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HomeMy WebLinkAboutADM08-001241KTOWN OF Project Name: Application Type: ADMINISTRATIVE ACTION FORM Department of Community Development 75 South Frontage Road Vail, CO 81657 tel: 970 - 479 -2138 fax: 970 - 479 -2452 web: www.vailgov.com PURCHASE DUPLEX SUBDIVISION DupSubPl ADM Number: ADM080012 Parcel: 2101 -122- 0100 -9 Project Description: Participants: DUPLEX SUBDIVISION PLAT OWNER PURCHASE, JOHN LAYTON 754 E POTATO PATCH DR VAIL CO 81657 APPLICANT PURCHASE, JOHN LAYTON 754 E POTATO PATCH DR VAIL CO 81657 Project Address: 4418 COLUMBINE DR VAIL 4418 COLUMBINE DRIVE 08/14/2008 Phone: 970-949-4121 08/14/2008 Phone: 970-949-4121 Location: Legal Description: Lot: 3 Block: Subdivision: BIGHORN 3RD ADDITION Comments: BOARD /STAFF ACTION Motion By: Action: STAFFAPR Second By: Vote: Date of Approval: 09/08/2008 Meeting Date: Conditions: Cond: 8 (PLAN): No changes to these plans may be made without the written consent of Town of Vail staff and /or the appropriate review committee(s). Planner: RACHEL FRIEDE DRB Fee Paid: $100.00 Application for Administrative Subdivision Plat Review T ON Department of Community Development 75 South Frontage Road, Vail, Colorado 81657 tel: 970.479.2139 fax: 970.479.2452 web: www.vailgov.com General Information: It is unlawful for any person, business, or corporation to violate any of the provisions of Title 13, Vail Town Code, or to transfer, sell, lease or agree to sell or lease, any lot, tract, parcel, site, separate interest (including a leasehold interest), interest in common, condominium interest, time -share estate, fractional fee, or time -share license, or any other division within a subdivision within the Town until such subdivision has been approved in writing by the Administrator, Planning and Environmental Commission and /or the Council (whichever is applicable) and a plat thereof recorded in the office of the Eagle County Clerk and Recorder. Type of Application and Fee: Duplex Subdivision Plat $100 ❑ Administrative Plat Correction $100 Single Family Subdivision Plat $100 ❑ Condominium/Townhouse Plat $100 Description of the Request: ` Vf dt l Location of the Proposal: Lot: Block: Subdivision: t 0 1� r n Physical Address: L" �'ubin�- ��V�' { � Va4 I C.o Vl b S Parcel No.: ' , 1 0 // �- 20 / 00 1 (Contact Eagle Co. Assessor at 970 - 328 -8640 for parcel no.) Zoning: r ( S Name(s) of Owner(s): Mailing Address: (d C4 Y '%^0k Ck 0 6 �} Phone: '1 '>(b -3 � 0 - c I 5 4-3 Owner(s) Signature(s): Name of Applicant: Mailing Address: 13 i o C,, r�W k1 CJ-, ya,,:t , Co Est Phone: °1 10 — 3 c t O — 'VI E -mail Address: Fax �`Z ' 0 q,5? • For Office Use Only: Fee Paid: 10010 Check No.: Q 1 By: J ?(A r tirtA Meeting Date: Admin No.: Planner: Project No.: AUG 13 2008 F:\cdev\ FORMS\ Permits\Planning\Administrative_ Actions \Plat Review \duplex_sub_review_120605.do t•�t5.k H &- AIL Application for a Duplex Subdivision Review Submittal Requirements WW GENERAL INFORMATION This application is for a request to subdivide an existing lot, which is recognized by the town of Vail as a legally subdivided lot, and which shall contain primary/secondary or two- family dwelling units. For zoning purposes, the lots created by a duplex subdivision shall be treated as one lot. I. SUBMITTAL REQUIREMENTS Application Fee: $100.00 — required when the application is submitted to the Community Development Department. ❑ Recording Fee: $11 for the first page of the mylar, plus $10 for each additional mylar page; and $6 for the first page of covenants or restrictions, plus $5 per each additional page; a check, written out to the Eagle County Clerk and Recorder, is required to be submitted once the plat has been approved by the Planning and Environmental Commission and prior to the recording of the plat. V Title Report, including Schedules A & B. 41pr ❑ written approval from a condominium association, landlord, and joint owner, if applicable. Three (3) copies of the Proposed Plat (the requirements of the final plat are indicated below) ❑ Additional Material: The Administrator and /or PEC may require the submission of additional plans, drawings, specifications, samples and other materials if deemed necessary to properly evaluate the proposal. II. DETAILED SUBMITTAL REQUIREMENTS FINAL PLAT REQUIREMENTS After the Administrator has reviewed a paper copy the proposed plat, the applicant must submit two 2 mylar copies of the final plat to the Department of Community Development. The final plat must contain the following information: 1. The final plat shall be drawn in India ink, or other substantial solution, on mylar, with dimension of twenty-four by thirty-six inches and shall be at a scale of one hundred feet to one inch or larger with margins of one and one -half to two inches on the left and one -half inch on all other sides. 2. Accurate dimensions to the nearest one - hundredth of a foot for all lines, angles and curves used to describe boundaries, streets, setbacks, alleys, easements, structures, areas to be reserved or dedicated for public.orcommon uses and other important features. All curves shall be circular arcs and shall be defined by the radius, central angle, arc chord distances and bearings. All dimensions, both linear and angular, are to be determined by an accurate control survey in the field which must balance and close within a limit of one in ten thousand. 3. North arrow and graphic sfale.S' 4. A systematic identif"rcaion of all existig and proposed buildings, units, lots, blocks, and names for all streets. 5. An identification of the streets, alleys, parks, and other public areas or facilities as shown on the plat, and a dedication thereof to the public use. An identification of the easements as shown on the plat and a grant thereof to the public use. Areas reserved for future public acquisition shall also be shown on the plat. F: \cdev\ FORMS\ Permits \Planning\Administrative _Actions \Plat Review \duplex_sub_review_120605.doc Page 2 of 4 12 -6 -05 6. A written survey description of the area including the total acreage to the nearest appropriate significant figure. The acreage of each lot or parcel shall be shown in this manner, as well. 7. A description of all survey monuments, both found and set, which mark the boundaries of the subdivision, and a description of all monuments used in conducting the survey. Monument perimeter per Colorado statutes. Two perimeter monuments shall be established as major control monuments, the materials which shall be determined by the Town Engineer. 8. A statement by the land surveyor explaining how bearing base was determined. 9. A certificate by the registered land surveyor as outlined in Title 13, Chapter 11 of the Town Code as to the accuracy of the survey and plat, and that the survey was performed by the surveyor in accordance with Colorado Revised Statutes 1973, Title 38, Article 51. 10. A certificate by an attorney admitted to practice in the State of Colorado, or corporate title insurer, that the owner(s) of record dedicating to the public the public right -of -way, areas or facilities as shown thereon are the owners thereof in fee simple, free and clear of all liens and encumbrances except as noted. (See Title 13, Chapter 11) 11. The proper form for approval of the plat by the Zoning Administrator and attestation by the Town Clerk. Examples are found in (See Title 13, Chapter 11) 12. The proper form for filing of the plat with the Eagle County Clerk and Recorder as per example in (See Title 13, Chapter 11) 13. Certificate of dedication and ownership per (See Title 13, Chapter 11). Should the certificate of dedication and ownership provide for a dedication of land or improvements to the public, all beneficiaries of deeds of trust and mortgage holders on said real property will be required to sign the certificate of dedication and ownership in addition to the fee simple owner thereof. 14. All current taxes must be paid prior to the Town's approval of the plat. This includes taxes which have been billed but are not yet due. The certificate of taxes paid must be signed on the plat or a statement from the Eagle County Assessor's Office must be provided with the submittal information stating that all taxes have been paid. 15. Signature of the owner. 16. The plat must contain the following statement: "For zoning purposes, the lots created by this subdivision are to be treated as one lot with no more than two dwelling units allowed on the combined area of the two lots." The statement shall be modified to indicate the number of units and parcels proposed. 17. A copy of the declarations and /or covenants relating to the subdivision, which shall assure the maintenance of any common areas which may be created. The covenants shall run with the land and shall be in a form suitable for recording with the Eagle County Clerk and Recorder. APPROVAL PROCESS, REVIEW CRITERIA Upon receiving two copies of a complete submittal along with payment of the appropriate fee, the zoning administrator shall route one copy of the site map to the town engineer for his review. The zoning administrator shall then conduct this review concurrently. The town engineer shall review the submittal and return comments and notifications to the zoning administrator who shall transmit the approval, disapproval or approval with modifications of the plat within fourteen days to the applicant. The zoning administrator shall sign the plat if approved or require modifications on the plat for approval or deny approval due to inconsistencies with the originally approved plan or failure to make other required modifications of the plat. F: \cdev\ FORMS\ Permits\ Planning \Administrative_Actions\Plat Review \duplex_sub_review_120605.doc Page 3 of 4 12 -6 -05 FILING AND RECORDING The Department of Community Development will record the plat and any related covenants with the Eagle County Clerk and Recorder. Fees for recording shall be paid by the applicant. The Community Development Department will retain one mylar copy of the plat for their records and will record the remaining mylar copy. ADDITIONAL REVIEW AND FEES If this application requires separate review by any local, State or Federal agency other than the Town of Vail, the application fee shall be increased by $200.00. Examples of such review, may include, but are not limited to: Colorado Department of Highway Access Permits, Army Corps of Engineers 404, etc. Please note that only complete applications will be accepted All of the required information must be submitted in order for the application to be deemed complete. F: \cdev\ FORMS\ Permits \Planning\Administrative_Actions \Plat Review \duplex_sub_review_120605.doc Page 4 of 4 12 -6 -05 P" Land Title Guarantee Company CUSTOMER DISTRIBUTION Land Title GUARANTEE COMPANY Date: 08 -01 -2008 Our Order Number: V50023036 Property Address: 4418 COLUMBINE DRIVE AKA LOT 3, BIGHORN 3RD VAIL, CO 81657 If you have any inquiries or require further assistance, please contact one of the numherc hnlnw- For Title Assistance: Vail Title Dept. Sara Corcoran 108 S FRONTAGE RD W #203 VAIL, CO 81657 Phone: 970-476-2251 Fax: 970 - 476 -4732 EMail: scorcoran@Itgc.com WYNTON HOMES LLC PO BOX 3908 EAGLE, CO 81631 Attn: JOHN PURCHASE Phone: 970 - 328 -4226 Fax: 970 - 328 -0952 Copies: 1 EMail: johnpurchase @comcast.net Linked Commitment Delivery ARCHIBEQUE LAND CONSULTING, LTD. 105 CAPITOL STREET, SUITE 5 PO BOX 3893 EAGLE, CO 81631 Attn: TED ARCHIBEQUE Phone: 970 - 328 -6020 Fax: 970 - 328 -6021 EMail: ted @prolandsurvey.com Linked Commitment Delivery Land Title Guarantee Company Date: 08 -01 -2008 Land Title (il1ARANT EE COMPANY Our Order Number: V50023036 Property Address: 4418 COLUMBINE DRIVE AKA LOT 3, BIGHORN 3RD VAIL, CO 81657 Buyer /Borrower: Seller /Owner: 4418 COLUMBINE DRIVE, LLC, A COLORADO LIMITED LIABILITY COMPANY Need a map or directions for your upcoming closing? Checkout Land Title's web site at www.ItEc.com r_ mu wrecuous to any or our 54 ottice locations. ESTIMATE OF TITLE FEES TBD Commitment $250.00 If Land Title Guarantee Company will be closing this transaction, above fees will be collected at that time. TOTAL $250.00 FO= CONTACT 06/04 THANK YOU FOR YOUR ORDER! pqq LAND TITLE GUARANTEE COMPANY INVOICE Land Title GUARANTEE COMPANY Owner: 4418 COLUMBINE DRIVE, LLC, A COLORADO LIMITED LIABILITY COMPANY Property Address: 4418 COLUMBINE DRIVE AKA LOT 3, BIGHORN 3RD VAIL, CO 81657 Your Reference No.: When referring to this order, please reference our Order No. V50023036 -CHARGES - TBD Commitment $250.00 -- Total -- $250.00 Please make checks payable to: Land Title Guarantee Company P.O. Box 5440 Denver, CO 80217 Chicago Title Insurance Company ALTA COMMITMENT Our Order No. V50023036 Schedule A Cust. Ref.: Property Address: 4418 COLUMBINE DRIVE AKA LOT 3, BIGHORN 3RD VAIL, CO 81657 1. Effective Date: June 19, 2008 at 5:00 P.M. 2. Policy to be Issued, and Proposed Insured: "TBD" Commitment $0.00 Proposed Insured: 3. The estate or interest in the land described or referred to in this Commitment and covered herein is: A Fee Simple 4. Title to the estate or interest covered herein is at the effective date hereof vested in: 4418 COLUMBINE DRIVE, LLC, A COLORADO LIMITED LIABILITY COMPANY 5. The Land referred to in this Commitment is described as follows: LOT 3, RESUBDIVISION OF PART OF BIGHORN SUBDIVISION THIRD ADDITION AMENDED PLAT, ACCORDING TO THE PLAT RECORDED OCTOBER 3, 1977 IN BOOK 260 AT PAGE 538, COUNTY OF EAGLE, STATE OF COLORADO. ALTA COMMITMENT Schedule B - Section 1 (Requirements) Our Order No. V50023036 The following are the requirements to be complied with: Item (a) Payment to or for the account of the grantors or mortgagors of the full consideration for the estate or interest to be insured. Item (b) Proper instrument(s) creating the estate or interest to be insured must be executed and duly filed for record, to -wit: Item (c) Payment of all taxes, charges or assessments levied and assessed against the subject premises which are due and payable. Item (d) Additional requirements, if any disclosed below: THIS COMMITMENT IS FOR INFORMATION ONLY, AND NO POLICY WILL BE ISSUED PURSUANT HERETO. ALTA COMMITMENT Schedule B - Section 2 (Exceptions) Our Order No. V50023036 The policy or policies to be issued will contain exceptions to the following unless the same are disposed of to the satisfaction of the Company: 1. Any facts, rights, interests, or claims thereof, not shown by the Public Records but that could be ascertained by an inspection of the Land or that may be asserted by persons in possession of the Land. 2. Easements, liens or encumbrances, or claims thereof, not shown by the Public Records. 3. Any encroachment, encumbrance, violation, variation, or adverse circumstance affecting the Title that would be disclosed by an accurate and complete land survey of the Land and not shown by the Public Records. 4. Any lien, or right to a lien, for services, labor or material heretofore or hereafter furnished, imposed by law and not shown by the Public Records. 5. Defects, liens, encumbrances, adverse claims or other matters, if any, created, first appearing in the Public Records or attaching to the subsequent effective date hereof but prior to the date the proposed Insured acquires of record for value the estate or interest or mortgage thereon covered by this Commitment. 6. (a) Taxes or assessments that are not shown as existing liens by the records of any taxing authority that levies taxes or assessments on real property or by the Public Records; (b) proceedings by a public agency tha may result in taxes or assessments, or notices of such proceedings, whether or not shown by the records of such agency or by the Public Records. 7. (a) Unpatented mining claims; (b) reservations or exceptions in patents or in Acts authorizing the issuance thereof, (c) water rights, claims or title to water, whether or not the matters excepted under (a), (b), or (c) are shown by the Public Records. 8. RIGHT OF PROPRIETOR OF A VEIN OR LODE TO EXTRACT AND REMOVE HIS ORE THEREFROM SHOULD THE SAME BE FOUND TO PENETRATE OR INTERSECT THE PREMISES AS RESERVED IN UNITED STATES PATENT RECORDED NOVEMBER 17, 1902, IN BOOK 48 AT PAGE 492. 9. RIGHT OF WAY FOR DITCHES OR CANALS CONSTRUCTED BY THE AUTHORITY OF THE UNITED STATES AS RESERVED IN UNITED STATES PATENT RECORDED NOVEMBER 17, 1902, IN BOOK 48, AT PAGE 492 AND RECORDED NOVEMBER 22, 1939, IN BOOK 123 AT PAGE 625. 10. RESTRICTIVE COVENANTS WHICH DO NOT CONTAIN A FORFEITURE OR REVERTER CLAUSE, BUT OMITTING ANY COVENANTS OR RESTRICTIONS, IF ANY, BASED UPON RACE, COLOR, RELIGION, SEX, SEXUAL ORIENTATION, FAMILIAL STATUS, MARITAL STATUS, DISABILITY, HANDICAP, NATIONAL ORIGIN, ANCESTRY, OR SOURCE OF INCOME, AS SET FORTH IN APPLICABLE STATE OR FEDERAL LAWS, EXCEPT TO THE EXTENT THAT SAID COVENANT OR RESTRICTION IS PERMITTED BY APPLICABLE LAW, AS CONTAINED IN INSTRUMENT RECORDED JULY 12, 1963, IN BOOK 175 AT PAGE 135 AND AS AMENDED IN INSTRUMENT RECORDED APRIL 23, 1965, IN BOOK 187 AT PAGE 195. ALTA COMMITMENT Schedule B - Section 2 (Exceptions) Our Order No. V50023036 The policy or policies to be issued will contain exceptions to the following unless the same are disposed of to the satisfaction of the Company: 11. EASEMENTS, CONDITIONS, COVENANTS, RESTRICTIONS, RESERVATIONS AND NOTES ON THE RECORDED PLAT OF BIGHORN SUBDIVISION THIRD ADDITION RECORDED OCTOBER 4, 1963 IN MAP CASE 2. 12. EASEMENT AND EVERY RIGHT OR RIGHTS OF ACCESS OF THE GRANTOR OR GRANTORS TO AND FROM ANY PART OF THE RIGHT OF WAY FOR COLORADO STATE HIGHWAY NO. 70 AS DESCRIBED IN INSTRUMENT RECORDED NOVEMBER 25, 1974 IN BOOK 237 AT PAGE 517. 13. EASEMENT FOR INGRESS, EGRESS AND UNDERGROUND INSTALLATION OF UTILITY LINES AS DESCRIBED IN INSTRUMENT RECORDED JULY 25, 1979 IN BOOK 288 AT PAGE 733. 14. EASEMENTS, CONDITIONS, COVENANTS, RESTRICTIONS, RESERVATIONS AND NOTES ON THE RESUBDIVISION PLAT RECORDED OCTOBER 3, 1977 UNDER RECEPTION NO. 156887. 15. FINANCING STATEMENT WITH COMMUNITY BANKS OF COLORADO, THE SECURED PARTY, RECORDED AUGUST 28, 2006, UNDER RECEPTION NO. 200623461. 16. DEED OF TRUST DATED AUGUST 18, 2006, FROM 4418 COLUMBINE DRIVE, LLC, A COLORADO LIMITED LIABILITY COMPANY TO THE PUBLIC TRUSTEE OF COUNTY FOR THE USE OF COMMUNITY BANKS OF COLORADO TO SECURE THE SUM OF $3,165,000.00 RECORDED AUGUST 28, 2006, UNDER RECEPTION NO. 200623462. DISBURSER'S NOTICE IN CONNECTION WITH SAID DEED OF TRUST WAS RECORDED AUGUST 28, 2006, UNDER RECEPTION NO. 200623463. SAID DEED OF TRUST WAS FURTHER SECURED IN ASSIGNMENT OF RENTS RECORDED AUGUST 28, 2006, UNDER RECEPTION NO. 200623464. I LAND TITLE GUARANTEE COMPANY and LAND TITLE GUARANTEE COMPANY - GRAND JUNCTION DISCLOSURE STATEMENTS Note: Pursuant to CRS 10 -11 -122, notice is hereby given that: A) The subject real property may be located in a special taxing district. B) A Certificate of Taxes Due listing each taxing jurisdiction may be obtained from the County Treasurer's authorized agent. C) The information regarding special districts and the boundaries of such districts may be obtained from the Board of County Commissioners, the County Clerk and Recorder, or the County Assessor. Note: Effective September 1, 1997, CRS 30 -10 -406 requires that all documents received for recording or filing in the clerk and recorder's office shall contain a top margin of at least one inch and a left, right and bottom margin of at least one half of an inch. The clerk and recorder may refuse to record or file any document that does not conform, except that, the requirement for the top margin shall not apply to documents using forms on which space is provided for recording or filing information at the top margin of the document. Note: Colorado Division of Insurance Regulations 3 -5 -1, Paragraph C of Article VII requires that "Every title entity shall be responsible for all matters which appear of record prior to the time of recording whenever the title entity conducts the closing and is responsible for recording or filing of legal documents resulting from the transaction which was closed ". Provided that Land Title Guarantee Company conducts the closing of the insured transaction and is responsible for recording the legal documents from the transaction, exception number 5 will not appear on the Owner's Title Policy and the Lenders Policy when issued. Note: Affirmative mechanic's lien protection for the Owner may be available (typically by deletion of Exception no. 4 of Schedule B, Section 2 of the Commitment from the Owner's Policy to be issued) upon compliance with the following conditions: A) The land described in Schedule A of this commitment must be a single family residence which includes a condominium or townhouse unit. B) No labor or materials have been furnished by mechanics or material -men for purposes of construction on the land described in Schedule A of this Commitment within the past 6 months. C) The Company must receive an appropriate affidavit indemnifying the Company against un -filed mechanic's and material -men's liens. D) The Company must receive payment of the appropriate premium. E) If there has been construction, improvements or major repairs undertaken on the property to be purchased within six months prior to the Date of the Commitment, the requirements to obtain coverage for unrecorded liens will include: disclosure of certain construction information; financial information as to the seller, the builder and or the contractor; payment of the appropriate premium fully executed Indemnity Agreements satisfactory to the company, and, any additional requirements as may be necessary after an examination of the aforesaid information by the Company. No coverage will be given under any circumstances for labor or material for which the insured has contracted for or agreed to pay. Note: Pursuant to CRS 10 -11 -123, notice is hereby given: This notice applies to owner's policy commitments containing a mineral severance instrument exception, or exceptions, in Schedule B, Section 2. A) That there is recorded evidence that a mineral estate has been severed, leased, or otherwise conveyed from the surface estate and that there is a substantial likelihood that a third party holds some or all interest in oil, gas, other minerals, or geothermal energy in the property; and B) That such mineral estate may include the right to enter and use the property without the surface owner's permission. Nothing herein contained will be deemed to obligate the company to provide any of the coverages referred to herein unless the above conditions are fully satisfied. Form DISCLOSURE 09/01/02 TOWN OF VAIL, COLORADO Statement Statement Number: R080001392 Amount: $100.00 08/14/200809:37 AM Payment Method: Check Init: JLE Notation: 2017 JOHN PURCHASE Permit No: ADM080012 Type: Administrative Parcel No: 2101 - 122 - 0100 -9 Site Address: 4418 COLUMBINE DR VAIL Location: 4418 COLUMBINE DRIVE Total Fees: $100.00 This Payment: $100.00 Total ALL Pmts: $100.00 Balance: $0.00 ACCOUNT ITEM LIST: Account Code Description Current Pmts - - - - -- -------------- - - - PV 00100003112500 - -- ------------------------ Administrative - - - - -- Fee ------ 100.00 O NU L T�OWN COMMUNITY DEVELOPMENT 75 South Frontage Rd. Vail, Colorado 81657 970 - 479 - 2138/479 -2139 FAX 970 -479 -2452 August 20, 2008 John Purchase Fax: (970) 476 -0149 Archibeque Land Consulting, Ltd Fax: (970)328 -6021 Department of Community Development Re: Duplex Plat for 4416/4418 Columbine Drive (Job #05105) Dear John, I am writing to provide information on the necessary changes to the Duplex Plat for Bighorn Subdivision, Lot 3. Please make the following changes and additions: • Provide two copies of any covenants or party wall agreements that will be recorded against the properties. • Add the Administrator's Certificate to the Plat, which can be found in Chapter 13 -11, Vail Town Code (see www.vailgov.com then click Vail Information, then Town Code Online) • In Note #5, delete "with no more than one two - family residence allowed on the combined area of the two lots." This was an error in the Vail Town Code, and the sentence should read "For zoning purposes, the two lots created by this subdivision are to be treated as one entity. • Add a note, reading "The addresses on this plat are for reference only. For accurate addressing, please contact the Town of Vail." • Upon making the above changes, make two (2) copies of the Duplex Plat on mylar. • Obtain all signatures required on both mylar copies, except the Town Administrator and the Eagle County Clerk. Once you obtain the required signatures, please provide the two signed mylar copies of the Duplex Plat and any covenants and party wall agreements. Also provide a check, made out to Eagle County Clerk and Recorder, for $11, plus $6 for the first page of covenants, and $5 for each additional page of recorded covenants. Upon receipt of these items, we can proceed with recording the document. Should I still be out of the office, you can contact Bill Gibson in my absence at (970)479 -2173. 1 will be back in the office on September 1, 2008, at which time you can contact me directly. Best, I .: j Rachel Friede, AICP Planner II (970)479 -2440 Rfriede @vailgov.com DECLARATION OF COVENANTS CONDITIONS AND RESERVATIONS FOR BIGHORN SUBDIVISION. LOT 3 TOWN OF VAIL, COUNTY OF EAGLE STATE OF COLORADO RECITALS WHEREAS, 4418 Columbine Drive, LLC, a Colorado Limited Liability Company (the "Declarant ") is the owner in fee simple of the following described real property, which is subject to those matters of record and as set forth in Exhibit A attached hereto and incorporated herein, situate in the County of Eagle, State of Colorado, to wit: LOT 3, RESUBDIVISION OF PART OF BIGHORN SUBDIVISION THIRD ADDITION AMENDED PLAT, ACCORDING TO THE PLAT RECORDED OCTOBER 3, 1977 IN BOOK 260 AT PAGE 538, COUNTY OF EAGLE, STATE OF COLORADO ( "Lot 3 "). WHEREAS, Declarant has constructed on Lot 3 a duplex building consisting of two (2) residences each designed and intended for use as a residential dwelling ("Residence" or collectively "Residences "); WHEREAS, Declarant has recorded the Duplex Plat, Bighorn Subdivision, Lot 3, A Resubdivision of Part of Bighorn Subdivision, Third Addition, Amended Plat, Town of Vail, County of Eagle, State of Colorado ( "Plat ") on , 2008, at Reception No. , in the Office of the Clerk and Recorder of the County of Eagle, State of Colorado. DECLARATION Declarant does 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 Declarant, its successors and assigns and any person acquiring or owning an interest in the real property which is described herein and improvements built thereon, their grantees, personal representatives, heirs, successors and assigns. 1. DEFINITIONS. Unless the context shall expressly provide otherwise, the following terms shall have the following meanings: a. "The Properties" means all of the real estate legally described as Lot 3, resubdivision of part of Bighorn Subdivision Third Addition Amended Plat, according to the plat recorded. October 3, 1977 in book 260 at Page 538 County of Eagle, State of Colorado. b. "Lot" means Lot 3A or Lot 3B as shown on the Plat together with all Page I of 15 appurtenances thereto. c. "Lot 3A" means the portion of the Lot 3 as depicted on the Plat as Lot 3A. d. "Lot 3B" means the portion of Lot 3 as depicted on the Plat as Lot 3B. e. "Parcel 3A" means Lot 3A, any appurtenances thereto, the Residence and any other improvements constructed on Lot 3A. f. "Parcel 313" means Lot 3B, any appurtenances thereto, the Residence and any other improvements constructed on Lot 3B. g. "Parcel" means either Parcel 3A or Parcel 3B. h. "Parcels" means Parcel 3A and Parcel 3B. i. "First Mortgage" means any unpaid and outstanding mortgage, deed of trust or other document pledging a Parcel or interest therein as security for repayment of .a debt or obligation, and which is not subject to any lien or encumbrance except liens for taxes or special assessments. j. "First Mortgagee" means any person named as a mortgagee or beneficiary in any First Mortgage, or any successor to the interest of such person under such First Mortgage. k. "Owner" means any record owner, (including a contract seller, but excluding a contract purchaser), whether a natural person or persons, or an entity, of a fee simple title interest in and to any Parcel; excluding, however any record owner with an interest therein merely as security for the performance of an obligation, including a person or entity named as a mortgagee or beneficiary under any mortgage, deed of trust, or other security instrument recorded in the Office of the Clerk and Recorder of Eagle County, Colorado which encumbers a Parcel. 2. DESCRIPTION AND RESERVATIONS Every contract of sale, deed, lease, mortgage, deed of trust, will or other instrument shall legally describe a Parcel or real property interest as follows: Parcel 3A or Parcel 3B (as the case may be), according to the Duplex Plat, Bighorn Subdivision, Lot 3, a Resubdivision of Part of Bighorn Subdivision, Third Addition, Amended Plat, recorded , 2008 at Reception No. in the Office of the Clerk and Recorder of the County of Eagle, State of Colorado. Every such description shall be good and sufficient for all purposes to sell, convey, transfer, Page 2 of 15 encumber or otherwise affect each Parcel and all appurtenant rights, benefits, and burdens thereto as created by the provisions of this Declaration, and each such description shall be so construed. 3. PROPERTY DIVISION a. The Properties are hereby submitted to this Declaration and the Properties shall be held, sold, conveyed encumbered, leased, rented, occupied, and improved subject to the provisions of this Declaration. b. Declarant hereby establishes this plan for the subdivision of the Properties into two (2) Parcels for ownership in fee simple consisting of Parcel 3A and Parcel 3B. c. The Properties shall be subject to the easements noted on the Plat and those set forth herein. d. In the event Parcel 3A and Parcel 3B are owned by the same entities, the doctrine of merger shall not apply. e. The parties, if more than one ( "Multiple Owners "), having the ownership of each such Parcel shall agree among themselves how to share the rights and obligations of such ownership. If a corporation, partnership, association or other legal entity ( "Ownership Entity ") owns a Parcel the Ownership Entity shall from time to time, designate one individual who shall represent the Ownership Entity in all matters concerning all rights and obligations pursuant to this Declaration. The Multiple Owners or Ownership Entity shall give written notice to the other Owner designating the individual to act on its or their behalf and such notice shall be effective until revoked in writing by the Multiple Owners or the Ownership Entity. Any act or omission by such designated individual shall be binding on the Multiple Owners or Ownership Entity having designated him or her in favor of the other Owner or any other person who may rely thereon. f. Parcel 3A and Parcel 3B each shall be considered a separate parcel of real property and shall be separately addressed and taxed. 4. ENCROACHMENTS At the time of the execution of this Declaration due to construction of the Residences, there may be one or more encroachments of a Residence onto the Lot upon which the other Residence is situated. A valid easement (" Encroachment Easement ") shall exist for the encroachment and for the maintenance of any encroachment resulting from the initial construction of the Residences or thereafter arising as a result of settling or shifting of any Residence as long as the Residence stands, regardless of whether such encroachment or Encroachment Easement is specifically described on the Plat or not. In the event a Residence 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, the encroachment of the Residence on the other Lot, due to such rebuilding, shall be permitted pursuant to the Encroachment Easement, so long as such Page 3 of 15 encroachments are no greater extent than those previously existing. An Encroachment Easement is and shall (i) remain a burden upon the interest and ownership of each Parcel, (ii) be appurtenant to and conveyed as a part of each Parcel without additional reference in the conveyance, (iii) be inseparable from the ownership of each Parcel, and (iv) not be separately conveyed. 5. EASEMENTS FOR PARCEL 3A AND PARCEL 3B . To the extent that the Plat contains and sets forth one or more easements ( "Plat Easement ") a Plat Easement is and shall (i) remain a burden upon the interest and ownership of each Parcel, (ii) be appurtenant to and conveyed as a part of each Parcel without additional reference in the conveyance, (iii) be inseparable from the ownership of each Parcel, and (iv) not be separately conveyed, except by amendment to the Plat. 6. PARTY WALL a. The common foundation, wall and roof placed on or over the common boundary separating Parcel 3A and Parcel 313, as well as the footings underlying the same are collectively referred to in this Declaration as the "Party Wall. b. To the extent not inconsistent with this Declaration, the general rules of law regarding party walls and liability for damage due to negligent or willful acts or omissions shall apply to the Party Wall. C. The Owner of each Parcel shall have a perpetual easement in and to that part of the other Parcel on which the Party Wall is located, for party wall purposes, including but not limited to, mutual support, maintenance, repair, rebuilding and inspection. In the event of damage to or the destruction of the Party Wall from any cause, then the Owners shall at joint expense, as set forth in paragraph 9 below, repair or rebuild the Party Wall, and each Owner, shall have the right to the full use of said Party Wall so repaired and rebuilt. Notwithstanding anything contained above to the contrary, if the negligent or willful act or omission of any Owner, his family, agent or invitee, shall cause damage to or destruction of, the Party Wall, such Owner shall bear the entire cost of repair or reconstruction. 7. LANDSCAPING AND EXTERIOR MAINTENANCE. a. The Owners from time to time shall undertake such landscaping and general outdoor improvements and maintenance, as they may mutually and unanimously deem proper for the harmonious improvement of both Parcels in a common theme. Each Owner shall share all expenses, liabilities and general upkeep responsibilities with respect to such landscaping and outdoor improvements as set forth in paragraph 9 below. If no such agreement respecting landscaping and outdoor improvements is reached between the Owners, each Owner shall be responsible for the expenses, liabilities and Page 4 of 15 general upkeep responsibilities with respect to the landscaping and outdoor improvements located in or on his own Parcel. Notwithstanding anything contained above to the contrary, if the negligent or willful act or omission of any Owner, his family, agent or invitee, shall cause damage to or destruction of, the Party Wall, such Owner shall bear the entire cost of repair or reconstruction. The Owner of one Parcel shall not unreasonably damage the value of the other Parcel such as by shoddy upkeep outside. Both Owners shall make all reasonable efforts to preserve a harmonious common appearance of the Parcels. b. Common utility or service connections or lines, common facilities or other equipment and property ( "Common Utility Facilities or Property") located in or on either of the Parcels but used in common with the other Parcel, if any, shall be owned as tenants in common in equal undivided interests by the Owners of each Parcel. All expenses and liabilities concerned with such property shall be shared as set forth in paragraph 9 below. Notwithstanding anything contained above to the contrary, if the negligent or willful act or omission of any Owner, his family, agent or invitee, shall cause damage to or destruction of, the Common Utility Facilities or Property, such Owner shall bear the entire cost of repair or reconstruction. The Owner of any Parcel on which the Common Utility Facilities or Property is not located shall have a perpetual easement in and to that part of such other Parcel containing the Common Utility Facilities or Property as is reasonably necessary for purposes of maintenance, repair, rebuilding and inspection. C. Utility or service connections or lines, facilities or other utility equipment and property ("Separate Utility Facilities or .Property ") located in, on or upon either of the Parcels, which are used solely to supply a service or utility to one Parcel shall be owned by the Owner of the Parcel using the Separate Utility Facilities or Property and all expenses and liabilities for repair and maintenance shall be borne solely by the Owner of such Parcel, who shall have a perpetual easement in and to that part of such other Parcel or Residence containing the Separate Utility Facilities or Property as is reasonably necessary for purposes of maintenance, repair and inspection. Notwithstanding anything contained above to the contrary, if the negligent or willful act or omission of any Owner, his family, agent or invitee, shall cause damage to or destruction of, the Separate Utility Facilities or Property, such Owner shall bear the entire cost of repair or reconstruction. ALTERATION MAINTENANCE AND REPAIRS a. Each Owner shall be solely responsible for all maintenance and repair of the exterior and interior of his Residence, including all fixtures and improvements and equipment located therein or upon his Parcel and serving Page 5 of 15 such Residence only. If the need for repair to either Residence is caused through the negligent or willful act or omission of the Owner of the other Residence, his family, agent or invitee, such other Owner shall bear the entire costs of such repair. In performing such maintenance and repair, or in improving or altering his Residence, no Owner shall do any act or work which impairs the structural soundness of either Residence or the Party Wall or which interferes with any easement granted or reserved herein. b. No Owner shall make or suffer any structural or design change (including a color scheme change), either permanent or temporary, to the exterior of his Residence or construct any additional building structure of any type or nature whatsoever upon the exterior part of his Residence or elsewhere on his Parcel without first obtaining the prior written consent thereto from the other Owner, such consent shall not be unreasonably withheld, and receiving all required approvals of the Town of Vail. Both Residences shall be the same exterior color. 9. ALLOCATION AND PAYMENT OF EXPENSES Costs and expenses to be shared by the Owners pursuant to this Declaration except as otherwise provided in this Declaration, shall be allocated fifty percent (50 %) to the Owner of Parcel 3A and fifty percent (50 %) to the Owner of Parcel 3B. As between the Owners of Parcels 3A and 3B, all costs and expenses shall be paid within thirty (30) days of the effective date of written notice to an Owner from the other Owner of the cost or expense. 10. MECHANICS 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 Parcel or Residence thereon, or any labor to be performed therein or thereon, the other Owner shall not under any circumstances be liable for the payment of any expense incurred or for the value of the work done or material furnished. All such work or material furnished shall be at the expense of the Owner causing it to be done or furnished, and such Owner shall be solely responsible to contractors, laborers, material men and other persons furnishing labor or materials to his Parcel or any improvements therein or thereon; b. Except to the extent set forth in paragraph 13 herein, nothing herein contained shall authorize either Owner or any person dealing through, with or under either Owner to charge the Parcel of the other Owner with any mechanic's lien or other lien or encumbrance whatever. 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 for work done or materials furnished to the other Owner's Parcel is hereby expressly denied. Page 6 of 15 C. Except to the extent set forth in paragraph 13 herein, if because of any act or omission of any Owner, any mechanic's or other lien or order for the payment of money shall be filed against the other Owner or the other Owner's Parcel (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 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 attorney's fees, resulting therefrom. 11. INSURANCE a. Each Owner shall keep his Parcel and all fixtures therein insured against loss or damage by fire and extended coverage perils (including vandalism and malicious mischief). 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 Parcel in a limit of not less than One Million Dollars ($1,000,000.00) in respect of bodily injury or death to any number of persons arising out of one accident or disaster, or for damage to property. Each Owner shall name the other Owner as an additional named insured under such policy. The amount of such insurance shall be increased every three (3) years from the date of the recording of this Declaration, by the same percentage as the increase in the Consumer Price Index for All Urban Consumers (CPI -U) for the Denver, Boulder and Greeley area, or its equivalent, has increased during such period of time, unless agreed otherwise in writing by the Owners of both Parcels. C. Each Owner shall deliver to the other Owner certificates evidencing all insurance required to be carried under this paragraph, each containing agreements by the insurers not to cancel or modify the policies without giving the other Owner at least thirty (30) days written notice prior to cancellation. 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. d. Nothing provided hi this paragraph shall prevent the Owners from jointly acquiring a single policy to cover any one or more of the hazards required in this paragraph to be separately insured against by each Owner. 12. DAMAGE OR DESTRUCTION OF IMPROVEMENTS OF A RESIDENCE In the event a Page 7 of 15 Residence is damaged or destroyed by fire or other cause ("Damaged Residence"), the Owner of he Damaged Residence shall commence the repair and reconstruction of the Damaged Residence as soon as reasonably possible but not less than six (6) months from the date of the damage or destruction and shall continuously and diligently work to complete the repair or reconstruction as quickly as reasonably possible. Repair and reconstruction of a Damaged Residence, as used herein, weans restoring the exterior of the Damage Residence to substantially the same condition and with the same boundaries as prior to the damage or destruction. 13. OWNER DEFAULT AND RIGHT TO LIEN a. If an Owner (the "Defaulting Owner "), at any time, (i) shall fail or refuse to perform any obligation or take any action required by this Declaration, (ii) take any action contrary to the terms of this Declaration or (iii) fail to pay any sum required under this Declaration, (collectively "Owner Default ") the other Owner ( "Non - Defaulting Owner ") may, but shall not be obligated to, after thirty (30) days written notice to the Defaulting Owner, unless the circumstances require immediate action, (i) take such action or (ii) make such payment as is necessary to cure the Owner Default. All sums reasonably paid or expended by the Non - Defaulting Owner to cure the Owner Default together with interest and costs and expenses, including reasonable attorney fees as set forth below in paragraph 13.b. ( "Default Assessment ") shall be payable to the Non - Defaulting Owner upon demand by the Defaulting Owner. By way of illustration and not limitation, the Default Assessment may include the payment of any insurance premiums required to be maintained under this Declaration or sums paid in regard to the undertaking of any work required under this Declaration for repair, restoration, reconstruction, rebuilding or maintenance of a Parcel, including but not limited to sums paid to architects, consultants, contractors and suppliers. The Non - Defaulting Owner shall have an easement in and to that part of Defaulting Owner's Parcel as is reasonably necessary to cure the Owner Default. b. The Defaulting Owner shall be liable to the Non - Defaulting Owner for interest on all sums reasonably paid or expended by the Non - Defaulting Owner to cure the Owner Default at the rate of the Wall Street Journal Prime Rate, as adjusted from time to time, plus eight percent (8.0 %) per annum from the date of such payment or expenditure and the Default Assessment shall include such interest. The Defaulting Owner shall be liable to the Non - Defaulting Owner for the costs and expenses, including but not limited to, reasonable attorney's fees incurred by the Non - Defaulting Owner to cure the Owner Default. The Default Assessment shall include such costs and expenses. C. The Default Assessment shall be a lien in favor of the Non - Defaulting Owner upon the Parcel of the Defaulting Owner until paid. To further evidence such Page 8 of 15 lien, the Non - Defaulting Owner may, but shall not be obligated to, prepare a written lien notice ("Lien ') setting forth the name of the Defaulting Owner, the description of the Parcel, the amount of the Default Assessment unpaid as of the date of such Lien, and any and all other information that the Non - Defaulting Owner may deem proper. Any Lien shall be signed by the Non - Defaulting Owner, his attorney or agent and shall be recorded in the Office of the Clerk and Recorder of Eagle County, Colorado. Any Lien attaches without notice from time to time, as the sums comprising the Default Assessment or portions thereof are expended by the Non - Defaulting Owner. d. The Non - Defaulting Owner may bring an action at law or in equity, or both, against the Defaulting Owner and the Non - Defaulting Owner may proceed to foreclose the Lien in the manner and form provided by Colorado law for foreclosure of real estate mortgages. An action at Iaw or in equity by the Non - Defaulting Owner against the Defaulting Owner to recover a money judgment for Default Assessment may be commenced and pursued by the Non - Defaulting Owner without foreclosing or in any way waiving the Lien. If the Non - Defaulting Owner commences such an action against the Defaulting Owner or proceeds to foreclose the Lien, then the Default Assessment and the Non - Defaulting Owner's costs, expenses, and reasonable attorneys' fees incurred for any such. action and/or foreclosure proceedings shall be taxed by the court as part of the costs of any such action or foreclosure proceedings and shall be recoverable by the Non - Defaulting Owner from the Defaulting Owner and from the proceeds from the foreclosure sale of the Defaulting Owner's .Parcel in satisfaction of the Lien. e. Successor's Liability for Assessments Notwithstanding the personal obligation of the Defaulting Owner to pay any Default Assessment, and notwithstanding the lien upon a Parcel for any Default Assessment, all successors in interest to the fee simple title of a Parcel, except as provided in paragraphs 13. g and i below, shall be jointly and severally liable with the Defaulting Owner for any and all unpaid Default Assessments for which the Defaulting Owner is liable pursuant to this paragraph 13, without prejudice to any such successor's right to recover from the Defaulting Owner any amounts paid thereon by such successor. However, such successor in interest shall be entitled to rely upon the existence and status of unpaid Default Assessment as shown upon any Certificate issued pursuant to the provisions of paragraph 13.i below. f. Waiver of Homestead Exemption; Subordination of Lien for Assessments By acceptance of the deed or other instrument of transfer of a Parcel, each Owner irrevocably waives the homestead exemption provided by Part 2, Article 41, Title 38', Colorado Revised Statutes, as amended. The lien on a Parcel for Default Assessments shall be superior to all other liens and encumbrances except the following: Page 9 of 15 (i) Real property ad valorem taxes and special assessment liens duly imposed by a Colorado governmental or political subdivision or special taxing district, or any other liens made superior by statute; The lien of any First Mortgage, including any and all advances made by the First Mortgagee and notwithstanding that any of such advances may have been made subsequent to the date of the attachment of the lien. g. First Mort ggee Any First Mortgagee who acquires title to a Parcel by virtue of foreclosing the First Mortgage or by virtue of a deed or assignment in lieu of such a foreclosure, or any purchaser at a foreclosure sale of the First Mortgage, will take the Parcel free of any claims for unpaid Default Assessment, which accrue prior to the time such First Mortgagee or purchaser acquires title to the Parcel. h. Successor Liability A sale or other transfer of a Parcel, including but not limited to a foreclosure sale, except as provided in paragraph 13.g above and except as provided in paragraph 131 below, shall not affect a lien on such Parcel due and owing prior to the time such purchaser acquires title and shall not affect the personal liability of the Default Owner who shall have been responsible for the payment thereof. Further, no such sale or transfer shall relieve the purchaser or transferee of a Parcel from liability for, or the Parcel from a lien of, any Default Assessment arising after the sale or transfer. i. Within fourteen (14) calendar days of the effective date of written notice to an Owner ("Certifying Owner ") provided in the manner set forth in paragraph 16 of this Declaration, any Owner other than the Certifying Owner, prospective purchaser of a Parcel, Mortgagee or agent of any of the foregoing ( "Person Requesting Certificate ") shall be furnished in the manner set forth in paragraph 16 of this Declaration, notice containing a statement ( "Certificate ") of the Owner's account setting forth the amount of any unpaid Default Assessment then existing against a particular Parcel. Upon the issuance of a Certificate signed by the Certifying Owner or the agent of the Certifying Owner, the information contained therein shall be conclusive upon the Certifying Owner as to the Person Requesting Certificate and who rely on the Certificate in good faith. Unless a Certificate is delivered as described above within said fourteen (14) day period, the Certifying Owner shall have no right to assert a lien upon the Parcel superior the interest of the Person Requesting Certificate for an unpaid Default Assessment which were unpaid as of the date of the request or to otherwise collect same from the Person Requesting Certificate. Page 10 of Is 14. ALL OWNERS RESPONSIBLE Both Parcel Owners shall be mutually and equally responsible for the administration and management of the obligations created hereunder. 15. USE RESTRICTIONS a. A Residence may only be used as a residential dwelling as a permitted by the Town of Vail and County of Eagle ordinances and regulations and applicable protective covenants. b. No animals shall be kept or maintained in, on or upon either Parcel, except that each Owner may keep and maintain within his Parcel three (3) domesticated animals, that is any combination of (1) or more dogs and/or (1) or more cats, but not to exceed a total of three (3) such domesticated animals (i) shall not be any kind or species of animals other than cats or dogs, (ii) are kept under strict control at all times, (ii) do not present a nuisance to the other Owner or the guests of the other Parcel, (v) do not create or cause objectionable noise, and (vi) are kept, housed and controlled in strict compliance with all Town of Vail and County of Eagle, Colorado ordinances and regulations that may apply to such animals. 16. N TICE. The address for providing notice to an Owner ("Notice Address ") shall be the mailing address set forth in the deed by which the Owner acquired title to a Parcel unless an Owner provides notice in accordance with this paragraph 16, to the other Owner setting forth a different address. All notices shall be in writing and shall be sent by certified mail, (or registered mail if sent to an address outside if the United States) postage prepaid, addressed in the name of the Owner at the Notice Address. In the alternative, notice may be delivered personally to an Owner. All notices so given shall be considered effective (i) if by certified mail, five (5) days after deposit, certified or registered mail in accordance with the preceding sentence, postage prepaid with the United States Postal Service or (ii) if hand delivered, when received. 17. RULE AGAINST PERPETUITIES Each provision contained in this Declaration which is subject to the laws or rules sometimes referred to as the rule against perpetuities or the rule prohibiting unreasonable restraints on alienation shall continue and remain in full force and effect for the period of 21 years following the death of John Purchase, or his issue, or until this Declaration is terminated as hereinafter provided, whichever first occurs. All other provisions contained in this Declaration shall continue and remain in full force an effect until August 25, 2038 A.D., and thereafter for successive periods of ten (10) years each unless, at least one (1) year prior to the expiration of August 25, 2038, or any such ten (10) year period of extended duration, this Declaration is terminated by recorded instrument, directing termination, signed by all Owners and any First Mortgagee which is recorded in the real estate records of the Office of the Clerk and Recorder of the Eagle County, State of Colorado. 18. AMENDMENT This Declaration may be amended only (i) by Declarant so long as Declarant owns both Parcel 3A and Parcel 3B, or (ii) by all Owners and any First Mortgagee Page I 1 of 15 executing an amendment hereto which is recorded in the real estate records of the Office of the CIerk and Recorder of the Eagle County, State of Colorado. 19. EFFECT OF PROVISION OF DECLARATION Each provision of this Declaration, and each agreement, promise, covenant and undertaking to comply with each provision of this Declaration, and any necessary exception or reservation or grant of title, estate, right or interest to effectuate any provision of this Declaration: (i) shall be deemed incorporated in each deed or other instrument by which any right, title or interest in any of Parcel 3A or Parcel 3B 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 Parcel 3A or Parcel 3B 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 Parcel 3A or Parcel 3B and (iii) shall be deemed a real covenant by Declarant, for itself, its 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 Parcel 3A and Parcel 3B. 20. MEDIATION a. Prior to filing any action in equity or at law, in regard to all claims, grievances or disputes arising out of or relating to the interpretation, application or enforcement of this Declaration, or the rights, obligations and duties of any Owner under this Declaration (collectively referred to as "Claim ") every Owner shall comply with the provisions of this paragraph 20. b. Any Owner having a Claim ( "Claimant ") with the other Owner ( "Respondent") shall provide the Respondent with written notice ("Notice of Claim ") of the Claim, including but not limited to: The nature of the Claim, including the persons involved and Respondent's role in the Claim; The legal basis of the Claim (i.e., the specific authority out of which the Claim arises); iii. Claimant's proposed remedy; and iv. That Claimant will meet with Respondent to discuss in good faith ways to resolve the Claim. C. The Claimant and Respondent shall make a reasonable effort to confer for the purpose of resolving the Claim by good faith negotiation. d. If the Claimant and Respondent do not resolve the Claim within thirty (30) Page 12 of 15 days of the date of the Notice of Claim (or within such other period as may be agreed upon in writing by the Claimant and Respondent), Claimant shall have thirty (30) additional days ( "Mediation Submittal Period ") to submit the Claim to nonbinding mediation under the auspices of a the Judicial Arbiter Group, Inc., or, if the Claimant and Respondent otherwise agree in writing, to another mediation group providing mediation services in the Eagle County, Colorado area. Claimant shall provide notice to Respondent within the Mediation Submittal Period containing evidence that the Claim has been submitted to mediation in accordance with the provisions of this paragraph. If Claimant does submit a Claim to mediation in accordance with the provisions of this paragraph 30.d, the Claimant and Respondent shall try in good faith, to settle the Claim through mediation. e. If Claimant does not submit a Claim to mediation in accordance with the provisions of paragraph 20.d or does not appear for the mediation, Claimant shall be deemed to have waived the Claim, and Respondent shall be released and discharged from any and all liability to Claimant on account of such Claim. Provided, however, nothing herein shall release or discharge Respondent from any liability to any person other than the Claimant. f. Within thirty (30) days after submission of the matter to the mediation process, or within such time as determined by the mediator ( "Mediator") but in any event not more than sixty (60) days after submission of the matter to mediation unless a longer period is agreed to in writing by the Claimant and Respondent, the Mediator shall issue a report ( "Mediator's Report ") in accordance with the procedure for giving notice as set forth in paragraph 16 of this Declaration. The Mediator's Report shall state whether or not the Claim has been settled by mediation and if so, the terms of the settlement. The Mediator's Report shall also state the Mediator's opinion regarding whether the Claimant tried in good faith, to settle the Claim through mediation and whether the Respondent tried in good faith to settle the Claim through mediation. The Mediator's Report shall recite a factual basis for the opinion as to whether Claimant and Respondent tried in good faith to settle the Claim. The Owners agree that such opinion of the mediator shall not be binding but may be considered by a court in a subsequent legal action in regard to the requirement set forth above in paragraph 20.d requiring the Claimant and Respondent to try in good faith, to settle the Claim through mediation. g. The Claimant and Respondent shall share the mediator's fee and filing fees equally. If the Claimant pays the Mediator's fee or filing fee, the Respondent shall reimburse the Claimant for the Respondent's share thereof within fifteen (15) days of the effective date of notice from Page 13 of 15 Claimant to Respondent providing reasonable proof of the amount paid by Claimant. 21. ENFORCEMENT a. Subject to the provisions ofparagraph 20 of this Declaration, each provision of this Declaration shall be enforceable by any Owner by an action in equity or at law and if any action is 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 provided the court finds that the prevailing party tried in good faith, to settle the Claim through mediation in accordance with paragraph 20 of this Declaration. 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, State of Colorado. C. Failure to enforce any provision of this Declaration shall not operate as a waiver of any such provision, the right to enforce such provision thereafter, or of any other provision of this Declaration. 22. EXERCISE OF RIGHTS Any exercise of any right granted hereunder by one Owner with respect to the other Owner's Parcel including but not limited to the use of any easement granted herein, shall be exercised in a manner which shall not unreasonable hinder, impede or impose upon such other Owner's use of his Parcel. 23. SUCCESSORS AND ASSIGNS Except as otherwise provided herein, this Declaration shall be binding upon and shall inure to the benefit of Declarant and each Owner and the heirs, personal representatives, successors and assigns of each. 24. SEVERABILITY Invalidity or unenforceability of any provision of this Declaration, either in whole or in part, shall not affect the validity or enforceability of any other provision of this Declaration. 25. CAPTIONS The captions and heading in this instrument are for convenience only and shall not be considered in construing any provisions of this Declaration. 26. CONSTRUCTION When necessary for proper construction, the masculine of any word used in this Declaration shall include the feminine or neuter gender, and the singular the plural and vice versa. Dated: August _. 2008. Page 14 of 15 OWNER: By: o Purchase, Manager 18 Columbine Drive, LLC STATE OF )ss. COUNTY OF ) Subscribed and sworn to before me IN THE COUNTY OF EAGLE, STATE OF COLORADO, this 72 1� *- day of /ON by John Purchase. My commission expires: Witness my hand and official se (Seal) SARAH K. DORMAN NOTARY PUBLIC STATE OF COLORADO My Commission Expires June 9, 2409 Page 15 of 15 ALTA COMMITMENT Schedule B - Section 2 (Exceptions) Our Order No. V50023036 The policy or policies to be issued will contain exceptions to the following unless the same are disposed of to the satisfaction of the Company: 1. Any facts, rights, interests, or claims thereof, not shown by the Public Records but that could be ascertained by an inspection of the Land or that may be asserted by persons in possession of the Land. 2. Easements, liens or encumbrances, or claims thereof, not shown by the Public Records. 3. Any encroachment, encumbrance, violation, variation, or adverse circumstance affecting the Title that would be disclosed by an accurate and complete land survey of the Land and not shown by the Public Records. 4. Any lien, or right to a lien, for services, labor or material heretofore or hereafter furnished, imposed by law and not shown by the Public Records. 5. Defects, liens, encumbrances, adverse claims or other matters, if any, created, first appearing in the Public Records or attaching to the subsequent effective date hereof but prior to the date the proposed Insured acquires of record for value the estate or interest or mortgage thereon covered by this Commitment. 6. (a) Taxes or assessments that are not shown as existing liens by the records of any taxing authority that levies taxes or assessments on real property or by the Public Records; (b) proceedings by a public agency tha may result in taxes or assessments, or notices of such proceedings, whether or not shown by the records of such agency or by the Public Records. 7. (a) Unpatented mining claims; (b) reservations or exceptions in patents or In Acts authorizing the issuance thereof; (c) water rights, claims or title to water, whether or not the matters excepted under (a), (b), or (c) are shown by the Public Records. 8. RIGHT OF PROPRIETOR OF A VEIN OR LODE TO EXTRACT AND REMOVE HIS ORE THEREFROM SHOULD THE SAME BE FOUND TO PENETRATE OR INTERSECT THE PREMISES AS RESERVED IN UNITED STATES PATENT RECORDED NOVEMBER 17, 1902, IN BOOK 48 AT PAGE 492. 9. RIGHT OF WAY FOR DITCHES OR CANALS CONSTRUCTED BY THE AUTHORITY OF THE UNITED STATES AS RESERVED IN UNITED STATES PATENT RECORDED NOVEMBER 17, 1902, IN BOOK 48, AT PAGE 492 AND RECORDED NOVEMBER 22, 1939, IN BOOK 123 AT PAGE 625. 10. RESTRICTIVE COVENANTS WHICH DO NOT CONTAIN A FORFEITURE OR REVERTER CLAUSE, BUT OMITTING ANY COVENANTS OR RESTRICTIONS, IF ANY, BASED UPON RACE, COLOR, RELIGION, SEX, SEXUAL ORIENTATION, FAMILIAL STATUS, MARITAL STATUS, DISABILITY, HANDICAP, NATIONAL ORIGIN, ANCESTRY, OR SOURCE OF INCOME, AS SET FORTH IN APPLICABLE STATE OR FEDERAL LAWS, EXCEPT TO THE EX'T'ENT THAT SAID COVENANT RESTRICTION IS PERMITTED BY APPLICABLE LAW, AS CONTAINED IN INSTRUMENT RECORDED JULY 12, 1963, IN BOOK 175 AT PAGE 135 AND AS AMENDED IN INSTRUMENT RECORDED APRIL 23, 1965, IN BOOK 187 AT PAGE 195. ALTA COMMITMENT Schedule B - Section 2 (Exceptions) Our Order No. V50023036 The policy or policies to be issued will contain exceptions to the following unless the same are disposed of to the satisfaction of the Company: 11. EASEMENTS, CONDITIONS, COVENANTS, RESTRICTIONS, RESERVATIONS AND NOTES ON THE RECORDED PLAT OF BIGHORN SUBDIVISION THIRD ADDITION RECORDED OCTOBER 4, 1963 IN MAP CASE 2. 12. EASEMENT AND EVERY RIGHT OR RIGHTS OF ACCESS OF THE GRANTOR OR GRANTORS TO AND FROM ANY PART OF THE RIGHT OF WAY FOR COLORADO STATE HIGHWAY NO. 70 AS DESCRIBED IN INSTRUMENT RECORDED NOVEMBER 25, 1974 IN BOOK 237 AT PAGE 517. 13. EASEMENT FOR INGRESS, EGRESS AND UNDERGROUND INSTALLATION OF UTILITY LINES AS DESCRIBED IN INSTRUMENT RECORDED JULY 25, 1979 IN BOOK 288 AT PAGE 733. 14. EASEMENTS, CONDITIONS, COVENANTS, RESTRICTIONS, RESERVATIONS AND NOTES ON THE RESUBDIVISION PLAT RECORDED OCTOBER 3, 1977 UNDER RECEPTION NO. 156887. 15. FINANCING STATEMENT WITH COMMUNITY BANKS OF COLORADO, THE SECURED PARTY, RECORDED AUGUST 28, 2006, UNDER RECEPTION NO. 2006Z3461. 16. DEED OF TRUST DATED AUGUST 18, 2006, FROM 4418 COLUMBINE DRIVE, LLC, A COLORADO LIMITED LIABILITY COMPANY TO THE PUBLIC TRUSTEE OF COUNTY FOR THE USE OF COMMUNITY BANKS OF COLORADO TO SECURE THE SUM OF $3,165,000.00 RECORDED AUGUST 28, 2006, UNDER RECEPTION NO. 200623462. DISBURSER'S NOTICE IN CONNECTION WrM SAID DEED OF TRUST WAS RECORDED AUGUST 28, 2006, UNDER RECEPTION NO. 200623463. SAID DEED OF TRUST WAS FURTHER SECURED IN ASSIGNMENT OF RENTS RECORDED AUGUST 28, 2006, UNDER RECEPTION NO. 200623464.