any portion of the Properties intended for any type of separate ndependent ownership for use and occupancy as a residence by a single household and shall in all cases include any building improvements thereon. Section 6. "Area of Common Responsibility" shall mean and refer to the Common Area, together with those areas, if any, which become the responsibility of the Association. In addition, any employee housing unit or caretaker's dwelling or manager's office located on the Properties shall be part of the Area of Common Responsibility. Section 7. "Common Expenses" shall mean and include the actual and estimated expenses of operating the Association, including any reasonable reserve all as may be found to be necessary and appropriate by the Board pursuant to this Declaration, the By -Laws, and the Articles of Incorporation. Section 8. "Member" shall mean and refer to a person or entity entitled to membership in the Association, as provided herein. Section 9. "Mortgage" shall include a deed of trust, as well as a mortgage. Section 10. "Mortgagee" shall include a beneficiary or holder of a deed of trust, as well as a mortgagee. Section 11. "Mortgagor" shall include the trustor of a deed of trust, as well as a mortgagor. Section 12. "Person" means a natural person, a corporation, a partnership, trustee, or other legal entity. Secton 13. Residential Lot Assessments. Residential Lot assessments for common expenses provided for herein shall be used for the purposes of promoting the i recreation, health, safety, welfare, common benefit, and enjoyment of the owners of the Residential Lots against which -2- AMOK 447 PAGE 72 the specific parcel assessment is levied and of maintaining the property within a given parcel, the Common Area, and the Area of Common Responsibility, all as may be specifically authorized from time to time by the Board of Directors and as more particularly authorized below. The Residential Lot Assessment shall be levied equally against the owners of Residential Lots in a parcel for such purposes that are authorized by this Declaration or by the Board of Directors from time to time. Section 15. "Residential Association" shall mean any homeowners or other such association created on property subject to this Declaration containing units, homes or other structures for residential purposes. ARTICLE II Rights In Common Area Every owner shall have a non - exclusive right to the use and enjoyment in and to the Common Area subject to any restrictions or limitations concerning the use thereof herein contained or in any rules or regulations published by the Association or subjecting this Declaration to such property. Any owner may delegate his or her right of enjoyment to the members of his or her family, tenants, and social invitees subject to reasonable regulation by the Association and in accordance with procedures it may adopt. ARTICLE III Membership and Voting Rights Section 1. Membership. Every person or entity (including Declarant) who is the record owner of a fee or undivided fee interest in any Residential Lot that is subject to this Declaration shall be deemed a member in the Association. Membership shall be automatic upon the recording of any document transferring a legal or equitable interest in a Residential Lot and its appurtenant Parcel and shall be appurtenant to and may not be separated from such ownership. The foregoing is not intended to include persons who hold an interest merely as security for the performance of an obligation, and the giving of a security interest shall not terminate the owner's membership. No owner, whether one or more persons, shall have more than one membership per Residential Lot owned. In the event of multiple owners of a Residential Lot, votes and rights of use and enjoyment shall be as provided herein. The rights and privileges of membership, including the right to vote, may be exercised by a ! member or the member's spouse, but in no event shall more than I one (1) vote be cast for each Residential Lot. The Declarant -3- BOON 447 PAGE 73 ARTICLE IV Maintenance The Association shall maintain and keep the Common Area (and any personal property associated therewith) in good repair, taste and order, including all paved areas, all land- scaped areas, and any other improvements to or upon the Common Area, such maintenance to be funded as hereinafter provided. This maintenance shall include, but not be limited to, maintenance, repair, and replacement, subject to any insurance then in effect, of all landscaping and other flora, structures, and improvements situated upon the Common Area, all to the end that the first rate safety, appearance and quality of the Common Area shall permanently endure. The Association shall also by enforcement of rules and regulations that it may from time to time adopt insure the quality of the exterior appearance and aesthetic compatability of the residential units within The Pitkin Reserve. The Association shall have the power to assess the owners of Residential Lots on parcels within The Pitkin Reserve to defray common costs incurred in connection with the maintenance of the Common Areas and the power specially to assess owners whose failure to abide rules and regulations or otherwise properly to maintain the exteriors of any improvements to their Residential Lots results in the Association having to perform such maintenance. All maintenance functions herein provided on the part of the Association to perform may by it be contractually delegated to a managing agent, including a property management firm. The obligation herein of the Association to maintain the Common Area shall, as well, include the duty to pay all real and /or personal property taxes that may be assessed against such Property, unless such taxes be separately assessed against the owners of Residential Lots. ARTICLE V Insurance and Casualty Losses Section 1. Insurance. The Association's Board of Directors or its duly authorized agent shall have the authority to and shall obtain insurance for all insurable improvements on the Common Area against loss or damage by fire or other hazards, including extended coverage, vandalism, and malicious mischief. This insurance shall be in an amount sufficient to cover the full replacement cost of any repair or reconstruction in the event of damage or destruction from any such hazard. The Board shall also obtain a public liability policy covering the Common Area, the Association, and its members for all damage or injury caused by the negligence of the Association or any of its members or agents, and, if reasonably available, directors' and officers' liability insurance. The public liability policy shall have at least a -4- II I 0 - BOOK 447 PAGE 74 ($ ) Dollar per person limit, as respects bodily injury, a ($ ) Dollar limit per occurrence, and a ($ ) Dollar minimum property damage limit. Premiums for all insurance on the Common Area shall be common expenses of the Association. The policy may contain a reasonable deductible, and the amount thereof shall be added to the face amount of the policy in determining • whether the insurance at least equals the full replacement H , cost. Cost of insurance coverage obtained for the Common Area shall be included in the General Assessment, as defined in Article IX, Section 1. All such insurance coverage obtained by the Board of Directors shall be written in the name of the 1 Association, as Trustee, for the respective benefited parties, as further identified in (b) below. Such insurance shall be governed by the provisions hereinafter set forth: (a) All policies shall be written with a company licensed to do business in the State of Colorado and holding a rating of IX or better in the Financial Category as established by A. M. Best Company, Inc., if available, or, if not available, the most nearly equivalent rating. (b) All policies on the Common Area shall be for the benefit of the Residential Lot Owners and their mortgagees as their interests may appear. (c) Exclusive authority to adjust losses under policies in force on the Property obtained by the Association shall be vested in the Association's Board of Directors; ' provided, however, that no mortgagee having an interest in such losses may be prohibited from participating in the ' settlement negotiations, if any, related thereto. (d) In no event shall the insurance coverage obtained and maintained by the Association's Board of Directors hereunder be brought into contribution with j insurance purchased by individual owners, occupants, or their mortgagees, and the insurance carried by the Association shall be primary. (e) All casualty insurance policies shall have an agreed amount endorsement with an annual review by one or more qualified persons. 1 (f) The Association's Board of Directors shall 1 be required to make every reasonable effort to secure 1 insurance policies that will provide for the following: c I 4 -5- BOOK 447 PAGE 75 +y (i) A waiver of subrogation by the insurer as to any claims against the Association's Board of Directors, its Manager, the owners and their respective tenants, servants, agents, and guests; (ii) A waiver by the insurer or its rights to repair and reconstruct instead of paying cash; (iii) That no policy may be cancelled, invalidated, or suspended on account of any one or more indi- vidual Residential Lot owners; (iv) That no policy may be cancelled, invalidated or suspended on account of the conduct of any director, officer, or employee of the Association or its duly authorized Manager without prior demand in writing delivered to the Association to cure the defect and the allowance of a reasonable time thereafter within which the defect may be cured by the Association, its Manager, any owner or mortgagee; and (v) That any "other insurance" clause in any policy exclude individual owners' policies from consideration. Section 2. No Partition. Except as is permitted in the Declaration, there shall be no physical partition of the Common Area or any part thereof, nor shall any person acquiring any interest in the Property or any part thereof seek any such judicial partition until the happening of the conditions set forth in Section 4 of this Article in the case of damage or destruction, or unless the Properties have been removed from the provisions of this Declaration. Section 3. Disbursement of Proceeds. Proceeds of insurance policies shall be disbursed as follows: (a) If the damage or destruction for which the proceeds are paid is to be repaired or reconstructed, the proceeds, or such portion thereof as may be required for such purpose, shall be disbursed in payment of such repairs or reconstruction, as hereinafter provided. Any proceeds remaining after defraying such costs of repairs or reconstruction to the Common Area, or in the event no repair or reconstruction is made after making such settlement as is necessary and appropriate with the affected owner or owners and their mortgagee(s), as their interests may appear, if any Residential Lot is involved, shall be retained by and for the benefit of the Association. This is a covenant for the benefit of any mortgagee of a Residential Lot and may be enforced by such mortgagee. (b) If it is determined, as provided for in Section 4 of this Article, that the damage or destruction to -6- BOON 447 PAGE 76 • the Common Area for which the proceeds are paid shall not be repaired or reconstructed, such proceeds shall be disbursed in the manner as provided for excess proceeds in Section 3(a) hereof. Section 4. Damage and Destruction. (a) Immediately after the damage or destruction by fire or other casualty to all or any part of the Property covered by insurance written in the name of the Association, the Board of Directors or its duly authorized agent shall proceed with the filing and adjustment of all claims arising under such insurance and obtain reliable and detailed estimates of the cost of repair or reconstruction of the damaged or destroyed property. Repair or reconstruction, as used in this paragraph, means repairing or restoring the property to substantially the same condition in which it existed prior to the fire or other casualty. (b) Any damage or destruction to the Common Area shall be repaired or reconstructed unless at least seventy -five (75%) percent of the total vote of the Association shall decide within sixty (60) days after the casualty not to repair or reconstruct. If for any reason either the amount of the insurance proceeds to be paid as a result of such damage or destruction, or reliable and detailed estimates of the cost of repair or reconstruction, or both, are not made available to the Association within said period, then the period shall be extended until such information shall be made available; provided, however, that such extension shall not exceed sixty (60) days. No mortgagee shall have the right to participate in the determination of whether the Common Area damage or destruction shall be repaired or reconstructed. (c) In the event that it should be determined by the Association in the manner described above that the damage or destruction of the Common Area shall not be repaired or reconstructed and no alternative improvements are authorized, then and in that event the property shall be restored to its natural state and maintained as an undeveloped portion of the Common Area by the Association in a neat and attractive condition. Section 5. Repair and Reconstruction. If the damage or destruction for which the insurance proceeds are paid is to be repaired or reconstructed and such proceeds are not sufficient to defray the.cost thereof, the Board of Directors shall, without the necessity of a vote of the Association's members, levy a special assessment against all owners in proportion to the number of Residential Lots owned by such owners. Additional assessments may be made in like manner at any time during or following the completion of any repair or reconstruction. If the funds available from -7- BOOK 447 PAGE 77 ti Association's members, levy a special assessment against all owners in proportion to the number of Residential Lots owned by such owners. Additional assessments may be made in like manner at any time during or following the completion of any repair or reconstruction. If the funds available from insurance exceed the cost of repair, such excess shall be deposited to the benefit of the Association. ARTICLE VI Condemnation Whenever all or any part of the Common Area shall be taken (or conveyed in lieu of and under threat of condemnation by the Board, acting on its behalf or on the written direction of all Owners of Residential Lots subject to the taking, if any) by any authority having the power of condemnation or eminent domain, each owner shall be entitled to notice thereof and to participate in the proceedings, incident thereto, unless otherwise prohibited by law. The award made for such taking shall be payable to the Association, as Trustee for all owners, to be disbursed as follows: If the taking involves a portion of the Common Area on which improvements have been constructed, then, unless within sixty (60) days after such taking at least seventy -five percent (75%) of the voting members of the Association shall otherwise agree, the Association shall restore or replace such improvements so taken on the reamining land included in the Common Area, to the extent lands are available therefore, in accordance with plans approved by the Board of Directors of the Association. If such improvements are to be repaired or restored, the above provisions in Article V hereof regarding the disbursement of funds in respect to casualty damage or destruction which is to be repaired shall apply. If the taking does not involve any improvements on the Common Area, or if there is a decision made not to repair or restore, or if there are net funds remaining after any such restoration or replacement is completed, then such award or net funds shall be disbursed to the Association and used for such purposes as the Board of Directors of the Association shall determine, 1 including, as the case may be, ultimate disbursement to the d owners. ARTICLE VII Rights and Obligations of the Association Section 1. The Common Area. The Association, subject to the rights of the owners set forth in this Declaration, shall be responsible for the exclusive management and control of the Common Area and all improvements thereon (including furnishings and equipment related thereto), and shall keep it in good, clean, attractive, and sanitary -8- ROM 447 PAGE 78 condition, order, and repair, pursuant to the terms and conditions hereof. Section 2. Personal Property and Real Property for Common Use. The Association, through action of its Board of Directors, may acquire, hold, and dispose of tangible and intangible personal property and real property. Section 3. Rules and Regulations. The Association, through its Board of Directors, may make and enforce reasonable rules and regulations governing the use of the Properties, which rules and regulations shall be consistent with the rights and duties established by this Declaration. Sanctions may include reasonable monetary fines which shall constitute a lien upon the owner's Residential Lot and suspension of the right to vote and the right to use the Common Area. In addition, the Board shall have the power to seek relief in any court for violations or to abate unreasonable disturbances. Section 4. Implied Rights. The Association may exercise any right or privilege given to it expressly by this Declaration or the By -Laws, and every other right or privilege reasonably to be implied from the existence of any right or privilege given to it herein or reasonably necessary to effec- tuate any such right or privilege. ARTICLE VIII Assessments Section 1. Creation of General Assessment. There are hereby created assessments for Common Expenses as may be from time to time specifically authorized by the Board of Directors. General Assessments shall be allocated equally among all Residential Lots within the Association and shall be for expenses determined by the Board to be for the benefit of the Association as a whole. Each owner, by acceptance of his or her deed, is deemed to covenant and agree to pay these assessments. All such assessments, together with interest at the highest rate in the circumstances allowable under the laws I of Colorado, costs, and reasonable attorney's fees shall be a charge on the land and shall be a continuing lien upon the i Residential Lot against which each assessment is made. Each such assessment, together with interest, costs, and reasonable attorney's fees, shall also be the personal obligation of the person who was the owner of such Residential Lot at the time the assessment arose, and his or her grantee shall be jointly and severally liable for such portion thereof as may be due and payable at the time of conveyance, except no first mortgagee who obtains title to a Residential Lot pursuant to the remedies provided in the mortgage shall be -9- I 'BOOK 447 PAGE 79 • liable for unpaid assessments which accrued prior to such acquisition of title. Assessments shall be paid in such manner and on such dates as may be fixed by the Board of Directors. Section 2. ••Computation of Assessment. If the Association incurs ongoing Common Expenses, the Board shall prepare an annual budget, and the following provisions shall apply: It shall be the duty of the Board at least thirty (30) days prior to the meeting at which the budget shall be presented to the membership to prepare a budget covering the estimated costs of operating the Association during the coming year. The budget shall include a capital contribution establishing a reserve fund, in accordance with a capital budget separately prepared. The Board shall cause a copy of the budget, and the amount of the assessments to be levied against each Residential Lot for the following year, to be delivered to each owner at least fifteen (15) days prior to the meeting. The budget and the assessments shall become effective unless disapproved at the meeting by a vote of at least a majority of the total Association membership or otherwise modified by a majority vote. Section 3. Special Assessments. In addition to the assessments authorized in Section 1, the Association may levy a Special Assessment for the purpose of defraying any costs incurred by the Association through its Board pursuant to the provisions of this Declaration, which was not included in the annual budget from which the general assessment was levied. Section 4. Lien for Assessments. All such assessments shall constitute a lien on each Residential Lot and Parcel prior and superior to all other liens, except (1) all taxes, bonds, assessments, and other levies which, by law, would be superior thereto, and (2) the lien or charge of any first mortgage of record (meaning any recorded mortgage or deed of trust with first priority over other mortgages or deeds of trust) made in good faith and for value. The Association, acting on behalf of the owners, shall have the power to bid for the Residential Lot at foreclosure sale, and to acquire and hold, lease, mortgage, and convey the same. During the period owned by the Association following foreclosure: (1) no right to vote shall be exercised on its behalf; (2) no assessment shall be assessed or levied on it; and (3) each other Residential Lot shall be charged, in addition to its usual assessment, its equal pro rata share of the assessment that would have been charged such Residential Lot had it not been acquired by the Association as a result of foreclosure. -10- gam 447 rAsE 80 Suit to recover a money judgment for unpaid common expenses, rent, and attorneys' fees shall be maintainable without foreclosing or waiving the lien securing the same. Section 5. Capital Budget and Contribution. The Board of Directors shall annually prepare a capital budget which shall take into account the number and nature of replaceable assets, the expected life of each asset, and the expected repair or replacement cost. The Board shall set the required capital contribution, if any, in an amount sufficient to permit meeting the projected capital needs of the Association, as shown on the capital budget, with respect both to amount and timing by annual assessments over the period of the budget. The capital contribution required shall be fixed by the Board and included within the budget and assessment, as provided in Section 2 of this Article. A copy of the capital budget shall be distributed to each member in the same manner as the operating budget. ARTICLE IX Architectural Standards All property which is now or may hereafter be subjected to this Declaration is subject to architectural and environmental review. This review shall be in accordance with this Article and such standards as may be promulgated by the Board. The Board of Directors shall have the authority and standing on behalf of the Association to enforce in courts or competent jurisdictions any violation of the architectural standards promulgated by the Board. Section 1. New Construction. The Board shall promulgate Architectural and Environmental Standards and Application Procedures. It shall make these available to owners, builders, and developers who seek to engage in development of or construction upon all or any portion of the Properties and shall conduct its operations in accordance therewith. Section 2. Modifications. The Board shall have exclusive jurisdiction over modifications, additions, or alterations made on or to any building or landscaping improvements from time to time installed on any Residential Lot. The Board shall promulgate detailed standards and procedures governing its area of responsibility and practice in respect of modifications. In addition thereto, the following shall apply: plans and specifications showing the nature, kind, shape, color, size, materials and location of such modifications, additions, or alterations shall be submitted to the Board for approval as to quality of workmanship and design and harmony of external design with -11- tea( 447 PAVE 81 existing structures and as to location in relation to surrounding structures, topography, and finish grade elevation. Nothing contained herein shall be construed to limit the right of an owner to remodel the interior of his residence or to paint the interior of his residence any color desired. In the event the Board fails to approve or to disapprove such plans or to request additional information reasonably required within forty -five (45) days after submission, the plans shall be deemed approved. ARTICLE X Use Restrictions The Properties shall be used only for residential, recreational, and related purposes as may more particularly be set forth in this Declaration, or any amendments hereto. The Association, acting through the Board of Directors, shall have standing and the power to enforce use restrictions contained in any such declaration as if such provision were a regulation of the Association. ARTICLE XI Mortgagee Provisions The following provisions apply to the Properties, and none may be amended without the consent of at least two - thirds (2/3) of the first mortgagees: Section 1. Consent of Lenders Required. Unless ! two - thirds (2/3) of the institutional holders of first mortgages within the Properties have given their prior approval, the Association shall not be entitled to: (a) by act or omission seek to abandon, alienate, release, partition, hypothecate, subdivide, enumber, sell, or transfer any common area owned, directly or indirectly, by the Association for the benefit of the Residentail Lots; provided, however, the granting of easements for public utilities or for other public purposes consistent with the intended use of such Common Area shall not be deemed a transfer within the meaning of this clause; (b) change the method of determining the obligations, assessments, dues, or other charges which may be levied against an owner; (c) by act or omission change, waive, or abandon the system of regulations and enforcement established in this Declaration for architectural design or the exteriof appearance and maintenance of Residential Lots, and the maintenance of the Common Area in the Properties; or -12- `eat 447 PAtE (d) use hazard insurance proceeds for losses to any Common Area for other than the repair, replcement, or reconstruction of such Common Area. Section 2. Payment of Taxes. First mortgagees of Residential Lots or parcels may, jointly or singly, pay taxes or other charges which are in default and which may or have become a charge against any Common Area and may pay overdue premiums on hazard insurance policies or secure new hazard insurance coverage on the lapse of a policy for such Common Area. First mortgagees making such payments shall be owed immediate reimbursement therefor from the Association. Section 3. No Priority. No provision of this Declaration gives or shall be construed as giving any owner or any other party priority over any rights of the first mortgagee of a Residential Lot pursuant to its mortgage in the case of a distribution to such owner of insurance proceeds or condemnation awards for losses to or a taking of Common Area. Section 4. Notice to Mortgagee. Notwithstanding anything contained herein which might otherwise be construed to the contrary, a first mortgagee, upon request designating such unit, will be entitled to written notification from the Association of any default in the performance by any owner of a Residential Lot or parcel in hich such mortgagee has an interest of any obligation under this Declaration which is not cured within sixty (60) days. Section 5. Manaqemeht Agreement Limitations. Notwithstanding anything contained herein which might otherwise be construed to the contrary, any agreement for professional management of the Common Area, or any other agreement providing for services by others in respect of the functions and responsibility of the Association herein may not exceed one (1) year and must provide for termination by either party without cause and without payment of a termination fee on thirty (30) days or fewer written notice. ARTICLE XII • General Provisions Section 1. Term. The covenants and restrictions of this Declaration shall run with•and bind the Properties, and shall inure to the benefit of and shall be enforceable by the Association or the owner of any property subject to this Delcaration, their respective legal representatives, heirs, successors and assigns. Section 2. Amendment. This Declaration may be amended only by the affirmat ive vote (in person or by proxy) or written consent of members representing a majority of the total voting power of the Association, together with any -13- BOOK 447 PAGE 83 required affirmative approval of first mortgagors as hereinabove provided in Article XI. Any amendment must be recorded among the land records of Pitkin County, Colorado. Section 3. Indemnification. The Association shall indemnify every every officer and director against any and all expenses; including counsel fees, reasonably incurred by or imposed upon any officer of director in connection with any action, suit or other proceeding (including settlement of any suit or proceeding, if approved by the then Board of Directors) to which he or she may be a party by reason of being or having been an officer or director. The officers and directors shall not be liable for any mistake of judgment, negligent or otherwise, except for their own individual willful misfeasance, malfeasance, misconduct or bad faith. The officers and directors shall have no personal liability with respect to any contract or other commitment made by them, in good faith, on behalf of the Association (except to the extent that such officers or directors be also members of the Association), and the Association shall indemnify and forever hold each such officer and director free and harmless against any and all liability to others on account of any such contract or commitment. Any right to indemnification provided for herein shall not be exclusive of any other rights to which any officer or director, or former officer or director, may be entitled. The Association shall, as a common expense, maintain adequate general liability and officers' and directors' liability insurance to fund this obligation. Section 4. Delegation of Use. Any owner may delegate, in accordance with the By -Laws, Rules and Regulations of the Association, his or her right of enjoyment to the Common Area and facilitie to the members of his or her family, tenants, and social invitees. Section 5. Owner's Right to Ingress, Egress, and Support. Each owner shall have the right to ingress and egress over, upon, and across the Common Area necessary for access to his or her Residential Lot and shall have the right to lateral support for his or her Residential Lot, and such rights shall be appurtenant to and pass with the title to each Residential Lot. Section 6. Easements of Encroachment. There shall be and hereby are granted reciprocal appurtenant easements of encroachment as between each Residential Lot and such portion or portions of the Common Area adjacent thereto to the extent any such easements may be necessary to maintain any improvements to the Property at the time hereof existing in their present configuration and proximity. Section 7. Easements for Utilities, Etc. There is hereby reserved the power to grant blanket easements upon, across, over, and under all of the property for ingress, -14- BON 447 PAGE 84 egress, installation, replacing, repairing, and maintaining master television antenna systems, security, and similar systems, and all utilities, including, but not limited to, water, sewers, telephones, and electricity. By virtue of any such easement, it shall be expressly permissible for the providing utility company or other supplier or servicer to erect and maintain the necessary pies and other equipment on said property and to affix and maintain utility wires, circuits, and conduits on, above, across, and under the roofs and exterior walls of any building improvmeents upon the Residential Lots. Notwithstanding anything to the contrary contained in this paragraph, no sewers, electrical lines, water lines, or other utilities may be installed or relocated on the property, except as may be approved by the Association's Board of Directors. Should any entity furnishing a service covered by the general easement herein provided request a specific easement by separate recordable document, the Board of Directors shall have the right to grant such easement on said property without conflicting with the terms hereof. The easements provided for in this Article shall in no way adversely affect any other recorded easement on the Properties. Section 8. Pets. No animals, livestock, or poultry of any kind shall be raised, bred, or kept on the Properties, except that no more than a total of two (2) normal household pets may be kept within Residential Lots, subject to rules and regulations adopted by the Association through its Board of Directors, provided that such pets are not kept, bred, or maintained for any commercial purpose. Subject to such Rules and Regulations that it may adopt, or from time to time amend, the Board shall have the absolute power to prohibit pets from being kept on the Properties. Section 9. Severability. Invalidation of any one of these covenants or restrictions by judgment or court order shall in no way affect any other provisions which shall remain in full force and effect. Section 10. Perpetuities. If any of the covenants, conditions, restrictions, or other provisions of this Declaration shall be unlawful, void, or voidable for violation of the rule against perpetuities, then such provisions shall continue only until twenty -one (21) years after the death of the longest lived member of the presently constituted City Council of the City of Aspen, Colorado. Section 11. Renting or Leasing. Homes constructed upon the Residential Lots may be rented,or leased only by written leases and subject to the following restrictions: -15- Boor 447 PAGE 85 • i Minimum Terms. Homes shall be restricted to minimum six -month lease terms with no more than two shorter tenancies per year. Lessee to Comply With Declaration and By -Laws -- Effect of Non - Compliance. All tenants shall be subject to the terms and conditions of this Declaration, the By -Laws of the Association, the Articles of Incorporation, and the rules and regulations from time to time promulgated thereunder by the Board of the Association. Each owner agrees to cause his lessee, occupant, or persons living with such owner or with his lessee to comply with the Declaration, By -Laws, and the rules and regulations promulgated thereunder, and is responsible and liable for all violations and losses caused by such tenants or occupants, notwithstanding the fact that such occupants are, as well, fully liable for any violation of the documents and regulations; failure to comply shall be, at the Board's option, considered a default in the lease. In the event that a lessee, occupant, or person living with the lessee violates a provision of the Declaration, By -Laws, or rules and regulations adopted pursuant thereto, the Board shall have the power to bring an action or suit against the lessee to recover sums due for damages or injunctive relief, or for any other remedy available at law or equity, incluidng, but not limited to, all remedies available to a landlord upon the breach or default of the lease agreement by the lessee. The Board shall also have the power to impose reasonable fines upon the lessee for any violation by the lessee, occupant, or person living with the lessee of any duty imposed under the Declaration, By -Laws, or rules and regula- tions adopted pursuant thereto, and to suspend the right of the lessee, occupant, or person living with the lessee to use the Common Area. IN WITNESS WHEREOF, the undersigned Declarant has executed this Declaration this day of 1983. PITRIN LTD., a Colorado corporation ATTEST: By , President Secretary (Notarial Clause on Page 17) -16- . BOON 447 PAGE 86 STATE OF COLORADO ) ss. COUNTY OF PITKIN The foregoing instrument was acknowledged before me this day of , 1983, by , as President and as Secretary of Pitkin Ltd., a Colorado corporation, WITNESS my hand and official seal. My commission expires: My address is: (SEAL) Notary Public • -17- sooK 447 p 8 7 LAND VALUATION AND PARK DEDICATION FEE CALCULATION (calculated to the nearest 0.5 acre) In accordance with Section 7 -143 of the Aspen Building Code and Section 20 -18 of the Aspen Subdivision Code, the cash equiva- lent for the park dedication fee and its determination for The Pitkin Reserve Subdivision is as follows: Purchase Price of Total Parcel $1,250,000.00 (20 acres) Price Per Acre 20 71,428.60 Value of 7 -Acre Development Parcel x 7 500,000.00 Value Per Unit (12 Units) 9 55,555.56 1% of Land Value Per Unit x.01 555.67 Fee per 4- Bedroom Unit * / 3 1,666.67 Value of 10.5 -acre parcel dedicated to open space 750,000.00 Difference between cash equivalent of park dedica- tion fee (1,666.67 x 9 = $15,000.00) and value of open space parcel 735,000.00 * * * * /The park dedication fee for the employee housing units to be constructed in Lot 10 will be calculated in the same manner as above set forth and will proceed from the same land valuation. EXHIBIT "C" TO AMENDMENT TO PUD AND SUBDIVISION AGREEMENT FOR THE PITKIN RESERVE r 2 Id gli it 1 '1° 2°A' 0 A /zj tw y i /q 4. P.U.D. AND SUBDIVISION AGREEMENT l L�� FOR I f PITKIN RESERVE This P.U.D..apd Subdivis'•n Agreement is made and entered into thisii of v , 1982, by and between THE CITY OF ASPEN, COLORADO, a M nicipal Corporation (hereinafter referred to as "City "), PIT IN LIMITED, a Colorado corporation (hereinafter referred to as "the Owner "), 1 `i and Aspen Mountain Park, a Colorado general partnership (hereinafter referred to as "AMP) 4-,� RECITALS 1. The Owner has submitted to the City for approval, execution and recordation, the final plat and development plan of a tract of land situate within the City of Aspen, Colorado, legally described on Exhibit "A" attached hereto and incorporated herein by this reference, and desig- nated as "Pitkin Reserve" ( "The Plat "); and 2. The City has caused the annexation of the real property covered by the Plat to the City of Aspen and resulting zoning of the property to R -30 /PUD; and 3. The City has fully considered The Plat, the I proposed development, the improvement of the land and the burdens to be imposed upon other adjoining or neighboring properties by reason of the proposed development and improve- ment of land included in the Plat; and 4. The City is willing to approve, execute and accep the Plat for recordation upon agreement of the Owner to t matters herein described, and subject to all of the requi ements, terms and conditions of the City of Aspen PUD and subdivision regulations now in effect and other laws, rules and regulations as are applicable; and 5. The City has imposed certain conditions and requirements in connection with its approval, execution and recordation of the Plat, such matters being necessary to protect, promote, and enhance the public welfare; and 6. The Owner is willing to acknowledge, accept, abide by and faithfully perform the conditions and require- ments imposed by the City in approving the Plat; and 7. The submitted plat assumes and anticipates two distinct developments viz., the one shown on the Plat and hereinafter described and the other, herein referred to as the Smuggler Mobile Home Park, which is to be developed by its owner, AMP, on other real property more particularly described on Exhibit "B" hereo; and 8. The Owner is the transferee from AMP of the "free market" development rights to be employed in connection with Pitkin Reserve, which development rights result from and, as hereinafter provided, are conditioned upon the development activity described in the Precise Plan and Subdivision Agreement for Smuggler Mobile Home Park; and 9. The Owner and AMP acknowledge, understand and agree that fulfillment of the terms, conditions and require- ments of the Precise Plan and Subdivision Agreement For Smuggler Mobile Home Park is a pre- condition to the approvals of the City herein granted and to the development activity i herein described; and 10. In recognition of the interrelatedness of the [ two developments, AMP shall be and has become a party signa- tory to this Agreement; and 11. Under the authority of Section 20 -16(c) and 24 -8.6 of the Municipal Code of the City of Aspen, Colorado, the City is entitled to assurance that the matters herein- after agreed to will be faithfully performed by the Owner; NOW, THEREFORE, AGREEMENT IN CONSIDERATION OF THE PREMISES, the mutual covenants herein contained, and the approval, execution and acceptance of the Plat for recordation by the City, it is mutually agreed as follows: I . GENERAL DEVELOPMENT PLAN The Pitkin Reserve development as shown on the Plat consists of twenty acres, more or less, and includes the following elements: A. Development Parcel. All land to the north of the Denver and Rio Grande Western ( "D & RGW ") Railroad Right -of -Way shown on the Plat shall be and constitute the Development Parcel. The Development Parcel consists of -2- r /T 7.064 acres, more or less, and shall be owned, improved, marketed and sold by the Owner or its assigns on the open or "free market" basis.. Approximately 35% of the Development Parcel will be used for the construction of not more than twelve residential free - market housing units and one detached deed restricted employee housing unit. The following features shall further define and describe the Development Parcel: (1) Free Market Development -- Lots 1 -12. The Development Parcel shall contain not more than twelve separately designated fee simple lots, each consisting of the land under and in the immediate vicinity of the twelve homes to be constructed thereon, which shall be paired in duplex fashion with a party wall straddling a common boundary line creating a zero lotline. Each such lot shall be deemed augmented in size by an undivided one - twelfth (1/12) interest in the common area component of the Development Parcel described below. Prior to its conveyance by the Owner to any third party, each unit shall be deed or covenant restricted to six (6) month minimum lease terms with no more than two (2) shorter tenancies per year, and the document of conveyance of any such unit shall expressly recite that the unit is so restricted to six (6) month miniumum lease terms with no more than two (2) shorter tenancies per year. (2) Employee Housing. Within the common area component of the Development Parcel described below, one (1) employee housing unit shall be constructed, the use and occupancy of which shall be restricted, as hereinbelow provided, by a covenant that runs with the land to a resident caretaker - employee for and of the owners (or a collective association thereof) of the free - market units. The caretaker -em- ployee may be charged a monthly rental (which may be offset against salary) not to exceed employee "middle income" guideines applicable at the time hereof. The employee housing unit may also include storage facilities for maintenance equipment and the like. (3) Common Area -- Lot 13. Approximately 65% of the Development Parcel shall consist of commonly owned area, which shall be owned by the owners of Lots 1 -12 as a non - partitionable undivided appurtenance to their lots. The common area shall be managed and maintained as provided in Section VIII, paragraph C, below. (4) Site Data Tabulations. The Development Summary and Site Data Tabulations hereto annexed as Exhibit "C" and incorporated by reference herein defines and describes further and more specific allocation of the uses anticipated within the Development Parcel. -3- /-) B. Public Open Space -- Lot 14. Approximately 13 acres, more or less, consisting of all acreage within the Pitkin Reserve Subdivision to the south of the D & RGW Railroad Right -of -Way shown on the Plat, has been forever restricted to its present natural state as open space to the I exclusion of any improvements of whatsoever nature or kind, I with the exception of non - vehicular paths and trails and underground public improvements. Ownership of such open space shall be in Pitkin County, Colorado; provided, however, and always, that the benefit of the above - described open space restriction and dedication shall be specifically enforceable by (1) the City and /or (2) the Owner, its successors, and assigns, including the owners (or an association thereof) of Lots 1 -12 within the Development Parcel. II INTERRELATION OF PITKIN RESERVE AND SMUGGLER MOBILE HOME PARK A. Development Assumptions. As hereinabove recited, the submitted Plat assumes and anticipates two distinct developments -- viz., the one shown on the Plat and herein described, and the other to occur on real property more particularly described on Exhibit "B" hereto. The other development -- the Smuggler Mobile Home Park, which is being developed by its owner, AMP contemplates (a) the conversion of some eighty -seven units from existing uncon- trolled housing to housing that shall be deed or covenant restricted in terms of rental and resale price controls in a manner consistent with the provisions of the Aspen Municipal Code in such cases made for the preservation of employee housing; and (b) the construction of seventeen new housing units that shall be deed or covenant restricted in accordance with the provisions of the Aspen Municipal Code in such cases made to induce the construction of employee housing, all to the end and extent that in respect of these provisions and development including, for purposes hereof, the em- ployee- caretaker unit described in subsection A(2) above, allowance is made for exceptions to or exemptions from the growth management quota system of Article XI, Section 24 of the Aspen Municipal Code. Although the review process for each development has occurred independently of the other, each development having been reviewed on its own merits, for purposes of such exceptions to or exemptions from the growth management quota system, it is agreed and understood that the two developments shall be considered together as an integrated whole. -4- > J B. Interrelatedness of Improvements. In view of the dual ownership, nature and situs of the developments, and in consideration of governmental approvals given in connection with each, it is (a) acknowledged that the performance of the respective obligations of the Owner relative to Pitkin Reserve and of AMP relative to the Smuggler Mobile Home Park are mutually dependent upon one another and the performance thereof shall be and remain conditions to the obligations, agreements and approvals of the City herein made or given or made or given in respect of any development activities at the Smuggler Mobile Home Park; and (b) agreed that (i) provision shall be made in a separate Precise Plan and Subdivision Agreement to which both AMP and the Owner shall become party signatories, for the construction, installa- tion and erection of improvements within or upon the Smuggler Mobile Home Park; and notwithstanding the foregoing that (ii) as hereinafter used "Improvements" shall be deemed to refer only to the improvements, facilities and systems to be constructed, erected or installed within or upon the property shown on the Plat and described in Exhibit "A ", hereto. C. Development Allotments. The City acknowleges and agrees that the conversion of the eighty -seven (87) mobile home units at the Smuggler Mobile Home Park to res- tricted housing units and the construction of seventeen (17) new mobile homes at the Smuggler Mobile Home Park, which conversion and construction will proceed and shall result in restricted housing in the manner more particularly set forth in the Precise Plan and Subdivision Agreement for Smuggler Mobile Home Park, which plan and agreement is incorporated by reference herein, shall and pursuant to the exception provisions to the allotment procedures of the growth management quota system set forth in Sections 24- 11.2(i) and (k) does result in the exception from compliance with the allotment procedures of the growth management quota system of development activity consisting of not less than nineteen (19) otherwise non - exempt free - market housing units, twelve (12) of which are to be employed in connection with this Pitkin Reserve development; k)rovided, however, that the Owner acknowledges that a certificate(s) of occupancy on the free market units contemplated herein, for Pitkin Reserve or any other free market development rights resulting from such exceptions to the growth management quota system shall not issue until the City is satisfied that the terms, conditions and requirements set forth in the Precise Plan And Subdivision Agreement For Smuggler Mobile Home Park, hereinabove referenced, are fulfilled or adequate provision for their fulfillment made. -5- (—) i-) III. EMPLOYEE HOUSING DEDICATION AND RESTRICTION The Owner hereby covenants with the City that the employee unit described above in Section I, paragraph A(2) shall be restricted in terms of its use and occupancy to a resident caretaker - employee for and of the Owner of Lots 1 -12 (or a collective association thereof), to whom a monthly rental (which may be offset against salary) may be charged not to exceed "middle income" guidelines from time to time established by the City. in the event the owners of Lots 1 -12 (or a collective association thereof) shall determine not to employ a resident caretaker - employee, as above provided, they (or it) shall have the right to lease the unit to an individual(s) who shall otherwise meet the income and occupancy eligibility requirements generally established and applied by the City in respect of employee housing and who may be charged a rent not in excess of "middle income" guidelines from time to time established by the City, the proceeds of which shall be used to defray common maintenance and related costs associated with Lot 13. The foregoing covenant shall be deemed to run with Lot 13 as a burden thereto for the benefit of and shall be specifically enforceable by the City by any appropriate legal action including injunction, abatement, eviction or rescission of any non - complying tenancy, for the period of the life of the longest lived member of the presently existing City Council of the City of Aspen, Colorado, plus twenty -one (21) years, or for a period of fifty (50) years from the date of recording hereof in the Pitkin County, Colorado real property records, whichever period shall be less. IV. CONSTRUCTION OF IMPROVEMENTS A. Nature and Estimated Costs of Improvements. Owner hereby agrees to be responsible for the making and installation of the improvements to be contained within the development indicated on the Plat, to the extent required by Section 20 -16(a) of the Municipal Code. The nature, extent and estimated cost of such improvements shall substantially conform to the schedule entitled "Pitkin Reserve Improvements Schedule" annexed hereto and made a part hereof as Exhibit B. Construction Schedule. In accordance with the requirements of Section 20- 16(c)(1) and 24- 8.9(b) of the Municipal Code, construction of all development improvements shall substantially conform to the "Development and Construction -6- ) Schedule" annexed hereto and made a part hereof as Exhibit "E ", except to the extent of amendment thereto in the manner set forth in Section V, below, which schedule includes the dates anticipated for the beginning and completion of the improvements. The Owner further agrees that (1) no under - grounding of any utilities will occur between November 1 and April 15 of any year; and (2) it will in all events employ its reasonable best efforts toward the completion of construction of the improvements by the earliest time in all the circumstances attainable. C. Landscaping Plan. In accordance with Section 24 -8.16 of the Municipal Code, all landscaping shall substan- 1 tially conform to the "Landscape /Unit Plan" annexed to the Plat and incorporated herein by reference, and to the "Landscape 1 Concept" described in Exhibit "F" hereto attached, which 1 together show the extent and location of all plant materials I and other landscape features, flower and shrub bed definition, proposed plant material at mature sizes in appropriate I relation to scale, species and size of existing plant material, proposed treatment of all ground surfaces (e.q., paving, turf, gravel, etc.), location of water outlets, and a plant material schedule with common and botanical names, sizes, quantities, and methods of transplant. Landscaping will be I completed in a logical phasing sequence commensurate with the phasing of the improvements contemplated in the Development and Construction Schedule. Additionally, and in lieu of any bond to insure the installation, maintenance and replacement of all landscaping, as the City otherwise would have the right to require pursuant to Section 24 -8.16 of the Municipal Code, the City and the Owner agree and acknowledge that no certificate(s) of occupancy for the free market units contem- plated herein for Pitkin Reserve shall issue unless the City is satisfied that all such landscaping is installed, or adequate provision made for its installation, and adequate provision is made for the maintenance and replacement of such landscaping for the two (2) year period succeeding its installation. D. Willoughby Way. The Owner shall assume and be responsible for the repair, replacement and restoration of and to Willoughby Way due to any damage or injury thereto caused as a result of construction activities associated with the Pitkin Reserve development. E. Utilities Underground. All utility systems to serve and crossing the Pitkin Reserve Development Parcel shall be placed underground. -7- I! rC ( ) V. NON- COMPLIANCE AND REQUEST FOR AMENDMENTS OR EXTENSIONS BY OWNER In the event that the City determines that the Owner is not acting in substantial compliance with the terms of this agreemnt, the City may issue and serve upon the Owner written order specifying the alleged non - compliance and requiring the Owner to cease and desist from such non - compliance and rectify the same within such reasonable time as the City may determine and specify in such order. Within twenty (20) days of the receipt of such order, the Owner may file with the City a notice advising the City that it is in compliance or a written petition requesting a hearing to determine any one or both of the following matters: (a) whether the alleged non - compliance exists or did exist; or, (b) whether a variance, extension of time or amendment to this agreement shall be granted with respect to any such non - compliance which is determined to exist. Upon the receipt of such petition, the City shall promptly schedule a hearing to consider the matters set forth in the cease and desist order and in the petition. The hearing shall be convened and conducted pursuant to the procedures normally established by the City for other hearings. If the City determines by a preponderance of the evidence that a non - compliance exists which has not been remedied, it may issue such compliance orders as may be appropriate; provided, however, no order terminating any approval granted herein shall be granted without a written finding of the City that clear and convincing evidence warrants such action and affording the Owner a reasonable time to remedy such non - compliance. A final determination of non - compliance which has not been remedied or for which no variance has been granted shall, at the option of the City, and upon written notice to the Owner terminate any of the approvals contained herein. In addition to the foregoing, the Owner may, on its own initiative, at any time petition the City for an amendment to this agreement and the exhibits annexed hereto or to extend any of the time periods required for performance. With respect to the Pitkin Reserve Improvements Schedule (Exhibit D), and the Development and Construction Schedule (Exhibit E), the Owner has made various assumptions, which the City hereby acknowledges and accepts, including the following: -8- 1 ) 1 i (1) Completion in an expeditious manner of the bidding, contractor selection, and implementation phases to meet the dates indicated; (2) Confirmation of the construction schedule by selected contractors; (3) Availability of the required labor and materials during each phase. (4) Sale of residences at a rate that would permit the phasing suggested in the Development and Construction Schedule. The City shall not refuse to extend the time periods for performance indicated in the Development and Construction Schedule or refuse to allow reasonable adjustments to the Schedule if the Owner demonstrates by a preponderance of the evidence that the reasons for such extension or said adjustments result from the failure of such assumptions by reason of events beyond the control of the Owner or are otherwise beyond the control of the Owner despite good faith efforts on its part to accomplish the same. As is set forth below, the foregoing procedures relative to non - compliance, amendments or extensions shall not apply in respect of (a) the rights of the City pursuant to the Financial Assurances of the Owner described in Section XI, below; or (b) the rights of the City in the event of a failure to maintain common facilities, which rights are more particularly described in Section VIII, paragraph C, below. VI. EASEMENTS, RIGHTS OF WAY, AND RELOCATIONS The attached Plat sets forth certain easements, rights of way, and anticipated relocations that will be necessary to cause the improvements anticipated thereon, which easements, rights of way and relocations include the following: A. Connecting Pedestrian Trail Easement. As shown on the Plat, the Owner hereby dedicates to the City a twelve -foot (12') pedestrian trail easement within and upon the twenty -foot (20') service road easement also shown on the Plat and described below for use by the pedestrian public as a connecting link between the "Rio Grande Horse and Bicycle Trail" and Willoughby Way. -9- B. Relocation of Railroad Right of Way. As shown and indicated on the Plat, Pitkin County, Colorado, the owner of the D & R G W Railroad Right of Way, and the Owner have agreed to the exchange of deeds in order to effect a relocation of the right of way to the configuration and meander actually shown on the Plat. The Plat and this Agreement are subject to and conditioned upon the consumma- tion of the exchange and the recording of the resulting exchange deeds. In connection with the relocation of the right of way and development activities associated with the Pitkin Reserve project, the Owner covenants and agrees that: (1) Relocation and development shall be done in a manner not inconsistent with the use at any time in the future of the relocated right of way for railroad purposes; (2) In the event that any portion of the existing "Rio Grande Horse and Bicycle Trail" which now lies within the present meander of the railroad right of way is damaged or requires relocation as a result of the development activities herein contemplated or relocation of the railroad right of way, it will, at its expense and as promptly as in the circumstances can be done, repair such damage and effect the relocation, realignment or restoration of the horse and bicycle trail; and (3) It will grant such other and further easements that may be necessary in order fully to effect the relocation of the right of way and any appurtenant systems, including the horse and bicycle trail and proximate utility systems. C. Service Road Easement. The owner hereby dedicates and confirms the twenty -foot (20') service road easement shown and indicated on the Plat for access, including by means of motorized maintenance vehicles, to Lot 7, Pitkin Green Subdivision for the purposes of maintaining the water wells and equipment thereon situate, and for pedestrian and motorized access, including by construction and maintenance vehicles, to the Pitkin Reserve Subdivision, which dedication and confirmation is made to the extent above - provided for the benefit of owners of real property within the Pitkin Green and Pitkin Reserve Subdivisions, their guests, invitees and licensees. D. Access Easement. The owner hereby dedicates and grants unto the owner(s) of Lots one through twelve of the Pitkin Reserve Subdivision the thirty -foot (30:) access and utility easement shown and indicated on the Plat for their sole and exclusive use and enjoyment and that of their guests, invitees and licensees. -10- 1 n !� E. Utilities and Drainage. There is hereby established and agreed between the City and the Owner neces- sary easements for the relocation, installation and mainten- ance of utilities and the establishment and maintenance of drainage, as such easements may be specifically set forth on the utility sheets, the utility relocation sheets, and the drainage sheets as appended to the Plat. F. Miscellaneous. All easements, rights of way and relocations as are further shown on the Plat albeit not specifically herein referred to are hereby established, granted, dedicated and confirmed by the Owner and authorized and approved by the City. VII. OTHER DEDICATIONS In accordance with Section 20 -18 of the Aspen Municipal Code the following exemptions and dedications apply: A. Exemption. There are no exemptions from the application of Section 20 -18 of the Aspen Municipal Code that apply in respect of the development activity contemplated for Pitkin Reserve. In the event the Owner hereafter agrees to deed restrict the employee housing unit to be installed on Lot 13 to low or moderate income and occupancy eligibility guidelines, the City agrees at that time, and upon the recording in the Pitkin County real property records of such a restriction, to exempt the employee housing unit from the application of Section 20 -18 of the Aspen Municipal Code. B. Land Dedication. In respect of the free - market development to occur on and within Lots 1 -12 and the employee housing unit to be installed on Lot 13, the City hereby (1) accepts the dedication of Lot 14 in the manner and upon the terms and conditions set forth in Section I, Paragraph B, above, in lieu of the cash payment referred to in Section 20 -18 of the Aspen Municipal Code; (2) confirms as accurate and accepts the valuation of Lot 14 and the calculation of the Park Dedication Fee based thereupon set forth in the Land Valuation and Park Dedication Fee calculation attached hereto as Exhibit "G "; and (3) agrees that the value of Lot 14 as such is sufficient at least to meet the requirements of Section 20 -18, aforesaid concerning the requirement of the dedication. VIII. OPEN SPACE AND COMMON AREA MANAGEMENT, MAINTENANCE AND USE A. General. The plat consists of certain parcels that include open space dedicated for the benefit, inter -11- f ( ) 1 alia, of the City and a common area that envelopes the separately designated fee simple lots. Respective responsi- bilities, limitations, covenants and agreements regarding the management, maintenance and use of the open space and common area parcels include the following: B. Publicly Owned Open Space -- Lot 14. Lot 14 shall be owned by Pitkin County, Colorado and, as such shall be managed and maintained permanently and entirely by Pitkin County within such framework as it may establish but which shall not be inconsistent with the open space purposes in perpetuity for which the land was dedicated as above set forth, and in this respect reference is specifically made to the rights of the City therein, as described in Section I, paragraph B, above. C. Common Area -- Lot 13. Lot 13 shall in its entirety be owned in common by the owners of Lots 1 -12, the owner(s) of each lot to own an undivided interest therein as a non - severable appurtenance to his or her lot. As indicated elsewhere herein and upon the Plat, Lot 13 will be improved with an employee- caretaker unit of approximately 800 square feet of living space, together with approximately 800 square feet for storage space, will accommodate a thirty foot (30') easement for access to the lots and for utility purposes and will support the landscaping plan. Management and maintenance of Lot 13 shall be the responsibility of a collective home- owner's association consisting of the owners of Lots 1 -12 and shall by it be undertaken pursuant to such provisions as shall be set forth in recorded covenants providing for such policies and procedures governing the use and maintenance of the common area, including for necessary budgets and financial reserves to be assessed against association members, and shall insure permanently the fit and proper maintenance, repair, replacement and enduring first rate safety and quality of the entire development, including its landscaped features, common utility systems and paved areas. Responsi- bility of the association in this respect may by it be contractually delegated to a private property management company or to a salaried employee of the association. The following shall, as well, apply to the association hereinabove referred to: (1) Formation. The association shall be fully formed and established by the owner prior to the sale of any lots within the development parcel and pursuant to applicable statutes governing the formation of Colorado not - for - profit homeowner's associations; -12- (2) Documentation. Operative documents for the association shall include articles of incorporation, by laws, and rules and regulations, The City, if it elects, shall have the right to approve such documents. Additionally, the association shall be specifically enjoined with the duty of enforcing such protective covenants as will be recorded by the Owner for the purpose of preserving the architectural and aesthetic compatibility of the entire development and its component features. (3) Membership Mandatory. Membership in the association shall be mandatory for each owner of the fee simple lots (1 -12) and shall be automatic upon the recordation of any instrument transferring a legal or equitable interest (excluding standard security interests) in or to any of such lots. (4) The homeowners' association shall be responsible for a blanket liability and hazard insurance policy with respect to the common areas as well as taxes and maintenance of any recreational and other facilities; (5) The homeowners' association shall have the power to levy assessments which will become a lien on individual fee simple lots (1 -12) for the purpose of paying the cost of operating and maintaining common facilities; (6) The board of managers of such homeowner's association shall consist of at least five (5) members who shall be owners of the fee simple lots (1 -12) within the development. proposed covenants respecting the management and maintenance of Lot 13 are attached hereto as Exhibit "H ". The Owner, however, reserves the right to modify these covenants after the execution hereof and without the necessity of involving the amendment procedure hereinabove set forth in Section V; provided, however, that any modifications shall not be inconsistent in any respect with the provisions set forth in subparagraphs (1) through and including (6) of paragraph C of this Section VIII and shall first be approved as to legal form and effect by the City Council upon the advice and recommendation of the City Attorney. Moreover, in the event the homeowners' association (or any successor organization) shall at any time fail to maintain the common area in accordance with such covenants the procedures and the rights of the City more particularly described in Section 24- 8.19(b), which is hereby incorporated by reference as though set forth verbatim herein, shall then -13- and thereupon go into effect and apply. The Owner further acknowledges that the procedure set forth in Section V, above, pertaining to the procedure for default and amendment of this agreement shall not be required with respect to the enforcement and implementation of common facilities maintenance a set forth and required by Section 24 -8.19 of the Municipal Code. D. Building Restrictions. The Owner agrees and hereby covenants that the number of units that will be built within the Pitkin Reserve subdivision shall not exceed twelve (12) free market units plus one (1) employee- caretaker unit and that all areas shown on the plat as being open space or common area shall remain perpetually so. E. Party Wall Declaration. In connection with the sale of each of the improved free market lots (lots 1 -12) each transferee will be bound to the terms contained in a Party Wall Declaration, which prior to the sale shall 1 by the Owner be recorded in the Pitkin County, Colorado real property records so as to constitute a binding servitude upon each fee simple interest in each lot. The Party Wall Declaration, a proposed form of which is attached hereto as Exhibit "I ", shall govern the ownership and maintenance of the respective party walls wtihin dwelling units constructed on the lots and of utility and related systems affecting such units. The Owner, however, reserves the right to modify the form and content of Exhibit "G" after the execution hereof and without the necessity of invoking the amendment procedure hereinabove set forth in Section V; provided, however, that any modification shall first be approved as to legal form and effect by the City Council upon the advice and recommendation of the City Attorney. IX. WATER RIGHTS AND AVAILABILITY Any water rights that may be appurtenant to the Pitkin Reserve Subdivision have been previously conveyed to the City in consideration of the agreement of the City to supply water to the Development Parcel, as is more particularly hereafter set forth. A 16" main waterline crosses the Development Parcel (as shown on the Plat between Lots 10 and 11) and water service lines will be installed as shown on the utility sheets. The City agrees upon approval of this Agreement and the Plat through its water department to supply water consistent with the proper servicing of the needs of the improvements -14- ,, w, to be constructed at Pitkin Reserve as above described, and the Owner agrees to pay such tap fees therefor, as shall be determined by the tap fee schedule presently in effect, at the time water service shall be extended to the improvements. The Owner and the City further acknowledge and agree that, consistent with existing policy which is hereby confirmed, the costs of any future looping of the water system as extended to the Pitkin Reserve site with any proximate terminus of the system, as well as the costs of any valving �� that may be required in connection with the extension of water service to the Pitkin Reserve site shall not be a cost • \ of the Owner but, rather, shall be initially absorbed by the 4 water department and, as such, reflected in the P.I.F. /tap fee sc dules be pome y ltj.Tate user! of tile system. r-c( /on, ragr(r t✓&.tt+_-400 L S� X. SEWER AVAILABILITY Sewer lines shall be installed consistent with the provisions contained within the utility sheets, sewer line details and the costs of such installation shall be those estimated amounts as set forth on Exhibit "D" hereto annexed. The City agrees, upon approval of this agreement and the Plat by the Metropolitan Sanitation District that sewer services are fully available for the development anticipated on the Plat, and that the Owner agrees to pay such tap fees therefor, as shall be determined by the tap fee schedules presently in effect at the time sewer service shall be extended to the improvements. The availability of such sewer services shall be provided by the Sanitation District in a manner that conforms to the estimated construction and development schedule as set forth in Exhibit "E" attached hereto. The Owner agrees that engineers from the Metropolitan Sanitation District shall be entitled to inspect the construc- tion of the main trunk sewer lines. Upon completion, these lines will be turned over to the Metropolitan Sanitation District, together with such appropriate easements as may be necessary. XI. FINANCIAL ASSURANCES Pursuant to Section 20 -16(C) of the Municipal Code, Owner hereby agrees to provide a guaranty in the sum of $337,586.00, which sum represents the estimated cost of 100% of that portion of the improvements set forth and allocated under Exhibit D hereto for which the City, through the City Engineer, has requested financial assurance. That portion of the improvements for which financial assurance has been requested and which hereby is agreed to be given is described on Exhibit "J" hereto. The guaranty to be provided by Owner shall be in the form of cash escrow with the City or a -15- I bank or savings and loan association; or shall be in the form of an irrevocable sight draft or letter of commitment from a financially responsible lender; and such guaranty shall give the City the unconditional right, upon default by the Owner, or its successor or assigns, to withdraw funds upon demand to partially or fully complete and /or pay for any improvements or pay any outstanding bills for work done thereon by any party. As portions of the improvements required are completed, the City Engineer shall inspect them, and upon approval and acceptance, he shall authorize the release of the agreed estimated cost for that portion of the improvements; provided, however, that ten percent (10%) of the estimated cost shall be withheld until all proposed improvements are completed and approved by the City Engineer. The Owner, its successors or assigns, hereby agrees to further provide unto City a warranty as to all improvements for a period of one (1) year from and after acceptance by the City as to such improvements. The Owner shall further guaranty by a maintenance bond or other suitable means, the repair of any existing improvements damaged during the course of construction of new improvements pursuant to the provisions hereof. It is the express understanding of the parties that the procedure set forth in paragraph V pertaining to the procedure for default and amendment of this agreement shall not be required with respect to the enforcement and implementation of financial assurance and guaranties to be provided by Owner as set forth above and required by Section 20 -16(c) of the Municipal Code. XII. MISCELLANEOUS A. The provisions hereof shall be binding upon and inure to the benefit of the Owner and City and their respective successors and assigns. B. This agreement shall be subject to and con- strued in accordance with the laws of the State of Colorado. C. If any of the provisions of this agreement or any paragraph, sentence, clause, phrase, word, or section or the application thereof in any circumstances is invalidated, such invalidity shall not affect the validity of the remainder of this agreement, and the application of any such provision, paragraph, sentence, clause, phrase, word, or section in any other circumstance shall not be affected thereby. -16- r) D. This P.D.D. and Subdivision Agreement contains the entire understanding between the parties herein with respect to the transactions contemplated hereunder and may be altered or amended from time to time only by written instruments executed by all parties hereto. E. Numerical and title headings contained in this contract are for convenience only, and shall not be deemed determinative of the substance contained herein. As used herein, where the context requires, the use of the singular shall include the plural and the use of any gender shall include all genders. F. In order more fully to effectuate and preserve the performance of the terms, conditions, provisions, covenants and agreements herein contained, the parties agree that this P.U.D. and Subdivision Agreement for Pitkin Reserve shall, by the City, be recorded in the Pitkin County, Colorado real p property records. G. Notices to be given to the parties to this Agreement shall be considered to be given if delivered or if deposited in the United State Mail to the parties by registered or certified mail at the addresses indicated below, or such other addresses as may be substituted upon written notice by the parties or their successors or assigns: CITY OF ASPEN PITKIN LTD. City Manager c/o Robert W. Hughes, Esq. 130 S. Galena Street OATES, HUGHES & KNEZEVICH, P.C. Aspen, CO 81611 600 E. Hopkins, Suite 200 Aspen, CO 81611 H. The terms, conditions, provisions and obligations herein contained shall be deemed covenants that run with and burden the real property more particularly described in Exhibit A hereto and any and all owners thereof, their successors, grantees or assigns and further shall inure to the benefit of and be specifically enforceable by or against the parties hereto, their successors, grantees or assigns. IN WITNESS WHEREOF, the parties hereto have hereunto executed their hands and seals on the dates and year respectively -17- r) () indicated, in full understanding and agreement to the terms and conditions herein contained. CITY OF ASPEN, a Colo o Municipal Corporation By Herman el, Mayor ATTEST: �� J City Clerk PITKIN LTD., a Colorado corporation A TEST: By 4 - .. — _._� / ' (/te- a.- PS Ai .d MA -a, A WA (el •obert W. V.. e', :ecr @tary ASPE .• NT.iN PA a Colorado fn 4a PI71� • , .� E ( '(. . ...� I , -,) STATE OF COLORADO ) ss. COUNTY OF PITKIN ) 1 The foregoi g nstrument was acknowledged before me this //" day of �� , 1982, by HERMAN EDEL as Mayor and KATHRYN KOCH, as City Clerk of the City of Aspen, a Colorado Municipal Corporation. WITNESS my hand and official seal. My P commission ex ire 3✓o?4M5 My address is: (SEAL) . ` Wg1.41 " n / NotarV Public —18— STATE OF COLORADO ) ss. COUNTY OF PITKIN ) ,jhe foregoing instrument was acknowledged before me thisr day of /// AAL Q r. - , 1982, by A(AN 7ijIOAL as Pr6s and by7&vjn i2L nlffi as secretary of PITKIN LTD., a Colorado corporation. WITNESS my hand and official seal. My commission expires:Y /6/25' My addres is: / Goo f chels, (SEAL) ,4 /� 0, No'ary •ublic / STATE OF COLORADO ) ss. COUNTY OF PITKIN ) Dhe foregoing nstrument was acknowledged (!f#& i4 me this„ day of ///nail-- , 1982, by -� FO , lbeYi4 . 8. i a general partner of ASPEN MOUNTAIN PARK, a Colorado general partnership. WITNESS my hand and official seal. My commission expires: / G y3 My address 's: (SEAL) G6or E 69 otary ..blic -19- EXHIBIT A - Pitkin Reserve Legal Description EXHIBIT B - Smuggler Mobile Home Park Legal Description EXHIBIT C - Development Summary and Site Tabulation EXHIBIT D - Pitkin Reserve Improvement Schedule EXHIBIT E - Development & Construction Schedule .EXHIBIT F - Landscape Concept EXHIBIT G - Land Valuation and Park Dedication Fee Calculation EXHIBIT H - Proposed Covenants EXHIBIT I - Proposed Party Wall Declaration •EXHIBIT J - Portion of Improvements to be Financially Secured LIST OF EXHIBITS EXHIBIT A 1 BOUNDARY DESCRIPTION A tract of land being part of the SW -1/4 of the SE -1/4 and Lot 14 of Section 1, and the NW -1/4 of the NE -1/4 and Lot 14 of Section 12 and part of tract B of the Brown Placer D.S.M.S. No. 15047 and the Nellie Mc No. 2 U.S.M.S. No. 15047 together with a part of Lot 23, Block 2, Pitkin Green Subdivision, all in Township 10 South, Range 85 West of the Sixth Principal Meridian, said tract is more fully described as follows: Beginning at a point on the Northeasterly right of way line of the Denver and Rio Grande Western Railroad whence the northeast corner of said Section 12, a brass cap, bears N 70 °25'07" E 1636.50 feet; Thence along said right -of -way line the following courses and distances: S56 °10'00 "E 265.52 feet; 380.53 feet along the arc of a curve to the left having a radius of 523.69 feet; N82 °12'00 "E 137.57 feet; 248.29 feet along the arc of a curve to the right having a radius of 623.29 feet to the . intersection with the west line of Lot 1, Green Acres Subdivision; Thence South 148.14 feet along said west line to the intersection with the boundary described in Book 213 at Page 163; Thence along said boundary the following courses and distances: N89 °04'00 "W 198.30 feet; S40 °29'00 "W 59.20 feet; S81 °12'00 "W 113.20 feet; s65 °51'00 "W 23.76 feet to the intersection with the northerly boundary of the Second Aspen Company Subdivision; Thence along said northerly boundary and along the westerly boundary of said subdivision the following courses and distances: S82 °17'00 "W 242.94 feet; N84 °18'00 "W 180.76 feet; S00 °26'55 "E to the centerline of the Roaring Fork River; Thence along the centerline of the Roaring Fork River to a point at the confluence of the Roaring Fork River and Castle Creek; Thence along the centerline of the Roaring Fork River the following courses and distances: N07 °27'00 "E 268.81 feet; N08 °37'00 "W 150.33 feet; N37 °28'00 "W 66.23 feet; N45 °41'00 "W 79.88 feet; N51 °00'00 "W 76.10 feet; N62 °23'00 "W 82.10 feet; Thence departing from said centerline N43 °11'00 "E 213.52 feet to the most westerly corner of Lot 4, Pitkin Green Subdivision; Thence southeasterly along the 1 - southwesterly lines of Lots 4, 5, 6, 7, 9 and 10, Block 1, Pitkin Green Subdivision, said lines being 10 feet from and parallel to the northeasterly right-of-way line of the Denver and Rio Grande Western Railroad, the following courses and distances: 52.21 feet along the arc of a curve to the right having a radius of 1015.37 feet and whose chord bears S46 °41'23 "E 52.20 feet; S45 °13'00 "E 147.00 feet; 309.83 feet along the arc of a curve to the right having a radius of 1015.37 feet; S27 °44'00 "E 81.00 feet; 365.21 feet along the arc of a curve to the left having a radius of 730.80 feet; S56 °22'00 "E 125.82 feet; 377.83 feet along the arc of a curve to the right having a radius of 1333.57 feet; S40 °08'00 "E 14.44 feet to the easterly line of said Lot 10; Thence along said easterly line N36 °09'00 "E 33.68 feet to the westerly corner of Lot 23, Block 2, Pitkin Green Subdivision; Thence along the southerly line of said Lot 23 the following courses and distances: S61 °14'00 "E 135.43 feet; S88 °50'00 "E 162.41 feet; Thence S35 °52'00 "E 159.49 feet; Thence S43 °12'00 "E 209.77 feet; Thence S39 °04'00 "E 144.45 feet; Thence S58 °00'00 "E 165.01 feet; Thence S50 °00'00 "E 131.64 feet; Thence S33 °10'00 "W 191.72 feet to the point of beginning; Excepting therefrom that portion lying within the right of way of the Denver and Rio Grande Western Railroad. County of Pitkin, State of Colorado. -2- EXHIBIT B — • A tract of land situated. in a portion of the East Aspen Townsite, the East one -half of the Southwest one - quarter and the West one -half of the Southeast-one- quarter of Section 7, Township 10 South, Range 84 West'of the 6th P,M., :described as follows: . .- BEGINNING at Corner No, 10 of the East Aspen Townsite; thence North 54 ° 52'17" West 58.10 feet to Corner No. 11 of said East Aspen Townsite; thence North 66 ° 11'00" West 142.33 feet;- thence:North 05 ° 10'42 1 ! Weat 114.35 feet to Corner No. 16 of said East .- Aspen . Townsite; . : : _ - . _ _. _ _ - _ . ... . • . - . • thence North 44'29'22" Weat 312.67 feet to Corner No. 25 of said East - Aspen Townsite along the Northerly boundary.of parcel of land described in Book 205 at Page 579, Pitkin County records; thence North 45'12'59" Weat 128.83 tb Corner No. 24 of said East Aspen Townsite along a portion of said Northerly boundary; thence North 24 ° 05'24" East 139.28 feet; - thence North 37 ° 11'41" East 20.25 feet; thence South 44 ° 35'50" East 12.15 feet; thence North 29'03'05" East 1 feet along an existing fence and extension thereof ;. • thence South 4.08 feet ;• thence North 37 ° 11'41" East 154.57 feet; thence North 78 ° 25'15" East 77.68 feet; thence North 89 ° 57'10" East 303.99.along boundary.line described in Book 280 at Page 827 and re- recorded in Book 280 at Page 965, Pitkin County records; thence South 63 ° 44'45" East 168.08 feet along said boundary line; thence South 81 °23'42" East 183.42 feet along said boundary line; thence South 89 ° 25'42" East 98.00 feet along said boundary .line; thence.South 54 ° 34'55" East 64.87 feet along said boundary line; thence South 52 ° 47'48" West 188.36 to Coiner No. 5 of said East Aspen Townsite; - thence South 34 ° 55'18" West 760.18 feet to The Point of Beginning. Pitkin County, Colorado. • • EXHIBIT C DEVELOPMENT SUMMARY AND SITE TABULATIONS Name: Pitkin Reserve Number of Units: 12 free market units 1 PMH rental unit - deed - restricted to low or moderate income Amenities: Caretaker /employee facility above storage Unit Size: 3 bedrooms at approximately 3,000 sq. ft. of living space and 1,000 sq. ft. of parking and storage Project Population: 43 (3.5 /unit plus caretaker) Parking: 2 indoor spaces per unit and 2 quest parking spaces per unit in driveways Structures: 6 two -story duplex structures; lower story and north wall of upper story - concrete, block and stone; upper story (when above grade) - wood frame construc- tion with wood siding Acreage: 20 +/- acres plus 6 acres of railroad R.O.W. Public Open Space: 13 +/- acres Development Site: 7.064 acres Fee Simple Lots: 35% of development site (6,000- 10,000 sq. ft. per lot) Dommon Open Space: 65% of Development Site Builsing Coverage: 25,070 sq. ft. (.57 acres) (4,045 sq. ft. per duplex and 800 sq. ft. for caretaker /storage bldg.) Paved Areas: 30,242 sq. ft. (.69 acres) (private drive = 16,956 sq. ft. driveways and parking = 13,286 sq. ft.) • EXHIBIT D PITKIN RESERVE IMPROVEMENT SCHEDULE Item Item Cost Total Cost Water Service Alternative 41 $55,475.00 or or Alternative 42 $48,757.00 . 8" DIP $ 31,325.00 4" DIP 4,200.00 Fire Hydrants w /valves 7,000.00 1" Water Service 2,250.00 3/4" Water Service 300.00 Alternative 11 - Water Main Collection in- cluding 16" valve, 8" valve • 4" valve, 16" x 8" tee, 8" x 4" tee, allthread, vavle box, pipe $ 10,400.00 Alternative 42 - Wet Tap 8" DIP to 16" DIP including 8" valve, 4" valve 8" x 4" tee, allthread, valve box, pipe - 3,500.00 Sewer $40,175.00 8" PVC $26,225.00 Manholes 1 -7 8,400.00 Sewer Tap 4,550.00 Tap to Existing Service 1,000.00 Drainage $20,975.00 18" CMP $ 8,845.00 25" x 16" CMP 3,380.00 Dry Wells 8,000.00 Wier Overflow 250.00 Excavation included in --- roadwork Rip -rap 500.00 le ) PITKIN RESERVE IMPROVEMENT SCHEDULE Item Item Cost Total Cost Private Drive $131,190.00 Asphalt $ 24,300.00 Base Course 20,440.00 Excavation 50,830.00 Fill 30,620.00 Electrical $59,700.00 Relocation of existing lines $ 59,700.00 Natural Gas Line $14,350.00 2" Main $ 12,250.00 3/4" Service Connections 2,100.00 • PITKIN RESERVE IMPROVEMENT SCHEDULE ITEM COST TOTAL COST Revegetation Along Roadway $24,921.07 (1,325' x 30' wide = 39,750 sq. ft.) Soil Preparation (.23 /sq.ft.) $9,142.50 Fine Grading ($.0225 / sq.ft.) 894.40 Hydroseeding ($.04 /sq.ft.) 1,590.00 Slope Stabilization ($1.03 / sq.ft. 4,539.17 Irrigation ($.22 /sq.ft.) 8,745.00 Landscaping of Individual Units $187,718.00 Native Landscape Soil Preparation $25,372.50 Fine Grading 2,496.60 Hydroseeding 4,438.00 Slope Stabilization 6,833.83 Plant Material 18,086.00 Irrigation 24,412.00 Manicured Landscape Soil Preparation $ 7,609.00 (.23 /sq.ft.) Fine Grading (.0225 / sq.ft.) 1,986.00 Sod (.35 /sq.ft.) 5,793.00 Irrigation ($1.09 /sq.ft.) 18,041.00 Plant Material (12,175) 73,050.00 () PITKIN RESERVE IMPROVEMENT SCHEDULE TOTAL COSTS OF ALL IMPROVEMENTS Utility Improvements Alternative #1 $315,125.00 or or Alternative #2 $308,225.00 Revegetation Along Roadway $ 24,921.00 ($18.80 /linear foot of roadway) Landscaping of individual units $187,718.00 ($15,643 /unit) TOTAL: ALTERNATIVE #1 $527,764.00 ALTERNATIVE #2 $520,864.00 • • EXHIBIT E DEVELOPMENT AND CONSTRUCTION SCHEDULE PHASE 1 April 15, 1982 - November 15, 1982 PHASE 2 (if necessary) April 15, 1983 - November 15, 1983 While it is Pitkin Ltd.'s intention to build the entire program in phase 1, the phasing and timing of the construction of these residences will depend upon market conditions. This schedule is contingent upon: 1. Timely approval of the Final Plat. 2. Completion in an exeditious manner of the bidding, contractor selection, and implementation phases to meet the dated indicated. 3. Confirmation of the construction schedule by the selected contractors. 4. Availability of the required labor and materials during each phase. 5. Sale of residences at a rate that would permit the phasing suggested above. The completion of the site improvemenst (utilities and landscaping) will be coordinated with the residential development in each phase. • EXHIBIT F /'1 r) LANDSCAPE CONCEPT • *•.• 7. • -. . • � •� 1I 111 11111 1 1 1. � •• • �r .l 1 •`It , t • Lo ' ' . II// . . 411 \��/ silo - ;. .. ' -, ; .to iii 11:,11 Il 1 1 al fV. , m p� . • , • v ./ • `r its • ../ �I. M The existing landscape has been the primary shaper of this scheme. Th proposed landscape concept works with the site plan to define the edge of the broad, central meadow that stretches to the tree lined banks of the Roaring Fork River. The architec- tural concept of a continuous band of berms, earth terraces, and retaining walls engulfing the houses demands rich landscape plantings. The plantings will stabilize disturbed soils and populate areas that have been sparse due to direct sun exposure and a lack of suitable soil and water. Privacy for outdoor living areas will result and aspen trees will shade the houses - from the summer sun, but shed their leaves to allow in the winter sun. The areas immediately around the house will re- quire the most care - densely planted with Bearberry, Holly Grape, Rocky Mountain Juniper, Potentilla, etc. The meadow edge will be formed with the same materials as the corridor and along the river - Aspens, Scrub Oak, Sage, Austrian Pine and Spruce - planted between, behind, and occasionally in front of the houses. This zone of planting should require limited maintenance. The broad central meadow of native grasses, sage, etc., should be entirely self- sufficient. EXHIBIT G (/ /) LAND VALUATION AND PARK DEDICATION FEE CALCULATION (calculated to the nearest 0.5 acre) In accordance with Section 7 -143 of the Aspen Building Code and Section 20 -18 of the Aspen Subdivision Code, the cash equivalent for the park dedication fee and its determination for the Pitkin Reserve Subdivision is as follows: Purchase Price of Total Parcel (17.5 acres) $1,250,000.00 Price Per Acre t 20 71,428.60 Value of 7 -Acre Development Parcel x 7 500,000.00 Value Per Unit (12 units) s 12 41,667.00 1% of Land Value Per Unit x .01 416.67 Fee per 3- Bedroom Unit * / x 2.5 1,041.68 Value of 10.5 -acre parcel dedicated to open space 750,000.00 Difference between cash equivalent of park dedica- tion fee ($1,041.68 x 12 = $12,500.16) and value of open space parcel 737,499.84 * * * * /The park dedication fee for the employee housing unit to be constructed on Lot 13 will be calculated in the same manner as above set forth and will proceed from the same land valu- ation. EXHIBIT H i i -, r I! DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS 1 1 This Declaration of Covenants, Conditions, and Restrictions is made this day of , 1982, by Pitkin Ltd., a Colorado corporation, (hereinafter referred to as "Declarant "). G , ‘ W I T N E S S E T H : li Declarant is the owner of the real property described bit "A" attached hereto and incorporated herein by r p nce. Declarant intends by this Declaration to impose upon the property mutually beneficial restrictions under a general plan of improvement for the benefit of all owners of residential property within Pitkin Reserve. Declarant desires to provide a flexible and reasonable procedure for the overall development of the property and to establish a method for the administration, maintenance, preservation, use, and enjoyment of such property as is now or may hereafter be submitted to this Declaration. NOW, THEREFORE, Declarant hereby declares that all of the property described in Exhibit "A" and any additional property as may by subsequent amendment be added to and subjected' to this Declaration shall be held, sold, and conveyed subject to the following easements, re trictions, covenants, and conditions which are for the ose of protecting the value and desirability of and wh' hall run with the real property submitted to this Declar. • and which shall be binding on all parties having any r , title, or interest in the des- cribed properties or a 1P.art thereof, their heirs, successors, successors -in- title, an. assigns, and shall inure to the benefit of each owner thereof. ARTICLE I Definitions Section 1. "Association" shall mean and refer to the Pitkin Reserve Homeowners' Association, Inc., a Colorado nonprofit corporation, its successors and assigns. The "Board of Directors" or "Board" sh 11 be the elected body having its normal meaning under Co do corporate law. �► Section 2. "Properties" shall m��aaTtd refer to the real property described in Exhibit "A" at�1ied hereto and shall further refer to such additional propert as may hereafter be annexed by amendment to this Declaration or which is owned in fee simple by the Association. Section 3. "Owner" shall mean and refer to the record owner, whether one or more persons or entities, of any Residential Unit which is part of the Properties, but excluding in all cases any party holding an interest merely as security for the performance of an obligation. Section 4. "Common Area" shall mean Lot 13, Pitkin Reserve and all real and personal property now or hereafter owned by or otherwise coming under the responsibility of the Association for the common use and enjoyment of the owners. Section 5. "Residential Unit" shall mean any portion of the Properties intended for any type of independent ownership for use and occupancy as a residence by a single household and shall, unless otherwise specified, include within its meaning condominiums, townhomes, or zero lot line homes, as may be developed, used, and defined, as herein provided or as provided in subsequent Declarations covering all or a part of the Properties. Section 6. "Area of Common Responsibility" shall mean and refer to the Common Area, together with those areas, if any, which become the responsibility of the Association. In addition, any employee housing unit or caretaker's dwelling or manager's office located on the Properties shall be part of the Area of Common Responsibility. Section 7. "Common Expenses" shall mean and include the actual and estimated expenses of operating the Association, including any reasonable reserve all as may be found to be necessary and appropriate by the Board pursuant to this Declaration, the By -Laws, and the Articles of Incorporation.) Section 8. "Member" shall mean and refer to a person or entity entitled to membership in the Association, as provided herein. Section 9. "Mortgage" shall include a deed of trust, as well as a mortgage. Section 10. "Mortgagee" shall include a beneficiary or holder of a deed of trust, as well a a mortgagee. Section 11. "Mortgagor" shall include the trustor of a deed of trust, as well as a mortgagor. Section 12. "Person" means a natural person, a corporation, a partnership, trustee, or other legal entity. Section 13. "Parcel" shall mean and refer to separately designated lots developed for residential purposes, or fee simple dwellings. -2- Secton 14. Parcel Assessments. Parcel assessments for common expenses provided for herein shall be used for the purposes of promoting the recreation, health, safety, welfare, common benefit, and enjoyment of the owners of the Residential Units against which the specific parcel assessment is levied and of maintaining the property within a given parcel, the Common Area, and the Area of Common Responsibility, all as may be specifically authorized from time to time by the Board of Directors and as more particularly authorized below. The Parcel Assessment shall be levied equally against the owners of Residential Units in a parcel for such purposes that are authorized by this Declaration or by the Board of Directors from time to time. Section 15. "Residential Association" shall mean any homeowners or other such association created on property subject to this Declaration containing units, homes or other structures for residential purposes. ARTICLE II Rights In Common Area Every owner shall have a non - exclusive right to the use and enjoyment in and to the Common Area subject to any restrictions or limitations concerning the use thereof herein contained or in any rules or regulations published by the Association or subjecting this Declaration such property. Any owner may delegate his or her right of enjoyment to the members of his or her family, tenants, and social invitees subject to reasonable regulation by the Association and in accordance with procedures it may adopt. ARTICLE III Membership and Voting Rights Section 1. Membership. Every person or entity (including Declarant) who is the record owner of a fee or undivided fee interest in any Residential Unit that is subject to this Declaration shall be deemed a member in the Association. Membership shall be automatic upon the recording of any document transferring a legal or equitable interest in a Residential Unit and its appurtenant Parcel and shall be appurtenant to and may not be separated from such ownership. The foregoing is not intended to include persons who hold an interest merely as security for the performance of an obligation, and the giving of a security interest shall not terminate the owner's membership. No owner, whether one or more persons, shall have more than one membership per Residential Unit owned. In the event of multiple owners of a Residential Unit, votes and rights of use and enjoyment shall be as provided herein. The rights and privileges of membership, including the right to -3- vote, may be exercised by a member or the member's spouse, but in no event shall more than one (1) vote be cast for each Residential Unit. The Declarant shall be entitled to one vote for each Residential Unit or unimproved parcel, as the case may be, that it owns. ARTICLE IV Maintenance The Association shall maintain and keep the Common Area (and any personal property associated therewith) in good repair, taste and order, including all paved areas, all land- ! scaped areas, and any other improvements to or upon the Common Area, such maintenance to be funded as hereinafter provided. This maintenance shall include, but not be limited to, mainten- ance, repair, and replacement, subject to any insurance then in effect, of all landscaping and other flora, structures, and improvements situated upon the Common Area, all to the end 1 that the first rate safety, appearance and quality of the Common Area shall permanently endure. The Association shall also by enforcement of rules and regulations that it may from 1 time to time adopt insure the quality of the exterior appearance !° 1 and aesthetic compatability of the residential units within Pitkin Reserve. The Association shall have the power to assess the owners of Residential Units on parcels within Pitkin Reserve to defray common costs incurred in connection with the maintenance of the Common Areas and the power specially I to assess owners whose failure to abide rules and regulations or otherwise properly to maintain the exteriors of their ! Residential Units results in the Association having to perform 1 such maintenance. All maintenance functions herein provided I on the part of the Association to perform may by it be contrac- tually delegated to a managing agent, including a property management firm. The obligation herein of the Association to maintain the Common Area shall, as well, include the duty to pay all real and /or personal property taxes that may be assessed against such Property, unless such taxes be separately assessed against the owners of Residential Units or parcels. ARTICLE V Insurance and Casualty Losses Section 1. Insurance. The Association's Board of Directors or its duly authorized agent shall have the authority to and shall obtain insurance for all insurable improvements on the Common Area against loss or damage by fire or other hazards, including extended coverage, vandalism, and malicious mischief. This insurance shall be in an amount ! sufficient to cover the full replacement cost of any repair or reconstruction in the event of damage or destruction from any such hazard. The Board shall also obtain a public liability policy covering the Common Area, the Association, and its members for all damage or injury caused by the negligence of -4- () 7) ■ the Association or any of its members or agents, and, if reasonably available, directors' and officers' liability insurance. The public liability policy shall have at least a ($ ) Dollar per person ■ limit, as respects bodily injury, a ($ ) Dollar limit per occurrence, and a j ($ ) Dollar minimum property ■ damage limit. Premiums for all insurance on the Common Area I shall be common expenses of the Association. The policy may contain a reasonable deductible, and the amount thereof shall be added to the face amount of the policy in determining whether the insurance at least equals the full replacement cost. Cost of insurance coverage obtained for the Common Area shall be included in the General Assessment, as defined in Article IX, Section 1. All such insurance coverage obtained by the 11 Board of Directors shall be written in the name of the Associa- h tion, as Trustee, for the respective benefited parties, as further identified in (b) below. Such insurance shall be governed by the provisions hereinafter set forth: (a) All policies shall be written with a company licensed to do business in the State of Colorado and holding a rating of IX or better in the Financial Category as established by A. M. Best Company, Inc., if available, or, if not available, the most nearly equivalent rating. (b) All policies on the Common Area shall be for the benefit of the Residential Unit Owners or Parcel Owners and their mortgagees as their interests may appear. (c) Exclusive authority to adjust losses under policies in force on the Property obtained by the Association shall be vested in the Association's Board of Directors; provided, however, that no mortgagee having an interest in such losses may be prohibited from participating in the settle - ■ ment negotiations, if any, related thereto. (d) In no event shall the insurance coverage obtained and maintained by the Association's Board of Directors hereunder be brought into contribution with insurance purchased by individual owners, occupants, or their mortgagees, and the insurance carried by the Association shall be primary. 1 (e) All casualty insurance policies shall have an agreed amount endorsement with an annual review by one or more qualified persons. (f) The Association's Board of Directors shall be required to make every reasonable effort to secure insurance policies that will provide for the following: -5- r (i) A waiver of subrogation by the insurer as to any claims against the Association's Board of Directors, its Manager, the owners and their respective tenants, servants, agents, and guests; (ii) A waiver by the insurer or its rights to repair and reconstruct instead of paying cash; (iii) That no policy may be cancelled, invalidated, or suspended on account of any one or more indi- vidual owners; (iv) That no policy may be cancelled, invalidated or suspended on account of the conduct of any director, officer, or employee of the Association or its duly authorized Manager without prior demand in writing delivered to the Association to cure the defect and the allowance of a reasonable time thereafter within which the defect may be cured by the Association, its Manager, any owner or mortgagee; and (v) That any "other insurance" clause in any policy exclude individual owners' policies from consideration Section 2. No Partition. Except as is permitted 1 in the Declaration, there shall be no physical partition of 1 the Common Area or any part thereof, nor shall any person acquiring any interest in the Property or any part thereof seek any such judicial partition until the happening of the conditions set forth in Section 4 of this Article in the case of damage or destruction, or unless the Properties have been removed from the provisions of this Declaration. Section 3. Disbursement of Proceeds. Proceeds I of insurance policies shall be disbursed as follows: (a) If the damage or destruction for which the proceeds are paid is to be repaired or reconstructed, the 1 proceeds, or such portion thereof as may be required for such purpose, shall be disbursed in payment of such repairs or reconstruction, as hereinafter provided. Any proceeds remaining I after defraying such costs of repairs or reconstruction to the Common Area, or in the event no repair or reconstruction is made after making such settlement as is necessary and appropriate with the affected owner or owners and their mortgagee(s), as their interests may appear, if any Residential Unit is involved, shall be retained by and for the benefit of the Association. This is a covenant for the benefit of any mortgagee of a Residential Unit and may be enforced by such mortgagee. (b) If it is determined, as provided for in Section 4 of this Article, that the damage or destruction to the Common Area for which the proceeds are paid shall not be repaired or reconstructed, such proceeds shall be disbursed in the manner as provided for excess proceeds in Section 3(a) hereof. -6- Section 4. Damage and Destruction. (a) Immediately after the damage or destruction by fire or other casualty to all or any part of the Property covered by insurance written in the name of the Association, the Board of Directors or its duly authorized agent shall proceed with the filing and adjustment of all claims arising under such insurance and obtain reliable and detailed estimates of the cost of repair or reconstruction of the damaged or destroyed property. Repair or reconstruction, as used in this paragraph, means repairing or restoring the property to substan- tially the same condition in which it existed prior to the fire or other casualty. (b) Any damage or destruction to the Common Area shall be repaired or reconstructed unless at least seventy -five (75%) percent of the total vote of the Association shall decide within sixty (60) days after the casualty not to repair or reconstruct. If for any reason either the amount of the insurance proceeds to be paid as a result of such damage or destruction, or reliable and detailed estimates of the cost of repair or reconstruction, or both, are not made available to the Association within said period, then the period shall be extended until such information shall be made available; provided, however, that such extension shall not exceed sixty (60) days. No mortgagee shall have the right to participate in the determination of whether the Common Area damage or destruction shall be repaired or reconstructed. (c) In the event that it should be determined by the Association in the manner described above that the damage or destruction of the Common Area shall not be repaired or reconstructed and no alternative improvements are authorized, then and in that event the property shall be restored to its natural state and maintained as an undeveloped portion of the Common Area by the Association in a neat and attractive condition, Section 5. Repair and Reconstruction. If the damage or destruction for which the insurance proceeds are paid is to be repaired or reconstructed and such proceeds are not sufficient to defray the cost thereof, the Board of Directors shall, without the necessity of a vote of the Association's members, levy a special assessment against all owners in proportion to the number of Residential Units owned by such owners. Additional assessments may be made in like manner at any time during or following the completion of any repair or reconstruction. If the funds available from insurance exceed the cost of repair, such excess shall be deposited to the benefit of the Association. -7- m { ARTICLE VI Condemnation Whenever all or any part of the Common Area shall be taken (or conveyed in lieu of and under threat of condemnation by the Board, acting on its behalf or on the written direction of all Owners of Residentail Units subject to the taking, if any) by any authority having the power of condemnation or eminent domain, each owner shall be entitled to notice thereof and to participate in the proceedings, incident thereto, unless otherwise prohibited by law. The award made for such taking shall be payable to the Association, as Trustee for all { owners, to be disbursed as follows: If the taking involves a portion of the Common Area on which improvements have been constructed, then, unless within sixty (60) days after such taking at least seventy -five percent (75%) of the voting members of the Association shall otherwise agree, the Association shall restore or replace such improvements so taken on the reamining land included in the Common Area, to the extent lands are available therefore, in accordance with plans approved by the Board of Directors of the Association. If such improvements are to be repaired or restored, the above provisions in Article V hereof regarding the disbursement of funds in respect to casualty damage or destruction which is to be repaired shall apply. If the taking does not involve any improvements on the Common Area, or if there is a decision made not to repair or restore, or if there are net funds remaining after any such restoration or replacement is completed, then such award or net funds shall be disbursed to the Association and used for such purposes as the Board of Directors of the Association shall determine, including, as the case may be, ultimate disbursement to the owners. ARTICLE VII Rights and Obligations of the Association Section 1. The Common Area. The Association, subject to the rights of the owners set forth in this Declaration, shall be responsible for the exclusive management and control of the Common Area and all improvements thereon (including furnishings and equipment related thereto), and shall keep it in good, clean, attractive, and sanitary condition, order, and repair, pursuant to the terms and conditions hereof. Section 2. Personal Property and Real Property for Common Use. The Association, through action of its Board of Directors, may acquire, hold, and dispose of tangible and intangible personal property and real property. -8- Section 3. Rules and Regulations. The Association, I through its Board of Directors, may make and enforce reasonable I rules and regulations governing the use of the Properties, which rules and regulations shall be consistent with the rights and duties established by this Declaration. Sanctions may include reasonable monetary fines which shall constitute a lien upon the owner's Residential Unit or Units and suspension of the right to vote and the right to use the Common Area. In addition, the Board shall have the power to seek relief in any court for violations or to abate unreasonable disturbances. Section 4. Implied Rights. The Association may exercise any right or privilege given to it expressly by this Declaration or the By -Laws, and every other right or privilege reasonably to be implied from the existence of any right or privilege given to it herein or reasonably necessary to effec- tuate any such right or privilege. ARTICLE VIII Assessments Section 1. Creation of General Assessment. There are hereby created assessments for Common Expenses as may be from time to time specifically authorized by the Board of Directors. General Assessments shall be allocated equally among all Residential Units within the Association and shall be for expenses determined by the Board to be for the benefit fo the Association as a whole. Each owner, by acceptance of his or her deed, is deemed to covenant and agree to pay these assessments. All such assessments, together with interest at the highest rate in the circumstances allowable under the laws of Colorado, costs, and reasonable attorney's fees shall be a charge on the land and shall be a continuing lien upon the Residential Unit against which each assessment is made. Each such assessment, together with interest, costs, and reasonable attorney's fees, shall also be the personal obligation of the person who was the owner of such Residential Unit at the time the assessment arose, and his or her grantee shall be jointly and severally liable for such portion thereof as may be due and payable at the time of conveyance, except no first mortgagee who obtains title to a Residential Unit pursuant to the remedies provided in the mortgage shall be liable for unpaid assessments which accrued prior to such acquisition of title. Assessments shall be paid in such manner and on such dates as may be fixed by the Board of Directors. Section 2. Computation of Assessment. If the Association incurs ongoing Common Expenses, the Board shall prepare an annual budget, and the following provisions shall apply: -9- r-, f) It shall be the duty of the Board at least thirty (30) days prior to the meeting at which the budget i shall be presented to the membership to prepare a budget covering the estimated costs of operating the Association during the coming year. The budget shall include a capital contribution establishing a reserve fund, in accordance with a I capital budget separately prepared. The Board shall cause a copy of the budget, and the amount of the assessments to be levied against each Residential Unit for the following year, to be delivered to each owner at least fifteen (15) days prior to the meeting. The budget and the assessments shall become 1 effective unless disapproved at the meeting by a vote of at least a majority of the total Association membership or otherwise modified by a majority vote. Section 3. Special Assessments. In addition to the assessments authorized in Section 1, the Association may levy a Special Assessment for the purpose of defraying any costs incurred by the Association through its Board pursuant to the provisions of this Declaration, which was not included in the annual budget from which the general assessment was levied. Section 4. Lien for Assessments. All such assessments shall constitute a lien on each Residential Unit and Parcel prior and superior to all other liens, except (1) all taxes, bonds, assessments, and other levies which, by law, would be superior thereto, and (2) the lien or charge of any first mortgage of record (meaning any recorded mortgage or deed of trust with first priority over other mortgages or deeds of trust) made in good faith and for value. The Association, acting on behalf of the owners, shall have the power to bid for the Residential Unit or parcel at foreclosure sale, and to acquire and hold, lease, mortgage, and convey the same. During the period owned by the Association 1 following foreclosure: (1) no right to vote shall be exercised i on its behalf; (2) no assessment shall be assessed or levied { on it; and (3) each other Residential Unit or parcel shall be i charged, in addition to its usual assessment, its equal pro rata share of the assessment that would have been charged such Residential Unit or parcel had it not been acquired by the Association as a result of foreclosure. Suit to recover a money judgment for unpaid common expenses, rent, and attorneys' fees shall be maintainable without foreclosing or waiving the lien securing the same. Section 5. Capital Budget and Contribution. The Board of Directors shall annually prepare a capital budget which shall take into account the number and nature of replaceabl assets, the expected life of each asset, and the expected repair or replacement cost. The Board shall set the required capital contribution, if any, in an amount sufficient to -10- (-) permit meeting the projected capital needs of the Association, as shown on the capital budget, with respect both to amount and timing by annual assessments over the period of the budget. The capital contribution required shall be fixed by the Board and included within the budget and assessment, as provided in Section 2 of this Article. A copy of the capital budget shall be distributed to each member in the same manner as the operating budget. ARTICLE IX Architectural Standards All property which is now or may hereafter be subjected to this Declaration is subject to architectural and environmental review. This review shall be in accordance with this Article and such standards as may be promulgated by the Board, the New Construction Committee, or the Modifications Committee. The Board of Directors shall have the authority and standing on behalf of the Association to enforce in courts or competent jurisdictions decisions of either Committee. Section 1. New Construction Committee. The New Construction Committee (NCC) shall have exclusive jurisdiction over all original construction on any portion fo the Properties. The NCC shall promulgate Architectural and Environmental Standards and Application Procedures. It shall make both available to owners, builders, and developers who seek to engage in development of or construction upon all or any portion of the Properties and shall conduct its operations in accordance therewith. The Board of Direcotrs shall appoint the members of the NCC which shall consist of three (3) members, 1 at least two of whom shall be required to be residents of Pitkin Reserve. Section 2. Modifications Committee. The Modifica- tions Committee (MC) shall consist of at least three (3) and no more than five (5) members, a majority of whom shall be residents of Pitkin Reserve and all of whom shall be appointed by the Board of Directors. The MC shall have exclusive juris- diction over modifications, additions, or alterations made on or to existing Residential Units or structures containing Residential Units and the open space, if any, appurtenant thereto. The MC shall promulgate detailed standards and procedures governing its area of responsibility and practice. In addition thereto, the following shall apply: plans and specifications showing the nature, kind, shape, color, size, materials and location of such modifications, additions, or alterations shall be submitted to the Modifications Committee for approval as to quality of workmanship and design and harmony of external design with existing structures and as to location in relation to surrounding structures, topography, • and finish grade elevation. Nothing contained herein shall be -11- ( J construed to limit the right of an owner to remodel the interior of his residence or to pain the interior of his residence any color desired. In the event the MC fails to approve or to disapprove such plans or to request additional information reasonably required within forty -five (45) days after submission, the plans shall be deemed approved. ARTICLE X Use Restrictions The Properties shall be ued only for residential, recreational, and related purposes as may more particularly be set forth in this Declaration, or any amendments hereto. The Association, acting through the Board of Directors, shall have standing and the power to enforce use restrictions contained in any such declaration as if such provision were a regulation of the Association. ARTICLE XI Mortgagee Provisions The following provisions apply to the Properties, and none may be amended without the consent of at least two -third (2/3) of the first mortgagees: Section 1. Consent of Lenders Required. Unless two - thirds (2/3) of the institutional holders of first mortgages within the Properties have given their prior approval, the Association shall not be entitled to: (a) by act or omission seek to abandon, alienate, release, partition, hypothecate, subdivide, enumber, sell, or transfer any common area owned, directly or indirectly, by the Association for the benefit of the Residentail Units; provided, however, the granting of easements for public utilities or for other public purposes consistent with the intended use of such Common Area shall not be deemed a transfer within the meaning of this clause; (b) change the method of determining the obligations, assessments, dues, or other charges which may be levied against an owner; (c) by act or omission change, waive, or abandon the system of regulations and enforcement established in this Declaration for architectural design or the exteriof appearance and maintenance of Residential Units, and the maintenance of the Common Area in the Properties; or (d) use hazard insurance proceeds for losses to any Common Area for other than the repair, replcement, or reconstruction of such Common Area. -12- ) Section 2. Payment of Taxes. First mortgagees of Residential Units or parcels may, jointly or singly, pay taxes or other charges which are in default and which may or have become a charge against any Common Area and may pay overdue premiums on hazard insurance policies or secure new hazard insurance coverage on the lapse of a policy for such Common Area. First mortgagees making such payments shall be owed immediate reimbursement therefor from the Association. Section 3. No Priority. No provision of this Declaration gives or shall be construed as giving any owner or any other party priority over any rights of the first mortgagee of a Residential Unit pursuant to its mortgage in the case of a distribution to such owner of insurance proceeds or condemna- tion awards for losses to or a taking of Common Area. Section 4. Notice to Mortgagee. Notwithstanding anything contained herein which might otherwise be construed to the contrary, a first mortgagee, upon request designating such unit, will be entitled to written notification from the Association of any default in the performance by any owner of a Residential Unit or parcel in hich such mortgagee has an interest of any obligation under this Declaration which is not cured within sixty (60) days. Section 5. Management Agreement Limitations. Notwithstanding anything contained herein which might otherwise be construed to the contrary, any agreement for professional management of the Common Area, or any other agreement providing for services by others in respect of the functions and responsi- bility of the Association herein may not exceed one (1) year and must provide for termination by either party without cause and without payment of a termination fee on thirty (30) days or fewer written notice. ARTICLE XII General Provisions Section 1. Term. The covenants and restrictions of this Declaration shall run with and bind the Properties, and shall inure to the benefit of and shall be enforceable by the Association or the owner of any property subject to this Delcaration, their respective legal representatives, heirs, successors and assigns. Section 2. Amendment. This Declaration may be amended only by the affirmative vote (in person or by proxy) or written consent of members representing a majority of the total voting power of the Association, together with any required affirmative approval of first mortgagors as hereinabove provided in Article XI. Any amendment must be recorded among the land records of Pitkin County, Colorado. -13- I Section 3. Indemnification. The Association shall indemnify every every officer and director against any and all expenses, including counsel fees, reasonably incurred by or imposed upon any officer of director in connection with any action, suit or other proceeding (including settlement of any suit or proceeding, if approved by the then Board of Directors) to which he or she may be a party by reason of being or having been an officer or director. The officers and directors shall not be liable for any mistake of judgment, negligent or otherwise, except for their own individual willful mesfeasance, malfeasance, misconduct or bad faith. The officers and directors shall have no personal liability with respect to any contract or other commitment made by them, in good faith, on behalf of the Association (except to the extent that such officers or directors be also members of the Association), and the Association shall indemnify and forever hold each such officer and director free and harmless against any and all liability to others on account of any such contract or commitment. Any right to indemnification provided for herein shall not be exclusive of any other rights to which any officer or director, or former officer or director, may be entitled. The Association shall, as a common expense, maintain adequate general liability and officers' and directors' liability insurance to fund this obligation. Section 4. Delegation of Use. Any owner may delegate, in accordance with the By -Laws, Rules and Regulations of the Association, his or her right of enjoyment to the Common Area and facilitie to the members of his or her family, tenants, and social invitees. Section 5. Owner's Right to Ingress, Egress, and Support. Each owner shall have the right to ingress and egress over, upon, and across the Common Area necessary for access to his or her Residential Unit and shall have the right to lateral support for his or her Residential Unit, and such rights shall be appurtenant to and pass with the title to each Residential Unit. Section 6. Easements of Encroachment. There shall be and hereby are granted reciprocal appurtenant easements of encroachment as between each Residential Unit and such portion or portions of the Common Area adjacent thereto to the extent any such easements may be necessary to maintain any improvements to the Property at the time hereof existing in their present configuration and proximity. Section 7. Easements for Utilities, Etc. There is hereby reserved the power to grant blanket easements upon, across, over, and under all of the property for ingress, egress, installation, replacing, repairing, and maintaining master television antenna systems, security, and similar systems, and all utilities, including, but not limited to, water, sewers, telephones, and electricity. By virtue of any -14- r) r� such easement, it shall be expressly permissible for the providing utility company or other supplier or servicer to erect and maintain the necessary pies and other equipment on said property and to affix and maintain utility wires, circuits, and conduits on, above, across, and under the roofs and exterior walls of the Residences. Notwithstanding anything to the contrary contained in this paragraph, no sewers, electrical lines, water lines, or other utilities may be installed or relocated on the property, except as may be approved by the Association's Board of Directors. Should any entity furnishing a service covered by the general easement herein provided request a specific easement by separate recordable document, the Board of Directors shall have the right to grant such easement on said property without conflicting with the terms hereof. The easements provided for in this Article shall in no way adversely affect any other recorded easement on the Properties. Section 8. Pets. No animals, livestock, or poultry of any kind shall bred, or kept on the Properties, except that no more than a total of two (2) normal household pets may be kept in Residential Units, subject to rules and regulations adopted by the Association through its Board of Directors, provided that such pets are not kept, bred, or maintained for any commercial purpose. Subject to such Rules and Regulations that it may adopt, or from time to time amend, the Board shall have the absolute power to prohibit pets from bein kept on the Properties, including inside Residen- tial Units constructed thereon. Section 9. Severability. Invalidation of any one of these covenants or restrictions by judgment or court order shall in no way affect any other provisions which shall remain in full force and effect. Section 10. Perpetuities. If any of the covenants, conditions, restrictions, or other provisions of this Declara- tion shall be unlawful, void, or voidable for violation of the rule against perpetuitie, then such provisions shall continue only until twenty -one (21) years after the death of the longest lived member of the presently constituted City Council of the City of Aspen, Colorado. Section 11. Renting or Leasing of Residential Unit. Units may be rented or leased only by written leases and subject to the following restrictions: Minimum Terms. Residential Units shall be restricted to minimum six -month lease terms with no more than two shorter tenancies per year. Lessee to Com.1 With Declaration and B -Laws -- Effect of Non -Comp iance. A tenants s a .e subject to t e terms and conditions of this Declaration, the By -Laws of the -15- ■ Association, the Articles of Incorporation, and the rules and regulations from time to time promulgated thereunder by the ' Board of the Association. Each owner agrees to cause his lessee, occupant, or persons living with such owner or with his lessee to comply with the Declaration, By -Laws, and the rules and regulations promulgated thereunder, and is responsible and liable for all violations and losses caused by such tenants or occupants, notwithstanding the fact that such occupants of the unit are, as well, fully liable for any violation of the documents and regulations; failure to comply shall be, at the Board's option, considered a default in the lease. In the event that a lessee, occupant, or person living with the lessee violates a provision of the Declaration, By -Laws, or rules and regulations adopted pursuant thereto, the Board shall have the power to bring an action or suit against the lessee to recover sums due for damages or injunc- tive relief, or for any other remedy available at law or equity, incluidng, but not limited to, all remedies available to a landlord upon the breach or default of the lease agreement by the lessee. The Board shall also have the power to impose reasonable fines upon the lessee for any violation by the lessee, occupant, or person living with the lessee of any duty imposed under the Declaration, By -Laws, or rules and regula- tions adopted pursuant thereto, and to suspend the right of the lessee, occupant, or person living with the lessee to use the Common Area. IN WITNESS WHEREOF, the undersigned Declarant has executed this Declaration this day of 1982. PITKIN LTD., a Colorado corporation ATTEST: By , President Secretary (Acknowledgment on Page 17) -16- STATE OF COLORADO ) ss. COUNTY OF PITKIN ) The foregoing instrument was acknowledged before me this day of , 1982, by , as President and as Secretary of Pitkin Ltd., a Colorado corporation, WITNESS my hand and official seal. My commission expires: My address is: (SEAL) Notary Public -17- EXHIBIT I 0 PARTY WALL DECLARATION FOR LOTS and PITKIN RESERVE THIS DECLARATION, made this day of 1982, by PITKIN LTD., a Colorado corporation, hereinafter called Declarant, RECITALS i i A. Declarant is the present owner, in fee simple, of 1 certain improved real property situated in the County of Pitkin, State of Colorado, and described legally as being Lots and , Pitkin Reserve, according to the Plat thereof recorded in Plat Book at Pages of the records of Pitkin County, Colorado, (hereinafter such lots being collec- tively referred to as the "Property "), B. Declarant has previously caused the division of the Property and the existing two - family dwelling improvement thereon, into two seperate townhouse Lots, as shown and desig- nated on the Plat of Pitkin Reserve above referenced. C. Declarant intends to sell and convey such townhouse lots as separate townhouse parcels with the improvements now constructed thereon, separated by a common or party wall, and to make provision in this Declaration for certain conditions, reservations, easements, liens and charges, and restrictions as hereinafter set forth. D. Declarant hereby declares that the Property shall be so divided, and that the Lots shown on the townhouse plat shall be held, sold and conveyed, subject to the following easements, reservations, restrictions, liens and charges, covenants, conditions and definitions, which are for the purpose of protecting and preserving the value and desirability of each Lot and of the Property as a whole, and that the same shall run with the land and be binding upon all parties having any right, title or interest in such townhouse Lots or any part thereof, their heirs, successors and assigns and the same shall inure to the benefit of each Owner thereof, his heirs, successors or assigns. ARTICLE I Definitions 1. "Property" shall mean and refer to all of the real property described in Recital A above. 2. "Lot" shall mean and refer to any divisible parcel of the Property as depicted and shown on the Plat of Pitkin Reserve above and below referenced and described by Lot letter thereon, title to which shall be owned and conveyed in fee simple. 3. "Townhouse" shall mean and refer to the portion of the existing two - family dwelling located upon a Lot, including appurtenant rights in and to the party wall, as hereinafter provided. 4. "Unit" shall mean the Lot and Townhouse. 5. "Plat" shall mean and refer to the Final Plat for Pitkin Reserve recorded in Plat Book _ at Pages of the Pitkin County, Colorado records. 6. "Owner" shall mean and refer to the record owner, including Declarant, whether one or more persons or entities, of the fee simple title to any Lot situated upon the Property. 7. "Deed of Trust" shall mean and refer to a deed of trust or mortgage instrument of record constituting a lien upon a Lot as security for an indebtedness or other consideration. 8. "First Mortgagee" shall mean a person or persons, or entity, which is the beneficiary of a deed of trust or mortgage constituting a first lien against a Lot. ARTICLE II Party Wall A. Easement for Pary Wall. The wall and any structural extension that forms the division between the two units of the present townhouse improvements on the Property, is hereby declared to be a party wall, as shown and located on the Plat, to be shared and owned in common by the Owners. Each Lot shall be subject to an easement for encroach- ment created by construction, settling or overhang of the present party wall constructed upon the Property, and to a reasonable degree, any subsequent improvement, addition or replacement thereof, and for the maintenance of the same so long as such encroaching portion of the improvements stands and shall exist. In the event the townhouse is partially or totally destroyed by fire or other disaster and rebuilt by the Owners, such Owners agree that minor encroachments of parts of the adjacent Townhouse building upon a Lot due to such recon- struction, shall be permitted and that a valid easement for said encroachment and the maintenance thereof shall and does exist. -2- • 2 Each Owner shall have an easement for horizontal and lateral support for the Townhouse and other improvements situated on such Owner's Lot. B. Responsibility for Party Wall. Except as is otherwise provided in this Declaration, the cost of reasonable maintenance, repairs and replacement of the party wall shall be the joint expense of the Owners. The cost of repairs and maintenance of the finished surface of the party wall located within a Lot shall be the sole expense of the Owner of such Lot. An Owner shall have the right reasonably to maintain and repair any utility installation located within a party wall but in so doing shall restore the party wall to its original condition. C. Negligence by Owner. In the event the party wall is damaged or destroyed by the act, omission, default or negligence of one of the Lot Owners, such Owner shall rebuild or repair the wall and shall compensate the other Owner for any damage to the latter's property. In addition, an Owner who by negligence or willful act causes or permits a party wall to be exposed to the elements of nature, shall bear the whole cost of furnishing the necessary protection against such elements so as to protect the party wall and the other Owner's property against such elements. D. Standard of Repair. Any repairs or rebuilding of the party wall shall be done in a workmanlike manner, and shall conform, in all respects, to the laws regulating the construction, restoration or repair of buildings in force at the time. E. Insurance. To the extent that damages to the party wall are covered by insurance, the full insurance proceeds shall be used and applied to repair, restore and replace the party wall. Except as provided above, any deficiency shall be paid as the joint expense of the Owners, without prejudice, however, to the right of an Owner to demand a larger contri- bution from the other Owner under any rule of law governing liability for negligent or willful acts or omissions. F. Common Law Application. To the extent they are not inconsistent with the provisions of this Declaration, the general rules of law regarding party walls shall apply to the real property subject hereto. -3- r ") `) ARTICLE III Owner's Maintenance Responsibility For purposes of maintenance, repair, alteration and remodeling of a Unit, an Owner shall be responsible for all surfaces ( i.e., exterior, interior, structural and nonstruc- tural) physically serving or connected with his Unit and all utility systems ( e.q., pipes, wires, conduits) commencing at the point where any of such systems depart an area of common usage or an area of usage restricted to the other Unit and begin in the direction of his Unit. All surfaces jointly serving both units such as a party wall, and all utility systems in any area of common usage shall be maintained, repaired, altered or remodeled jointly by the Owners, with each Owner being responsible for one half of all expenses. Each Owner shall indemnify and hold the other forever harmless from and against any and all loss or damage of whatsoever nature occasioned in the performance of his respective obligation of maintenance and repair, or in his failure to perform, and in the alteration or remodeling of any areas for which he is responsible as herein provided. No repair, alteration, remodeling or maintenance thereof shall modify the appearance or color scheme of the exterior improvements as they may exist from time to time without the written consent of both of the Owners and of any collective association of homeowners within Pitkin Reserve. Any right to repair, alter and remodel shall carry with it the obligation to replace any finishing materials removed with similar or other types or kinds of finishing materials of equal or better quality, and to maintain the exclusive use area in neat and clean condition. An Owner shall maintain and keep the interior, together with exterior surfaces and other non - interior areas for which he is responsible in good repair and condition. . ARTICLE IV Reservation for Access - Maintenance, Repair and Emergencies Each Owner shall have the irrevocable right to have reasonable access to the other Unit during reasonable hours as may be necessary for the inspection, maintenance, repair or replacement of the party wall or any utilities located therein or for making emergency repairs necessary to prevent damage to the party wall or a Unit. Damage to any part of a Unit resulting from maintenance, repair, or replacement of the party wall or as a result of emergency repairs within a Unit shall be a Common Expense of all of the Owners; provided, however, that if such damage is the result of the negligence of a Unit Owner, then such Unit Owner shall be responsible for all of such damage. -4- Any utility service provided to the improvements for the common utilization by each Owner, shall be the joint expense of the Owners and the rules respecting a nonpayment of any such joint expense, as set forth in Article VI hereof, shall be applicable. However, in the event any such utility service is capable of and shall be separately metered and billed to the separate Owners, each Owner shall then pay his separate share of such expense as billed. In the event that an improvement to joint utilities is for the comfort or convenience of a single Owner and the other Owner does not elect in advance, in 1 writing, to share expenses thereof, then the utility service shall not be deemed to be at the joint expense of both Owners even though common utilization results from such improvement. ARTICLE V Insurance A. Joint Insurance. The Owners shall jointly obtain and maintain replacement value insurance for fire, lightning and other common hazard for the entire building or buildings as, from time to time, may occupy the Property, equal in amount to at least 80% of the value of such building or buildings and which amount shall be reviewed annually by such Owners and increased as needed to equal such 80% of value. Premiums for such insurance shall be the joint expense of Owners, each Owner to pay one -half of such expense within ten (10) days of the receipt of the premium notice for such policy. In the event any Owner fails to make any payment required by this j paragraph, the rights granted to a nondefaulting Owner in Article VI shall apply. B. Separate Insurance. In addition to the joint in- I surance required to be carried by the Owners, an Owner may, if so desired and at that Owner's sole expense, insure his own Lot and Townhouse located wholly thereon, for his own benefit and protection and at his sole expense, as well as any other ' form of insurance coverage deemed advisable. It shall be the individual responsibility of each Owner, at his separate expense, to maintain and pay for homeowner's liability insurance. C. Use of Proceeds. Damage or destruction of the premises as a result of fire or other casualty shall be governed by the following provisions: 1. In the event of damage or destruction due to fire or other disaster, the insurance proceeds, if sufficient to reconstruct the residence, shall be promptly applied by the Owner(s) to such reconstruction; -5- I � 2. If the insurance proceeds are insufficient to repair and reconstruct the residence, the Owner or Owners whose Unit(s) have been damaged shall be free to determine whether to repair or reconstruct their respective Unit(s). In the event it is determined not to repair or reconstruct, the damaged portion shall not be left in an untidy or visually detracting state. ARTICLE VI A. Nonpayment of Common Expenses. All sums due but unpaid for the share of joint expenses chargeable to any Unit, including interest thereon at eighteen percent (18 %) per annum, from a date thirty (30) days after such sums have been assessed, shall constitute a lien on such Unit superior (prior) to all other liens and encumbrances except: 1. Tax and special assessment liens on the Unit in favor of any governmental assessing entity; 2. All sums unpaid on a first mortgage or first deed of trust of record, including all unpaid obligatory sums as may be provided by such encumbrance, including additional advances, refinance or extension of these obligations made thereon prior to the arising of such a lien. To evidence such lien the aggrieved Owner may, but shall not be required to, prepare a written notice setting forth the amount of such unpaid indebtedness, the name of the defaulting Owner of the Unit and a description of the Unit. Such a notice shall be designed by the aggrieved Owner, as appropriate, and may be recorded in the Office of the Clerk and Recorder of the County of Pitkin, State of Colorado. Such lien for the joint expenses shall attach from the date of the failure of payment of the debt, and may be enforced by foreclosure on the defaulting Owner's Unit by the aggrieved Owner in like manner as a mortgage or deed of trust on real property upon recording of a notice or claim thereof. In any such foreclosure, the defaulting Owner shall be required to pay the costs and expenses of such proceedings, the costs and expenses for filing the notice or claim of lien and all costs and reasonable attorneys' fees incurred in enforcement of the lien claim. The foreclosing party shall have the power to bid on the Unit at foreclosure sale and to acquire and hold, lease, mortgage and convey same. The amount of the joint expenses chargeable against each Unit and the costs and expenses, including attorneys' fees, of collecting the same shall also be a debt of the Owner thereof at the time the same is due. Any mortgagee holding a lien on a Unit may pay any unpaid joint expense payable with respect to such Unit, and upon such payment such mortgagee shall have a lien on such Unit for the amounts paid of the same priority as the lien of such paying mortgagee's encumbrance. The right to foreclose such lien shall not preclude an independent -6- i; 0 action by the aggrieved owner against the defaulting owner for 1 collection of the unpaid indebtedness, plus the aggrieved owner's costs and reasonable attorneys' fees, in all cases being additional sums due. B. Liability for Joint Expense Upon Transfer of Unit. Upon the written request of any Owner or of any Mortgagee or i prospective Mortgagee of a Unit, the Owner of the other Unit shall issue a written statement setting forth the amount of the unpaid joint expenses, if any, with respect to the subject Unit, the amount of the current monthly or other periodic assessment and the date such assessment becomes due, and any credit for advance payments or from prepaid items, which shall be conclusive upon the issuer of such statement in favor of all persons who rely thereon in good faith. Unless such statement of indebtedness is furnished within fifteen days, all unpaid joint expenses which became due prior to the date of such request shall be subordinate to the lien of the mort- gagee requesting such statement. The grantee of a Unit shall be jointly and severally liable with the grantor for all unpaid assessments against the latter for his proportionate share of the joint expenses up to the time of the grant or conveyance, without prejudice to the grantee's right to recover from the grantor the amounts paid by the grantee. However, upon written request, any prospective grantee shall be entitled to a statement from the Owner of the other Unit setting forth the amount of the unpaid assessments, if any, with respect to the subject Unit, the amount of the current monthly assessment and the date that such assessment becomes due, and any credit for advanced payments or for prepaid items, which shall be conclusive upon the issuer of such statement. Unless such request for a statement of indebted- ness shall be complied with within fifteen (15) days of such request, then such grantee shall not be liable for, nor shall the Unit conveyed be subject to a lien for any unpaid assessments against the subject Unit. ARTICLE VII Arbitration In the event of any dispute arising between the Owners concerning any provision of this Declaration, except resulting from the nonpayment of common expenses, which shall be resolved in the manner set forth in Article VI, above, the same shall be resolved by arbitration in accordance with the practice, rules and regulations of the American Arbitration Association. Notice of the demand for arbitration shall be filed in writing with the other owner(s) and with the American Arbitration Association. The demand shall be made within a reasonable time after the claim, dispute or other matter in question has arisen. In no event shall the demand for arbitration be made after the -7- r) date when institution of legal or equitable proceedings based on such claim, dipuste or other matter in question would be barred by any applicable statute of limitations. The award rendered by the arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof. ARTICLE VIII General Provisions A. Covenants Run With Land. The covenants, easements, reservations, liens and charges, and conditions and restrictions of this Declaration shall run with and bind the land and shall inure to the benefit of and be enforceable by the Owner or Owners of each Lot, their respective legal representatives, heirs, devisees, successors, and assigns. This Declaration, or any provision herein, may be amended or terminated at any time by an instrument in writing signed by all then Owners of Lots and all then beneficiaries of Deeds of Trust thereon. Such amendment or revocation must be duly recorded in the office of the Clerk and Recorder of the County of Pitkin. B. Grammar. The singular wherever used herein shall be construed to mean the plural when applicable and the necessary grammatical changes required to make the provisions hereof apply either to a corporation or to individuals, men or women, shall in all cases be amended as though in each case fully expressed. C. Consent. Whenever consent is required under this Declaration, consent shall not be unreasonably withheld. D. Attorneys' Fees. Should this Declaration become the subject of litigation or arbitration to resolve a claim of default in performance by either party, the party who is determined to be in default shall pay the attorneys' fees, expenses, and costs of the nondefaulting party. E. Mailing of Notices. Each Owner shall supply his mailing address to the other Owner and all notices or demands intended to be served upon any Owner shall be either hand delivered or sent by certified mail, postage prepaid, addressed in the name of the Owner at such mailing address. All notices or demands to be served on Mortgagees pursuant hereto shall be sent by certified mail, postage prepaid, addressed in the name of the mortgagee at such address as the mortgagee may have furnished to the Owners in writing, or any address appearing in the recorded mortgage or deed of trust. Any notice referred to in this paragraph shall be deemed given when actually delivered or when deposited in the mails in the form provided for in this paragraph. -8- j /1) () G. Invalid Provision. If any provision of this Decla- ration shall be determined to be void by any court of competent jurisdiction, then such determination shall not affect any !other provision hereof, all of which other provisions shall remain in full force and effect. It is the intention of the Declarant that if any provision of this Declaration is capable of two constructions, one of which would render the provision void and the other of which would render the provision valid, then the provision shall have the meaning which renders it valid. H. Governing Law. The law of the State of Colorado shall govern the interpretation and effect of this Declaration. IN WITNESS WHEREOF, the undersigned, being the Declarant herein, has hereunder set its hand and seal the day and the year first above written. PITKIN LTD., a Colorado corporation By , President By , Secretary STATE OF COLORADO ss. COUNTY OF PITKIN The foregoing instrument was acknowledged before me this day of , 1981, by , as President and by , as Secretary of Pitkin Ltd., a Colorado corporation. WITNESS my hand and official seal.. My commission expires: My address is: (SEAL) Notary Public -9- EXHIBIT J At CITY ASPEN 130 south galena street aspen, colorado ;' 81611 March 4, 1982 Robert W. Hughes, Esq. OATES, HUGHES & KNEZEVICH, P.C. 600 E. Hopkins, Suite 200 Aspen, CO 81611 Re: Financial Assurances for Improvements at Pitkin Reserve Dear Bob: Pursuant to our discussion yesterday regarding re- quired financial assurances for proposed improvements at Pitkin Reserve, this letter is intended to set a dollar figure for the estimated cost of improvements of particular concern to the City. Following my conversation with you and a brief meeting with Dan McArthur, Paul Taddune and myself, a determination was made as to those items under the proposed schedule of improvements (Exhibit D to the Subdivision Agreement) requiring a financial guaranty. It was determined that the improvements of particular concern to the City were those involving all utility mains, drainage, road work, electric relocations and revegetation along the County roadway. The dollar amount to be inserted on Section XI of the Agreement should be $337,586.00, which is the total construction estimate for all proposed improvements in Exhibit D ($534,504.00) excluding the following: I. Water Improvements 1" Service lines $ 2,250.00 3 -1/2" Service Line 300.00 II. Sewer Improvements Service taps 4,550.00 • Robert W. Hughes, Esq. March 4, 1982 Page Two III. Gas System 3/4" Service Connections $ 2,100.00 IV. Landscaping of Private Units 187,718.00 Total Construction to be Excluded 196,918.00 Total Construction Estimate 534,504.00 Service Connections not requiring Guaranty - 196,918.00 FINANCIAL ASSURANCE AMOUNT $337,586.00 Please contact me should you need further assistance or clarification. Sincerely, J• . Hammon. _is ant City Engineer JWH /caa cc: Paul Taddune Alan Richman