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HomeMy WebLinkAboutPARTY WALL AGREEMENT 070915.pdfPARTY WALL AGREEMENT AND DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS AND EASEMENTS FOR LOTS 2A AND 2B, A RESUBDIVISION OF LOT 2, BIGHORN ESTATES THIS PARTY WALL AGREEMENT AND DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS AND EASEMENTS FOR LOTS 2A AND 2B, A RESUBDIVISION OF LOT 2, BIGHORN ESTATES is made by Nugget Properties LLC, a Colorado limited liability company (“Declarant”) concerning Lots 2A and 2B, Bighorn Estates, according to the recorded Duplex Plat thereof, County of Eagle, State of Colorado (the “Property”). RECITALS: A. Declarant is the owner of the Property. B. Declarant has caused to be constructed on the Property a building or buildings containing two contiguous residential dwellings. C. Declarant deems it desirable to establish covenants, conditions, restrictions, easements, and other provisions of this Declaration with respect to the use, occupancy and enjoyment of the Property. NOW THEREFORE, to further the general purposes herein expressed, Declarant does hereby publish and declare that the following covenants, conditions, restrictions, easements and other provisions shall run with the land, shall be a burden and a benefit to Declarant and to each person and entity having any interest in any part of the Property, and each of their respective heirs, personal representatives, executors, administrators, devisees, successors and assigns. ARTICLE 1 DEFINITIONS In addition to the terms defined elsewhere in this Agreement, the following terms used in this Agreement shall have the following meanings: 1.1 “Common Utilities” shall mean all utility lines, equipment, facilities and other property, including but not limited to gas lines, sewer lines, water lines, electric lines, cable television lines, telephone lines, and any other similar utility that may service the Property in the future, and any lawn sprinkler system now or hereafter located on either Lot 2A or Lot 2B or on both Lots, and which service both of the Lots. 2 1.2 "Duplex" shall mean the building or buildings located on the Property containing two contiguous residential dwellings. 1.3 "First Mortgage" shall mean a Mortgage, the lien of which is superior and prior to the liens of all other Mortgages. 1.4 "First Mortgagee" shall mean the holder or beneficiary of the obligation secured by a First Mortgage. 1.5 "Improvements" shall mean all structures, buildings, improvements, pavement, driveways, Landscaping and fixtures of any kind now or hereafter located on any part of Lot 2A and Lot 2B, including each of the Units. 1.6 "Landscaping" shall mean the lawn, bushes, trees, shrubs, grasses, flowers and other vegetation, rock gardens, boulders and other similar decorative elements now or hereafter located on Lot 2A and Lot 2B. 1.7 "Lot" shall mean either Lot 2A or Lot 2B, and "Lots" shall mean both Lot 2A and Lot 2B. 1.8 "Lot 2A" shall mean the eastern-most Lot which is designated as such on the Plat (which shall be a separate fee simple estate), together with all rights, appurtenances and privileges now or hereafter belonging or in any way pertaining to such parcel, and also together with all Improvements now or hereafter located thereon, unless the context requires otherwise. 1.9 "Lot 2B" shall mean the western-most Lot which is designated as such on the Plat (which shall be a separate fee simple estate), together with all rights, appurtenances and privileges now or hereafter belonging or in any way pertaining to such parcel, and also together with all Improvements now or hereafter located thereon, unless the context requires otherwise. 1.10 "Mortgage" shall mean any mortgage, deed of trust or other instrument conveying or pledging any interest in any Lot as security for payment of an obligation. 1.11 "Mortgagee" shall mean the holder or beneficiary of an obligation secured by a Mortgage. 1.12 "Occupant" shall mean any Owner, tenant of an Owner or other person actually residing in a Unit and any guest or invitee of any such Owner, tenant or other person. "Occupants" shall mean more than one Occupant. 1.13 "Owner" shall mean the record holder of fee simple title to any one Lot, except that if two or more persons or entities together hold record fee simple title to any one Lot, each of such persons or entities shall be an "Owner." "Owners" shall mean more than one Owner. 3 1.14 “Party Wall’ shall mean the common wall separating the two units, the centerline of which is located on the common boundary line of Lot 2A and Lot 2B and which is shown on the Plat (the “Party Wall”). 1.15 "Party Wall Agreement” or “Agreement” shall mean this Party Wall Agreement and Declaration of Covenants, Conditions, Restrictions and Easements, as the same may be amended, supplemented, or restated from time to time. 1.16 "Plat" shall mean the plat entitled "Duplex Plat, Bighorn Estates, a Resubdivision of Lot 2, Town of Vail, County of Eagle, State of Colorado,” which is being recorded simultaneously herewith in the Office of the Clerk and Recorder of Eagle County, Colorado, as same may be hereafter amended. 1.17 “Property” shall mean Lot 2, Bighorn Estates, according to the recorded Plat thereof, County of Eagle, State of Colorado. 1.18 “Snow Storage Easement” shall mean the hatched area shown on the Plat and identified as “Snow Storage Easement.” The Snow Storage Easement located on Lot 2A shall be for the benefit of Lot 2B and shall be a burden on Lot 2A. 1.19 "Unit" shall mean any one of the two residential dwelling units within the Duplex. "Units" shall mean both of such dwelling units. ARTICLE 2 PARTY WALL 2.1 Reciprocal Easements. Each Owner shall have a perpetual reciprocal easement in and to that part of the other Owner’s Lot on which the Party Wall is located, for party wall purposes, including maintenance, repair, and inspection. Neither Owner shall alter or change the Party Wall in any manner, interior decoration excepted, and the Party Wall shall always remain in the same location as when erected. Either Owner shall have the right to break through the Party Wall for the purpose of repairing or restoring sewer, water, utilities, etc., subject to the obligation to restore said Wall to its previous structural condition, at his own expense and to pay the other Owner for any damage caused thereby. Either Owner shall have the right to make use of the Party Wall provided such use does not impair the structural support of the Party Wall. The costs of maintaining the Party Wall shall be borne equally by the Owners of both Lots. 2.2 Damage or Destruction. In the event of damage or destruction of the Party Wall from any cause, other than the negligence of the Owner or Occupant of either Lot or such Owner’s or Occupant’s guests, invitees or agents, the then Owners shall, at their joint equal expense, repair or rebuild the Party Wall, to its previous condition, and each Owner, their successors and assigns, shall have the right to the full use of the Party Wall so repaired and rebuilt. Notwithstanding anything to the contrary herein, if and to the extent the negligence of an Owner or Occupant or the negligence of such Owner’s or Occupant’s 4 guests, invitees or agents shall cause damage to or destruction of the Party Wall, such Owner shall bear the cost of repair and reconstruction. 2.3 Encroachments. Due to the sharing of the common Party Wall, there are or may be certain encroachments of each Unit onto the Lot on which the other Unit is located, or onto the other Unit. An easement shall exist for all such encroachments, and for the maintenance of all such encroachments, which result from the initial construction of the Units, or which hereafter arise as a result of settling or shifting of any Unit, for so long as the Duplex stands. In the event a Unit shall be partially or totally destroyed for any reason and then rebuilt, encroachments of parts of the rebuilt Unit onto the Lot on which the other Unit is or was located, or onto the other Unit, due to such rebuilding, shall be permitted, so long as such encroachments are no greater than those previously existing, and easements for the encroachments due to such rebuilding and for the maintenance thereof shall exist so long as the rebuilt Unit shall stand. ARTICLE 3 UTILITIES 3.1 Ownership/Maintenance. All Common Utilities shall, to the extent not owned by the utility supplier, be owned jointly and equally by the Owners and shall be kept in a condition of good order and repair by the Owners. All utility lines, equipment, facilities and other property now or hereafter located on Lot 2A and/or Lot 2B that are used solely to supply a utility service to one Lot or the Improvements thereon, shall, to the extent not owned by the utility supplier, be owned by the Owner of the Lot to which the utility service is provided, and shall be kept in a condition of good order and repair by such Owner. The Owner of Lot 2A shall be responsible for all costs and expenses of inspection, maintenance, repair, restoration or replacement of the utilities servicing only Lot 2A, and the Owner of Lot 2B shall be responsible for all costs and expenses of inspection, maintenance, repair, restoration or replacement of the utilities servicing only Lot 2B. After any such inspection, maintenance, repair, restoration or replacement, the Owner causing such work to be done shall be responsible for restoring the surface of the land to its condition immediately prior to the performance of such work. 3.2 Terms of Use. Before the Owner of a Lot causes any inspection, maintenance, repair, restoration or replacement of any utility within the easements described in Article 4 below, such Owner shall first do the following (except in the case where immediate action is required and it would not be reasonable to do so under the circumstances): (i) Give at least two weeks prior notice of such work to the Owner of the other Lot; and (ii) Make diligent, good faith efforts to reach an agreement with the Owner of such other Lot as to the nature, scope, timing, and other material elements of such work. 5 ARTICLE 4 EASEMENTS 4.1 Easement for Maintenance of the Common Utilities. The Owner of each Lot shall have an easement on, over, across, in, under and through that portion of the other Lot for purposes of installation, existence, inspection, maintenance, repair, restoration and replacement of the Common Utilities. 4.2 Easement for Maintenance of Separate Utilities. The Owner of each Lot shall have an easement on, over, across, in, under and through the other Lot for purposes of installation, existence, inspection, maintenance, repair, restoration and replacement of any separate utility, provided, however, such lines, equipment, facilities and other property shall be inspected, maintained, repaired, restored, and replaced in such a manner as to cause the least disturbance to the other Lot as may be reasonably practicable. 4.3 Snow Storage Easement. The Owner or Occupants of Lot 2B are hereby granted an easement for reasonable snow storage within the Snow Storage Easement located on Lot 2A. 4.4 Interpretation of Easements. The easements herein created are non- exclusive, perpetual easements that shall run with the land, provided that if Lot 2A and Lot 2B are ever recombined into one lot, the Easements shall thereupon terminate. Except as otherwise specifically provided in this Agreement, said easements shall be interpreted to give equal rights of use of each easement to the dominant and servient estates. ARTICLE 5 MAINTENANCE, ALTERATION OF LOTS, IMPROVEMENTS AND LANDSCAPING 5.1 Maintenance of Lots, Improvements and Landscaping. The Owner of each Lot shall keep such Lot, including the Unit and all other Improvements thereon, in a condition of good order and repair, and comparable to other similar first-class residential duplex properties in the Town of Vail, and shall cause such inspection, maintenance, repair, restoration and replacement as may be necessary to keep such Lot, including the Unit and all other Improvements thereon, in such condition. As used in this Agreement, the term "maintenance," when used with respect to a Lot, a Unit or any Improvements, shall include periodic painting or staining, and resurfacing of the driveways. There are two separate irrigation systems on the Property, one for each Lot. The Owner of each Lot shall cause the irrigation system on each such Lot to be turned on in the spring when safe to do so without the risk of pipes bursting due to freezing temperatures and to be turned off and blown out in the fall in time to prevent the freezing of such pipes. The irrigation systems shall be used and operated in such a manner as to maintain the Landscaping in a healthy, thriving condition. The Owners of both Lots shall keep the roof of the Duplex in 6 a condition of good order and repair and shall cause such inspection, maintenance, repair, restoration and replacement as may be necessary to keep the roof in such condition, all in accordance with section 5.3. 5.2 Damage to or Destruction of a Unit. In the event of damage to or destruction of a Unit or other Improvements on a Lot from any cause, the Owner of such Lot shall, with due diligence, repair, restore and/or replace the Unit or other Improvements, as the case may be, to substantially the same condition that existed immediately prior to the damage or destruction, including substantially the same boundaries as prior to the damage or destruction. The cost of all the foregoing work shall be paid by the Owner of the Lot on which such damaged or destroyed Unit or other Improvements are located, except as provided in Section 5.4. 5.3 Repair or Replacement of Roof. Any Owner of a Lot may cause the inspection, maintenance, repair, restoration or replacement of the roof on such Owner’s Unit and shall be responsible for the payment of all costs and expenses of same. Unless otherwise agreed, the cost of any inspection, maintenance, repair, restoration or replacement of the entire roof over both Units shall be shared by the Owners of both Lots, with 55% being paid by the Owner of Lot 2A and 45% being paid by the Owner of Lot 2B, provided that work is approved by the Owner of both Lots. 5.4 Payment for Certain Work Related to a Lot. Notwithstanding anything contained in this Article 5 to the contrary, if the Unit or other Improvement on a Lot is damaged or destroyed and if such damage or destruction (a) is a result of the negligence or willful act or omission of any Owner or Occupant, or an Owner’s or Occupant’s guests, invitees or agents, of the other Lot, or (b) occurs in the course of exercise of any right or the performance of any obligation of the other Lot Owner, whether or not as a result of a negligent or willful act, then the other Lot Owner whose act or omission or exercise or performance of such right or obligation has resulted in such damage or destruction shall pay the entire cost of any inspection, repair, restoration and/or replacement necessary to repair, restore and/or replace such Unit, other Improvements or Landscaping, to substantially the same condition that existed immediately prior to the damage or destruction. 5.5 Payment of Costs and Expenses. If an Owner receives a bill for expenses that pursuant to this Agreement are to be shared by the Owners of both Lots or are to be paid by the other Owner pursuant to section 5.4, such Owner shall provide a copy of the bill to the other Owner, and such other Owner shall pay, within 10 days after receipt of such bill, said Owner’s share of the amount due to the Owner who received the bill. The Owner who receives the bill shall cause same to be paid in a timely manner. 5.6 Appearance/Alteration of a Lot. The Owners of both Lots shall make reasonable efforts to preserve a harmonious appearance of the Units and of the Landscaping on the Lots. No Owner shall make or permit any structural or design change, either temporary or permanent, to the exterior of the Unit or such Owner's Lot (including a change in the materials, color or color scheme of the exterior or roof of such 7 Unit), or construct any additional building or structure or other Improvements of any type or nature whatsoever on such Owner's Lot, without the prior written consent of the Owner of the other Lot, which consent shall not be unreasonably withheld or delayed. 5.7 Construction Rules. Construction related to the maintenance of, the remodel of, or the addition to any structure on Lot 2A or Lot 2B which is commenced shall be prosecuted diligently to completion. Owners and contractors will not disturb, damage, or store materials or equipment on the other Owner’s Lot. Owners and contractors shall clean up all trash and debris on the construction site at the end of each day. Trash and debris shall be placed in an enclosed dumpster or removed from the site to a solid waste disposal site. Any container for debris shall be located so as not to interfere with the other Owner’s Lot and use thereof. Each Owner and contractor shall be responsible for providing adequate sanitary facilities for their construction workers. All Owners shall be responsible for the conduct and behavior of their guests, invitees, agents, contractors, subcontractors and employees and agents and employees of their contractor or subcontractor. 5.8 Allocation of GRFA. In the event an Owner desires to add to such Owner’s Unit additional “Site Coverage” or “Gross Residential Floor Area” (“GRFA”) as defined in the Town Code of the Town of Vail, Colorado, then any Site Coverage and GRFA available under the Town Code, as amended (excluding additional GRFA allowed to each Lot by section 12-15-5, Additional Gross Residential Floor Area (250 Ordinance)) shall be allocable 55% to Lot 2A and 45% to Lot 2B, unless otherwise agreed to in writing by all Owners. Each Owner shall cooperate with the other Owner and execute any and all documents, consents and agreements that may be required by the Town of Vail to carry out the terms and provisions of this section. In the event the Town of Vail adopts a different method of determining allowable site coverage or square footage for a Lot, the total site coverage and square footage allowable to the two Lots shall be allocated 55% to Lot 2A and 45% to Lot 2B. ARTICLE 6 USE RESTRICTIONS 6.1 Quiet Enjoyment. No Owner or Occupant of a Lot shall permit any act or omission, or permit any condition to exist, that would endanger the health of an Owner or Occupant of the other Lot. No Owner or Occupant of a Lot shall do or permit any act or omission, or permit any condition to exist, that would unreasonably disturb, interfere with, impair, hinder, impede or burden (a) the use or the quiet and peaceable enjoyment of the other Lot or the Unit on the other Lot, or (b) the exercise by any Owner or Occupant of such other Lot of any easement or other right granted in this Agreement, or otherwise benefiting such other Lot (so long as such exercise is in accordance with applicable laws, ordinances, codes, rules, regulations, restrictions and covenants). 6.2 Noxious Activities. No loud, illegal, noxious or offensive activities shall be conducted on any Lot, and nothing shall be done or permitted to exist on any Lot that may cause any unreasonable embarrassment, disturbance or annoyance to others. 8 6.3 Certain Exterior Items. None of the following shall be permitted or maintained on a Lot (including any deck or patio of a Unit), without the written approval of the Owner of the other Lot: A. Satellite dishes (except that a satellite dish that complies with all applicable laws, ordinances, codes, rules, regulations, restrictions and covenants and that is no more than 18 inches in diameter shall be allowed without the approval of the Owner of the other Lot); B. Advertising of any kind (except for signs permitted by applicable laws, ordinances, codes, rules, regulations, restrictions and covenants); C. Outside storage of any personal property (except that neatly stored firewood and customary deck and patio furniture, furnishings and accessories, including grills, may be kept on a Lot or the deck or patio of a Unit); and D. High intensity exterior lighting. Only exterior lighting that is low intensity and directed downward and in any event without unreasonable horizontal or upward spillage shall be permitted on any Lot. 6.4 Animals. No animals shall be kept or maintained on a Lot or within a Unit without the written approval of the Owner of the other Lot, except as follows: Domesticated dogs, domesticated cats, and other common and lawful domesticated household pets may be kept and maintained on a Lot or within a Unit, provided that such dogs, and/or cats and/or other pets (a) are not kept or maintained for any commercial purposes; (b) are kept under strict control at all times; (c) do not create a nuisance to any Owner, Occupant, guests, invitees or agents of the other Lot; (d) are kept from entering the other Lot; (e) do not create or cause objectionable noise or waste; and (f) are kept and controlled in strict compliance with all applicable laws, ordinances, codes, rules, regulations, restrictions and covenants. 6.5 Vehicles. No boats, commercial trucks, trailers, campers, motor homes, ATVs, recreational or inoperable vehicles may be parked or stored on a Lot except as otherwise provided in this Section 6.5. An Owner or Occupant may temporarily park such boat or vehicle on their respective Lot, drive or parking area for the exclusive purpose of preparing and loading for trips, unloading from trips, and for completing minor repairs and maintenance to the boat or vehicle. If an Owner or Occupant desires to park a boat or recreational vehicle (“RV”) on a Lot for more than three consecutive days for the sole purpose of completing minor repairs or maintenance to a boat or RV, said Owner or Occupant shall provide notice to the other owner that the boat or RV will remain on the Lot for the purpose of completing minor repairs or maintenance, along with an estimate of the number of days the boat or RV will remain on the Lot, not to exceed seven consecutive days (“Extended Parking”). Extended Parking of the boat or 9 RV for more than one Extended Parking period during any six calendar months will not be permitted without permission of the Owner or Occupant of the other Lot. 6.6 Timesharing. No "time sharing", "interval ownership," “vacation club” or similar regime, whereby use or ownership of a Unit is shared, shall be established with respect to the Unit on a Lot, without the written approval of all the Owners of both Lots, which approval may be withheld in an Owner’s sole discretion and shall be evidenced by an instrument executed by all of the Owners of both Lots and recorded in the Office of the Eagle County, Colorado, Clerk and Recorder. 6.7 Trash. All rubbish, trash, recycling and garbage (collectively, “trash”) shall be regularly removed from each Lot and shall not be allowed to accumulate. Trash and trash receptacles shall not be visible from the street or from the other Lot except that trash and trash receptacles may be temporarily placed at the edge of the street on the morning of a scheduled pick-up. Trash and trash receptacles shall not be left overnight at the edge of the street and all trash receptacles shall be returned to their permanent storage location as soon as practicable after pick-up. Owners shall comply with any and all Town of Vail rules, regulations and recommendations governing trash receptacles, specifically including but not limited to the use of bear-proof containers. ARTICLE 7 INSURANCE 7.1 Property Insurance. Each Owner of a Lot shall provide and keep in full force and effect, at such Owner's cost, insurance covering the Unit and all other Improvements on such Owner’s Lot, insuring against loss or damage by fire and extended coverage perils (including vandalism and malicious mischief) for the maximum insurable replacement value thereof, with such deductibles as are customary from time to time for duplex units of similar value, and covering such other risks of a similar or dissimilar nature as are customary from time to time to be covered for duplex units of similar value. 7.2 Liability Insurance. Each Owner shall provide and keep in full force and effect, at such Owner's cost, comprehensive general liability insurance, insuring against claims for bodily injury and death and loss of or damage to property, and other matters as are customary from time to time to be covered by such liability insurance, occurring in, on or upon the Lot of such Owner (and also, to the extent reasonably obtainable, occurring in, on or upon any other part of Lot 2A and Lot 2B), in an amount of not less than $1,000,000.00 for each occurrence and $2,000,000.00 in the aggregate, and such greater amount as may be customary from time to time in Vail, Colorado. Such liability insurance may be carried in a single primary policy or in a combination of a primary policy and one or more umbrella policies. All policies of liability insurance required to be provided by an Owner pursuant to this Section 7.2 shall cover and name as an additional insured the Owner of the other Lot. All such policies may also cover claims of one insured party against any other insured party. All such policies shall provide that the insurer waives any and all rights of subrogation against the Owners of the Lots. 10 7.3 Payment of Insurance Premiums/Certificates of Insurance/Notice of Cancellation/Copying of Policies/Proof of Payment of Premiums. The Owner of a Lot shall pay when due all premiums on all policies of insurance required to be carried by such Owner under this Article. Each policy of insurance required to be carried by an Owner of a Lot under this Article shall be issued by a responsible insurance company authorized to do business in Colorado and shall contain the agreement of the insurer that such policy may not be canceled or materially modified without at least 30 days prior written notice given to each of the Owners of the other Lot and to any Mortgagee of the other Lot of whom the Owner who is required to carry insurance has received written notice. The Owner of a Lot shall deliver to the Owner of the other Lot certificates evidencing all insurance required to be carried under this Article, whenever reasonably requested by the Owner of the other Lot. Each Owner of a Lot shall have the right to inspect and copy all policies of insurance required to be carried by the Owner of the other Lot and the right to require evidence of the timely payment of the premiums for such policies. 7.4 Joint Insurance. Nothing contained in this Article shall prevent the Owners of both Lots from jointly acquiring a single policy to cover any one or more of the hazards required in this Article to be separately insured against by the Owner of each Lot. ARTICLE 8 MECHANIC'S LIENS/INDEMNIFICATION 8.1 No Liability. If any Owner shall cause any material to be furnished to or labor to be performed on such Owner's Lot, or any Improvements thereon, no Owner of the other Lot shall under any circumstances be liable for the payment of any expense incurred or for the value of any labor done or material furnished; and such work shall be at the cost of the Owner causing it to be done, and such Owner shall be solely responsible to contractors, laborers, material suppliers and other persons furnishing labor or materials to such Owner's Lot, or any Improvements thereon. Nothing herein contained shall authorize any Owner or any person dealing through, with or under any Owner to charge any Lot other than the Lot of such Owner with any mechanic's lien or other lien or encumbrance of any kind for labor done or materials furnished to such Owner's Lot, or any Improvements thereon, and, to the contrary, the right and power to charge any Lot other than the Lot of such Owner is hereby expressly denied. 8.2 Indemnification. If, because of any act or omission of any Owner of a Lot, any mechanic's or other lien or order for the payment of money shall be filed against any Owner of the other Lot or against the other Lot (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 such Owner's cost, cause the same to be canceled and discharged of record or bonded by a surety company reasonably acceptable to the Owner of the other Lot, within 20 days after the date of notice of filing thereof, and further, such Owner whose act or omission forms the basis for such lien, by acceptance of a deed to a Lot, agrees to indemnify, defend and hold harmless all Owners of the other Lot from all 11 losses, liabilities, damages, claims, costs and expenses, including reasonable attorney's fees, resulting therefrom. ARTICLE 9 OWNER'S RIGHT TO LIEN OTHER LOT 9.1 Non-Defaulting Owner's Right to Cure Defaults of Defaulting Owner. If an Owner of a Lot shall neglect or refuse to pay, when due, any amount required to be paid by such Owner or to perform any obligation required to be performed by such Owner under this Agreement (a "Defaulting Owner"), then in addition to and without limiting any other remedies that any Owner of the other Lot (the "Non-Defaulting Owner") may have, the Non-Defaulting Owner may, but shall not be obligated to, after 15 days written notice to the Defaulting Owner (unless circumstances require immediate action and such notice would not be reasonable under the circumstances, in which case no notice shall be necessary), make such payment or expend such sums as may be necessary to perform such obligation, including the payment of any insurance premiums required to be paid under this Agreement, and the undertaking of any work required hereunder for inspection, maintenance, repair, restoration or replacement, and the Non- Defaulting Owner shall have an easement in and to that part of the Defaulting Owner's Lot (including the Unit thereon) as is reasonably necessary to perform such obligations and for any such inspection, maintenance, repair, restoration or replacement. All amounts paid by a Non-Defaulting Owner on behalf of a Defaulting Owner plus reasonable attorney fees and costs incurred by the Non-Defaulting Owner in the preparation and recording of a notice of claim pursuant to Section 9.2 are referred to herein as “Cure Sums” and shall be repaid to the Non-Defaulting Owner upon demand. 9.2 Interest. Cure Sums shall bear interest at the rate of 18% per annum from the date of payment by the Non-Defaulting Owner until the date repaid by the Defaulting Owner. 9.3 Owner’s Lien. All Cure Sums demanded but unpaid by the Defaulting Owner, together with all accrued interest thereon, shall constitute a lien on the Lot of the Defaulting Owner in favor of the Non-Defaulting Owner (an "Owner’s Lien"). An Owner’s Lien shall attach to the Lot of the Defaulting Owner from the date when the Cure Sums to which it relates shall first become due. An Owner’s Lien may be foreclosed in like manner as a mortgage on real property, upon the recording of a notice of claim thereof executed by the Non-Defaulting Owner setting forth the amount of the Cure Sums, together with the amount of all interest then accrued thereon, the name of the Defaulting Owner, the legal description of the Lot, and such other matters as the Non- Defaulting Owner may deem appropriate. 9.4 Cure Sums Are Personal Obligation of Owner. All Cure Sums, and all interest accrued thereon, shall be the personal and individual obligation of each Owner of the Lot of the Defaulting Owner. In addition, except as provided in Sections 9.6 and 9.7, upon transfer of record fee simple title to a Lot, all Cure Sums that are unpaid at the time of transfer, and all interest accrued thereon, shall be the personal and individual 12 obligation of each new transferee Owner of the Lot of the Defaulting Owner, jointly and severally with each prior transferring Owner of such Lot. 9.5 Priority of Owner’s Lien. An Owner’s Lien on a Lot shall be superior to any and all charges, liens and encumbrances which hereafter in any manner may arise or be imposed upon such Lot, except (a) the liens of taxes, bonds, assessments and other levies of governmental authorities which by law are superior and (b) the lien of any First Mortgage on such Lot made in good faith and for value. Except as provided in Section 9.6 and Section 9.7, the sale or transfer of a Lot or any interest therein shall not affect an Owner’s Lien with respect to such Lot or relieve such Lot from any subsequent Owner’s Lien which may arise in connection with Cure Sums due to a Non-Defaulting Owner, including Cure Sums due prior to such sale or transfer. 9.6 Liability of First Mortgagee or Purchaser after Foreclosure/Foreclosure Extinguishes Owner’s Lien. Notwithstanding anything to the contrary contained in Section 9.4 and section 9.5: (a) If a First Mortgagee or other purchaser of a Lot who acquires record fee simple title to such Lot pursuant to foreclosure of a First Mortgage made in good faith and for value, such acquisition of title shall extinguish an Owner’s Lien as to any Cure Sums, and any interest accrued thereon, due and payable prior to the date such Mortgagee or purchaser acquires record fee simple title to such Lot. (b) A First Mortgagee or other purchaser of a Lot who acquires record fee simple title to such Lot pursuant to foreclosure of a First Mortgage made in good faith and for value shall not be personally liable for Cure Sums or interest accrued thereon, due and payable prior to the date such Mortgagee or purchaser acquires record fee simple title to such Lot, and the Non-Defaulting Owner may not assert an Owner’s Lien on such Lot with respect to such Cure Sums or interest. As used in this Section 9.6, the term "pursuant to foreclosure" shall mean pursuant to the exercise of remedies to enforce a First Mortgage, including a foreclosure sale or transfer in lieu of a foreclosure. 9.7 Statement of Status of Paid and Unpaid Amounts. Upon written request of any Owner, Mortgagee, prospective Mortgagee, purchaser or other prospective transferee of a Lot, the Owner of the other Lot shall issue a written statement setting forth all amounts due and payable under this Agreement from the Owner or Owners of the Lot in question, if any, including all Cure Sums and all interest accrued on any Cure Sums ("Unpaid Amounts"). Such statement shall be binding upon the Owner issuing such Statement and all other Owners of the Lot of the issuing Owner, in favor of any person or entity who may rely thereon in good faith. If the inquiring party includes in its request its mailing address, and if that Owner to whom the inquiring party makes its request does not issue such statement within 15 days after it receives written request therefor, the following shall apply: (a) The inquiring party shall have no obligation to pay, and the Owners of the Lot of that Owner to whom the inquiring party made its request shall have no right to 13 collect from the inquiring party, any Unpaid Amounts that were due as of the date of the request of the inquiring party. (b) No Owner of the Lot of that Owner to whom the inquiring party made its request shall have the right to assert an Owner’s Lien upon the other Lot, which is superior to any interest of the inquiring party in the other Lot, with respect to any Unpaid Amounts that were due as of the date of the request of the inquiring party. Such statement shall be deemed issued to the inquiring party if it is personally delivered to the inquiring party, or if it is sent to the inquiring party by first-class certified U.S. mail, postage prepaid, return receipt requested. In the case of such mailing, the date of deposit in the U.S. mail shall be deemed to be the date of issuance. 9.8 Payment by Mortgagee. Any Mortgagee holding a Mortgage on a Lot may pay any amounts that are in default under this Agreement with respect to such Lot, including Cure Sums and any unpaid interest accrued on any Cure Sums, and upon such payment, such Mortgagee shall have a lien on such Lot for the amounts paid, which Lien shall have the same priority as the lien of the Mortgage held by such Mortgagee. ARTICLE 10 GENERAL PROVISIONS 10.1 Exception from General Provisions of Colorado Common Interest Ownership Act. It is hereby declared that Lot 2A and Lot 2B shall not be subject to any of the provisions of Title 38, Article 33.3 of the Colorado Revised Statutes, which is known as the "Colorado Common Interest Ownership Act.". 10.2 Covenants Run with the Land. Declarant, for itself and for its successors and assigns, hereby declare that (a) the Lots shall be held, used and occupied for the term herein provided, subject to the provisions of this Agreement, and (b) the provisions of this Agreement shall run with the land and shall be binding upon all persons and entities who now or hereafter own any interest in any part of the Lots, for the term herein provided. 10.3 Incorporated into Deeds and Instruments/Personal Covenants. Each Provision of the Agreement: (a) Shall be deemed incorporated in each deed and other instrument by which any right, title or interest in any portion of the Lots is granted, devised, conveyed or otherwise transferred, whether or not set forth or referred to in any such deed or other instrument; and (b) Shall, by virtue of acceptance of any right, title, or interest in any portion of the Lots, be deemed accepted, ratified, adopted and declared as a personal covenant of the grantee of such right, title or interest and, as a personal covenant, shall be binding on such grantee, and such grantee's heirs, personal representatives, executors, administrators, 14 devisees, successors and assigns, and all persons and entities claiming by, through or under such grantee; and (c) Shall be deemed a personal covenant to, with and for the benefit of each other grantee of any right, title or interest in any portion of the Lots; and (d) Shall be deemed a real covenant by each of Owner of a Lot, and also an equitable servitude, running, in each case, for the term herein provided, as a burden with and upon the title to each and every fee simple estate compromising any portion of the Lots. 10.4 Legal Description. Every deed and other instrument may legally describe a Lot in the following form (with the appropriate recording information for the Plat included): Lot 2A or Lot 2B, Bighorn Estates, according to the Duplex Plat recorded __________________, 2015 as Reception Number ___________ County of Eagle, State of Colorado. Every such description shall be good and sufficient for all purposes to sell, convey, transfer, encumber or otherwise affect the Lot and all appurtenant easements, rights, benefits, and burdens thereto as created by the provisions of this Agreement, and as may exist prior to the recording of this Agreement, and each such description shall be so construed. 10.5 Separate Taxation. Each Lot shall be taxed and assessed by all governmental, quasi-governmental and private entities as a separate parcel of real property. 10.6 Merger. In the event that Lot 2B and Lot 2A are owned by the same Owner or Owners, the doctrine of merger shall not apply. 10.7 Easements Generally. In addition to all other easements to which the Lots are subject, the Lots shall be subject to the easements set forth on the Plat and the easements provided for in this Agreement, even if not specifically shown on the Plat. Such easements provided for in this Agreement are and shall (a) remain burdens upon the interest and ownership of each Lot, (b) be appurtenant to and conveyed as a part of a Lot without additional reference in the conveyance, (c) be inseparable from the ownership of a Lot, and (d) not be separately conveyed, except by amendment to this Agreement, and also by amendment to the Plat, if such easements are specifically shown on the Plat. 10.8 Personal Obligation/Date When Payments are Due. All amounts required to be paid by an Owner under this Agreement shall be the personal and individual obligation of such Owner. Except as otherwise provided in this Agreement, all amounts 15 required to be paid by an Owner under this Agreement shall be paid within 10 days after such Owner receives written demand for payment, containing an itemization of the amount required to be paid. 10.9 Impairment of Structural Soundness/Interference with Quiet Enjoyment or Easements. No Owner or Occupant of a Lot, or their guests, invitees or agents shall, in the course of exercising any right or performing any obligation of such Owner, Occupant guest, invitee or agent under this Agreement, or otherwise, including in the course of performing any installation, inspection, maintenance, repair, restoration or alteration, or exercising any easement right or right of entry, do or permit any act or omission, or permit any condition to exist which (a) impairs the structural soundness of either Unit, or (b) unreasonably interferes with, impairs, hinders, impedes or burdens (i) the use or the quiet and peaceable enjoyment of the other Lot or the Unit on such other Lot (so long as such use and enjoyment are in accordance with applicable laws, ordinances, codes, rules, regulations, restrictions, and covenants), or (ii) the exercise by any Owner of such other Lot of any easement or other right granted in this Agreement, or otherwise benefiting such other Lot (so long as such exercise is in accordance with all applicable laws, ordinances, codes, rules, regulations, restrictions and covenants). 10.10 Joint and Several Liabilities of the Owners. The parties, if more than one, having the ownership of a Lot shall agree among themselves how to share the rights and obligations of such ownership, but all such parties shall be jointly and severally liable for performance and observance of all of the duties and obligations of an Owner hereunder with respect to the Lot in which they own an interest. If there is more than one Owner of a Lot, the Owners shall designate one of such Owners to act as the representative of all the Owners of said Lot, and shall provide written notice to the Owner of the other Lot of the name, mailing address and phone number of the designated representative. If no such designation is made, or if the Owners of a Lot shall fail to provide such written notice to the Owners of the other Lot, the Owners of the other Lot shall have the right to rely on the statements and decisions of any Owner of such Lot. 10.11 Notices. All notices required or permitted to be given hereunder shall be in writing. All notices or demands intended to be served upon Owners shall be sent by certified mail, postage prepaid, or overnight courier addressed in the name of the Owner or the representative of the Owners at the mailing address provided by the Owner. Alternatively, the Owners may exchange fax numbers and email addresses, and in that event notices may also be sent via email or fax. In the alternative, notice may be delivered personally to the Owner or representative of the Owners of a Lot. If no designation of a representative is made, or if the Owners of a Lot shall fail to provide to the Owners of the other Lot written notice of the name, mailing address, fax number or email address of the Owner of such Lot or of such Owner’s representative, notice may be sent to the address of the Owner as shown on the records of the Eagle County Assessor. Notices shall be considered effective as follows: if hand-delivered or emailed, when received; if delivered by facsimile transmittal, upon transmission if evidenced by a machine-generated confirmation of receipt; if delivered by overnight courier, one business day after timely deposit with the courier service, charges prepaid or billed to the sender's account with said 16 courier service, or if mailed, three days after deposit, first class postage prepaid, with the United States Postal Service. 10.12 Provisions Cumulative. Each of the provisions of this Agreement is cumulative with and in addition to each and every other one of the provisions of this Agreement. The provisions of this Agreement are intended to compliment and supplement one another, and each of them shall be given the fullest effect possible. 10.13 Conflict with Other Restrictions. Notwithstanding anything to the contrary contained in this Agreement, in the event of a conflict between any provisions of this Agreement and any other provision of any other covenant, condition, restriction or easement to which Lot 2A or Lot 2B is subject as of the date of the recording of this Agreement, the provision which is the more stringent or restrictive shall govern and control. 10.14 Termination Upon Total Condemnation. If all of Lot 2A and Lot 2B is taken, condemned, sold or otherwise disposed of in lieu or in avoidance of condemnation, then the regime created by this Agreement shall terminate. 10.15 Revocation, Termination, Amendment. This Agreement shall not be revoked, terminated or amended, except as provided in Section 10.14 with respect to condemnation of all of Lot 2A and Lot 2B, without the written consent of all of the Owners of both Lots, which shall be evidenced by an instrument executed by all of the Owners of both Lots and recorded in the Office of the Clerk and Recorder of Eagle County, Colorado. 10.16 Mediation. In the event the Owners shall disagree about the decisions requiring the approval of Owners, and they cannot resolve it within 30 days, resolution of such issues shall be pursued through mediation, which, unless the Owners unanimously agree otherwise, shall be in conducted in Eagle County, Colorado with a mediator agreed to by all Owners. In the event the Owners shall be unable to agree upon a mediator within 10 days after the expiration of the 30 day period, the Owners shall each select a mediator and those mediators shall agree upon a another mediator, who shall conduct the mediation. The Owners shall share equally the mediator’s fee and any filing fee. Agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof. 10.17 Enforcement of the Agreement. Each Owner shall have the right to enforce, by a proceeding at law or in equity, all of the provisions of this Agreement. All remedies of enforcement of the provisions of this Agreement shall be cumulative, and the exercise of one remedy of enforcement shall not preclude or limit the exercise of any other remedy of enforcement. Failure by any Owner to enforce any provision of this Agreement shall not operate as a waiver of any such provision or the right to enforce such provision thereafter, or a waiver of any other provision of this Agreement. The prevailing party in any legal action arising under this Agreement, including any 17 proceeding to foreclose an Owner’s Lien, shall be entitled to reimbursement of and be awarded all costs and expenses of such action, including reasonable attorneys' fees. 10.18 Term of Agreement. The provisions of this Agreement shall continue and remain in full force and effort until the later of (a) January 1, 2105 or (b) the date when the Duplex (as the same may have been repaired, restored and/or replaced) ceases to exist, unless the term of this Agreement is extended by the written consent of all of the Owners of both Lots, or this Agreement is terminated earlier by the written consent of all the Owners of both Lots, which extension or termination shall be evidenced by an instrument executed by all of the Owners of both Lots and recorded in the Office of the Eagle County, Colorado, Clerk and Recorder. 10.19 Rule Against Perpetuities. Notwithstanding anything to the contrary contained in this Agreement, each provision of this Agreement which is subject to the laws or rules sometimes referred to as the rule against perpetuities or the rule prohibiting unreasonable restraints or alienation shall continue and remain in full force and effect for the period of 21 years following the death of the last survivor of the now living issue of President Barack Obama, unless revoked or terminated earlier as provided herein. 10.20 Severability. The determination by a court of competent jurisdiction that any provision of this Agreement is invalid or unenforceable shall not affect the validity or enforceability of any of the other provisions of this Agreement, all of which shall continue in full force and effect. 10.21 Changes of Circumstance. Except as otherwise expressly provided in this Agreement, no change of conditions or circumstances shall operate to extinguish, terminate or modify any of the provisions of this Agreement. 10.22 Gender and Number. Whenever the context of this Agreement so requires, words used in the feminine, masculine or neuter gender shall include each other gender, words used in the singular shall include the plural and words used in the plural shall include the singular. 10.23 Governing Laws/Venue. This Agreement is made and executed under and shall be governed and construed by the laws of the State of Colorado. All proceedings to enforce any of the provisions of this Agreement, whether at law or in equity, shall be brought in and only in the courts of Eagle County, Colorado. 10.24 Inseparability. Every gift, devise, bequest, conveyance, encumbrance, transfer or other disposition of a Lot shall be presumed to be a gift, devise, bequest, conveyance, encumbrance, transfer or other disposition, respectively, of the entire Lot. 10.25 Use of Term "Including." When the term "including" or the term "include" is used in this Agreement, it shall mean "including without limitation," as the case may be, unless the context requires otherwise. 18 10.26 Headings. The headings of Articles and Sections in this Agreement are for the convenience of reference only, and they shall not be used to construe this Agreement. IN WITNESS WHEREOF the Declarant has executed this Agreement and Declaration of Covenants, Conditions and Restrictions on the date set forth below. Nugget Properties LLC, a Colorado limited liability company By: ____________________________________ Andrew P. Kokosa, Manager STATE OF COLORADO ) ) ss. COUNTY OF EAGLE ) The foregoing instrument was acknowledged before me this _____ day of __________, 2015, by Andrew P. Kokosa as Manager of Nugget Properties LLC, a Colorado limited liability company. Witness my hand and official seal. My commission expires: . ___________________________________ Notary Public 19 JOINDER OF LIENOR The undersigned, beneficiary under the Construction Deed of Trust recorded April 21, 2015 as Reception No. 201506618 in the office of the Clerk and Recorder of Eagle County, Colorado, as amended and supplemented from time to time (the "Deed of Trust"), for itself and its successors and assigns, approves the foregoing Party Wall Agreement and Declaration of Covenants, Conditions, Restrictions and Easements (the “Agreement”) affecting the property encumbered by the Deed of Trust, and agrees that no foreclosure or other enforcement of any remedy pursuant to the Deed of Trust shall impair, invalidate, supersede or otherwise affect the covenants, conditions, restrictions and easements established by the Agreement. Colorado Business Bank By: ___________________________________ STATE OF COLORADO ) ) ss. COUNTY OF EAGLE ) The foregoing instrument was acknowledged before me this _______ day of ________________, 2015 by ____________________ as ________________________ of Colorado Business Bank. Witness my hand and official seal. My commission expires on:__________________________ ______________________________________ Notary Public