HomeMy WebLinkAboutParty Wall Agreement (ToV)
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AMENDED AND RESTATED PARTY WALL AGREEMENT
WHEREAS, Douglas H. Kirkpatrick and Joan M. Kirkpatrick, as joint tenants
(together, the “Kirkpatricks”), are the owners in fee simple of the following real property,
situated in the Town of Vail, County of Eagle and State of Colorado, to wit:
Lot 19A, according to the Duplex Plat, Glen Lyon, A Resubdivision of
Lot 19, Town of Vail, Eagle County, Colorado, recorded in the Office of
the Clerk and Recorder of Eagle County, Colorado on at
Reception No. (the “Plat);
WHEREAS, Richard Dulude and Jean Dulude (together, the “Duludes”), are the
owners in fee simple of the following real estate, hereinafter “subject property”,, situated
in the Town of Vail, County of Eagle and State of Colorado, to wit:
Lot 19A and Lot 19B, , according to the plat thereofDuplex
Plat, Glen Lyon, A Resubdivision of Lot 19, Town of Vail, Eagle County,
Colorado, recorded in the Office of the Clerk and Recorder of Eagle
County, Colorado on (at Reception No. .
WHEREAS, the “Plat”).above-referenced Lot 19A and Lot 19B, as depicted on
the Plat, are sometimes referred to together herein as the “subject property”.
WHEREAS, a duplex consisting of two (2) dwelling units exists on the subject
property;
WHEREAS, the Kirkpatricks and their successors in ownership of Lot 19A are
herein referred to as the “Lot 19A Owner”, and the Duludes and their successors in
ownership of Lot 19B are herein referred to as the “Lot 19B Owner”. The Lot 19A
Owner and Lot 19B owner may each be generically referred to herein as an “owner”, and
collectively as the “owners”;
WHEREAS, the dwelling units are constructed such that there are areas of
vertical overlap between the units, which requires an easement to provide for the use of
such areas;
WHEREAS, the owners wish to provide for separate ownership of such units and
certain separately owned property and for certain property to be held by owners of the
dwelling units as tenants-in-common;
WHEREAS, the dwelling units have been governed by that Townhouse
Declaration for Lot 19, Glen Lyon Duplex, recorded at book 331, page 771, reception no.
228129 on November 6, 1981, in the Office of the Clerk and Recorder, Eagle County,
Colorado (“Declaration”);
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WHEREAS, the Declaration may be amended upon unanimous written approval
of all owners and all lienors holding a first mortgage or first deed of trust on the subject
property; and
WHEREAS, there are no lienors holding a first mortgage or first deed of trust on
the subject property and all owners unanimously wish to amend and restate the
Declaration in its entirety as provided herein and to subject the dwelling units to certain
covenants relating to common ownership of the party wall and other property, and to set
forth certain easements for the benefit of each of the owners of the dwelling units.
NOW THEREFORE, the owners do hereby publish and declare that the
following terms, covenants, conditions, easements, restrictions, uses, reservations,
limitations and obligations as set forth in this Amended and Restated Party Wall
Agreement (“Agreement”) shall replace the Declaration in its entirety, shall be deemed to
run with the land described herein, and shall be a burden and a benefit to the owners,
their successors and assigns, and any person acquiring or owning an interest in the real
property which is described herein and improvements built therein, their grantees,
personal representatives, heirs, successors and assigns.
1. Division of Real Property into Two Lots. The subject property is, hereby
and upon the recording of the Plat, divided into two parcels (individually, a “Lot” and
collectively, the “Lots”) each consisting of the Lot designated with the corresponding
letter, together with all improvements thereon and all easements and rights located
thereon or appurtenant thereto as provided herein, as follows:
Lot 19A
Lot 19B
such Lots being shown on the Plat.
2. Description of Lot.
(a) Each Lot shall be inseparable and may be leased, rented, devised or
encumbered only as a residence.
(b) Title to a Lot may be held individually or in any form of concurrent
ownership recognized in Colorado. In case of any such concurrent ownership, each co-
owner shall be jointly and severally liable for performance and observance of all the
duties and responsibilities of an “owner” with respect to the Lot in which he owns an
interest. For the purposes herein, there shall be deemed to be only two owners, the owner
of Lot 19A and the owner of Lot 19B. The parties, if more than one, having the
ownership of each Lot shall agree among themselves how to share the rights and
obligations of such ownership, but all such parties shall be jointly and severally liable for
performance and observance of all of the duties and obligations of an “owner” hereunder
with respect to the Lot in which they own an interest.
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(c) Any contract of sale, deed, lease, deed of trust, mortgage, will or other
instrument affecting a Lot may describe it by its Lot number and by reference to the Plat.
(d) Each Lot shall be considered a separate parcel of real property and shall be
separately conveyed, encumbered, assessed and taxed.
3. Driveway, Landscaping and Service Facilities.
(a) Each owner shall have the right to the use the shared driveway serving
both Lots. Snow removal and plowing may become necessary from time to time, and
arranging these services shall be handled by agreement of the owners from time to time.
Due to the fact that the drivewaysdriveway is equally shared, the expenses of such
services shall be borne by each Lot owner equally unless agreed otherwise in writing. In
the event either owner pays the entire invoice charged by a snow removal or snow plow
provider, the other owner shall reimburse the paying owner for the nonpaying owner’s
proportionate share of the expense. Each owner shall be responsible for the maintenance
and repair of decks and walkways located on his or her Lot. No owner shall hinder or
permit his family, agent, or invitee to hinder reasonable access by the other owner and his
family, agent, and invitee to the other owner’s dwelling unit or parking area or park or
permit his family, agent, or invitee to park any vehicle on any area of the driveway
located on the other owner’s Lot without the consent of the other owner. Maintenance,
repair, or improvement of the driveway and parking areas shall be undertaken upon the
agreement of the owners, and the owners shall share equally in the expenses thereof.
(b) The owners from time to time shall undertake such landscaping and
general outdoor improvements as they may deem proper for the harmonious
improvement of both dwelling units in a common theme, and except for any expense or
liability caused through the negligence or willful act of any owner, his family, agent or
invitee, which shall be borne solely by such owner, the expenses, liabilities, and general
upkeep responsibilities with respect to such landscaping and outdoor improvements shall
be borne 2/3 by the owner of Lot 19A and 1/3 by the owner of Lot 19B. The character of
the landscaping as initially installed on each Lot shall not be changed and new
landscaping must conform to the existing landscaping except as otherwise mutually
agreed upon in writing by both owners. The owner of one Lot shall not unreasonably or
substantially adversely affect the value of the other Lot such as by poor maintenance and
upkeep outside, and both owners shall make all reasonable efforts to preserve a
harmonious common appearance of the Lots.
(c) Common utility or service connections, common facilities or other
common equipment and property, if any, shall be owned as tenants in common and,
except for any expenses or liability caused through the negligence or willful act of any
owner, his family, agent or invitee, which shall be borne solely by such owner, all
expenses and liabilities concerned with such property shall be shared proportionately
with such ownership. The owners, if necessary, shall designate one owner to receive all
joint utility bills (however, the bills will be in the joint names of both owners) which are
used in common with both Lots and that designated owner shall be responsible, subject to
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contribution from the other owner for his share of the expense, for the payment of such
utility. All such common expenses shall be borne 2/3 by Lot 19A and 1/3 by Lot 19B.
The designated owner shall notify the appropriate utility company and inform them of the
common billing address. Where separate meters for measuring costs or expenses for such
utility service are available, such cost shall be an individual expense and not a joint
expense of the owners. Expenses for construction and future maintenance, replacement
and repair of future common utility services to the subject property shall be allocated
among the owners of the Lots as described above for replacement, repair and
maintenance expenses of existing utilities. Notwithstanding the above, if a utility is
separately metered but such service or any portion thereof is for the benefit of both Lot
19A and Lot 19B, then the cost of such service shall be equitably adjusted between the
owners.
4. Party Wall.
(a) Each owner of a separate Lot shall have a perpetual reciprocal easement in
and to that part of the subject property owned by the other owner and on which the party
wall is located, for party wall purposes, including maintenance, repair, and inspection;
neither owner shall alter or change the party wall in any manner, interior decoration
excepted, and the party wall shall always remain in the same location as when erected.
The costs of maintaining the party wall shall be borne 2/3 by Lot 19A and 1/3 by Lot
19B.
(b) In the event of damage or destruction to the party wall from any cause,
other than the negligence of either party, the current owners shall, at joint expense, repair
or rebuild said wall to its previous condition which specifically includes the previous
sound transmission coefficient, and each party, their successors and assigns shall have the
right to the full use of said wall so repaired and rebuilt. If either owner’s negligence shall
cause damage to or destruction of said wall, such negligent party shall bear the entire cost
of repair and reconstruction.
(c) Either owner shall have the right to break through the party wall for the
purpose of repairing or restoring utilities, subject to the obligation to restore said wall to
its previous structural condition, which specifically includes the previous sound
transmission coefficient, at his own expense and the payment to the adjoining owner of
any damage caused thereby. Either owner shall have the right to make use of the party
wall provided such use shall not impair the structural support or the sound transmission
coefficient of the party wall.
(d) The owners acknowledge that the Lot 19A dwelling unit structure and the
Lot 19B dwelling unit structure are separated by a wall having not less than a one hour
fire resistive rating with exposure from both sides (“One Hour Separation”). Further, the
owners acknowledge and agree that in the event the fire resistive rating of any part of the
party wall, specifically including that portion of the party wall separating the Closet, as
defined in Section 10(c), from the Lot 19A dwelling unit, is reduced or otherwise
compromised to below a one hour fire resistive rating from any cause, other than the
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negligence of either party, the current owners shall, at joint expense, repair such wall to
have a One Hour Separation. If either owner’s negligence shall cause any part of the
party wall to have less than a one hour fire resistive rating, such negligent party shall bear
the entire cost of repair and reconstruction to restore such wall to a One Hour Separation.
5. Alteration, Maintenance and Repair.
(a) If any improvement on Lot 19A or Lot 19B is damaged or destroyed, such
damage or destruction shall be promptly repaired and reconstructed. Repair and
reconstruction means the restoration of the improvements to substantially the same
condition in which they existed prior to such damage or destruction. The cost to repair
and reconstruct any improvement on Lot 19A or Lot 19B shall be the sole expense of the
owner of said Lot except as modified by the provisions of this document and without
prejudice, however, to the right of any rule of law regarding liability for negligence or
willful acts or omissions. Notwithstanding anything contained above to the contrary, if
the negligence or willful act or omission of any owner, his family, agent or invitee, shall
cause damage to, or destruction of any improvement on any Lot, such owner shall bear
the entire costs of repair or reconstruction.
(b) Each owner shall be solely responsible for all maintenance and repair of
the interior of his residence, including all fixtures and improvements and all utility lines
and equipment located therein or in, on or upon his residence, and serving such residence
only. The owner of Lot 19B shall be solely responsible for all maintenance and repair of
the interior of the Garage and the Closet, as defined in Section 10(c) below, including all
fixtures and improvements and all utility lines and equipment located therein. In
performing any interior maintenance and repair, no owner shall do any act or work which
impairs the structural soundness of either dwelling unit or the party wall or which
interferes with any easement granted or reserved herein.
(c) The Lot 19A Owner shall provide routine exterior maintenance and
exterior repair upon the dwelling unit located on Lot 19A and the unimproved portions of
Lot 19A, including, but not limited to, the exterior walls and the roof housing the
dwelling unit; provided, however, that the Lot 19B Owner shall provide all maintenance,
repair and replacement of the Garage. In addition to the Garage, the Lot 19B Owner shall
provide routine exterior maintenance and exterior repair upon the dwelling unit located
on Lot 19B and the unimproved portions of Lot 19B, including, but not limited to, the
exterior walls and the roof housing the dwelling unit. The owners shall each bear their
respective costs incurred in connection with the obligations contained in this paragraph.
(d) Utility or service connections, facilities or other utility equipment and
property located in, on or upon either of Lot 19A or Lot 19B which is used solely to
supply a service or utility one Lot shall be owned by the owner of the Lot using such
utility or service and all expenses and liabilities for repair and maintenance shall be borne
solely by the owner of such Lot who shall have a perpetual easement in and to that part of
such other Lot containing such property for purposes of maintenance, repair and
inspection.
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(e) 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 Lot or construct any addition or improvement on his Lot without
first obtaining the prior written consent thereto from the other owner, which consent shall
not be unreasonably withheld or delayed.
(f) Where the owner of either Lot, in compliance with the other provisions of
this Agreement, desires to build, renovate, excavate, improve or otherwise alter the
structures or improvements located on his Lot, and where the owner has obtained the
written consent thereto of the other owner as provided in Subsection (e) above in this
Section, the owner of the other Lot shall cooperate to the extent necessary to enable that
owner to obtain any required building permit or similar permit or license.
Notwithstanding anything contained herein, no owner may modify any improvement that
would utilize more than the zoning density or other zoning rights available to such Lot.
Lot 19A shall be entitled to 2/3 of all zoning density or rights allocated to Lots 19A and
19B collectively, and Lot 19B shall be entitled to 1/3 of any such zoning density or
rights. Any costs or expenses associated with a building or similar permit shall be the
expense of the owner desiring said permit and shall not be a joint expense of the owners
of both Lots.
(g) It is hereby acknowledged that the owner of Lot 19A wishes to expandis
currently in the process of expanding the dwelling unit on Lot 19A as such expansion is
depicted in those architectural plans (“Plans”) dated , and prepared by
currently on file with the Town of Vail building department. The
Duludes, by their execution of this Agreement, hereby grant their approval of such
expansion and renovation as required by subsection (e) above in this Section.
(h) In the event that either Lot, or fraction thereof, is taken by eminent domain
or in condemnation, the owner of that Lot shall receive any sums payable with respect to
such taking. In the event that both Lots, or any fractions thereof, are taken by eminent
domain or in condemnation, the owners shall equitably divide any sums payable pursuant
to such taking in proportion to the relative values of the Lots, or fractions thereof, taken
with respect to the Lots.
6. Mechanic’s Liens, Indemnification.
(a) Except for items incurred as a common expense as provided for herein, if
any owner shall cause any material to be furnished to his Lot or any improvements made
thereon or cause any labor to be performed therein or thereon, or if the owner of Lot 19B
causes material to be furnished or work to be performed in the Garage or the Closet or the
Garage Easement, set forth in Section 10(c), the other owner shall not under any
circumstances be liable for the payment of any expense incurred or for the value of any
work done or material furnished; all such work shall be at the expense of the owner
causing it to be done, and such owner shall be solely responsible to contractors, laborers,
materialmen and other persons furnishing labor or materials to his Lot or any
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improvements therein or thereon. The owner of Lot 19B shall be solely responsible for
expenses incurred for any work or materials he causes to be furnished in or upon the
Garage or the Closet or the Garage Easement pursuant to Section 10(c). Nothing herein
contained shall authorize either owner or any person dealing through, with or under either
owner, to charge the Lot of the other owner with any mechanic’s lien or other lien or
encumbrance whatsoever; and, on the contrary (and notice is hereby given), the right and
power to charge any lien or encumbrance of any kind against the other owner or the other
owner’s Lot for work done or material furnished to one owner’s Lot is hereby expressly
denied and prohibited.
(b) Except as provided for in Section 9 below, if because of any act or
omission of either owner any mechanic’s or other lien or order for the payment of money
shall be filed against the other owner’s Lot or any improvements therein or thereon, or
against the 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 cancelled and discharged of record or bonded by a
surety company reasonably acceptable to the other owner, within twenty (20) 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
reasonable attorneys’ fees, resulting therefrom.
7. Use Restrictions.
(a) The Lots shall be used for residential purposes only as a permitted use,
and conditional and accessory uses shall be as defined by the Town of Vail zoning
ordinances. No structures of a temporary character, trailer, tent, shack, garage, barn or
other out-building shall be used on any portion of any of the subject property at any time
as a residence, either temporarily or permanently.
(b) No animals, livestock or poultry of any kind shall be raised, bred or kept
on any of the subject property, except that each owner may keep and maintain within his
dwelling unit two domesticated dogs and two domesticated cats, provided that such
domesticated animals are kept under control at all times, and provided that they are not
kept, bred or maintained for any commercial purposes and provided further that they do
not unreasonably interfere with the quiet enjoyment of the other Lot by its owner. Any
clean-up required or damage caused by an animal kept by an owner shall be the
responsibility of such owner keeping the animal, and each owner indemnifies the other
for any damage or injury to person or property caused by any animal kept by an owner.
(c) No advertising signs (except one “For Rent” or “For Sale” of not more
than three (3) square feet per Lot), billboards, unsightly objects or nuisances shall be
erected, placed or permitted to remain on the subject property, nor shall any Lot be used
in any way or for any purpose which may endanger the health or unreasonably disturb the
owner or resident of the adjoining Lot.
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(d) All rubbish, trash or garbage shall be regularly removed from each Lot
and shall not be allowed to accumulate thereon. All such expenses are the expenses of
each individual owner, and are not a joint expense of the owners.
(e) An owner shall do no act nor any work that will impair any easement or
hereditament or do any act or allow any condition to exist which will adversely affect the
other Lot.
(f) No exterior mounted radio, shortwave, television or other type of antenna
whatsoever or tank of any kind, either elevated or buried, or clothes-line or incinerator of
any kind whatsoever or outside storage of any personal property shall be permitted or
maintained on either dwelling unit without the prior written approval of both owners.
(g) Each owner may keep no more than two automotive vehicles permanently
at his dwelling unit. Parking of boats, trailers, campers, motor homes, ATV’s or
recreational vehicles on either Lot is expressly prohibited, except if fully contained
within a garage.
(h) No “time sharing”, “interval ownership” or similar interest, whereby
ownership of a dwelling unit is shared by owners on a time basis, shall be established on
either dwelling unit without the prior written approval of both owners, which approval
shall be reflected in a document of record.
8. Insurance.
(a) Each owner shall keep his Lot and all improvements and fixtures located
thereon insured against loss or damage by fire and extended coverage perils (including
vandalism and malicious mischief) for the maximum appreciated replacement value
thereof, and covering such other risks of a similar or dissimilar nature as are or shall
hereafter customarily be covered with respect to similar properties issued by a
responsible insurance company or companies authorized to do business in the State of
Colorado. Property insurance carried by the Lot 19A Owner shall include the structure of
the Garage and the Closet, but not any interior betterments or personal property located
within the Garage or Closet.
(b) Each owner shall provide and keep in force for the protection of himself
general public liability and property damage insurance against claims for bodily injury or
death or property damage occurring in, on or upon his Lot and the improvements thereon,
in a limit of not less than Five Hundred Thousand Dollars ($500,000.00) in respect to
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 tort liability, such higher limits shall be carried and each owner shall name the
other owner as an additional insured party under such policy.
(c) Each owner shall deliver to the other owner certificates evidencing all
insurance required to be carried under this Section upon reasonable request. Each owner
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shall have the right to inspect and copy all such insurance policies of the other owner and
require evidence of the payments of premiums thereon.
(d) Nothing provided in this Section shall prevent the owners from jointly
acquiring a single insurance policy to cover any one or more of the hazards required in
this Section. Such premiums shall be apportioned according to the relevant coverage to
each Lot.
(e) Insurance coverage on any personal property items stored within the
improvements located on each Lot shall be the responsibility of the owner of such
personal property. However, nothing herein shall be construed to require such insurance.
9. Enforcement.
(a) If an owner, at any time, shall neglect or refuse to perform or pay his share
of any obligation required hereunder, the other owner may, but shall not be obligated to,
after twenty (20) days written notice to the other owner unless the circumstances require
immediate action, make such payment, or, on behalf of such other owner, expend such
sum as may be necessary to perform such obligation, including but not limited to, the
payment of any insurance premiums required hereunder for repair, restoration or
maintenance, and such other owner shall have an easement in and to that part of such
defaulting owner’s Lot as is reasonably necessary for such repair, restoration or
maintenance.
(b) All sums so paid or expended by an owner, with interest thereon at the rate
of eighteen percent (18%) per annum from the date of such payment or expenditure, shall
be payable by the owner so failing to perform (the “Defaulting Owner”) upon demand of
the other owner.
(c) All sums so demanded but unpaid by the Defaulting Owner shall
constitute a lien on the Lot of the Defaulting Owner in favor of the other owner prior to
all other liens and encumbrances, except: (i) liens for taxes and special assessments; and
(ii) the lien of any first mortgage or first deed of trust of record encumbering such Lot.
The lien shall attach from the date when the unpaid sum shall become due and may be
foreclosed in like manner as a mortgage on real property. To evidence such a lien, written
notice of the lien shall be prepared, setting forth the amount of the unpaid indebtedness,
the name of the Defaulting Owner, and description of the Lot to which the lien shall
attach. Such notice shall be signed by the owner in whose favor the lien shall be filed,
and the lien shall be recorded in the office of the Clerk and Recorder of the County of
Eagle, Colorado. If an owner incurs costs or expenses in connection with the collection of
sums expended by such owner, including any costs and expenses of recording a lien or
those of any foreclosure or other collection proceedings, the Defaulting Owner shall be
required to pay such costs and expenses, including reasonable attorneys’ fees.
(d) The lien provided for herein shall be subordinate to the lien of any first
mortgage or deed of trust, including all additional advances thereon. Sale or transfer of
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either Lot as the result of court foreclosure or a mortgage foreclosure through the public
trustee, or any proceeding in lieu of foreclosure, shall extinguish the lien as to payments
thereof which become due prior to such sale or transfer, but shall not relieve any former
owner of personal liability therefor. The first mortgagee of such Lot who acquires title by
way of foreclosure or the taking of a deed in lieu thereof shall not, however, be liable for
any past due amounts and/or obligations due hereunder and shall only become liable for
future amounts and/or obligations on the date it becomes the owner of such Lot. No such
sale or transfer as described herein shall relieve such Lot from liability for any amounts
or obligations thereafter becoming due or from the lien thereof. In the event of the sale or
transfer of a Lot 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 Lot shall be jointly
and severally liable with the seller or transferor thereof for any such unpaid sums.
(e) Upon written request of any owner, mortgagee, prospective mortgagee,
purchaser or other prospective transferee of a Lot, the owner of the other Lot shall issue a
written statement setting forth the amount he is owed under this Section, if any. 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 thereof, all unpaid sums which become due prior to the date
of making the request shall be subordinated to the lien or other interest of the person
requesting such statement.
(f) Each provision of this Agreement shall be enforceable by any owner by a
proceeding for a prohibitive or mandatory injunction 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 Agreement, the prevailing party shall be entitled to recover
its costs and expenses in connection therewith, including reasonable attorney’s fees.
(g) 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 courts of the County of Eagle, State of Colorado.
(h) Failure to enforce any provision of this Agreement shall not operate as a
waiver of any such provision, the right to enforce such provision thereafter, or of any
other provision of this Agreement.
(i) Any exercise of any right granted hereunder by one owner with respect to
the other owner’s Lot, including but not limited to, the use of any easement granted
herein, shall be exercised in a manner which shall not unreasonably hinder, impede or
impose upon such other owner’s use and quiet enjoyment of his Lot.
10. Easements.
(a) Easement for Encroachments. Each Lot shall be subject to an easement for
encroachments created by construction, settling and overhang, previously existing or as
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designed and constructed by the owners, expressly including the Closet, which
encroaches upon Lot 19A from Lot 19B, or as a result of any addition or improvement
pursuant to this Agreement. A valid easement for such encroachments and for the
maintenance of same, so long as they exist, shall and does exist. In the event any
improvement is partially or totally destroyed, and then rebuilt, the owners agree that
minor encroachments of parts of an adjacent Lot due to construction shall be permitted
and that a valid easement for said encroachment and the maintenance thereof shall exist
so long as the improvements shall stand.
(b) Easement for Support and Maintenance. Each Lot is subject to a blanket
easement for support and a blanket easement for the maintenance of the residences and
other structures or improvements presently situated, or to be built in the future, on the
Lots. Except as set forth in subsection (c) below, the owner of each Lot shall be solely
responsible for the repair or reconstruction of any structural elements supporting the
improvements on that owner’s Lot. Notwithstanding anything contained above to the
contrary, if the negligence or willful act or omission of any owner, his agent or invitee,
shall cause damage to, or destruction of any improvement on any Lot, such owner shall
bear the entire costs of repair or reconstruction. Any alterations to the structural support
for improvements on either Lot shall be governed by the provisions of Section 5 above.
(c) Garage Easement.
(i) Lot 19A shall be subject to an easement (“Garage Easement”) for
the benefit of Lot 19B across that ground level area of Lot 19A that is designated as
“Garage Easement” on the Plat. and that upper level area of Lot 19A contained within a
portion of that area designated as “Garage Easement” on the Plat whereupon the Closet
serving Lot 19B crosses the property line, encroaching into Lot 19A. The Garage
Easement shall not include any area of the upper level of the Lot 19A dwelling unit
except the Closet. The purpose of the garage easementGarage Easement is to provide
adequate vertical and horizontal space for the one-car garage (“Garage”) currently
existing within the first level of the Lot 19B dwelling unit and located on Lot 19A in the
Garage Easement and to provide adequate vertical and horizontal space for that closet
(“Closet”) which currently exists in the upper level bedroom of the Lot 19B dwelling unit
adjacent to the property line, and which encroaches upon Lot 19A in a portion of the
Garage Easement. The owner of Lot 19B shall be responsible for all personal property
placed by such owner, his family, agent, or invitee within the Garage Easement.,
including in the Garage and in the Closet. The owner of Lot 19A shall have no
responsibility, liability, or duty with respect to any personal property owned by or under
the control of the owner of Lot 19B, his family, agent, or invitee, that is placed in the
Garage or the Closet or within the Garage Easement.
(ii) The owner of Lot 19B may not expand the Garage or the Closet or
take any other action that will have any effect on the structural integrity of the dwelling
constructed on Lot 19A. In general, the rights of the Lot 19B Owner in the Garage
Easement are limited to the right to use the interior of the Garage for vehicular parking
and storage purposes only, andthe right to use the Closet for interior residential storage
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purposes only, and the right to make interior improvements, renovations and repairs to
the Garage and the Closet.
(iii) In the event of damage or destruction to the Closet from any
cause, other than the negligence or willful act or omission of either party, the current
owners shall, at joint expense, repair or rebuild said Closet to its previous condition
which specifically includes the previous sound transmission coefficient, and the owner of
Lot 19B and his successors and assigns shall have the right to the full use of the Closet so
repaired and rebuilt. If either owner’s negligence or willful act or omission shall cause
damage to or destruction of the Closet, such party shall bear the entire cost of repair and
reconstruction.
(d) Blanket Utility Easement. There is hereby created a blanket easement
upon, across, over and under the unimproved portion of each of the Lots for the benefit of
the Lots and the structures and improvements situated thereon, including the party wall,
for ingress and egress, installation, replacing, repairing and maintaining all common
property and utilities, including, but not limited to, water, sewer, gas, telephone, cable
television and electricity. Said blanket easement includes future utility services not
presently available to the Lots which may reasonably be required in the future. By virtue
of this easement, it shall be expressly permissible for the companies providing utilities to
erect and maintain the necessary equipment on any of the Lots and to affix and maintain
electrical and/or telephone wires, circuits and conduits on, above, across and under the
roofs and exterior walls of the improvements, all in a manner customary for such
companies in the area surrounding the subject property. Notwithstanding the foregoing,
all such utility equipment, wires, circuits and conduits will be placed on the Lot benefited
thereby to the extent practicable, will be placed underground if possible, and to the extent
practicable will be placed as close to the Lot line as practicable. Either owner shall have
the right to relocate within his Lot any utility at his sole cost and expense.
11. General Provisions.
(a) Notice. Each owner shall register its telephone and facsimile numbers and
mailing and email addresses with the other owner upon purchase of a Lot. All notices or
demands intended to be served upon owners shall be effective if sent by certified mail,
postage prepaid, addressed in the name of the owner at such registered mailing address or
sent by facsimile or email to the number or email address provided by such owner. If an
owner has not registered his address, facsimile number or email address with the other
owner, such other owner may deliver any notice to the address of the other owner on
record with the Assessor of Eagle County, Colorado. Notices sent by certified mail shall
be deemed received by the recipient three (3) business days after posted with the United
States Post Office, and notices sent by facsimile or email shall be effective upon
electronic confirmation of receipt.
(b) No Response to Request Deemed Approval. If an owner submits a request
to the other owner for consent or approval in accordance with Section 5 hereof or for any
other purpose, a response to such request by the other owner shall not be deemed
13
unreasonably delayed if delivered to the requesting owner within thirty (30) days after the
delivery of the request to such owner. If no response to a submission is received by the
requesting owner within thirty (30) days after the delivery of the request to the other
owner, then the submission request by the owner shall be deemed approved; provided,
however, that this provision shall not apply to any determination or consent that is
reserved to either owner in such owner’s sole and absolute discretion, and any such
consent must be affirmatively granted in writing in order to be effective.
(c) Amendment or Revocation. This Agreement may be amended or revoked
at any time upon unanimous written approval in recordable form of all owners. The
covenants and restrictions of this Agreement shall be amended or revoked only by an
instrument which specifically refers to this Agreement and which is signed by each of the
then existing owners. Any amendment and/or revocation so made must be properly
recorded at the Office of the Clerk and Recorder of the County of Eagle, State of
Colorado.
(d) Effect of Provisions of Agreement. Each provision of this Agreement, and
any agreement, promise, covenant and undertaking to comply with each provision of this
Agreement, and any necessary exemption or reservation or grant of title, estate, right or
interest to effectuate any provision of this Agreement: (i) shall be deemed incorporated in
each deed or other instrument by which any right, title or interest in any portion of Lot
19A or Lot 19B is granted, devised or conveyed, whether or not set forth or referred to in
such deed or other instrument; (ii) shall, by virtue of acceptance of any right, title or
interest in any portion of Lot 19A or Lot 19B by an owner, be deemed accepted, ratified,
adopted and declared as a personal covenant of such owner and, as a personal covenant,
shall be binding on such owner and his heirs, personal representatives, successors and
assigns and shall be deemed a personal covenant to, with and for the benefit of each
owner of any portion of Lot 19A or Lot 19B; and (iii) shall be deemed a real covenant by
the owners, for themselves, their administrators, successors and assigns, and also an
equitable servitude, running, in each case, as a burden with and upon the title to each and
every portion of Lot 19A and Lot 19B.
(e) Severability. Invalidity or unenforceability of any provision of this
Agreement in whole or in part shall not affect the validity or enforceability of any other
provision or any valid and enforceable part of a provision of this Agreement which shall
remain in full force and effect.
(f) Captions. The captions and headings in this instrument are for
convenience only and shall not be considered in construing any provisions of this
Agreement.
(g) Construction. When necessary for proper construction, the masculine of
any word used in this Agreement shall include the feminine or neuter gender, and the
singular the plural, and vice versa.
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(h) Governing Law. This Agreement is made and executed under and in
respect to, and shall be governed and construed by, the laws of the State of Colorado
where the Lots are situated.
(i) Arbitration. In the event a dispute of any kind or nature arises under this
Agreement or pertaining to matters related to this Agreement between the owners of the
Lots, the parties shall negotiate in good faith in an effort to resolve the dispute. If the
dispute is not resolved following good faith negotiations, the owners shall select a
mutually agreeable arbitrator and submit the dispute to such arbitrator for binding
arbitration in Eagle County, Colorado within thirty (30) days under the appropriate
Arbitration Rules of the American Arbitration Association. In the event the parties are
unable to agree upon the arbitrator, the arbitrator shall be appointed in accordance with
the rules and procedures of the American Arbitration Association. Arbitration of any
dispute between the owners under this Agreement shall proceed even though there may
be related disputes involving third parties which cannot be arbitrated, such as mechanics’
lien claims, arising out of transactions involving the owners. The arbitration award may
be enforced in any court of competent jurisdiction in the State of Colorado, in accordance
with the provisions of the Colorado Uniform Arbitration Act, Rule 109 of the Colorado
Rules of Civil Procedure and/or any other statute or rule permitting an arbitration award
to be enforced.
IN WITNESS WHEREOF, the undersigned being the owners herein, have
hereunder set their hands this ___day of________, 2013.
LOT 19A OWNER
Douglas H. Kirkpatrick
Joan M. Kirkpatrick
LOT 19B OWNER
Richard Dulude
Jean Dulude
15
STATE OF )
)ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this
day of , 2013 by Douglas H. Kirkpatrick
Witness my hand and official seal.
My Commission Expires: . [SEAL]
Notary Public
STATE OF )
)ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this
day of , 2013 by Joan M. Kirkpatrick.
Witness my hand and official seal.
My Commission Expires: . [SEAL]
Notary Public
STATE OF )
)ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this
day of , 2013 by Richard Dulude.
Witness my hand and official seal.
My Commission Expires: . [SEAL]
Notary Public
16
STATE OF )
)ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this
day of , 2013 by Jean Dulude.
Witness my hand and official seal.
My Commission Expires: . [SEAL]
Notary Public