HomeMy WebLinkAboutADM100015 Amended and Restated Townhouse Declaration, recordedEAGLE COUNTY, CO
20110952
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Recording requested by
and when recorded mail to:
i[.s. �,
AMENDED AND RESTATED TOWNHOUSE DECLARATION
(Lot 14, Bighorn Subdivision, Fourth Addition)
THIS AMENDED AI�DESTA ED TOWN
HOUS DECLARATION (the
"Declaration ") is made this y of , 201, y ELIZABETH W. DEAN
( "Dean ") and BRODY FAMILY LLC, a Colora o limited liability company ( "Brody LLC ").
RECITALS
A. Timber Falls Corporation ( "Declarant ") at one time owned the real property more
particularly described as Lot 14, BIGHORN SUBDIVISION, FOURTH ADDITION, County of
Eagle, State of Colorado. In connection with development and sale of two attached
residences on Lot 14, Declarant recorded a Townhouse Declaration dated June 29, 1977
and recorded July 19, 1977, under Reception No. 153901 in the real property records of
Eagle County, Colorado and subsequently amended by First Amendment recorded August
12, 1999, under Reception No. 705233 of such records (as so amended, the "1977
Declaration ") in order to establish certain covenants, easements, and restrictions for the
project. The 1977 Declaration divided Lot 14 into three parcels described more particularly
in the 1977 Declaration. No map of the three parcels was recorded. The buildings on Lot
14 have been complete for some time.
B. Paragraph 14 of the 1977 Declaration provides that the 1977 Declaration may be
amended by an instrument in writing signed by all the then - owners of the property subject to
the 1977 Declaration and the holders of any mortgage or deed of trust thereon. Dean and
Brody LLC are the current owners of the parcels comprising Lot 14. Their respective
interests in these parcels are not encumbered by any mortgages or deeds of trust.
C. Dean and Brody LLC desire to alter the configuration of the existing three parcels
comprising Lot 14 to create two parcels, each owned by one of the parties, as shown on
Exhibit A attached hereto, and for that purpose shall prepare and record a Duplex Map of
Lot 14 in accordance with the current regulations of the Town of Vail (the "Duplex Map ")
creating new Lot 14A and new Lot 14B (the "Lots ").
D. Concurrently with execution of this Declaration, Dean and Brody LLC have
exchanged deeds conveying new Lot 14A to Dean and new Lot 14B to Brody and have
notified the Eagle County Assessor of the reconfiguration of their Lots.
E. Dean and Brody LLC now desire to amend, restate and supersede the 1977
Declaration in its entirety as set forth herein.
DECLARATION
In consideration of the foregoing, Declarant hereby amends and restates the Declaration in
its entirety as follows, and declares that the Project shall be held, sold and conveyed subject
to the following terms and conditions:
1. Additional Definitions.
(a) The term "Owner", as used herein, shall mean the party or parties (including Dean
and Brody LLC) at a particular time holding title to either Lot 14A or Lot 14B, as the case
may be, and the term "other Owner" shall mean the party or parties then holding title to the
other Lot.
(b) The term "Residence ", as used herein, shall mean each single - family attached home
constructed on a Lot, including all sidewalks, grounds and landscaped areas located on the
same Lot, whether open or enclosed.
2. Party Wall. Each wall built as a part of original construction of the Residences
which serves to separate adjoining Residences shall constitute a party wall ( "Party Wall "),
and, to the extent not inconsistent with the provisions of this Declaration, the general rules
of law in Colorado regarding party walls and liability for property damage due to negligence
or willful acts or omissions shall apply.
3. Easements
(a) Each Owner shall have a reciprocal easement of reasonable access over the other
Owner's Lot with respect to the Party Wall, including maintenance, repair and inspection.
The cost of maintaining the party wall shall be shared equally by the Owners.
(b) The Owners hereby establish reciprocal appurtenant easements for encroachment
and overhang between the Lots due to the unintentional placement or settling or shifting of
the Residences constructed, reconstructed or altered thereon, to a distance of not more
than two feet, as measured along a line perpendicular to Lot boundaries. In no event shall
any such easement exist for boundary fences which are more than one foot off the
boundary line, or for any encroachment existing due to the willful conduct of any Owner or
other occupant of a Lot.
(c) The Owners hereby establish reciprocal appurtenant easements for lateral and
subjacent support between the Lots for so long as the Declaration remains in effect.
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(d) The Duplex Map shows a common driveway for the Residences, which is located
partially on each Lot (the "Driveway "). The Owners hereby establish reciprocal appurtenant
easements for pedestrian and vehicular access over the Driveway between the Lots and the
adjacent public street. However, each Owner and its invitees shall park only on such
Owner's Lot.
4. Maintenance of Party Wall. The cost of reasonable repair and maintenance of the
Party Wall shall be shared equally by the Owners. In the event of damage to or destruction
of the Party Wall from any cause, the Owners shall, at joint expense, repair or rebuild the
Party Wall, and each Owner and such Owner's heirs, personal representatives, successors
and assigns shall have the right to the full use of the Party Wall so repaired and rebuilt. If
the negligence of any Owner or related parties shall cause damage to or destruction of the
Party Wall, such negligent Owner shall bear the entire cost of such repair or reconstruction.
If an Owner at any time of either Lot shall neglect or refuse to pay such Owner's share, or
all of such cost in the case of negligence, the other Owner may have the Party Wall
repaired or restored and shall be entitled to have a lien on the Lot of the Owner so failing to
pay for the amount of such defaulting Owner's share of the repair or replacement costs,
interest at 10% per annum, costs and attorney's fees.
5. Maintenance of Lots. Each Owner shall maintain the Residence, landscaping and
other improvements (including such items as lighting fixtures and landscaping walls) on
such Owner's Lot in reasonably good condition without contribution from the other Owner;
provided, however, that the Owners shall cooperate to evaluate and contract jointly for any
necessary maintenance and repair of the Driveway from time to time (such as snow
removal or asphalt replacement). Each Owner shall be separately responsible for
maintenance, repair and replacement of the roof of such Owner's Residence.
6. Insurance. Each Owner shall obtain and maintain at all times insurance against
loss or damage by fire and such other hazards as are generally covered in the Vail area
under standard extended coverage provisions for at least the full insurable replacement cost
of the Owner's Residence from time to time, and with the other Owner shown as an
additional insured as such other Owner's interest may appear. Proof of such insurance
shall be supplied by each owner upon the reasonable request of the other Owner.
7. Utilities. All maintenance and repair work with respect to sewer, water and other
common utility connections, common facilities or other equipment and property, if any, lo-
cated on either Lot but used in common with the other Owner shall be accomplished at the
joint expense of both Owners. In all such cases, the other Owner shall have all reasonable
rights to inspect, repair and maintain such property. Specifically, the Owners agree to
jointly maintain all shared main utility service lines to the Residences to the point where the
main line splits into service lines, and, from that point each owner shall separately maintain
all service lines to their respective Residences. To the extent that any water, sewer or any
other utilities service is provided to both Residences through a single meter, the Owner of
the Residence which is connected to such utilities but not directly billed for use of such
utilities shall, upon written request from time to time by the Owner of the metered
Residence accompanied by a copy of the service bill, reimburse the requesting Owner for
50% of the utilities charges.
8. Alteration of Residences. The Owners of each Lot shall make reasonable efforts to
preserve a harmonious appearance of the Residences and landscaping on the Lots. Any
material structural or design change to the exterior of a Residence or Lot (including any
change in the composition or type of the roof of either Residence or the color of exterior
walls or trim) shall not be made without the prior written consent of the other Owner, which
consent shall not be unreasonably withheld, conditioned or delayed. The parties
acknowledge that, based on current information, the sizes of Residences may be increased.
Therefore both Owners agree that, total allowed sizes of the units (usually referred to as
GRFA) shall be allocated equally between new Lot 14A and new Lot 14B.
9. Deck Stairs. On the south side of the residences both Owners share use of a staircase
which provides joint access from each of their decks to the ground level and they
acknowledge that the property line between their lots is not located in the middle of those
stairs. Because these stairs properly serve both properties, the Owners agree to jointly
maintain the staircase and split all the reasonable costs to do so. Both owners also hereby
establish reciprocal appurtenant easements for pedestrian use of the staircase until
modified per the paragraph below.
In addition, both Owners understand that the expansion of one or both properties may
render the staircase unusable and agree that if this occurs, the owner of the property which
is being expanded will provide a suitable alternate stair access to the rear ground level for
the other property
9. Use of Rear Areas. The parties intend that the rear portions of the Lots between the
Residences and the existing creek shall remain unfenced for aesthetics reasons.
Notwithstanding the lack of fencing, the Owners and their invitees shall generally confine
their activities in these rear areas to their own Lot but shall have reasonable license for
occasional passage onto and over the rear areas of the other Owner's Lot.
10. Duration of Declaration. The easements and restrictions hereby created shall run
with and bind the land, for a term of 10 years from the date hereof, after which time they
shall automatically be extended for four (4) successive periods of ten years each. Each and
every person accepting by deed or otherwise any portion of the Lots shall be deemed to
have accepted the same, with the understanding that he is bound hereby and entitled to the
benefits hereof, and that any other present or future owner by deed or otherwise is similarly
bound hereby and entitled to the benefit hereof, all to the same extent as though such
person had signed this instrument. The undersigned, in executing and delivering deeds to
the above described premises may provide, by reference, in such conveyances, that such
conveyances are subject to the terms, conditions, reservations, restrictions and covenants
herein contained, and may designate the book and page of the record in which this
instrument is recorded.
11. Amendment. These easements and restrictions may be amended or revoked only
upon the recording of an instrument duly executed and acknowledged by all of the then
record owners of the subject premises and all holders of recorded mortgages or deeds of
trust thereon.
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12. Severability. If any provision of this instrument or any section, sentence, clause,
phrase, or word, or the application thereof in any circumstance, is held invalid, the validity of
the remainder of this instrument and of the application of any such provision, section,
sentence, clause, phrase, or word in any other circumstance, shall not be affected thereby.
13. Governing Law; Costs. Any disputes arising hereunder, not otherwise settled, shall
be settled pursuant to Colorado law. The costs of enforcement of any provision hereof by
one Owner against any other Owner shall be recoverable by suit wherein recovery shall be
made for costs, attorney's fees and damages, and also for moneys paid out by one of the
foregoing for the obligation of another plus interest at the rate of 10% per annum.
14. Enforcement. Any Owner shall have the right to enforce, by any proceeding at law
or in equity, all restrictions, conditions, covenants, liens, and charges now or hereafter
imposed pursuant to this Declaration. Failure by any Owner to enforce any covenant or
restriction herein contained shall in no event be deemed a waiver of the right to do so
thereafter. In any enforcement proceeding, the prevailing party shall be awarded its
reasonable attorney fees and costs, including, but not limited to, the cost of injunction
bonds.
15. Exemptions. All Owners of any interest in the Lots, by accepting a deed to any
interest thereto, waive the homestead exemption or any other exemption of the laws of the
State of Colorado, or any federal law, only as it relates to any lien filed by any Owner
pursuant to this Declaration. Otherwise, such exemptions are not hereby affected.
16. Priority of Liens. Any lien filed by an Owner pursuant hereto shall be subordinate to
the lien of any then - existing mortgage or deed of trust on any Lot.
17. Notices. Each Owner shall register its mailing address with the other Owner and all
notices or demands intended to be served upon Owners shall be sent by certified mail,
postage prepaid, addressed in the name of the Owner at such registered mailing address.
In the alternative, notices may be delivered, if in writing, personally to Owners. Prospective
purchasers of Lots shall be entitled to determine if a selling Owner is in default with respect
to any maintenance obligation or any other obligation under these covenants by delivering a
written inquiry with respect thereto to the Owner of the other Lot. If no response is received
to such inquiry within 30 days of the date such notice is received, the nonselling Owner shall
be deemed to have waived any claim of lien or claim for damage. The existence of a
recorded notice of lien, however, shall constitute notice to a prospective purchaser of a
claim by an Owner of the other Lot, and shall not be affected by the foregoing request for
information.
IN WITNESS WHEREOF, Dean and Brody LLC have executed this Declaration as of the
date set forth above.
BRODY FAMILY LLC,
a Colorado limited liability company
5
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-
STATE OF COLORADO )
COUNTY OF )
The foregoing instrument was acknowledged before me this /��' day of
—16or- , 201f, by Melvin R. Brody as Manager of Brody Family LLC, a Colorado
ited lia ility company.
Witness my hand and official seal.
`My.commission expires: [I - t9 - < <
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g -1 Notary Pu lic
A
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STATE OF COLORADO )
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COUNTY OF U I nn aS o )
The foregoing instrument was acknowledged before me this 1 4 + � - day of
f2f , 201 by Elizabeth W. Dean.
Witness my hand and official seal.
My commission expires: k l - 1O\ -
[S E A L]
e4 , Notary u lic
e
aS
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EXHIBIT "A"
DUPLEX PLAT
BIGHORN SUBDIVISION FOURTH ADDITION
A RESUBDIVISION OF LOT 14
TOWN OF VAIL, COUNTY OF EAGLE, STATE OF COLORADO
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