HomeMy WebLinkAboutADM130005 DECLARATIONS AND PARTY WALL AGREEMENT r r/
DECLARATION OF
COVENANTS, CONDITIONS AND RESERVATIONS S
2
AND
PARTY WALL AGREEMENT
FOR
PARCEL A AND PARCEL B, LOT 12, BLOCK 5
BIGHORN FIFTH ADDITION EAGLE COUNTY, COLORADO
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Sara J. Fisher Eagle County Clerk & Recorderly 95 . DOC
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DECLARATION OF
COVENANTS, CONDITIONS AND RESERVATIONS
AND
PARTY WALL AGREEMENT
FOR
PARCEL A AND PARCEL B, LOT 12, BLOCK 5
BIGHORN FIFTH ADDITION EAGLE COUNTY COLORADO
RECITALS
1. Phyllis L. Lawler and Roy I. Lawler (collectively, "Declarants") are the owners
of the real property situate in the Town of Vail, County of Eagle, State of Colorado,
described as Lot 12, Block 5, Bighorn Fifth Addition, according to the Plat to be recorded
in Eagle County, Colorado (the "Property").
2. A building is located on the above-described property,which building consists
of two (2) units, each designed and intended for use and occupancy as a residential dwelling
unit, designated herein as "Unit A" and "Unit B", respectively, which are sometimes referred
to herein separately as a "Unit" or collectively as the "Units".
3. Declarants have subdivided the Property into two (2) parcels for ownership
in fee simple consisting of Parcel A and Parcel B as herein provided.
4. Parcel A of the Property contains Unit A and Parcel B of the Property
contains Unit B.
5. Declarants desire to and do hereby establish a plan for the ownership of Parcel
A and Parcel B as estates in fee simple.
DECLARATION
Declarants do hereby publish and declare that the following terms, covenants,
conditions, easements, restrictions, uses, reservations, limitations and obligations shall be
deemed to run with the land described herein, shall be a burden and a benefit to Declarants,
their personal representatives, heirs, successors and assigns and any person acquiring or
owning an interest in the Property which is described herein or the improvements located
thereon, their grantees, personal representatives, heirs, successors and assigns.
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SECTION 1.11. "Party Wall"shall mean the common wall between the Units located
on the dividing line between the two Parcels.
SECTION 1.12. "Pro er " shall mean all of the real .estate legally described as Lot
12, Block 5, Bighorn Fifth Addition, Town of Vail, Eagle County, Colorado, according to
the Plat thereof to be recorded with the Clerk and Recorder of Eagle County, Colorado.
SECTION 1.13. "_Remaining Owner" shall have the meaning given to that term in
Section 15.01 hereof.
SECTION 1.14. "Selling Owner" shall have the meaning given to that term in Section x-
15.01 hereof.
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ARTICLE 2
DESCRIPTION AND RESERVATION
Every contract of sale, deed, lease, mortgage, deed of trust, will or other instrument
relating to the Property shall legally describe a Parcel or any real property interest therein
as follows:
Parcel (A or B1, Final Plat, a Resubdivision of Lot 12, Block 5, Bighorn Fifth
Addition, according to the map thereof recorded in Book , Page , of
the records of the Clerk and Recorder of Eagle County, State of Colorado, and
according to the Declaration of Covenants, Conditions, and Restrictions and Party
Wall Agreement for Parcel A and Parcel B, Lot 12, Block 5, Bighorn Fifth Addition,
Eagle County, Colorado, recorded in Book _ , Page , of the records of
the Clerk and Recorder of Eagle County, State of Colorado.
Every such description shall be good and sufficient for all purposes to sell, convey,
transfer, lease, encumber or otherwise affect the Parcel, the Unit and other improvements
located thereon and all appurtenant rights, benefits and burdens thereto as created by the
provisions of this Declaration, and each such description shall be so construed.
ARTICLE 3
PROPERTY DIVISION
SECTION 3.01. Two Parcels. Declarants hereby establish this plan for the
subdivision of the Property into two (2) Parcels for ownership in fee simple, consisting of
Parcel A and Parcel B as shown on the Map.
SECTION 3.02. No Partition. No owner shall bring any action for partition or
division of Parcel A and Parcel B.
SECTION 3.03. No Merger. In the event Parcel A and Parcel B are owned by the
same person, the doctrine of merger shall not apply.
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ARTICLE 1
DEFINITIONS
In addition to the terms hereinabove defined, unless the context shall expressly
provide otherwise, the following terms shall have the following meanings:
SECTION 1.01. "Assessment Lien" shall mean any lien arising pursuant to the
provisions of Section 11.02 of this Declaration.
SECTION 1.02. "Declaration"shall mean and refer to this Declaration of Covenants
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Conditions and Restrictions and Party Wall Agreement, as the same may be amended from .
time to time.
SECTION 1.03. "Defaulting Owner" shall have the meaning given to that term in C)
Section 11.01 hereof. :d
SECTION 1.04. "First Morteaee"shall mean and refer to any unpaid and outstanding
mortgage, deed of trust or other security instrument encumbering a Parcel recorded in the
records of the Office of the Clerk and Recorder of the County of Eagle, Colorado, having
priority of record over all other recorded liens except those governmental liens made
superior by statute (such as general ad valorem tax liens and special assessments).
SECTION 1.05. "First Mort aeee" shall mean and refer to any person named as a
mortgagee or beneficiary under any First Mortgage, or any successor to the interest of any
such person under such First Mortgage.
SECTION 1.06. "Map" means the engineering survey of the Property entitled Plat,
Lot 12, Block 5, Bighorn Fifth Addition, Town of Vail, Eagle County, Colorado, depicting
and locating with specificity thereon the Parcels and the improvements located thereon
(including, without limitation, the Units), such land and improvements being hereby
submitted to this Declaration. Such Map shall be recorded in the Office of the Clerk and
Recorder of Eagle County, Colorado.
SECTION 1.07. "Offer Price" shall have the meaning given to that term in Section
15.01 hereof.
SECTION 1.08. "Organizational Owner" shall mean an Owner which is a firm,
corporation, partnership, association or trusts, or other legal entity, and not a natural person.
SECTION 1.09. "Owner" shall mean a person, persons, firm, corporation,
partnership, association or trusts, or other legal entity, or any combination thereof, owning
an interest in a Parcel.
SECTION 1.10. "Parcel' shall mean Parcel A or Parcel B as shown on the Map,
together with all appurtenances thereto.
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SECTION 3.04. Concurrent Ownership. The parties, if more than one, having the
concurrent ownership of a Parcel shall agree among themselves how to share the rights and
obligations of such ownership; provided, however, that if an Organizational Owner shall
become the owner of a Parcel or if more than one party have the concurrent ownership of
a Parcel, then such Organizational Owner or concurrent Owners shall, no less than once
each year, designate one individual who shall represent such Organizational Owner or
concurrent Owners shall give written notice to the Owner of the other Parcel designating
the individual to act on its or their behalf and such notice shall be effective until revoked
or superseded in writing by such Organizational Owner or concurrent Owners. Any act or
omission by such designated individual shall be binding on the Organizational Owner or all
concurrent Owners having designated him in favor of the Owner of the other Parcel or any
person who may rely thereon.
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SECTION 3.05. Separate Taxes. Each Parcel, together with the Unit and other C°?
improvements located thereon, shall be considered a separate parcel of real property and
shall be separately assessed and taxed.
ARTICLE 4
EASEMENT FOR ENCROACHMENTS
If any portion of a structure located on a Parcel now encroaches upon the adjoining
Parcel, or if any such encroachment shall occur hereafter as a result of the settling or
shifting of any building, a valid easement for the encroachment on the surface and for
subsurface support below such surface and for the maintenance of the same, so long as it
stands, shall and does exist. In the event any building located on a Parcel shall be partially
or totally destroyed as a result of fire or other casualty or as a result of condemnation or
eminent domain proceedings and then rebuilt or repaired, encroachments of any portion of
such building on the adjoining Parcel due to such rebuilding or repair shall be permitted as
long as such encroachments are of no greater extent than those previously existing, and valid
easements for such encroachments on the surface and for subsurface support below such
surface nd for the maintenance f the same shall exist so long as the building shall stand.
ARTICLE 5
PARTY WALL
SECTION 5.01. General Rules of Law to Apply. To the extent not inconsistent with
this Declaration, the general rules of law regarding party walls and liability for damage due
to negligence, willful acts or omissions shall apply to the Party Wall.
SECTION 5.02. Right to Use. The Owners of the Units both shall have the right
to use the Party Wall, provided that such use by one Owner does not interfere with the use
and enjoyment of the Party Wall by the other Owner.
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SECTION 5.03. Easement: Damage or Destruction. The Owner of a Unit shall have
a perpetual easement in and to the part of the other Unit on which the Party Wall is
located, for party-wall purposes, including mutual support, maintenance, repair and
inspection. In the event of damage to or destruction of the Party Wall, the following
provisions shall apply:
(a) In the event the Party Wall is damaged or destroyed through the
negligence, willful act or omission of one adjoining Owner, or any of his family, agents or
invites, so as to deprive the other adjoining Owner of the full use and enjoyment of the
Party Wall, then the first of such Owners shall forthwith proceed to rebuild and repair, or
contract for the rebuilding and repair of, the Party Wall to its former good condition without '
cost to the adjoining Owner.
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(b) In the event the Party Wall is damaged or destroyed (including ordinary C)
wear and tear and deterioration from lapse of time) by some cause other than the S
negligence, willful act or omission of one of the adjoining Owners, or any of his family,
agents or invites, then unless both of such Owners otherwise agree, both such adjoining
Owners shall proceed forthwith to rebuild or repair, or contract for the rebuilding and repair
of, the Party Wall to its former good condition at their joint and equal expense.
SECTION 5.04. Structural Integrity. Thee shall be no impairment of the structural
integrity of the Party Wall without the prior written consent of all Owners having any
interest therein. Further, penetration of the Party Wall is prohibited without the approval
of the applicable governmental authorities because such penetration impairs the fire resistant
qualities of the Party Wall.
SECTION 5.05. Modification or Addition. No addition to, modification of or relocation
of the Party Wall may be accomplished by the Owner of one of the Units unless the Owner
of the other Unit agrees in writing to the same.
ARTICLE 6
COMMON FACILITIES
SECTION 6.01. Utilities. Common utility or service connections or lines, common
facilities or other common utility equipment or property located in or on one of the Parcels
or the Unit located thereon but used in common with the other Parcel or the Unit located
thereon, if any, shall be owned by all of the Owners of the Property as tenants in common,
with the Owner of Parcel A and the Owner of Parcel B each holding an undivided one-half
interest in and to such common utility or service connections or lines, common facilities and
other common utility equipment and property. Except for any expense or liability caused
by the negligence or willful act of one Owner, his family, agent or invitee, which shall be
borne solely by such Owner, all costs, expens%s and liabilities related to said common utility
or service connections or lines, common facilities and other common utility equipment and
property shall be shared by the Owners proportionately with such ownership. Tile owner
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of the Parcel or Unit on which such common utility or service connections or lines, common
facilities or other common utility equipment or property is not located shall have a perpetual
easement in and to that part of the adjoining Parcel or Unit containing the same as is
reasonably necessary for purposes of maintenance, repair and inspection.
SECTION 6.02. Access and Parking.
(a) A driveway is located on the Property, a portion of which is on each Parcel as
shown on the Map. There is hereby created a reciprocal easement and right-of-way for each
Owner over, across and through that part of the driveway located on the other Owner's
Parcel for the purpose of vehicular and pedestrian access. The Owners shall have equal
right to the use of such access and no Owner shall hinder or permit his family, agents or
invites to hinder reasonable use by the other Owner or his family, agents or invites of such "
common access without the consent of the other Owner. It is presumed that snow plowing
of such common driveway will be required from time to time, the cost of which will be C
shared equally by the Owners. Other maintenance, repair or improvement of such common
driveway may be required from time to time, and the same shall be undertaken upon the
unanimous agreement of the Owners who shall share all costs and expenses equally.
(b) The uncovered parking areas shall be designated parking spaces for the Owners,
their guess and invites of the parcel adjacent to said areas and as so indicated on the Plat.
.An access and egress lane shall be maintained in the center of the common drive access to
insure passage by each Owner to their respective covered parking. Each Owner shall be
responsible to insurer that they, their guests and invites comply with this declaration, and
that all local laws and regulations and ordinances applicable to the Property.
SECTION 6.03. Allocation of Expenses. Costs and expenses of all activities whose
cost is anticipated herein to be shared, except as caused by the negligence or willful act or
omission of an Owner, shall be allocated in the following proportions:
Parcel A 50%
Parcel B 50%
ARTICLE 7
MAINTENANCE AND ALTERATION
SECTION 7.01. Exterior Maintenance.
(a) Landscaping. Each Owner shall from time to time, at his sole cost and expense,
irrigate, maintain,preserve and replace, as needed, the trees, shrubs and grass located within
the property boundaries of his Parcel commensurate with the standards set by the original
developer's landscaping of the Parcels and each Owner shall from time to time, at his sole
cost and expense, undertake such landscaping and general outdoor improvements on his
Parcel as the Owners may jointly deem necessary and proper for the harmonious
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improvement of the Parcels in a common theme. The Owner of one Parcel shall not
unreasonably damage the value of the other Parcel such as by shoddy upkeep outside, but
both Owners shall make all reasonable efforts to preserve a harmonious common
appearance of the Parcels.
(b) Unit Exterior. Except with respect to common facilities addressed elsewhere in
this Declaration, each Owner shall, at his sole cost and expense, provide exterior
maintenance and exterior repair upon his Unit and the other improvements located on his
Parcel as well as the unimproved portions of the Parcel upon which his Unit is located,
including, but not limited to, the exterior walls and the roof of the Unit.
SECTION 7.02. Maintenance of Unit Interior. Each Owner shall be solely
responsible for the maintenance and repair of the interior of his Unit, including fixtures and
improvements and all utility lines and equipment located therein and serving such Unit only,
for which purpose windows, glass and frames shall be deemed part of the interior of a Unit.
In performing such maintenance and repair, or in improving or altering his Unit, no Owner
shall do any act or work which impairs the structural soundness of either Unit or the Party
Wall or which interferes with any easement granted or reserved herein.
SECTION 7.03. Maintenance of Service Facilities Serving One Unit. Utility or
service connections or lines, facilities or other utility equipment or property located in, on
or upon either of the Units which are used solely to supply a service or utility to one Unit
shall be owned by the Owner of the Unit using such utility or service and all costs, expenses
and liabilities for repair and maintenance of such utility or service connections or lines,
facilities or other utility equipment of property shall be; borne solely by the Owner of the
Unit using such utility or service, who shall have a perpetual easement in and to that part
of the adjoining Parcel or Unit containing such utility or service connections or lines,
facilities or other utility equipment or property as is reasonably necessary for purposes of
maintenance, repair and inspection.
SECTION 7.04. Alterations. No Owner shall make or suffer any structural or design
change (including a color scheme change), either permanent or temporary, of any type or
nature whatsoever to the exterior of his Unit or construct any additional building or
structure of any type or nature whatsoever upon any part of his Parcel without first
obtaining the prior written consent thereto from the other Owner.
ARTICLE 8
MECHANIC'S LIENS, INDEMNIFICATION
SECTION 8.01. Prohibition. Except for items incurred as a common expense as
provided for herein, if any Owner shall cause any material to be furnished to his Parcel or
the Unit or other improvements located thereon, or any labor to be performed therein or
thereon, such Owner shall be solely responsible to contractors, laborers, materialmen and
other persons furnishing such materials or labor and the Owner of the adjoining Parcel or
Unit shall not, under any circumstances, be liable for the payment of any cost or expense
associated or incurred in connection therewith or for the value of any work done or material
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furnished, all such work being at the sole cost and expense of the Owner causing the same
to be done. Nothing herein contained shall authorize either Owner or any person dealing
through, with or under either Owner to charge the Parcel or Unit of the other Owner with
any mechanic's lien or other lien or encumbrance whatever and, on the contrary (and notice
is hereby given), the right and power to charge any lien or encumbrance of any kind against
one Owner or against one Owner's Parcel or Unit for work done or materials furnished to
the other Owner's Parcel or Unit is hereby expressly denied.
SECTION 8.02. Indemnification. If, because of any act or omission of an Owner,
any mechanic's or other lien or order for the payment of money shall be filed against the
adjoining Parcel or Unit of the other Owner, or any improvements therein or thereon, or
against any other Owner (whether or not such lien or order is valid or enforceable as such),
the Owner whose act or omission forms the basis for such lien or order shall at his own cost
and expense cause the same to be canceled and discharged of record or bonded by a surety
company reasonably acceptable to such other Owner, within ten (10) days after the date of
filing thereof, and further shall indemnify and save the other Owner harmless from and
against any and all costs, expenses, claims, losses or damages, including, without limitation, C
reasonable attorney's fees resulting therefrom.
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ARTICLE 9
INSURANCE
SECTION 9.01. Insurance Maintained by each Owner. Each Owner shall maintain,
at his sole cost and expense, the following types of insurance:
(a) A policy of property insurance covering his Unit in an amount equal to the
maximum replacement value thereof and , in any event, not less than necessary to comply
with any co-insurance percentage stipulated in the insurance policy. Said policy shall contain
a"Replacement Cost Endorsement"and an"Agreed Amount Endorsement". Such insurance
shall afford protection against at least loss or damage by fire and other perils normally
covered by the standard "all-risk" policy (including vandalism and malicious mischief).
(b) A policy of general liability and property damage insurance against claims for
bodily injury or death or property damage occurring upon, in or about his Parcel or the Unit
or other improvements located thereon, in limits of to less than $500,000.00 in respect of
bodily injury or death to any number of persons arising out of one accident or disaster, or
for damage to property, and if higher limits shall at any time be customary to protect against
possible tort liability, such higher limits shall be carried, and each Owner shall name the
other Owner as an additional insured party under such policy.
SECTION 9.02. Insurance Policies. Each Owner shall deliver to the other Owner
certificates evidencing all insurance required to be carried under Section 9.01 hereof, each
containing agreements by the insurers not to cancel or modify the policies without giving the
other Owner prior written notice of at least thirty (30) days. Each Owner shall have the
right to inspect and copy all such insurance policies of the other Owner and require evidence
of the payment of premiums thereon.
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SECTION 9.03. Single Policy. Nothing provided in this Article shall prevent the
Owners from jointly acquiring a single policy to cover any one or more of the hazards
required in this Article to be separately insured against by each Owner.
ARTICLE 10
DAMAGE OR DESTRUCTION
SECTION 10.01. Repair Obligation. In case of damage or destruction of any Unit
or any part thereof by any cause whatsoever, the Owner of such Unit shall, at his sole cost
and expense, with due diligence, cause the Unit to be repaired and restored, applying the
proceeds of insurance, if any, for that purpose as hereinafter provided. Such Unit shall be
restored to a condition comparable to that prior to the damage or destruction and in a
harmonious manner to promote the common theme of both Units.
(a) Notwithstanding the above, the Owners and First Mortgagees of any or all of the
destroyed or damaged Units may agree that the destroyed or damaged Units shall forthwith
be demolished and all debris and rubble caused by such demolition be removed and the
Parcel(s) regraded and landscaped. The cost of such landscaping and demolition work shall
be paid for by any and all insurance proceeds available. Any excess insurance proceeds shall
then be disbursed to such Owners and their First Mortgagees jointly.
ARTICLE 11
ASSESSMENT LIENS
SECTION 11.01. Performance on Other's Behalf. If an Owner (the "Defaulting
Owner"), at any time, shall neglect or refuse to perform any obligation required by this
Declaration or shall neglect or refuse to pay his share of any obligation required hereunder,
the other Owner may, but shall not be obligated to, after twenty (20) days prior written
notice to the Defaulting Owner of such failure and the failure of the Defaulting Owner
within said time to cure the default (unless the circumstances require immediate action, in
which case prior notice shall not be required), perform or pay such obligation and, in
connection therewith, contract with responsible parties and expend such sum as may be
necessary, or make such payment, as the case may be, including, but not limited to, the
payment of any insurance premiums required hereunder, the payment of any sums required
for reconstruction pursuant to Section 5.03 or Section 10.02(b) hereof or the undertaking
of any work required hereunder for repair, restoration or maintenance. Each Owner hereby
grants to the other Owner, its agents and assigns, an irrevocable easement to perform the
aforesaid obligations as contemplated herein. All sums so paid or expended by an Owner,
with interest thereon at the rate of eighteen percent (18%) per year from the date of such
payment of expenditure, shall be payable by the Defaulting Owner upon demand of the
other Owner.
SECTION 11.02. Lien Rights.
(a) All sums demanded from a Defaulting Owner pursuant to Section 11.01 hereof,
but unpaid by the Defaulting Owner, shall constitute a lien on the Parcel of the Defaulting
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Owner in favor of the other Owner prior to all other liens and encumbrances, except: (a)
liens for taxes and special assessments; and (b) the lien of any First Mortgage of record
encumbering the Parcel or Unit of the Defaulting Owner. Any such lien is referred to
herein as an "Assessment Lien". The Assessment Lien shall attach from the date when the
unpaid sum shall become due and amy be foreclosed in like manner as a mortgage on real
property upon the recording of a notice or claim thereof executed by the non-defaulting
Owner, setting forth the amount of the unpaid indebtedness, the name of the Defaulting
Owner, and a description of the Parcel. In any such foreclosure, the Defaulting Owner shall
be required to pay the costs and expenses of such proceeding, the cost and expenses f filing
the notice of lien and all reasonable attorneys' fees, which costs and expenses shall be
secured by the lien being foreclosed.
(b) A release of lien shall be executed by the non-defaulting Owner and recorded
at the Defaulting Owner's expense upon payment of all sums secured by the Assessment
Lien which has been made the subject of a recorded notice of lien.
(c) Any First Mortgagee may,but shall not be obligated to, pay any amounts secured
by an Assessment Lien created by this Article and, upon such payment, such First Mortgagee C�
shall be subrogated to all rights of the non-defaulting Owner with respect to such Fa
Assessment Lien, including priority. 2J
(d) Each Owner hereby agrees that the Assessment Liens herein described shall be
superior to any homestead exemption now or hereafter provided by the laws of the State of
Colorado or any exemption now or hereafter provided by the laws of the United States. The
acceptance of a deed to land subject to this Declaration shall constitute a waiver of the
homestead and any other exemption as against said assessment lien.
SECTION 11.03. Priority of Lien. The Assessment Lien provided for in Section
11.02 hereof shall be subordinate to the lien of any First Mortgage recorded prior to the
attachment of such Assessment Lien. Sale or transfer of any Parcel as the result of
foreclosure of a First Mortgage, or any proceeding in lieu of such foreclosure, shall
extinguish any Assessment Lien which attached subsequent to the recording of such First
Mortgage, but shall not relieve any former Owner of personal liability therefore. The First
Mortgagee of such Parcel who acquires title by way of foreclosure or the taking of a deed
in lieu thereof shall, however, become liable for future assessments on the date it becomes
the Owner of such Parcel. No sale or transfer of any Parcel shall relieve such Parcel from
liability for any assessments thereafter becoming due or from the Assessment Lien thereof.
In the event of the sale or transfer of a Parcel with respect to which sums shall be unpaid
by a Defaulting Owner, except transfers to a First Mortgagee in connection with a
foreclosure of its lien or a deed in lieu thereof, the purchaser or other transferee of an
interest in such Parcel shall be jointly and severally liable with the seller or transferor
thereof for any such unpaid sums.
SECTION 11.04 Written Statement. Upon written request of any Owner or a
prospective transferee of a Parcel, the Owner of the other Parcel shall issue a written
statement setting forth the amount he is owned under this Article 11, if any, with respect to
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such Parcel. Such statement is binding upon the executing Owner in favor of any person
who may rely thereon in good faith. Unless a request for such statement shall be complied
with within fifteen (15) days after receipt of the request, all unpaid sums which became due
prior to the date of making such request shall be subordinated to the lien or other interest
of the person requesting such statement.
ARTICLE 12
ADMINISTRATION AND MANAGEMENT
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Both Parcel Owners shall be mutually responsible for the administration and
management of the obligations created by this Declaration.
ARTICLE 13
USE RESTRICTIONS
Declarants hereby declare that all of the Property shall be held and shall henceforth
be sold, conveyed, used, improved, occupied, owned, resided upon, and hypothecated,
subject to the following provisions, conditions, limitations, restrictions, agreements and
covenants, as well as those contained elsewhere in this Declaration:
(a) Use. Each Parcel shall be used for residential purposes only and each Unit shall
be restricted to a residential dwelling as a permitted use and conditional and accessory uses
as defined by the Town of Vail Zoning Ordinances and Regulations and the Restrictions and
Covenants for the Bighorn Subdivision, Fifth Addition, Town of Vail, Eagle County,
Colorado.
(b) Parcels to be Maintained. Except during any period of reconstruction, each
Parcel at all times shall be kept in a clean, sightly and wholesome condition. No trash, litter,
junk, boxes, containers, bottles, cans, implements, machinery, lumber or other building
materials shall be permitted to remain exposed upon any Parcel so that the same are visible
from the neighboring Parcel or any street.
'(c) Temporary Structures. Except as hereinafter provided, no structure of a
temporary character, including,but not limited to, a house trailer, tent, shack or outbuilding,
shall be placed or erected upon any Parcel; provided, however, that during the actual
alteration, rcpair or remodeling of a Unit or other improvement, necessary temporary
structures for storage of materials may be altering, repairing or remodeling any Unit or
other improvement shz:: b 2iligently from the commencement thereof until the
completion thereof.
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(d) Miscellaneous Structures. No exterior mounted radio, shortwave, television or
other type of antenna whatsoever or tank of any kind, either elevated or buried, or
clothesline, dog run or incinerator of any kind whatsoever, or outside storage of any personal
property, shall be permitted or maintained on either Parcel without the prior written
approval of both Owners.
(e) Signs. No advertising or signs of any character shall be erected, placed,
permitted or maintained on any Parcel other than a street number without prior written
approval signed by both owners. "For Rent" signs are strictly forbidden.
(f) Pets. Each owner may keep and maintain within his parcel domesticated animals:
provided, however, that such domesticated animals do not present a nuisance nor disturb the
quiet enjoyment of the other Owner and are kept controlled in strict compliance with all
applicable town of Vail ordinances. Each Owner of a pet(s) shall be financially responsible C..
and liable for damage to the Property of Building caused by such pet(s). C.
(g) Vehicular Parking. Uncovered parking spaces shall be used only for parking
automobiles and not for any other storage purpose. Parking of boats, trailers, campers,
motor homes or recreational vehicles on either Parcel is expressly prohibited. Owner or
tenant(s) may keep no more than six licenses or otherwise well maintained automobiles
permanently on their Parcel and that such vehicles shall be placed in the garage, or if in an
unenclosed area, shall not restrict, hinder, or otherwise create a nuisance to the use by the
other Owner of the parking or common access facilities.
(h) No Time Sharing. No "time sharing", "interval ownership" or similar interests,
whereby ownership of a unit is shared by owners on a time basis, shall be established on
either Parcel or Unit.
(i) No Subdivision. Neither Parcel A nor Parcel B shall be further subdivided.
0) No Hazardous Activities. No activities shall be conducted on any Parcel or within
improvements constructed on or within any Parcel which are or might be unsafe or
hazardous to any person or property.
(k) No Annoying Light. Sounds or Odors. No annoying light, sounds, odors or
nuisance shall be emitted from any Parcel which is unreasonably bright or causes
unreasonable glare. No sound shall be emitted from any Parcel which is unreasonably loud
or annoying. No odor shall be permitted from any Parcel which is noxious or offensive to
others. No nuisance shall be allowed on the Property, nor any use or practice which is the
source of annoyance, or which interferes with the peaceful quiet enjoyment of possession
and proper use of the Property by the other Owner.
543549 B-647 P-507 08/11/94 02 : 54P PG 13 OF 19
(1) Garbage and Refuse Disposal. No garbage, refuse, rubbish or cuttings shall be
deposited on any street or any Parcel, unless placed in a suitable container suitably located,
solely for the purpose of garbage pickup. All equipment for the storage or disposal of such
materials shall be kept in a clean and sanitary condition. No garbage or trash cans or
receptacles shall be maintained in an exposed or unsightly manner.
(m) Zoning Restrictions. The owners shall not commit any act which is inconsistent
with the Town of Vail Zoning Ordinances and Regulations and the Restrictions and
Covenants for the Bighorn Subdivision, Fifth Addition, Town of Vail.
(n) Leasing of a Parcel. An owner shall have the right to lease its Parcel only under
the following conditions:
r
(1) All leases shall be in writing and shall conform to Colorado statutory law,
the Town of Vail Zoning Ordinances and Regulations, and the Restrictions and Covenants
for the Bighorn Subdivision, Fifth Addition, Vail, Colorado.
(2) All leases whether for short term rentals or long term rentals shall provide
that the terms of the lease and the lessee's occupancy of the Unit shall be subject in all
respects to this Party Wall Agreement and Declaration of Covenants, Conditions and
Reservations. There shall be no subletting of the Unit allowed unless mutually agreed upon
with the other Owner and the agreement signed by both parties.
ARTICLE 14
NOTICE
Each Owner shall register his mailing address with the other Owner and all notices
or demands intended to be served upon Owners pursuant to this Declaration 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 the
Owners.
ARTICLE 15
DURATION: AMENDMENT; REVOCATION
SECTION 15.01. Term. Each and every provision of this Declaration shall run with
and bind the land for a term of twenty (20) years from the date of recording of this
Declaration, after which time this Declaration shall be automatically extended for successive
periods of ten (10) years each.
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SECTION 15.02. Amendment or Revocation. This Declaration may be amended or
revoked only: (a) by Declarants so long as Declarants own both Parcel A and Parcel B, or
(b) upon unanimous written approval in recordable form of all Owners and all First
Mortgagees of record. An amendment or revocation of this Declaration shall be effective
when duly recorded in Eagle County, Colorado.
ARTICLE 16
RIGHT OF FIRST REFUSAL
SECTION 16.01. Notice. In the event any Owner, including any Declarant (the
"Selling Owner"), desires to sell, transfer, convey or otherwise dispose of his Parcel other
than to an existing co-owner of his Parcel or the Owner of the adjoining Parcel or to
Partnership any existing Owner is a partner thereof or to a direct relative of said existing
Owner, the ("Remaining Owner") notice of its desire to do so, which notice shall state the
name of the prospective purchaser, the price for which it intends to sell, transfer, convey or
otherwise dispose of his Parcel (the "Offer Price") and all of the other material terms and
conditions on which the Selling Owner intends to sell, transfer, convey or otherwise dispose
of his Parcel and which notice shall include a copy of the bona fide written offer received
from such prospective purchaser. The Selling Owner shall also furnish such other material
information regarding the prospective purchaser as the Remaining Owner may reasonably
request.
SECTION 16.02 Notice of Acceptance or Rejection. The Remaining Owner shall,
within ten (10) days after receipt of the notice required by Section 16.01, notify the Selling
Owner in writing as to whether or not the Remaining Owner will purchase the Parcel of
the Selling Owner at the Offer Price and on the other terms and conditions set forth in the
aforesaid notice. If the Remaining Owner does not respond within said 10-day period, the
Remaining Owner shall be deemed to have declined to purchase the Parcel of the Selling
Owner.
SECTION 16.03. Acceptance. If the Remaining Owner elects to purchase the Parcel
of the Selling Owner at the Offer Price and on the other terms and conditions set forth in
the notice required by Section 16.01, the notice given by the Selling Owner pursuant to
Section 16.01 and the notice given by the Remaining Owner pursuant to Section 16.02 shall
constitute a binding agreement of purchase and sale between the Owners and the Selling
Owner shall sell and convey, and the Remaining Owner shall purchase, the Parcel of the
543549 B-647 P-507 08/11/94 02 : 54P PG 15 OF 19
Selling Owner in accordance with the terms and conditions thereof, except that the closing
shall occur not less than thirty (30) days after acceptance by the Remaining Owner pursuant
to Section 16.02. If either Owner shall fail to close the purchase and sale contemplated by
this Section, then the other Owner may pursue its remedies at law or in equity with respect
to the contract of its remedies at law or in equity with respect to the contract of purchase
and sale formed pursuant to this Section. Each party has only one first right of refusal. If
they do not accept the first offer, all other offers are exempt of this condition.
SECTION 16.04. Rejection. If the Remaining Owner elects, or is deemed to have F�
elected, not to purchase the Parcel of the Selling Owner, the Selling Owner shall have the
right, subject to the provisions of this Declaration, including the provisions of this Article
16, to sell, transfer, convey or otherwise dispose of his Parcel for a purchase price equal to
or greater than the Offer Price and on the other terms and conditions set forth in the notice
given to the remaining Owner pursuant to Section 16.01, but only to the prospective
purchaser identified in said notice, provided that the closing of such sale, transfer,
conveyance or other disposition shall occur not later than six (6) months after the date of
the Remaining Owner's notice to the Selling Owner pursuant to Section 16.02 hereof or the
expiration of the 10-day response period, as the case may be. If the Selling owner does not
close the sale, transfer, conveyance or other disposition of his Parcel within such six (6)
month period, then the Selling Owner may not close any such sales, transfer, conveyance or
other disposition of his Parcel without giving notice to the Remaining Owner pursuant to
Section 16.01 above and again following the procedures set forth in this Article 15.
SECTION 16.04. Continuing Right. The right of first refusal set forth herein shall
be a continuing right so long as this Declaration remains in effect.
ARTICLE 17
MISCELLANEOUS
SECTION 17.01. Effect of Provisions of this Declaration. Each provision of this
Declaration, and agreement, promise, covenant and undertaking to comply with each
provision of this Declaration, and any necessary exception or reservation or grant or title,
estate, right or interest to effectuate any provision of this Declaration: (a) shall be deemed
incorporated in each deed or other instrument by which any right, title or interest in any
portion of Parcel A or Parcel B is granted, devised or conveyed, whether or not set forth or
referred to in such deed or other instrument; (b) shall, by virtue of acceptance of any right,
title or interest in any portion of Parcel A or Parcel B by an Owner, be deemed accepted,
ratified, adopted and declared as a personal covenant of such Owner and his heirs, personal
representatives, successors and assigns to, with and for the benefit of each Owner of any
portion of Parcel A or Parcel B; and (c) shall be deemed a real covenant by Declarants, for
themselves, their heirs, personal representatives, successors and assigns, and also an
equitable servitude running with every portion of Parcel A and Parcel B.
543549 B-647 P-507 08/11/94 02 : 54P PG 16 OF 19
SECTION 17.02. Enforcement and Remedies.
(a) Each provision of the Declaration shall be enforceable by any Owner by a
proceeding for a prohibitive of mandatory injunction or for specific performance or by a suit
or action to recover damages. If court proceedings are instituted in connection, with the
rights of enforcement and remedies provided in this Declaration, the prevailing party shall
be entitled to recover its costs and expenses in connection therewith, including reasonable
attorneys' fees.
(b) Each owner hereby agrees that any and all actions in equity or at law which are
instituted to enforce any provision hereunder shall be brought in and only in the District
Court of Eagle County, Colorado. �-M
r .
(c) Failure to enforce any provision of this Declaration shall not operate as a waiver
of any such provision or of any other provision of this Declaration, or of the right to enforce
such provision thereafter.
SECTION 17.03. Exercise of Rights. The exercise of any right granted hereunder
by one Owner with respect to the other Owner's Parcel or Unit, including, but to limited to,
the use of any easement granted herein, shall be exercised in a manner which shall not
unreasonably hinder, impede or interfere with such other Owner's use of his Parcel and
Unit.
SECTION 17.04. Payment of the Cost of Utilities. Each Owner shall be billed
separately and shall pay as billed for all electric,gas, telephone,cable television,water,sewer
and other utilities and services supplied to said Owner's Parcel.
SECTION 17.05. Successors and Assigns. Except as otherwise provided herein, this
Declaration shall be binding upon and shall inure to the benefit of each Declarant and each
Owner and their respective heirs, personal representatives, successors and assigns.
SECTION 17.06. Severability. Invalidation of any of the covenants, restrictions or
other provisions contained in this Declaration by judgment or court order shall in no way
affect o limit any other provisions which shall remain in full force and effect.
SECTION 17.07. Captions. The captions and headings in this Declaration are for
convenience only and shall not be considered in construing any provisions of this
Declaration.
SECTION 17.08. Construction. When necessary for proper construction, the
masculine of any work used in this Declaration shall include the feminine or neuter gender,
and the singular shall include the plural, and vice versa.
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IN WITNESS WHEREOF, Declarants have executed this Declaration as of the-Sr
day of�!���"
Roy*I. Lawler
Phyllis I. Lawler
543549 B-647 P-507 08/11/94 02 : 54P PG 18 OF 19
STATE OF COLORADO )
ss.
COUNTY OF EAGLE )
The foregoing instrument was acknowledged before me this day of
1994 by Roy I. Lawler.
WITNESS my hand and official seal.
My Commission expires:
otary ublic 2'
[SEAL]
STATE OF COLORADO )
ss.
COUNTY OF EAGLE )
w
The foregoing instrument was acknowledged before me this!a.:�day of
1994 by Phyllis L. Lawler.
WITNESS my hand and official seal.
My Commission expires: f
otary Public
[SEAL]
543549 B-647 P-507 03/11/94 02:54P PG 19 OF 19