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HomeMy WebLinkAboutADM17-0010_20170526 declaration of party wall and ccrs v2_1497033420.pdf DECLARATION OF PARTY WALL, COVENANTS, CONDITIONS AND RESTRICTIONS FOR BIGHORN SUBDIVISION THIRD AMENDED PLAT BLOCK 9, A RESUBDIVISION OF LOT 12 2 TABLE OF CONTENTS DECLARATION OF PARTY WALL, COVENANTS, CONDITIONS AND RESTRICTIONS ARTICLE I DEFINITIONS 1 Section 1.1 - Party Wall 1 Section 1.2—Common Improvements .1 Section 1.3 - Common Utilities 2 Section 1.4 - Resubdivision Plat 2 ARTICLE II PARTY WALL 2 Section 2.1 - Party Wall 2 Section 2.2 - Easements 2 Section 2.3 - Use 2 Section 2.4 - Extension/Modification . 2 Section 2.5 - Repair and Maintenance 2 Section 2.6 - Cost 3 Section 2.7 - Damage 3 ARTICLE III INSURANCE 3 Section 3.1 - Hazard and Liability Insurance 3 Section 3.2 - Certificate of Insurance 3 Section 3.3 - Additional Insurance 4 ARTICLE IV EASEMENTS 4 Section 4.1 - Encroachments 4 Section 4.2 - Blanket Easement 4 Section 4.3 —General Easements and Rights of Way, Snow Storage 4 3 ARTICLE V OWNER'S MAINTENANCE,REPAIR AND REPLACEMENT 5 Section 5.1 - Maintenance 5 Section 5.2 -No Changes 5 Section 5.3 - Repair or Replacement 5 Section 5.4 —Common Improvements and Common Utilities Maintenance, Repair and Replacement 5 Section 5.5 - Exterior Maintenance 5 ARTICLE VI LIMITATIONS AND RESTRICTIONS OF IMPROVEMENTS 6 Section 6.1 - Permitted Improvements 6 Section 6.2 - Prohibited Improvements 6 Section 6.3 - Joint Approval Required 6 Section 6.4 - Government Approval Required 7 Section 6.5 - Retaining Walls 7 Section 6.6 -No Unsightliness 7 Section 6.7 - Restriction on Signs .7 ARTICLE VII USE RESTRICTIONS 7 Section 7.1 - Use Restrictions .7 ARTICLE VIII ENFORCEMENT 9 Section 8.1 - Performance by Other Owner 9 Section 8.2 - Collection for Performance 9 Section 8.3 - Enforcement .10 ARTICLE IX GENERAL PROVISIONS 11 Section 9.1 - Care in Exercise 11 4 Section 9.2 - Notice .12 Section 9.3 - Duration .12 Section 9.4 - Amendment or Revocation 12 Section 9.5 - Effect of Provisions of Declaration 12 Section 9.6 - Severability 12 Section 9.7 - Captions .12 Section 9.8 - Construction .12 Section 9.9 - Governing Law 13 Section 9.10 - Bighorn Declaration of Protective Covenants 13 DECLARATION OF PARTY WALL, COVENANTS, CONDITIONS AND RESTRICTIONS THIS DECLARATION is executed on the day of , 2017 by Bolin Spruce Way, LLC, a Colorado limited liability company(the "Declarant"). WITNESSETH: WHEREAS, Declarant is the Owner of certain real property located in the County of Eagle, State of Colorado, as is more particularly described as follows: BIGHORN SUBDIVISION THIRD AMENDED PLAT, BLOCK 9, A RESUBDIVISION OF LOT 12, COUNTY OF EAGLE, STATE OF COLORADO, 5 also known as 4193 Spruce Way, Vail, CO 81657 (the "Property"); WHEREAS, Declarant desires to sell, transfer and convey the Property and the residential improvements located thereon consisting of a single building ("Building") containing two (2) residences (each referred to herein as a "Residence") by resubdividing the Property and the Building into two (2) separate fee simple estates, each containing a Residence and referred to herein collectively as the "Lots" or specifically and individually as "Lot 12E" and "Lot 12W" as identified on the Resubdivision Plat, hereinafter defined. WHEREAS, Declarant desires to convey the Lots subject to certain covenants, conditions, restrictions and easements as hereinafter set forth; NOW, THEREFORE, Declarant does hereby publish and declare that the Lots shall be held, sold and conveyed subject to the following easements, covenants, conditions and restrictions. ARTICLE I DEFINITIONS Section 1.1 - Party Wall. "Party Wall" shall mean all walls common to the adjacent Residences and located approximately on the property line dividing the Lots. Section 1.2 — Common Improvements. "Common Improvements" shall mean the roof, exteriors of the Residences (excluding decks), and the Party Wall. Section 1.3 - Common Utilities. "Common Utilities" shall mean common utility lines including but not limited to electric, natural gas, telephone, cable television, and water and sewer lines serving the Residences. Section 1.4 - Resubdivision Plat. "Resubdivision Plat" means the plat recorded with the Office of the Eagle County Clerk and Recorder dividing the Property into two (2) Lots known as "Lot 12E" and"Lot 12W". ARTICLE II PARTY WALL Section 2.1 - Party Wall. Each wall which is constructed as a common part of the Building and which is located upon the division line between the Lots shall constitute a party wall ("Party Wall"), and, to the extent not inconsistent with provisions of this Declaration, the general rules of law regarding party walls shall apply thereto. 6 Section 2.2 - Easements. The owner of each Lot shall have a perpetual and reciprocal easement in and to that part of the adjacent Lot on which a Party Wall is located for the exclusive purposes of mutual support, maintenance, repair and inspection of such Party Wall. For the purpose of repairing and maintaining a Party Wall, the owner of each Lot is granted the right to enter the adjacent Lot to do work necessary in the exercise of the rights provided herein at all reasonable times, or immediately in the event of an emergency. Section 2.3 - Use. Each owner of a Lot shall have the full right to use the Party Wall shared with the adjacent Lot to support joists, cross-beams, studs and other structural members as required for the support of the Residence located upon the Lot and for the reconstruction or remodeling of such Residence; provided, however, that such use shall not injure the Residence located on the opposite side of such Party Wall and shall not impair the structural support to which such Residence is entitled. Section 2.4 - Extension/Modification. No extension or modification of a Party Wall may be made by any owner, or person acting on behalf of an owner unless prior written agreement thereto first shall have been obtained from the other owner sharing the Party Wall, and provided that such agreement expressly refers to this Declaration and is filed of record in the County of Eagle, State of Colorado. Section 2.5 - Repair and Maintenance. After reasonable notice, the owner of each Lot shall have the right to break through the appurtenant Party Wall for the purpose of repairing or maintaining utilities located within the Party Wall, subject to the obligation to restore such Party Wall to its previous structural condition at such owner's sole expense. Section 2.6 - Cost. The cost of reasonable repair and maintenance of the Party Wall shall be shared equally and jointly by the owners of the Lots, including the cost of repairs and maintenance of the finished surface of the Party Wall should such repairs be necessary for structural reasons or to repair/maintain Common Utilities within the Party Wall. Otherwise, the cost of repairs and maintenance of the finished surface of the Party Wall shall be the sole expense of the owner of the Lot with the finished surface. Section 2.7 - Damage. If the Party Wall is damaged or destroyed, such damage or destruction shall be promptly repaired and reconstructed. Repair and reconstruction means the restoration of the Party Wall to substantially the same condition in which it existed prior to such damage or destruction. To the extent that such damage or destruction of the Party Wall is covered by insurance, the full insurance proceeds shall be used and applied to repair and reconstruct the Party Wall. If the insurance proceeds are insufficient to repair and reconstruct the Party Wall, any such deficiency shall be the joint and equal expense of the owners of the Lots without prejudice, however, to the right of any owner to demand a larger contribution from another owner under any rule of law regarding liability for negligent or willful acts or omissions. 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, the Party 7 Wall or any utilities within the Party Wall, such owner shall bear the entire costs of repair or reconstruction of the Party Wall and of any resulting damage to the Residence on the adjacent Lot. ARTICLE III INSURANCE Section 3.1 - Hazard and Liability Insurance. Each owner shall keep his Residence and the Party Wall which is a part thereof, insured against loss or damage by fire and extended coverage perils, including vandalism and malicious mischief, for the full replacement value thereof, and concerning such other risks, of a similar or dissimilar nature, as are or shall hereafter be customarily covered with respect to similar properties including, but not limited to, public liability and property damage insurance against claims for bodily injury or death or property damage arising out of or resulting from activities or negligence occurring on the owner's Lot. Such insurance shall be issued by a responsible insurance company authorized to do business in the State of Colorado. The policy shall contain a waiver of subrogation. Section 3.2 - Certificate of Insurance. Upon request by the owner of the adjacent Lot, each owner of a Lot shall provide such owner of the adjacent Lot with a certificate issued by the insurance company evidencing the existence of the required insurance. In addition, each such insurance policy shall include a provision that it cannot be canceled or substantially modified until after thirty(30) days prior written notice is first given to the owner of the adjacent Lot. Section 3.3 - Additional Insurance. Each Owner may obtain additional insurance at his own expense for his own benefit provided that all such policies shall contain waivers of subrogation and provided, further, that the liability of the carriers issuing insurance covering a Lot hereunder shall not be affected or diminished by reasons of any such insurance carried by the owner of the adjacent Lot. ARTICLE IV EASEMENTS Section 4.1 - Encroachments. Each Lot shall be subject to an easement for encroachments of the Residence on the adjacent Lot created by construction, settling or an overhang, whether as designed or constructed. A valid easement for such encroachments and for the maintenance of same, so long as they exist, shall and does exist. In the event the Building is partially or totally destroyed, and then rebuilt, the owners agree that minor encroachments of parts of the adjacent Residence due to construction shall be permitted and that a valid easement for said encroachment and the maintenance thereof shall exist so long as the Residence shall stand and the owner of the Residence being rebuilt agrees to repair any damage to the adjacent Residence and return it to its original condition. 8 Section 4.2 - Blanket Easement. There is hereby created a blanket easement upon, across, over and under each of the Lots for the benefit of the adjacent Lot and the Residence situated thereon including the Party Wall, for ingress, egress, installation, replacement, repair and maintenance of all 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. 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, gas, water, sewer, telephone or cable television wires, circuits, conduits, lines or pipes under the Residences located upon the Lots. Section 4.3 — General Easements and Rights of Way, Snow Storage. Each Lot shall be subject to and benefit from all easements and rights of way as shown on the Resubdivision Plat. Areas identified as "Snow Storage Easement" on the Plat shall be available as needed for snow storage. Landscaping within the Snow Storage Easement shall be compatible with such use to the extent reasonably possible. ARTICLE V OWNER'S MAINTENANCE, REPAIR AND REPLACEMENT Section 5.1 - Maintenance. Each owner shall be solely responsible for maintenance and repair of the interior of his or her Residence. In performance of such maintenance and repair no owner shall do any act which impairs the structural soundness of the adjacent Residence or the Party Wall. Section 5.2 - No Changes. No Owner shall make or suffer any structural or design change, including specifically a color scheme change, either permanent or temporary and of any type or nature whatsoever to the exterior of his or her Residence without first obtaining the prior written consent thereto from the owner of the adjacent Residence, which shall not be unreasonably withheld, and such other consents or approvals as may be required by laws or other covenants, conditions and restrictions applicable to the Lots. Section 5.3 - Repair or Replacement. In case of damage or destruction of a Residence or part thereof by any cause whatsoever, the owner of such Residence shall cause such damage or destruction to be repaired and restored as diligently and promptly as possible, applying the proceeds of insurance, if any, but not limited to proceeds from the insurance, for that purpose. Such Residence shall be restored to a condition comparable to that prior to the damage in such manner as is necessary to maintain the common design theme and appearance of the Building. If the damage or destruction creates a potential for property damage to the adjacent Lot owner, such Lot owner may at its own expense make such repairs or initiate safeguards to prevent damage or mitigate further damage to his own Residence and shall immediately notify the other owner of such actions taken. 9 Section 5.4 — Common Improvements and Common Utilities Maintenance, Repair and Replacement. The cost of maintaining, repairing, and replacing the Common Improvements and Common Utilities shall be borne equally by the owners. In the event of damage to or destruction of the Common Improvements or Common Utilities from any use, the owners shall, at joint expense, repair or rebuild the Common Improvements, and such owners, their heirs, personal representatives, successors, and assigns, shall have the right to the full use of the Common Improvements so repaired and rebuilt. Notwithstanding anything herein to the contrary, if the need for repair is caused through the negligence or willful act of an owner or the owner's family member, tenant, agent, or invitee, such owner shall bear the entire cost of such repair or reconstruction. Cost of utilities that are separately metered are the responsibility of each Lot owner. Section 5.5 - Exterior Maintenance. Each owner of a Lot shall be solely responsible for and shall bear all expenses of maintaining, repairing, or replacing the exterior portions of his or her Residence not part of the Party Wall or the Common Improvements, including but not limited to the exterior sides and roof of the Residence, and the decks, lawn, walks, and other portions of such Lot, in a clean, safe, attractive, and sightly condition and in good repair. An owner shall not alter the exterior decoration or color scheme of the Residence without the prior written approval of the owner of the other Lot. ARTICLE VI LIMITATIONS AND RESTRICTIONS OF IMPROVEMENTS Section 6.1 - Permitted Improvements. No Lot may contain any building improvements except: (a) One single-family structure together with one garage; (b) Such enclosed service areas for garbage, trash, utilities and other maintenance facilities as may be approved in writing by both Lot owners; (c) Such fences, walls, driveways and parking areas as may be approved in writing by the Lot owners; and (d) Landscaping and other appurtenant improvements approved in writing by the Lot owners. Section 6.2 - Prohibited Improvements. No structures or buildings of a temporary character, mobile home, house trailer, tent, shack, or other such structure shall be placed or used within the Property, either temporarily or permanently, without prior written approval of the owners of both Lots, which approval may be withheld in any owner's sole discretion. Notwithstanding the preceding sentence, necessary appurtenances, modest construction trailers 10 and structures of a temporary nature may be used without the approval of the owners of both Lots during the period of performance of construction of any improvement for which necessary government permits and other approvals have been obtained, provided that (a) the adjacent Lot owner shall approve the location and appearance of such appurtenances, trailers or structures, (b) no overnight occupancy shall be permitted in any such appurtenance, trailer or structure, and (c) such appurtenances, trailers or structures shall be removed from the Property on the earlier of(i) the date that is eighteen months after the initial use thereof and (ii) the date of substantial completion of said improvement. Section 6.3 - Joint Approval Required. No owner may apply to Eagle County, the Town of Vail, or any other governmental authority, for permission to construct building improvements on the Property without the prior express written authorization of the owner of the other Lot. It shall be an objective of this approval process to prevent the making of improvements which will materially impair the aesthetic and monetary values of the Property. In reviewing the proposed project, the owners will consider, among other things, the following factors: (a) the suitability of the improvements and the materials of which they are to be constructed; (b) the quality of all materials to be utilized in any proposed improvement; (c) the effect of any proposed improvement on the adjacent Lot, provided that each owner of a Lot within the Property is entitled to use and develop his or her property in accordance with the standards set forth herein; (d) the location and character and method of utilization of all utility services; (e) the impact of any proposed improvement upon the natural surroundings; and (f) the timely and orderly completion of all such improvements. Section 6.4 - Government Approval Required. No modification or other improvement to a Lot or dwelling unit that requires the approval of the Town of Vail or Eagle County, shall be made or built until such approval has been obtained. Section 6.5 - Retaining Walls. All retaining walls or other barriers on either Lot, as limited by the guidelines stated in Section 6.3, may be erected only upon prior written approval of both owners. Section 6.6 - No Unsightliness. No unsightliness shall be permitted on the Property. Without limiting the generality of the foregoing: (a) all unsightly structures, facilities, equipment, objects and conditions shall be enclosed within an approved structure, or screened with landscaping materials, except as otherwise provided herein; and (b) pipes for water, gas, sewer, drainage or other purposes, wires, poles, antennas and other facilities for the transmission or reception of audio or visual signals or electricity, utility meters or other utility facilities, gas, oil, water or other tanks shall be kept and maintained within an enclosed structure or below the surface of the ground, unless otherwise approved in writing by the owners of both Lots prior to installation, except that satellite reception equipment no larger than 18 inches in diameter shall be permissible upon written approval of the proposed location thereof by the owner of the other Lot. 11 Section 6.7 - Restriction on Signs. No signs or advertising devices of any nature shall be erected or maintained on the Property except identification signs for the occupant or occupants of the Residences approved by the owners of both Lots, signs required by law or legal proceedings, identification signs for work under construction (not to exceed six square feet), or temporary signs to caution or warn of danger, and customary signs for the sale or rent of a Residence. ARTICLE VII USE RESTRICTIONS Section 7.1 -Use Restrictions. (a) No live, healthy tree may be cut down on the Property, without the approval of the owners of both Lots and the regulating governmental agency. No planting or gardening shall be done, and no fences, hedges, walls, or other improvements or structures shall be erected or maintained in or upon any Lot except as approved by both owners. However, all surface areas disturbed by construction shall be returned promptly to their natural condition and replanted in native grasses and trees and shrubbery. It is expressly acknowledged and agreed that this paragraph is for the mutual benefit of both owners and is necessary for their protection. (b) All utilities, fixtures and equipment installed within any Lot, excluding Common Utilities, shall be maintained and kept in repair by the owner thereof. An owner shall not do any act or work that will impair any Easement or hereditament, nor perform any act nor allow any condition to exist which will adversely affect the other Lot or the owner thereof. (c) By way of enumeration, and not limitation, the use of the Property, Building and Lots located thereon shall be subject to the following restrictions and limitations: (i) Refuse piles or other unsightly objects or materials shall not be allowed to be placed or to remain upon the Property. The owner of the other Lot shall have the right to remove such refuse piles or other unsightly objects or materials at the expense of the owner responsible therefor, and such entry shall not be deemed a trespass provided three (3) days prior notice has been given to the owner and the owner failed to remove same during said three (3) day period; (ii) No free-standing mailbox or newspaper box shall be erected unless approved by both owners; 12 (iii) Trash, garbage or other waste shall be disposed of in a sanitary manner. All trash containers must be kept indoors at all times except on trash pickup day. All containers must have animal proof lids securely in place when outside. The foregoing notwithstanding, the owners of the Lots may contract with one company for trash removal for both Lots. (iv) No exterior clotheslines shall be attached to the Building or either Residence or permitted or maintained on the Property; (v) All furniture, tools, and other personal property shall be kept and maintained in neat condition and in such a manner so that, to the extent possible, the same are concealed from view from the other Lot; (vi) No house trailer, motor home, manufactured housing, recreational vehicle, boat, camper, commercial vehicle, tent, shack, detached garage, barn, or outbuilding of any kind shall be permitted to be placed on the Property without the approval of the other owner, which may be withheld in the sole discretion of such owner; (vii) No junk vehicle, inoperative vehicle, unlicensed vehicle, or vehicle under repair shall be parked, stored or maintained on the Property for more than two (2) days; and (viii) No charcoal or other fossil fuel burning device, including grills, but excluding propane and natural gas grills, shall be used or stored on any exterior wooden deck of the Building. This restriction shall not, however, prevent the use of such devices on the ground floor patio or deck, so long as the surface of such patio or deck is non-flammable. (ix) No undue noise shall be permitted on the Property in a way that will unreasonably interfere with the use and enjoyment of the Property, and exterior hot tubs shall be used in a manner not to disturb the adjoining Lot. (e) Owners, guests or tenants, may keep no more than two (2) domesticated animals per Lot, provided that they clean up after such animals. No animal shall be outdoors without being supervised by a person of at least twelve years of age who is also outdoors and is in line of sight of such animal. All animals must be kept on a leash whenever outdoors unless such animal is within an invisible electric fenced area. No kennels or commercial animal operations are permitted. Animals must not be noisy or obnoxious. (f) Rental of the Residences shall be permitted, so long as tenants comply with the terms of this Declaration. 13 ARTICLE VIII ENFORCEMENT Section 8.1 - Performance by Other Owner. If an owner, at any time, shall neglect or refuse to perform or pay his or her obligations required hereunder ("Defaulting Owner"), the owner of the other Lot may, but shall not be obligated to, after not less than ten (10) days prior written notice to such Defaulting Owner ("Notice to Cure"), unless the circumstances require immediate action, perform the obligation or make the payment should the Defaulting Owner fail to cure within such 10-day period, including, but not limited to, the payment of any insurance premiums required hereunder or the undertaking of any other work required hereunder for maintenance, repair or restoration, and such other owner shall have an easement in and to that part of such Defaulting Owner's Lot and Residence as is reasonable and necessary for such repair, restoration or maintenance. Section 8.2 - Collection for Performance. All sums so paid or expended by the other 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 Defaulting Owner upon demand of the other owner and shall become a lien upon the Defaulting Owner's Lot which lien may be recorded in the Eagle County, Colorado real estate records and foreclosed in the manner provided for mortgages in the State of Colorado. Section 8.3 - Enforcement. Any failure in performance, breach or violation of any covenant, condition or obligation or other dispute arising out of or relating to this Declaration shall be resolved in accordance with the following: (a) Mediation. The owners shall attempt in good faith to resolve any dispute arising out of or relating to this Declaration promptly by mediation in accordance with this subparagraph. Any owner may give the other owner written notice of any breach, any objection to a notice of breach, any failure to cure a breach, or any dispute not resolved in the normal course of business ("Mediation Notice"). Within ten (10) days after receipt of any Mediation Notice, the owners shall meet at a mutually acceptable time and place, and thereafter as often as they reasonably deem necessary, to attempt to select an unrelated third party mediator. If the owners cannot agree on the selection of a mediator twenty (20) days after the Mediation Notice, they each shall appoint an unrelated third party within thirty (30) days of the Mediation Notice and, within forty (40) days of the Mediation Notice, such third parties shall appoint a neutral third party to mediate the dispute within sixty(60) days of the Mediation Notice. (b) Arbitration. Any dispute arising out of or relating to this Declaration or the breach, termination or validity thereof which has not been resolved by mediation as set forth above within sixty(60) days of the date of the Mediation Notice, shall be finally settled by binding arbitration conducted in accordance with the terms of this 14 subparagraph, upon written demand for arbitration made by any owner ("Arbitration Demand") provided, however, that if one owner has requested the other to participate in mediation and the other has failed to participate, the requesting owner may make demand for arbitration before expiration of such sixty(60) days. (i) As soon as reasonably possible following the Arbitration Demand, but not later than fifteen (15) days after the date of such Demand, the owners, in good faith, shall attempt to select a mutually acceptable arbitrator to hear and decide the matter or matters in controversy. In the event the owners cannot agree on a mutually acceptable arbitrator within thirty (30) days after the date of such Demand, each owner shall appoint an unrelated third party within forty (40) days after the date of such Demand and, within fifteen (15) days of the date of the appointment of the last of such unrelated third parties, such third parties shall appoint an arbitrator to hear and settle the dispute in accordance with the terms and provisions hereof. If any owner does not appoint an unrelated third party in a timely manner or if such third parties cannot or do not appoint an arbitrator in a timely manner, then any owner may make application to the District Court for Eagle County, Colorado for appointment of an arbitrator. (ii) The arbitration shall be conducted by a single arbitrator and the decision of the arbitrator shall be final, enforceable, binding and unappealable to any court or tribunal, except as otherwise may be provided by Colorado law. Such decision shall be enforceable with the same force and effect as if issued by any court of competent jurisdiction. The decision of the arbitrator shall be based upon the evidence and facts presented by the owners and shall be in accordance with Colorado law. The arbitrator is not empowered to award damages in excess of compensatory damages. (iii) The costs of the arbitration, including reasonable attorney fees, shall be awarded to the prevailing owner. If there is no prevailing owner, such fees and costs may be awarded at the discretion of the arbitrator who, in making such award, shall assess the relative good or bad faith of the owners throughout the dispute. (iv) All arbitration proceedings shall be conducted to expedite resolution and minimize cost. Disclosures shall be required and discovery shall be allowed and both shall be governed by Rules 26-37 of the Colorado Rules of Civil Procedure, as amended, except that upon application of either owner, the arbitrator, in the interest of justice and efficiency, may limit discovery as such arbitrator deems appropriate. (c) Location. The place of mediation or arbitration shall be Eagle County, Colorado. 15 (d) Injunctive Relief. The foregoing notwithstanding, any owner may seek a temporary restraining order, preliminary injunction or other provisional judicial relief, if in his or her judgment such action is necessary to avoid irreparable damage or to preserve the status quo. (e) Venue. Each owner hereby agrees that any action instituted to enforce any provisions hereunder shall be brought in and only in the District Court of Eagle County, Colorado. (f) No Waiver. 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 provisions of this Declaration. ARTICLE IX GENERAL PROVISIONS Section 9.1 - Care in Exercise. Any exercise of any right granted hereunder by one owner with respect to another owner's Lot, including, but not limited to, the use of any easement granted herein, shall be exercised in the manner which shall not unreasonably hinder, impede or impose upon such other owner's use of his Lot. Section 9.2 -Notice. Each Lot owner shall provide its mailing address to the adjacent Lot owner, and all notices or demands intended to be served upon an owner shall be sent by certified mail, postage pre-paid, addressed in the name of the owner at such registered mailing address or by overnight courier directed to the address of the owner provided. In the alternative, notice may be delivered, if in writing, personally to an owner. All notices so given shall be considered effective, if hand delivered when received; if delivered by courier, one business day after timely deposit with the courier service, charges prepaid; or, if mailed, three days after deposit, first class postage prepaid, with the United States Postal Service. In the event an owner has not provided a mailing address to the other owner, notice may be sent or delivered to the last known address of the Lot owner as shown in the records of the Eagle County Clerk and Recorder's Office or Assessor's Office. Section 9.3 - Duration. This Declaration shall run with the land and be binding and in full force and effect in perpetuity. Section 9.4 - Amendment or Revocation. This Declaration may be amended as to any Lot only by written instrument signed by the owners of the two Lots on the Property. This Declaration may be amended by the Declarant to correct typographical, clerical or technical errors or for clarification. Any amendment must be properly recorded at the Office of the Clerk and Recorder for Eagle County, Colorado. 16 Section 9.5 - Effect of Provisions of Declaration. Each provision of this Declaration, and an agreement, promise, covenant and undertaking to comply with each provision of this Declaration, 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 portion of any Lot is granted, devised, conveyed, whether or not set forth or referred to in such deed or other instrument; (ii) shall by virtue of any acceptance of any right, title or interest of any portion of any Lot be deemed accepted, ratified, adopted and declared as a personal covenant and, as a personal covenant, shall be binding upon the owner of a Lot and his heirs, personal representatives, successors and assignees, and shall be deemed a real covenant by Declarant, for itself, its successors and assignees, and also an equitable servitude, running in each deed as a burden with and upon the title of each and every portion of any Lot. Section 9.6 - Severability. Invalidity or enforceability of any provision of this Declaration in whole or in part shall not affect the validity or enforceability of any provision or any valid and enforceable parts of a provision of this Declaration which shall remain in full force and effect. Section 9.7 - Captions. The captions and headings in this Declaration are for convenience only and shall not be considered in construing a provision of this Declaration. Section 9.8 - Construction. When necessary for proper construction, the masculine of any word used this Declaration shall include the feminine or neutral gender in the singular or the plural, and vice-versa. Section 9.9 - Governing Law. This Declaration is made and executed under and in all respects shall be governed and construed under and in accordance with the laws of the State of Colorado. Section 9.10 — Bighorn Declaration of Protective Covenants. In no event shall any provision of this Declaration affect the terms and enforceability of the Declaration of Protective Covenants for the Bighorn Subdivision Third Addition (the "Bighorn Covenants"), as they currently exist or may be amended. In no event shall the authority of the Architectural Committee thereof be diminished by the provisions herein. Approvals required by the Bighorn Covenants are required in addition to approvals otherwise required under this Declaration, regardless of whether the need for such approvals are referenced in this Declaration. IN WITNESS WHEREOF, the Declarant has executed this Declaration as of the day of , 2017. DECLARANT: 17 BOLIN SPRUCE WAY, LLC, a Colorado limited liability company By: Name: Title: STATE OF ) ) ss. COUNTY OF ) The foregoing instrument was acknowledged before me on this day of , 2017 by as of Bolin Spruce Way, LLC, a Colorado limited liability company. Witness my hand and seal. My commission expires: Notary Public 18