fi~~U • • ~ U~/~1/91 09:54 Ree 5.00 BK 640PG 89
Silvia Davis, Pitkin Cnty Clerk, Doc $.00
DECLARATION
FOR
FAIRWAY THREE TOWNHOMES
SNOWMASS VILLAGE, COLORADO
Table of Contents
PREAMBLE
1.
1
Definitions
1.1
1.2
1.3
1.4
1.5
1.6
1.7
1.8
1.9
1.10
1.11
1.12
1.13
1.14
1.15
1.16
1.17
1.18
1.19
1.20
1. 21
Additional Property
Association
Association Property
Board or Board of Managers
By-Laws
Common Areas
Common Expense
Declarant
Declaration
Guest
Lessee
Maintenance
Managing Agent
Map
Mortgage
occupant
Owner
Property
Site
unit
Yard
1
1
1
1
2
2
2
2
2
2
2
2
2
2
2
3
3
3
3
3
4
4
II.
Submission of the Property
4
III.
Owners' Property Rights and Limitations
4
3.1
3.2
3.3
3.4
3.5
3.6
3.7
3.8
3.9
IV.
Legal Description
Membership in the Association
Right of Entry to Units
Easements for Support and Encroachment
Individual Tax Liability
Reservation of Easements
Easement to Common Areas
Exclusive Easements to Common Areas
Golf Course Hazard
Residence and Use Restrictions
4
5
5
5
5
5
5
6
6
6
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Silvia
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Davis~
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J.
4.1
4.2
4.3
4.4
4.5
4.6
4.7
4.8
4.9
4.10
4.11
4.12
4.13
4.14
4.15
4.16
V.
"
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,~._
,_
-""
'_' ._'
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t....I"""T"'"
l
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Use as Residence Only
Restrictive Covenants
Occupancy Limitations
Use of Common Areas
Nuisances and Negligence
Sign Restrictions
Parking Restrictions
Pet Restrictions
Eyesores and Fire Restrictions
Out-Building Restrictions
Fences
Structural Integrity
Permissions to Declarant
Right to Combine units
Partition of Units Prohibited
Compliance with Law
6
6
6
7
7
7
7
7
8
8
8
8
8
9
9
9
9
Business and Membership
Binding Effect
Power of the Association
Additional Activities, Functions or Services
Association Property
Implied Rights
Lost or Damaged Property
Maintenance
6.1
6.2
6.3
6.4
6.5
6.6
6.7
6.8
6.9
6.10
6.11
6.12
6.13
VII.
i
The Association
5.1
5.2
5.3
5.4
5.5
5.6
5.7
VI.
..• '
Pitkin Cnty Clerk. Doc S.OO
9
9
10
10
10
11
11
11
Responsibilities of the Association
Alterations and Additions
Responsibilities of Owners
Notice to Maintain
Approvals by Owners
Mechanics' Liens
Property Management Services
General Rules of Law for Party Walls
Sharing of Repair and Maintenance
Destruction by Fire or Other Casualty
Weatherproofing
Right to Contribution
Arbitration
11
11
12
12
12
12
13
13
14
14
14
14
14
Assessments Against sites
7.1
7.2
7.3
7.4
Obligation and Purpose
Assessments
Refunds
Assessment Adjustments
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14
15
15
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7.5
7.6
7.7
7.8
Working Capital Reserve
Collection Remedies
Grantee and Mortgagee Assessment Obligations
Assessments for Tort Liability
VIII. Destruction, Damage and Obsolescence
8.1
8.2
8.3
8.4
8.5
8.6
8.7
8.8
IX.
Taking By Eminent Domain
9.1
9.2
9.3
9.4
9.5
9.6
9.7
X.
17
17
18
18
18
18
19
19
19
19
19
20
20
20
20
20
21
21
Coverages
Named Insured and Interests
Invalidation or Reduction of Coverage
Other Insurance
21
23
23
23
Term, Revocation and Amendment of Declaration
23
Term of Declaration
Revocation of Declaration
Disbursement of Proceeds
Amendment of Declaration and Map
23
24
24
24
11.1
11.2
11.3
11.4
XII.
Taking of Common Elements
Partial Takings
Total Taking
Defenses and Claims Against Condemning
Authority
Owners' Claims
Mortgagee Rights
Excess Award
Insurance
10.1
10.2
10.3
10.4
XI.
Association as Attorney-In-Fact
Revocation of Declaration
Use of Insurance Proceeds
Special Assessments
Estimates, Notice and Duty to Maintain
Mandatory Maintenance
Plan for Maintenance
Payment for Maintenance
16
16
17
17
Expansion of Project
12.1
12.2
12.3
25
Reservation of Rights in Declarant
Subjecting Additional Property to Declaration
Effect of SUbjecting Additional Property to
Declaration
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25
25
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XIII. Miscellaneous
13.1
13.2
13.3
13.4
13.5
13.6
13.7
13.8
13.9
13.10
26
Declarant's Rights Trans-ferable
Number and Gender
Construction
No Dedication
Notices
Mortgagee Rights
Deed Restrictions
Disclaimer
severability
Attorney-In-Fact
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26
26
27
27
27
28
28
28
28
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Silvia Davis, Pitkin Cnty Clerk, Doc $.00
DECLARATION
FOR
FAIRWAY THREE TOWNHOMES
SNOWMASS VILLAGE, COLORADO
This Declaration is made this
21st day of
January, 1991
,
by the Aspen/Pitkin County Housing
Authority, a mUltijurisdictional housing authority (the
"Declarant").
PREAMBLE
Declarant is the owner of Fairway Th ee Townhomes,
I
according to the Plat hereof, recorded
, 199~in
Plat Book ,I. ~ at Page If (../
at Receptio No.
,
pitkin County, Colorado andFdesires to submit such proper y to
the within covenants, conditions and restrictions.
Declarant
intends that all present and future Owners, Mortgagees and other
persons now or hereafter acquiring any interest in the Property
(defined below) shall hold their interests subject to the rights,
easements, privileges and restrictions established by this
Declaration. All such rights, easements, privileges and
restrictions are declared to be in furtherance of a plan to
promote and protect the value, desirability and attractiveness of
the Property.
Therefore, Declarant declares as follows:
I.
Definitions
These terms shall have the following meanings unless the
context clearly requires otherwise.
1.1 "Additional Property" shall mean the real property
described on Exhibit B attached hereto, together with all
buildings, structures and improvements of any kind thereon, all
or portions of which Declarant may make SUbject to this
Declaration from t~me to time in the future.
1.2 "Association" shall mean Fairway Three Townhomes
Association, a Colorado non-stock, non-profit corporation, and
its successors and assigns, through which all Owners act as a
group under the Association's Articles of Incorporation, By-Laws
and this Declaration.
1. 3
"Association Property" shall mean all the'
Association's real and personal property interest~, including
without limitation the Common Areas.
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1.4 "Board" or "Board of Managers" shall mean the
governing board of the Association.
1.5 "By-Laws" shall mean the By-Laws of the Association
adopted by the Board as amended from time to time.
1.6 "Common Areas" shall mean all the Property, except
the portions thereof which constitute sites.
1.7 "Common Expense" shall mean the estimated and actual
expenditures made or liabilities incurred by or on behalf of the
Association, together with any allocations to reserves.
1.8 "Declarant" shall mean the Aspen/Pitkin County
Housing Authority, a multijurisdictional housing authority, and
its successors and assigns specifically designated as such by an
instrument executed by Declarant, referencing Section 13.1 of
this Declaration, and recorded in the office of the Clerk and
Recorder, Pitkin County, Colorado.
1.9 "Declaration" shall mean this Declaration together
with any supplement or amendment thereto which has been recorded
in the office of the Clerk and Recorder of pitkin County,
Colorado.
1.10 "Guest" shall mean any person or persons having
permission from an Owner, Lessee, or the Association to be on the
. Property.
1.11 "Lessee" shall mean any person or legal entity who
agrees to payor pays rent to an Owner for the right to occupy a
Unit.
1.12 "Maintenance" shall mean such repair, upkeep,
renovation, restoration, or replacement of any portion of the
Property as may be necessary to maintain it in SUbstantially the
same condition as originally or SUbsequently constructed, altered
or improved, all of which shall be in conformance with the high
standards presented by the adjacent residential, business, and
recreational development.
1.23 "Managing Agent" shall mean the person or legal
entity designated by the Board of Managers to manage the
Property.
1.14 "Map" shall mean the map of the Property showing
individual sites for attached townhouses which shall" be filed for
record in the office of the Clerk and Recorder of pitkin County,
Colorado prior to the conveyance of a site to a purchaser. The
Map, which may be recorded in supplements, shall ?epict and show
at least the following: The legal description and boundaries of
the Property; the location of individual townhouse sites on the
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Property; the Common Areas; any portions of the Common Areas that
are for the exclusive use of one or more, but fewer than all the
sites and any portion of the Property reserved for the
designation of other individual townhouse sites. The Map shall
be certified by a registered professional engineer or registered
land surveyor. Declarant and the Board reserve the right to
amend the Map and any supplements thereto, from time to time, in
order to conform the Map to the actual location of any of the
townhouse sites or Common Areas, to conform the Map to duly
adopted amendments to this Declaration, and to establish, vacate
or replace utility easements, access road easements and parking
areas.
Declarant's right to file supplemental Maps shall
terminate five (5) years after the date of recordation of this
Declaration.
1.15 "Mortgage" shall mean any moitgage, deed of trust or
other security instrument creating a real property security
interest in a site excluding any statutory, tax or jUdicial
liens.
"Mortgagee" shall include any grantee, beneficiary or
assignee of a Mortgage, and "Mortgagor" shall include any
grantor, trustor or assignor of a Mortgage.
A "First Priority
Mortgage" shall mean a Mortgage having the highest priority as a
Mortgage against a Site but only if the Mortgagee of such
Mortgage, the "First priority Mortgagee", claims such status in a
written notice delivered to the Association.
1.16 "Occupant" shall mean any individual on any portion
of the Property (including any site or Unit) whether as an Owner,
Lessee, Guest, resident, family member, agent, employee or
otherwise.
1.17 "Owner" shall mean the person or legal entity
holding fee title to a site.
1.18 "Property" shall mean that property in pitkin
County, Colorado, described on Exhibit A attached as a part
hereof, plus any Additional Property which the Declarant may
hereafter make subject to this Declaration as provided in Article
XII hereof, together with all buildings and any other kind of
improvements thereon, together with all rights and appurtenances
thereto, but excluding (subject to a perpetual waiver by
Declarant of any right to enter upon the surface of the real
property or the upper 500 feet thereof for any reason whatever,
including without limitation the diversion, use or extraction of)
water, water rights, oil, gas, minerals and gravel.
1.19 "Site" shall mean an individual townhous'e site within
Lots 2 through 7 of the Property, as designated on the Map.
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1.20 "unit" shall mean a townhouse unit constructed on a
site.
1.21 "Yard" shall mean any portion of a site that is not
occupied by a Unit.
II.
Submission of the Property
2.1 Declarant, as owner of the Property, submits the
Property to this Declaration and declares that the Property shall
at all times be owned, used or occupied subject to the easements,
restrictions, covenants and conditions set forth in this
Declaration and on the Map, which provisions shall constitute
covenants running with the land and shall be binding upon all
parties having any right, title, or interest in the Property or
any part thereof, their heirs, successors and inure to the
benefit of Declarant, the Association, and any person or legal
entity acquiring any interest in the Property. All of the
rights, privileges, obligations and restrictions are declared to
be in furtherance of a plan to promote and protect the value,
desirability and attractiveness of the Property and to provide
for the efficient utilization and operation of the Property as a
townhouse community.
III.
Owner's Prooerty Rights and Limitations
3.1 Leqal Description. The description of a Site in
every instrument which affects the title to or the right to
possession of a site, shall be sufficient if the site is
described as follows:
Site
as shown on Fairway Three
Townhomes Map (Phase ~ ) filed in the records of the Clerk and
Recorder of Pitkin County, Colorado, on ~J;LI
,19~, in
Plat Book
4 S- at Page
subj ect <to the Declaration for
Fairway Three Townhomes, Sno ass Village, Colorado, aplei~ng in
such records, filed on
, 19.!lL, in Book
,
at
Page ~ [if applicable: and as defined and described in the
suppl~al Declaration for Fairway Three Townhomes, Snowmass
""1 ,
Vil~
Colorado, appearing in such records, filed on
,19
, i n Book
at Page
]. Every such
descr ption shall be-COnstrued to include: the site and
improvements thereon; the exclusive easements designated on the
Map as appurtenant to the site; a non-exclusive easement for
ingress and egress to and from the Property; a non-exclusive
easement (subject to restrictions as set forth in this
Declaration) for the use of the Common Areas; membership in the
Association; and all other rights, obligations and restrictions
created in this Declaration or designated on the Map. '. Prior to
the designation of a site on a recorded Map, a coptract for the
sale of a site or any other instrument that anticipates future
conveyance or encumbrance of a site, may legally describe the
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site by its site designation and the words "Fairways Three
Townhomes."
3.2 Membership in the Association. Each Owner (counting
multiple owners of a site as one Owner for voting purposes) shall
be a Member of the Association. Membership shall be appurtenant
to and may not be separated from ownership of a Site. Any
conveyance, assignment, transfer or encumbrance of a Site, shall
automatically be a conveyance, assignment, transfer or
encumbrance of the Membership in the Association. Any
conveyance, assignment, transfer or encumbrance of an Owner's
Membership in the Association, without an accompanying
conveyance, assignment, transfer or encumbrance of the Site,
shall be null and void.
3.3 Right of Entry to units.
The Association and its
designated agents shall have an immediate, limited right of entry
to each site and Unit in the case of an emergency originating in,
passing through, relievable from, or threatening such Site or
Unit. This right of entry shall exist whether or not the Owner
is present. Additionally, an Owner shall permit the Association
or its designated agents to enter his site or Unit for the
purpose of performing those installations, alterations or repairs
to his Unit or the Common Areas which the Association is
obligated or entitled to perform. Requests for entry for the
latter purpose must be made in advance, and entry must be at a
reasonable time.
3.4 Easements for Support and Encroachment. Each Unit
and all Association Property shall have a non-exclusive easement
for lateral and SUbjacent support from every other Unit and the
Association Property.
If for any reason any part of the
Association Property encroaches upon any part of any site, or any
part of any Unit encroaches upon Association Property or any
other Site, valid easements for the existence of such
encroachment are hereby established, for so long as the
encroaching improvement remains standing. No easement for any
encroachment is created for the benefit of the offending party if
the encroachment occurred due to willful misconduct.
3.5 Individual Tax Liability. Each Owner shall be
responsible for the real estate and personal property taxes and
assessments levied against the Owner's Unit, the contents
therein, and the site on which the Unit is located.
3.6 Reservation of Easements.
Declarant hereby reserves
to itself the right to grant non-exclusive easements for utility
purposes serving any portion of the Property over, under and
across any portion of the Property which is located ,outside 'the
Unit on each Site, and to SUbstitute one or more ppecific
easements for this general easement by recording an appropriate
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instrument in the Office of the Clerk and Recorder of Pitkin
County, Colorado.
3.7 Easement to Common Areas. Appurtenant to each Lot
shall be a non-exclusive easement of enjoyment to the Common
Areas for the benefit of the Owner and Occupants. The
non-exclusive easement of each site to use the Common Areas is
subject to the Association's right to reasonably allocate and
regulate all Occupants' use of, or access to, Common Areas.
3.8 Exclusive Easements to Common Areas. An exclusive
easement to use and occupy the limited portions of the Common
Areas designated on the Map as being exclusively appurtenant to
one or more particular units is declared and established for the
benefit of each such Unit.
3.9 Golf Course Hazard. The Property and the units are
immediately adjacent to a golf course. All Owners hold title to
their Sites and the Association holds title to any Association
Property subject to and with knowledge and notice of the
existence of the adjacent golf course and the nearby play area
for golf, with any and all attendant risks, conditions and
effects, including, without limitation, the risks of damage,
breakage and injury from golf balls being hit onto the Property
and striking a unit or an Occupant. All Owners by taking a deed
to a Site, and the Association, for themselves, their heirs,
successors, assigns and invitees, release Declarant and the owner
and operator of the golf course, and their respective successors
and assigns, from any and all liability which mayor could arise
from the condition of the Property and the units being located
immediately adjacent to a golf course.
IV.
Residence and Use Restrictions
4.1 Use as Residence Only.
Except as otherwise
specified, each Unit shall be used only as a residence and be
limited to one dwelling unit as defined in the pitkin County Land
use Code ("Dwelling Unit") No additional Dwelling unit may be
constructed within the unit or on the Lot. A Unit owned by
Declarant or by the Association may be used as the residence or
office of the Managing Agent.
In addition, Declarant and its
designated agents may use any unit for a sales model, a real
estate sales office ora management office.
4.2 Restrictive Covenants.
This townhouse project is
established for permanent affordable housing by Decrarant.
Owners shall be subject to the restrictions and requirements
concerning the sale, lease and use of units and Lots and other
restraints on free alienability of units and Lots, according to
valid restrictive covenants of record at the time an Owner
acquires a Unit (and thereafter, with Owners' consent).
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4.3 Occupancy Limitations. No unit shall be occupied by
more persons than it was designed to accommodate safely and
comfortably. Each unit shall be deemed to have been designed to
accommodate safely and comfortably a maximum of 2 adults (persons
over the age of 12) per living space originally designed
primarily as a sleeping area plus 2 additional persons (including
children 12 years and under) per unit.
4.4 Use of Common Areas. Except as otherwise specified,
nothing shall be altered on, constructed in, stored on or removed
from the Common Areas without the prior written consent of the
~a~.
4.5 Nuisances and Negligence. There shall be no noxious
or offensive activity carried on, in or upon any Common Areas,
and no loud noises or noxious odors shall be permitted anywhere
on the Property. Nothing shall be done on the Property which may
be or become an unreasonable annoyance or a nuisance to any other
Occupant. The Board or the'Managing Agent shall have the right
to determine if any activity, noise or odor constitutes a
nuisance. No Occupant shall permit or cause anything to be done
or kept on the Property which will increase the rate of insurance
obtained under section 10.1 or which will result in the
cancellation of such insurance. Each Occupant shall be
accountable to the Association and the other Owners and Lessees
for the behavior of his Guests. Any damage to the Common Areas,
or the property of another Occupant which is caused by any
Occupant, shall be repaired at the sole expense of the Owner or
resident in whose unit such persons are visiting or residing.
4.6 Sign Restrictions. Without the prior written
consent of the Board or pursuant to its rules and regUlations, no
sign or advertising device shall be displayed to the pUblic view,
except as may be used by Declarant or its designated agents to
advertise the availability of Sites.
4.7 Parking Restrictions.
No Occupant shall park any
vehicle on the Property except wholly within Common Areas
designated for parking.
No inoperable vehicle shall be stored on
the Property, and no Occupant shall park any large commercial
type vehicle on the Property. The Board may restrict or prohibit
parking on the Property of trailers, boats, camper-type vehicles
and motor homes and adopt such other rules and regUlations for
parking as the Board deems appropriate. No Occupant shall
conduct major repairs or restorations of a vehicle or permit any
such activity to be conducted upon the Property.
4.8 Pet Restrictions. Occupants other than Owners and
Lessees are prohibited from keeping pets of any sort upon the
Property. Owners and Lessees may keep pets upon the Property
SUbject to any rules and regulations by the Board concerning the
keeping of pets and the obligations of Owners and Lessees in
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connection therewith. An Owner shall be absolutely liable to the
Association and all other Occupants for any unreasonable noise or
damage to person or property caused by any animal brought or kept
on the Property by such Owner or members of his family or by
Lessees.
It is the absolute responsibility of each Owner to
clean up after any animal which has used the Common Areas or any
other portion of the Property in any manner.
4.9 Eyesores and Fire Restrictions. Nothing unsightly
shall be hung out from a unit or exposed from a Unit to any part
of the Common Areas visible to the public. The Common Areas
shall be kept free and clear of rubbish, debris and other
unsightly materials. Trash, garbage or other waste shall be
disposed of in a designated trash container. No portion of the
Common Areas visible to the public shall be used for the storage
of building materials, refuse or any other materials, other than
in connection with approved construction. There shall be no
exterior fires except in contained barbecues unless otherwise
regulated or prohibited by the Board.
4.10 Out-Building Restrictions. No temporary building
shall be placed upon any portion of the Common Areas, except as
permitted by the Board. No garage, storage unit, trailer, boat,
camper, motor home or recreation vehicle shall be used, either
temporarily or permanently, as a residence on the Property.
4.11 Fences. No Occupant shall fence any site without
the prior written authorization of the Board.
4.12 structural Integrity. Except as otherwise provided
in this Declaration, nothing shall be done to any Unit or the
Common Areas which will impair the structural integrity of or
structurally change, any building on the Property unless prior
written authorization is obtained from the Board.
4.13 Permissions to Declarant.
In order that Declarant's
work may be completed and the Property may be established as a
fully occupied residential community, Declarant and its agents,
employees and contractors shall have all reasonably necessary
rights during a~y period of construction on the Property and
during the period of the disposition of sites, subject to
Declarant's responsibility for mechanics' liens as set forth in
Section 6.6 hereof.
Neither the Association nor any Owner or
Occupant shall do anything to prevent Declarant and its agents,
employees and contractors from the following:
(a)
doing whatever Declarant deems necessary or
advisable in connection with the completion of any work on the
Property, including without limitation the alteration "of
construction plans and designs and the alteration. or addition of
easement locations for utilities and rights of way as Declarant
deems advisable in the course of development of the Property;
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(b)
erecting, constructing and maintaining such
structures or parking such vehicles of any type on any portion of
the Property as may be reasonably necessary for the completion of
the work, the establishment of the Property as a residential
community and the disposition of the sites by sale, lease or
otherwise;
(c)
conducting the business of developing,
sUbdividing, grading and constructing units and other
improvements on the Property; and
(d) maintaining such sign or signs on the Property
as may be necessary in connection with the sale or lease of
Sites.
If, as a result of any permission granted in this
section, liens arise with respect to the Property, Declarant
shall indemnify all First Priority Mortgagees.
4.14 Right to Combine units. None of the Townhome Owners
has the right to combine a Townhome Building with one or more
adjoining Townhome Buildings.
4.15 Partition of units Prohibited. No Owner shall
partition or subdivide any Site or Unit so as to encumber or
convey an interest in less than an entire site and Unit.
This
Section is not intended, however, to prohibit joint or common
ownership of a site by two or more persons or entities.
4.16 Compliance with Law. No Occupant shall do anything
or keep anything on the Property which would be in violation of
any law or regulation validly imposed by any governmental or
quasi-governmental body.
v.
The Association
5.1 Business and Membership. The business and affairs
of the townhouse project subject to this Declaration shall be
governed and managed by the Association through its Board. All
Owners shall automatically be members of the Association entitled
to vote in accordance with the Association's Articles of
Incorporation, and such membership shall automatically cease upon
termination of the Owner's interest in his Site. Membership
shall be appurtenant to a site and shall not be separately
conveyed, encumbered or abandoned.
5.2 Binding Effect. Each Occupant shall be bound by and
shall strictly comply with the provisions of this DecIaration,
the By-Laws, any deed restrictions and covenants,. and all rules
and agreements lawfully made by the Association. The failure of
the Association, the Board or its managing agent to insist, in
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#~~()448
4V_
anyone or more instances, upon the strict performance of any
such provisions, restrictions and covenants, or to exercise any
right or option available to it, or to serve any notice or to
institute any action, shall not be a waiver or a relinquishment,
for the future, of any such provision, restriction or covenant.
The Association shall have the right and power to bring suit in
its own name for either legal or equitable relief for any lack of
compliance with any such provisions and shall be entitled to
immediate injunctive relief for any infraction thereof.
An Owner
aggrieved by lack of compliance may also bring suit for legal or
equitable remedies. If any court proceedings are instituted in
connection with the rights of enforcement and remedies provided
in this Declaration, the prevailing party shall be entitled to
reimbursement of its costs and expenses, including reasonable
attorneys' fees, in connection therewith.
5.3 Power of the Association. Each Owner agrees that
the Association has all the powers granted it by the Colorado
Non-Profit Corporation Act and any amendments thereto or
replacements thereof. Such powers shall include, without
limitation, levying assessments against the Owners, foreclosing
the liens which arise for such assessments, enforcing any deed
restrictions and covenants, and acquiring, holding, leasing,
mortgaging or conveying the Association Property for itself and
on behalf of all Owners as their attorney-in-fact.
The
Association is hereby irrevocably appointed attorney-in-fact of
each Owner to manage, control and deal with the interest of each
Owner in the Property so as to permit the Association to fulfill
all of its duties and obligations hereunder and to exercise all
of its rights hereunder. Acceptance by a grantee of a deed or
other instrument of conveyance from the Declarant or any other
Owner shall constitute an irrevocable appointment of such
attorney-in fact. Each Owner shall be deemed to have waived all
rights of partition, homestead, or exemption under state or
federal law including bankruptcy laws.
5.4 Additional Activities. Functions or Services. The
Association may undertake, to the extent the Board, in its sole
discretion so elects,. to provide any activity, function or
service, for the benefit of or to further the interests of all,
some or any Owners on a self-supporting, special assessment, or
general assessment basis. Such activities, functions or
services, which may be provided by the Association's employees,
by an independent contractor retained by the Association, or by a
community association of which the Association is a member, may
include, without limitation: management of the Property, a
garbage and trash collection service and a firewood service.
If
any such activity, function or service includes furnishing or
providing services for the care and maintenance of q unit, no
Owner shall be required to utilize the Associatiop or an
independent contractor retained by the Association for such
services.
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5.5 Association Property. The Association may acquire
and hold or lease tangible and intangible personal property and
real property and may dispose of th~ same by sale or otherwise.
The beneficial interest in such Association property shall be
held by the Owners as provided in the Association's Articles of
Incorporation and shall not be transferable except by transfer of
an Owner's Site. A transfer of a site shall vest in the
transferee ownership of the transferor's beneficial interests in
any Association Property.
5.6 Implied Rights. The Association shall have and may
exercise any right or privilege given to it by this Declaration
or the By-Laws or reasonably implied therefrom, or given or
implied by law, or which may be necessary or desirable to fulfill
its duties, obligations, rights and privileges under this
Declaration.
5.7 Lost or Damaged Property.
The Association shall
not be responsible to any person or entity for loss or damage by
theft or otherwise of articles which may be stored in a unit or
on or in the Common Areas.
VI.
Maintenance
6.1 Responsibilities of the Association. The
Association is responsible for Maintenance as a Common Expense,
in a first class manner:
(a)
all Common Areas;
(b)
a unit, to the extent of incidental damage
caused through Maintenance or the lack thereof by the
Association; and
(c)
a unit, to the following extent: The
Association shall maintain all of the exterior portions of the
Unit, including without limitation, the roof, siding, all windows
and doors, and awnings, but excluding any decorative flower boxes
and other ornamentation; the perimeter walls of the Unit to the
extent of any structural deficiencies; the foundation and ground
floor of a unit; and any repairs to plumbing, gas, water,
electrical, sewage and water lines located outside the perimeter
walls of the unit.
6.2 Alterations and Additions. Except as otherwise
provided in this Declaration, the prior written consent of the
Board, acting as an architectural review committee, shall be
required prior to any alterations or additions to the 'exterior of
a unit or any of the improvements or landscaping pn a Site, or
any alterations or additions within a unit which will impair the
structural integrity of or structurally change the unit.
If the
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Board fails to approve or disapprove such alteration or addition
thirty (30) days after the plans and specifications therefor have
been submitted to it, approval will not be required and this
section will be deemed to have been fully complied with.
Regardless of whether the Board approves any changes to the site
or unit under the previous sentences, the Owner shall be fully
responsible for any damage which may be caused by such
improvements.
6.3 Responsibilities of Owners. Each Owner is
responsible for providing all Maintenance within his unit at his
own expense, except as provided in Subsections 6.1 (b) and (c).
Such responsibility shall include, without limitation,
Maintenance of the interior surfaces of the walls, ceilings,
doors and floors of the unit and any finished or additional
surfaces, decoration or materials, such as carpets, wallpaper,
countertops, painting or staining, plug-in appliances and
personalty of any kind in the Unit. Each Owner is also
responsible, at his own expense, for cleaning any balcony or
patio adjacent to the Unit; all doors to the Unit; the interior
faces of all glass surfaces of the Unit; all machines,
attachments, installations and fixtures within the Unit; and any
other facility or fixture constituting limited Common Areas
appurtenant to the particular Unit. An Owner shall also be
responsible for the costs of any Maintenance to the Common Areas
or another Unit which is necessitated by the Owner's negligence,
as determined by the Board.
6.4 Notice to Maintain. An Owner or Lessee shall
immediately report to the Board the need for any Maintenance
which is the Association's responsibility to provide. In the
event of any disagreement as to the Association's responsibility
to provide the Maintenance, the decision of the Board shall be
final.
6.5 Approvals by Owners. Subject to the provisions of
Article VIII no special or general assessment shall be levied for
any "Extraordinary Improvement" unless the Association obtains
the approval of a majority of Owners. Any non-Maintenance,
improvement project constitutes an "Extraordinary Improvement" if
the total costs associated with the project exceed 15% of the
total annual budget (excluding such project) for the year in
which the Board authorizes the first stage of the project.
Dissenting Owners shall not be relieved of their obligation to
pay a proportionate share for any project approved under this
subsection.
6.6 Mechanics' Liens. For the benefit of the
Association and the Owners, Declarant shall be responsible for
the release of all mechanics' liens filed with reppect to the
Common Areas if such liens arise from labor performed or
materials furnished at the instance of Declarant, its agents,
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contractors or subcontractors. Except as the result of labor
performed or materials furnished at the instance of the
Association or its agents, no labor performed or materials
furnished with respect to the Property shall be the basis for
filing a lien against the Association Property or against any
Site whose Owner did not expressly consent to or request the
performance of such labor or the furnishing of materials.
Each
Owner shall indemnify and hold harmless each of the other Owners
and the Association from and against all liability arising from
the claim of any lien claimant against the site of any other
Owner or against the Association Property for labor performed or
materials furnished at such Owner's request or with his consent.
The Association may pay the amount necessary to discharge any
lien or encumbrance levied against any portion of the Property
which may, in the Board's sole opinion, constitute a lien against
all or a part of the Property other than the site of the
particular Owner with whose consent the labor was performed or
material furnished.
Such Owner shall be liable to the
Association for the cost, including reasonable attorneys' fees,
of discharging such lien or encumbrance, which cost shall be
charged as a special assessment to such Owner.
6.7 Property Management Services. The Association,
through the Board, shall provide for the management of the
Property by qualified professionals either employed directly by
the Association alone or together with other housing
associations, or retained as an independent, management services
contractor. Pursuant to the latter alternative, the Board may
enter into a property management agreement (the "Agreement") with
a professional managing agent, including the Declarant.
Any such
Agreement shall not be entered or renewed for a term exceeding
five (5) years and shall further provide for termination by
either party, without cause and without payment of a termination
fee, on not more than ninety (90) days written notice to the
other party. Each Owner, his successor and assigns, shall be
bound by the Agreement for the purposes therein expressed,
including but not limited to:
(a)
adopting, ratifying, confirming, and consenting
to the execution of the Agreement by the Association;
(b)
covenanting and promising to perform each and
everyone of the covenants, promises, and undertakings to.be
performed by Owners as provided in the Agreement; and
(c)
recognizing that some or all of the persons
compr1s1ng the original Board are or may be partners,
shareholders, officers, directors or employees of the Managing
Agent or the Declarant, and that such circumstances ,shall not and
cannot be construed or considered as a breach of their duties and
obligations to the Association, or as grounds to invalidate the
Agreement, in whole or in part.
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6.8 General Rules of Law for Party Walls. Each wall
which is built as apart of the original construction or
restoration of a Unit and placed in the immediate vicinity of the
dividing line between two sites shall constitute a party wall.
To the extent not inconsistent with the provisions of this
Declaration, the general rules of law regarding party walls and
of liability for property damage due to negligence or willful
acts or omissions shall apply thereto.
6.9 Sharing of Repair and Maintenance.
The cost of
reasonable repair and maintenance of any party wall shall be
borne equally by the Owners on either side of the party wall.
6.10 Destruction by Fire or Other Casualty.
If a party
wall is destroyed or damaged by fire or other casualty, any Owner
who has used the wall may restore it, and if the other Owners
thereafter make use of the wall, they shall contribute equally to
the cost of restoration thereof, without prejudice, however, to
the right of any such Owners to call for a larger contribution
from the other Owners under any rule of law regarding liability
for negligent or willful acts or omissions.
.
6.11 Weatherproofing.
Notwithstanding any other
provision of this Declaration, an Owner who, by negligent or
willful act, causes the party wall to be exposed to the elements,
shall bear the whole cost of furnishing the necessary protection
against such elements.
6.12 Riqht to Contribution.
The right of any Owner to
contribution from any other Owner under this Declaration shall be
appurtenant to the land and shall pass to such Owner's successors
in title.
6.13 Arbitration.
In the event of any dispute arising
concerning a party wall, the Board of Managers shall act as a
Board of Arbitration and the decision shall be by a majority vote
of the Board of Arbitration after an arbitration hearing. No
legal action with respect to a party wall dispute shall be
commenced or maintained unless and until the provisions of this
arbitration clause have been met.
VII.
Assessments Against Sites
7.1 Obliqation and Puroose. Each Site shall be sUbject
to such general or special assessments as the Association may
levy from time to time. The assessments collected sball be used
exclusively to promote the recreation, health, safety and welfare
of those persons residing on the Property and for the-functions,
operation, maintenance, administration and manage~ent of the
Association, Association Property and the Property for the use
and benefit of some or all Owners. Each Owner shall be obligated
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to pay all such assessments levied against his Site and may not
exempt himself from liability by waiver of the use or enjoyment
of an Association function, Association Property or the Common
Areas or by an abandonment of his site.
7.2 Assessments. General assessments, which shall be
based on a budget for a fiscal year designated by the Board, may
be used for the Common Expenses of the Association, including
without limitation for a reserve for working capital and for
Maintenance which cannot be expected to occur on an annual basis.
The failure of the Board before the expiration of any fiscal year
to establish a budget for the next fiscal year shall not release
the Owners from their obligation to pay any assessments or
installments thereof for that or any subsequent year. The budget
and assessment installments established for the preceding year
shall continue until a new budget is fixed by the Board. Unless
otherwise provided herein, general and special assessments shall
be apportioned among the sites then dedicated on the Map
proportionate to their interests described on Exhibit C.
No
assessment liability for any Site shall exist prior to the
recording of a Map subjecting that Site to this Declaration.
After the recording of a Map sUbjecting a Site to this
Declaration, Declarant shall be responsible for the assessments
against any sites owned by it, sUbject to the limited exemption
provided in Section 7.5.
If the estimated cash requirements set
forth in the budget prove to be inadequate for any reason,
including nonpayment of any Owner's assessment, the Board may, at
any time, levy a special assessment. Assessments that are
equitably attributable to only particular sites may be allocated,
in the sole jUdgment of the Board, to the sites thereby affected.
7.3 Refunds.
If in any fiscal year the assessments
collected by the Board exceed expenses incurred, the Board shall
have the right, but not the obligation, to make refunds or give
credits against future assessments. Refunds or credits shall be
apportioned in the same manner as the general and special
assessments which created such surplus. Owners whose sites were
sUbject to this Declaration for less than the full fiscal year
shall receive only a proportionate refund or credit based upon
the number of days the site was subjected to this Declaration.
If the Declarant held title to a Lot for any part of the fiscal
year, it shall be entitled to a proportionate share of the Site's
refund or credit based upon the number of days it held title to
the Site, divided by the total number of days during the fiscal
year that the Site was subject to this Declaration. Any credit
or refund amount remaining after the Declarant receives its
proportionate share for a particular Site, shall be given to the
current Owner of the site. Any credit received by Declarant
under this Subsection shall be applied to another site owned by
the Declarant, and if there is no such Site, shal~ be converted
into a cash refund.
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7.4 Assessment Adjustments. with respect to any
assessment, credit or refund, the Board shall have the power to
round off and make other minor adjustments of less than ten
dollars ($10.00) in each site's allocation for the following
purposes: (i) to create whole round numbers for the convenience
of the payor; or (ii) to correct any discrepancy between the
total of each unit's allocation of any such assessment, credit,
or refund, and the total amount of either the expenses actually
sUbject to assessment or the surplus actually available for a
refund or credit.
7.5 Workinq Capital Reserve. The Association shall
establish and maintain a working capital reserve, and each year
may assess all Owners other than the Declarant, an amount
necessary to fund the reserve, provided that the total amount of
the reserve does not exceed twenty-five percent (25%) of the
annual operating budget for the fiscal year. with respect to
each site owned by the Declarant, the Declarant shall have no
duty to pay working capital reserve assessments during the time
Declarant owns the site. The working capital reserve may be used
by the Association for working capital, including the payment on
an emergency basis of both minor and major Maintenance expenses,
providing that the reserve is replenished by general or special
assessments within a reasonable time.
7.6
Collection Remedies.
(a) All assessments or installments thereof shall
be due and payable at the time or times designated by the Board
by written notice delivered pursuant to Section 13.5. Overdue
assessments shall bear interest at twenty-one percent (21%) per
annum, or such other lawful rate and/or late charge as the Board
may determine. The payment of any assessment payable in
installments may be accelerated by the Board for failure to pay
any installment when due.
(b) An assessment shall be the personal obligation
of the Owner of the Site at the time the assessment is levied
against the Site affected. A suit to recover a money jUdgment
for unpaid assessments may be maintained against any Owner
without waiving or otherwise prejudicing the Association's right
to pursue its other remedies under this section 7.6. The
Association shall be entitled to recover the costs of suit and
reasonable attorneys' fees incurred in bringing any action under
this paragraph.
(c)
The Association shall have a lien against a
site for any assessments against the Site or its Owner that are
due and unpaid. Costs of collection, including witqout
limitation, reasonable attorneys' fees and court posts, shall be
added to the assessment lien amount. All amounts unpaid shall be
evidenced by a statement executed by the Association and recorded
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with the pitkin County, Colorado Clerk and Recorder. The
assessment lien against a site shall be subordinate only to the
First Priority Mortgage on the Site.. The Association shall have
the right to foreclose such lien in the manner provided by
Colorado law for mortgages upon real property. The Association
shall have the power to bid on the site at a foreclosure sale and
to acquire, hold, lease, mortgage and convey the same.
7.7 Grantee and Mortgagee Assessment Obligations.
No
Owner shall conveyor mortgage his site unless and until all sums
due the Association, whether or not evidenced by a recorded
statement, are currently paid, but no Mortgage transaction shall
be voidable by the Association nor shall the superior posit~on of
a First Priority Mortgagee be adversely affected by a lien of the
Association. At least five (5) business days prior to any
conveyance or mortgage, the Owner shall deliver written notice to
the Association advising it of the proposed transaction and the
names and addresses of all transferees and Mortgagees involved.
If any assessment is due and owing by the Owner and his grantee
or Mortgagee has actual or constructive notice thereof, his
grantee or Mortgagee shall apply the proceeds of any such
transaction to the payment of delinquent amounts due the
Association before paying or disbursing any amount to the Owner.
The grantee of a Site shall be jointly and severally liable with
his grantor for all unpaid assessments against the latter up to
the time of the grant or conveyance if such grantee assumes and
agrees to pay such unpaid assessments, without prejudice to the
grantee's right to recover from the grantor any amounts paid by
the grantee therefor. Upon written request and payment of such
reasonable fee as may be set by the Association, the Association
shall issue a written statement under signature of the Treasurer
or other person designated by the Board to such grantee or
Mortgagee verifying the status of all assessments or charges
affecting the site. Any statement as to the existence or amount
of any delinquencies shall conclusively bind the Association. A
First Priority Mortgagee, who takes title to a site pursuant to
the remedies in the Deed of Trust encumbering that Site shall
take such site free and clear of all unpaid assessments which
became due after the Mortgage was recorded in the pitkin County,
Colorado records and the lien therefor.
7.8 Assessments for Tort Liability. In the event of any
tort liability against the Association which is not covered
completely by insurance, each Owner shall contribute for the
payment of such liability as a Common Expense. The Association
may, however, require a larger contribution from fewer than all
Owners under any legal or equitable principle regar~ing liability
for negligent or willful acts or omissions.
VIII.
Destruction. Damage and Obsolescence
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8.1 Association as Attorney-In-Fact. Upon the
destruction, damage, obsolescence or condemnation of the
Property, the Association's power ta act as attorney-in-fact for
each Owner shall continue pursuant to section 5.3, except that
when acting under this Article the Association shall have
authority, sUbject to any rights of approval specified in this
section, to deal in any manner with the entire Property or any
part thereof in order to accomplish the purposes set forth
herein.
If the Association is dissolved or defunct, a meeting of
the Owners shall be held promptly to elect a new attorney-in-fact
to deal with the Property upon its destruction, damage,
obsolescence, or condemnation. The selection must be approved by
Owners of sixty-seven percent (67%) or more of the votes
outstanding and entitled to be cast under the By-Laws and at
least fifty-one percent (51%) of the First Priority Mortgagees.
8.2 Revocation of Declaration. If there is destruction
rendering eighty percent (80%) or more of the Units
uninhabitable, this Declaration may be revoked upon the written
consent by Declarant (without regard to whether or not Declarant
then owns a Unit) and if Owners holding eighty percent (80%) or
more of the votes of the Association so elect at a special
meeting held within ninety (90) days of the event causing the
destruction, and at least fifty-one percent (51%) of the First
priority Mortgagees so approve. The Association shall send
written notice of such revocation to all Mortgagees as provided
in Section 13.6.
8.3 Use of Insurance Proceeds. The proceeds collected
from any insurance purchased by the Association shall be
available to the Association for itself as owner of any
Association Property and as attorney-in-fact for the Owners. Any
such proceeds shall be used for the purpose of Maintenance unless
the Owners decide to terminate this Declaration in which case the
insurance proceeds will be distributed according to the
provisions of Section 11.3. In the event of Maintenance, all
present and future Mortgagees hereby release all right to the
proceeds under all insurance policies purchased by the
Association.
8.4 Special Assessments.
In order to raise the
remainder of the funds required for Maintenance after the
application of any proceeds of insurance, the Association may
levy one or more special assessments. The Association shall have
the right to require a larger contribution from fewer than all
Owners under any legal or equitable principle regarding liability
for negligent or willful acts or omissions.
•
8.5 Estimates, Notice and Duty to Maintain~·If there is
any destruction of the Property, the Association phall cause to
be prepared an estimate of the damage and the cost of
Maintenance, an inventory of the Association's funds from all
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sources (including insurance) which are available for such
Maintenance, and an estimate of the assessment against each site
which would be necessary to enable the Association to meet such
Maintenance costs in full.
The Association shall promptly
deliver a summary of such information to each Owner. In the
event of damage, destruction, or obsolescence of any Unit, or any
portion thereof, or any part of the Common Areas, exceeding a
Maintenance cost of ten thousand dollars ($10,000), then each
First Priority Mortgagee with an interest in the damaged or
obsolete property will be entitled to prompt written notice from
the Association of any such damage, destruction, or obsolescence.
8.6 Mandatory Maintenance.
In the event of damage or
destruction due to fire or other disaster, if the insurance
proceeds are sufficient to reconstruct the improvements, the
Association shall promptly cause such Maintenance to occur.
Assessments for Common Expenses shall not be abated during the
period of insurance adjustments and repair and reconstruction.
8.7 Plan for Maintenance. Owners of eighty percent
(80%) or more of the total votes outstanding and entitled to be
cast under the By-Laws may agree that the Property, or a
substantial part thereof, is obsolete and may adopt a written
plan for Maintenance. Any such plan shall have the approval of
the Aspen/Pitkin County Housing Authority and of fifty-one
percent (51%) of the First Priority Mortgagees of record at the
time of the adoption of such plan. The Association shall duly
record such plan in the office of the Clerk and Recorder of
Pitkin County, Colorado.
8.8 PaYment for Maintenance. Assessments for the
expense of Maintenance shall be subject to the apportionment,
collection and refund provisions set forth under Article VII.
Dissenting Owners shall not be relieved of their obligation to
pay a proportionate share of any Maintenance Expenses.
IX.
Taking By Eminent Domain
9.1 Taking of Common Areas.
If Common Areas are taken
or condemned by any authority having the power of eminent domain,
all compensation and damages on account of the taking of the
Common Areas, exclusive of compensation for consequential damages
to affected Sites, shall be payable to the Association for itself
and as attorney-in-fact for the Owners. Such proceeds shall be
used promptly by the Association to the extent necessary for
Maintenance of such remaining Common Areas in as sUDstantial
compliance to the original or subsequent plan of development as
possible. If there is an award in excess of the amount necessary
to so sUbstantially Maintain such remaining Commop Areas, it
shall, at the Board's discretion, be either refunded to the
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Owners or retained by the Association for such uses as the Board
deems appropriate.
9.2 Partial Takings.
If some but fewer than all Sites
are taken by any authority having the power of eminent domain,
the Owners thereof shall automatically cease to be members of the
Association and all compensation and damages on account of the
taking, exclusive of compensation for consequential damages to
affected Sites, shall be payable to the Association for itself
and as attorney-in-fact for the Owners.
The Association shall in
good faith reasonably allocate the condemnation award among
compensation, damages, or other proceeds and shall apportion the
amount so allocated among the affected Owners as follows:
(a)
the respective amounts allocated to the taking
of or damage to a particular site and to the improvements an
Owner has made within his own Unit shall be apportioned to the
particular site involved;
(b)
the total amount allocated to taking of or
injury to Common Areas shall be apportioned among the sites
dedicated on the Map proportionate to their Owners' interests
described on Exhibit C (as amended from time to time): and
(c)
the total amount allocated to severance damages
shall be apportioned to those sites which were not taken or
condemned.
9.3 Total Taking. If all the sites shall be taken or
condemned by any authority having the power of eminent domain,
this Declaration shall terminate, and the Association shall
commence winding up its affairs in liquidation. Unless otherwise
ordered by a court of competent jurisdiction, the total
condemnation award shall be distributed as provided in section
11. 3.
9.4 Defenses and Claims Against Condemning Authority.
The Association shall have sole responsibility to defend against
any petition in condemnation on behalf of all Owners and the
Association. The Association's duty hereunder shall extend,
without limitation, to challenging any legally insufficient
petition and seeking adequate compensation for all Owner
interests affected.
However, nothing in this section shall
prevent any Owner from joining the condemnation proceedings and
petitioning on his own behalf for damages relating to the value
of his Site, any interest therein, or any other legally
compensable item.
9.5 Owners' Claims. When all or part of the ~roperty is
taken by emin~nt domain, each Owner shall have the exclusive
right to claim all of the award made for his personal property or
any relocation, moving expense or other similar allowance.
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9.6 Mortgagee Rights.
If the Common Areas, or any
portion thereof exceeding a fair market value of ten thousand
dollars ($10,000), or any Site, or portion thereof, is made the
sUbject matter of a condemnation or eminent domain proceeding,
then the holder of any First Priority Mortgage affected thereby
shall be entitled to timely written notice by the Association of
such proceeding.
9.7 Excess Award.
In the event any condemnation award
payable to any Owner exceeds the maximun resale price established
pursuant to the deed restrictions described in section 13.7 below
for that Owner's unit and Lot, and any of such Owner's claims
under section 9.5, the amount of the award in excess thereofshall
be payable and paid to the Aspen/Pitkin County Housing Authority.
x.
Insurance
10.1 Coverages. The Association shall maintain, to the
extent reasonably available, the following insurance coverages
with one or more companies that have a Best's general
policyholder's rating of at least B and a Class III financial
size category, or that reinsure with a company having such a
rating and category, or if the policy is written by Lloyd's of
London, except that if the Association elects to include blanket
coverage for all Units, such comp,any or its reinsurance company
must be Lloyd's of London or have a Best's general policyholder
rating of A and a Class V financial category:
(a)
Property and fire insurance with extended
coverage and standard all-risk endorsements, including vandalism
and malicious mischief, on the Common Areas, and their fixtures
and building service equipment. The Association may elect to
provide such insurance as blanket coverage for all units,
exclusive of furniture, furnishings, personal property, or
improvements installed in Units by Owners. The total amount of
insurance shall be one hundred percent (100%) of the replacement
value of the insured property, exclusive of land, foundations,
excavations and other items normally excluded from property
policies. The following endorsements are required if they can be
obtained:
inflation guard, construction code, and, if
applicable, steam boiler and machinery coverage. The maximum
deductible with respect to the Common Areas shall be ten thousand
dollars ($10,000) or one percent (1%) of the policy face amount,
whichever is lower, and with respect to Units covered by a master
or blanket policy shall be one thousand dollars ($1,000) or one
percent (1%) of the unit's replacement cost, whicheVer is lower,
which deductibles shall be included in the Association's
operating reserve account.
(b)
Public liability and property damage insurance,
including medical payments insurance, in an amount to be
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determined by the-Board covering all occurrences commonly insured
against for death, bodily injury and property ~amage arising out
of or in connection with the ownership, operation, Maintenance,
or other use of the Property. This policy shall also cover
operation of automobiles on behalf of the Association.
The
policy shall be in an amount not less than one million dollars
($1,000,000) per injury, per person, per occurrence, with an
umbrella liability limit of not less than one million dollars
($1,000,000) per occurrence. This policy shall contain a
"severability of interest" endorsement.
(c) As appropriate, workmen's compensation and
employer's liability insurance in the amounts and forms required
by law.
(d) As appropriate, fidelity coverage against the
dishonesty of employees, destruction, or disappearance of money
or securities and forgery.
This policy shall also cover persons
who serve the Association without compensation.
(e)
Coverage of members of the Board and officers
of the Association against libel, slander, false arrest, invasion
of privacy and errors and omissions and other forms of liability
generally covered in officers and directors liability policies.
(f)
If at any time, any part of the Property is in
a Special Flood Hazard Area, designated as A, AE, AR, AO, Al-30,
A-99, V, VE, OR Vl-30 on a Flood Insurance Rate Map, the
Association shall maintain a master policy of flood insurance to
cover all of the Property, including without limitation the
Common Areas and the units. The amount of insurance shall be at
least equal to one hundred percent (100%) of the insurable value
of the Property or, if lower, the maximum amount available under
the appropriate National Flood Insurance Administration program.
The maximum deductible shall be five thousand dollars ($5,000) or
one percent (1%) of the policy's face amount, whichever is lower,
which deductible shall be included in the Association's operating
reserve account.
(g)
Coverage against such other risks of a similar
or dissimilar nature as the Association deems appropriate.
Such insurance shall be at standard premium rates as
established by the Colorado Insurance Commissioner. No policy
shall be obtained where:
(i)
contributions or assessment~ may be made
against the Mortgagor or Mortgagee's designee under the terms of
the insurance company's charter, by-laws or policy;
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#330448 02/21/91 09-54 F'~~ $ ~(-) D~ 640 r-~ 115
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(ii)
by the terms of the carrier's charter,
by-laws or policy, loss payments are contingent upon action by
the company's board of directors, palicyholders or members; or
(iii) the policy includes any limiting clauses
(other than insurance conditions) which could prevent Mortgagees
from collecting insurance proceeds.
10.2 Named Insured and Interests. Policies of property
insurance shall name the Association as the insured and the
person to which payment is to be made as owner of the Association
Property and as attorney-in-fact for all Owners and First
Priority Mortgagees. Such policies shall provide that they may
not be cancelled or sUbstantially modified by the insurance
company until after at least thirty (30) days' prior written
notice is first given to each Owner, each First Priority
Mortgagee and the Association. The Board shall not alter, to the
detriment of the Owners or First Priority Mortgagees, the policy
or policies without at least thirty (30) days' prior written
notice to each Owner, the Declarant and each First Priority
Mortgagee. Certificates or memoranda of insurance, duplicate
originals of all policies and renewals, and proof of payment of
premiums shall be issued to the Association, and upon request, to
any Owner or Mortgagee.
10.3 Invalidation or Reduction of Coverage.
Insurance
policies carried pursuant to Section 10.1 must provide the
following:
(a)
that the insurer waives its right to
subrogation under the policy against any Owner, his Lessee and
their families, and Occupants;
(b)
that no act or omission by any Occupant will
void the policy or be a condition to recovery under the policy,
unless that person is acting within the scope of his authority as
an officer of the Association or as a member of the Board; and
(c)
that if, at the time of a loss under the
policy, there is other insurance in the name of an Owner or his
Lessee covering the same property covered by the policy, the
policy is primary insurance not contributing to the Owner's
individual insurance.
10.4 Other Insurance. An Owner, Lessee or Occupant may
purchase such additional insurance as they deem appropriate for
their own benefit providing any such insurance contains a waiver
of SUbrogation.
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116
Term, Revocation and Amendment of Declaration
11.1 Term of Declaration.
shall be perpetual.
The term of this Declaration
11.2 Revocation of Declaration. This Declaration may be
revoked if Declarant (without regard to whether or not Declarant
then is the owner of a Unit) and all of the Owners agree to such
revocation by an executed, acknowledged instrument duly recorded
in the office of the Clerk and Recorder'of pitkin County,
Colorado. The Association shall send written notice of any such
revocation to all Mortgagees as provided in Section 13.6. Except
in the case of a taking by condemnation, an abandonment or
termination provided by law, or as otherwise provided in Article
VIII, the prior written approval of each First Priority Mortgagee
will be required for the abandonment or termination, by act or
omission, of this Declaration.
11.3 Disbursement of Proceeds. Except as otherwise
provided in this Declaration or by law, all proceeds from sale of
the Common Areas or from condemnation and all amounts recovered
under any insurance policy shall be allocated among the Sites
dedicated on the Map proportionate to their interests described
on Exhibit C.
The funds allocated to each site shall be
disbursed, without contribution from one Owner to another, by the
Association for the following purposes and in the following
order:
(a)
payment in full of the customary expenses of
transaction;
(b)
payment in full of the allocable taxes and
special assessment liens in favor of any Governmental assessing
entity;
(c)
payment in full of the balance of the lien of
any First Priority Mortgage on the site;
(d)
payment in full of allocable unpaid Common
Expenses and the unpaid costs, expenses and fees incurred by the
Association;
(e)
payment in full of recorded junior liens and
encumbrances on the site in the order of and to the extent of
their priority; and
(f)
payment of any balance to the
Owne~.
11.4 Amendment of Declaration and Map. Exc~pt as
otherwise set forth herein, this Declaration shall be amended if
Owners holding sixty-seven percent (67%) or more of the total
votes outstanding and entitled to be cast under the By-Laws agree
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thereto by an executed instrument duly recorded in the office of
the Clerk and Recorder of pitkin County, Colorado. In the case
of amendments of a material nature, approval shall also be
obtained from the Aspen/Pitkin County Housing Authority, and from
at least fifty-one percent (51%) of First Priority Mortgages.
Except as otherwise specifically provided in this Declaration,
the Map may only be amended if Owners holding one hundred percent
(100%) or more of the total votes outstanding and entitled to be
cast under the By-Laws agree thereto by an executed instrument
duly recorded with the Pitkin County, Colorado Clerk and
Recorder, and the consent is obtained from the Aspen/Pitkin
County Housing Authority and from the holders of fifty-one
percent (51%) of the First Priorit Mortgages.
XII.
Expansion of Project
12.1 Reservation of Rights in Declarant.
Declarant
reserves the right to construct or designate additional Common
Areas and Sites upon the Property, and the right to sUbject the
Additional Property or a part thereof to this Declaration, at any
time within five (5) years after recording this Declaration
without obtaining the consent of the Association or any Owner.
During the five-year expansion period, Declarant, its agents,
employees and contractors shall have all the rights and
privileges set forth in Section 4.13.
Nothing in this section
shall be construed to obligate Declarant to construct any
additional buildings on the Property or to add Additional
Property to the Property sUbject to this Declaration. The
maximum aggregate number of Sites which Declarant may make
sUbject to this Declaration is thirty (30).
12.2 SUbjecting Additional Property to Declaration. Any
additional sites or Common Areas shall become sUbjected to this
Declaration by recording a Supplemental Declaration and Map with
the Clerk and Recorder for pitkin County, Colorado. The
Supplemental Declaration shall contain at least the following
provisions:
(a)
the legal description of the Additional
(b)
the Site designation for each additional Site;
Property;
and
(c)
If necessary, a schedule amending Exhibit C
changing the interests of the additional Sites (but no such
amendment shall change the interests of Sites theretofore
dedicated on the Map except as provided in Section :1,.2 ~·3) .
12.3 Effect of Subjecting Additional Property to
Declaration. Recording a Supplemental Map and Declaration adding
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either Additional Property, Sites or Common Areas shall cause the
following results to occur automatically without the necessity
for filing any further documentatiorr or taking any further action
by the Declarant, any Owner or any Mortgagee:
(a)
The definitions used in this Declaration shall
be expanded to encompass, refer to and include the Additional
Property, Sites, the units on such Sites, and Common Areas. The
additional units shall become Units, the additional sites shall
become sites, and the additional Common Areas shall become a part
of the Common Areas, for all purposes.
(b)
Each site neWly dedicated on the Map shall be
allocated an interest proportionate to the interests described on
Exhibit C for all sites then dedicated on the Map. The interests
allocated to the Sites theretofore dedicated on the Map shall
decrease. The result is that all pre-recordation Sites and all
post-recordation sites are allocated interests proportionate to
the interests described on Exhibit C for all sites then dedicated
on the Map.
Based on the maximum aggregate number of sites
specified in section 12.1 above and their anticipated development
program, each site would be allocated an interest as shown on
Exhibit C.
(c) As additional sites are submitted to this
Declaration, the Common Expenses shall be shared by both pre- and
post-recordation Sites in accordance with Article VII.
(d) The voting rights of both
post-recordation Owners shall be determined
the Association's Articles of Incorporation
increase in the number of sites will dilute
strength of pre-recordation Owners.
pre- and
in accordance with
and By-laws.
Any
the relative voting
(e) All Unit square footages described on Exhibit C
are approximate and are plus or minus ten percent (10%), with the
result that Declarant expects all Units to be included within one
of two basic size and interest categories. No amendment of
Exhibit C under section 12.2 shall result in reducing the
interest of a site theretofore dedicated on the Map below the
interest described on Exhibit C assuming a full development of
thirty (30) Sites.
XIII.
Miscellaneous
13.1 Declarant's Riqhts Transferable. Any rlght or
interest of the Declarant established or reserved in this
Declaration may be transferred by Declarant either separately or
with one or more of such rights or interests, to ?ny person or
entity, if a written assignment of Declarant's rights and
interest, specifically referencing this Section 13.1, is recorded
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in the records of the Clerk and Recorder of Pitkin County,
Colorado.
13.2 Number and Gender. Unless the context shall
otherwise provide, a singular number shall include the plural, a
plural number shall include the singular and the use of any
gender shall include all genders.
13.3 Construction. The provisions of this Declaration
shall be liberally construed to effectuate its purpose of
creating a uniform plan for the development and maintenance of a
residential community and for the Maintenance of the Common
Areas. Exhibits attached hereto shall be considered a part of
this Declaration for all purposes as if fully incorporated
herein. Any reference to an Exhibit shall be deemed to include
any supplements thereto unless specified otherwise.
13.4 No Dedication. Nothing contained in this
Declaration shall be deemed to be a gift or dedication of all or
any part of the Property to the public or for any public use.
13.5 Notices.
(a) Manner of Serving Notice. Any notice permitted
or required under this Declaration shall be in writing and
delivered either personally or by mail.
If delivery is made by
mail, it shall be deemed to have been delivered forty-eight (48)
hours after a copy has been deposited in the united States mail,
postage prepaid for first class mail and addressed in accordance
with paragraph (b) or (c) of this section.
(b)
Owners' Mailing Addresses.
Regardless of the
number of persons or entities holding title to a Site, notice
shall be deemed to have been properly mailed if it is addressed
to the person or entity last known by the Association to be the
Owner at the address given in the records of the County Tax
Assessor for pitkin County, Colorado. An Owner, or multiple
Owners of a single Site, may register with the Association, in
writing, not more than one alternate address where notices may be
mailed on behalf of the Site. Such alternate address shall
continue as the official mailing address for the Site until the
Association receives written notice of a change in the alternate
address.
(c) Mortgagees' Mailing Addresses.
Each First
priority Mortgagee shall notify the Association, in writing, of
its mailing address. Until the Association receive~ written
notice of a change in address for any First Priority Mortgagee,
all notices required and permitted to be given Firs~ Priority
Mortgagees under this Declaration shall be deemed. properly
delivered if mailed to the address last registered with the
Association.
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(d)
Association's Mailing Addresses. Any notice to
the Association shall be sent to such address as it may from time
to time designate in writing to eacrr Owner.
(e)
Declarant's Address. Any notice to the
Declarant shall be sent to Aspen/pitkin County Housing Authority,
39551 Highway 82, Aspen, Colorado· 81611, or at such address as it
may from time to time designate to the Association.
(f)
Notice Among Owners. Any Owner or Owners
desiring to give any other Owners notice of matters affecting the
Property may have reasonable access to the Association's mailing
lists and may otherwise follow the procedures set forth in this
section.
13.6 Mortgage Rights. Any holder of a First Priority
Mortgage will, upon request, be entitled to:
(a)
inspect the books and records of the
Association during normal business hours;
(b)
receive financial statements of the Association
within ninety (90) days following the end of any fiscal year;
(c)
receive written notice of meetings of the
Association and be permitted to designate a representative to
attend all such meetings; and
(d)
receive written notice of any default on the
part of its respective Mortgagor(s) regarding any obligations
imposed under this Declaration which are not cured within thirty
(30) days.
13.7 Deed Restrictions. Each site and unit is sUbject to
certain restrictions for affordable housing as set forth in
Aspen/Pitkin county Housing Authority Occupancy and Resale Deed
Restrictions, Agreement and Covenants. Such instrument includes
provisions relating to Mortgagee rights, notice requirements and
resale, lease and use controls for sites and Units, which
provisions (as amended from time to time) are hereby incorporated
by this reference. In the event of any inconsistency between the
provisions of such instrument and this Declaration, the
provisions of such instrument shall control.
13.8 Disclaimer. Except as expressly set forth in this
Declaration, or in an instrument in writing expressly referencing
this Section 13.7, no representations or warranties of any kind,
express or implied, have been given or made by Declarant or its
agents or employees in connection with the operation, .
Maintenance, cost of Maintenance, taxes or regula~ion of the
Property as a planned development.
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13.9 Severability. The provisions hereof shall be deemed
independent and severable, and the invalidity or partial
invalidity or unenforceability of any one provision or portion
thereof shall not affect the validity or enforcement of any other
portion hereof.
13.10 Attorney-In-Fact. Whenever this Declaration
refers to the Association acting as attorney-in-fact, acceptance
by a purchaser of a deed to a site constitutes an appointment by
the purchaser of the Association as his attorney-in-fact for the
purposes set forth in this Declaration.
By
As
Attest:
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~330448 02~21/91 09:54 Pee $.00 BK 640 PG 122
~llvla Davls, Pitkin Cnty Clerk, Doc $.00
STATE OF COLORADO
)
COUNTY OF PITKIN
)
) ss
4
The
for~going
instrument was acknowledged before me this
\) 4rvv~--£1
, 1990, by :Trjy,!.·CV.teh"s
_ _ _ _~,.......,...--·.../_-----/_:__, as C 12,9- )/?,n ~--V .
of the
Aspen/Pitkin County Housing Authority, a mUltijurisdictional
housing authority.
;2J- day of
WITNESS my hand and official seal.
/~---
N0"tary Public
My Commission expires:
3 /;" /c:y
[SEAL]
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#330448 02/21/91 09:54 Rec $.00 BK 640 PG 123
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EXHIBIT A
Commencing at the witness corner to the Southwest Corner of Section 31,
T9S, R85W of the 6th P.M., Thence S22°37 146"W, 1663. 09 feet to the Northwest
Corner of said Fairway Three Townhomes; Thence S89°24 1 3 7 " E , 105.05 feet
along the northerly line of said Fairway Three Townhomes to the Northwest
Corner of said Lot 2 and the TRUE POINT OF BEGINNING;
Thence continuing S89°24 1 3 7 " E , 197.97 feet along the northerly line of
said Fairway Three Townhomes to the Northeast corner of said Lot 3;
Thence S14°09 154 11E, 103.46 feet along the East line of said Lot 3
to the Southeast Corner thereof;
Thence S80017
IOO"W,
34.25 feet along the Southerly line of said lot 3;
Thence N85°23'58"W, 55.98 feet along the Southerly line of said lot 3;
Thence S60017
115.86 feet aling the Southerly line of said lots
3 and 2 to the Southwest Corner of said Lot 2;
IOO"W,
Thence N11°36 134"W, 164.44 feet along the West line of said lot
the TRUE POINT OF BEGINNING.
Pitkin County, Colorado
•
2
to
EXHIBIT
B
[Description of Additional Property for future phases]
•
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#330448 02/21/91 09:54 Rec·$.OO BK 640 PG 126
Silvia Davis, Pitkin Cnty Clerk, Doc S.OO
THE ASPEN/PITKIN COUNTY
HOUSING AUTHORITY'S
OCCUPANCY AND RESALE DEED RESTRICTION,
AGREEMENT, AND COVENANT
THIS OCCUPANCY AND RESALE DEED RESTRICTION, AGREEMENT AND
COVENANT (the "Agreement") is made and entered into this
day
of
,19
, by
( "Owner"), for thebene f:"":i:'""":t-o----=f----:-t"'7h-e-p-a-r"'7t'i:-:e-s--a-n-=d:--e-n-f'=o-r-c-e-a"":"b-:l:-e-":""b-y~t:-::h-e
ASPEN/PITKIN COUNTY HOUSING AUTHORITY (hereinafter referred to as
"APCHA"), a duly constituted MUlti-jurisdictional Housing Authority
established pursuant to the AMENDED AND RESTATED INTERGOVERNMENTAL
AGREEMENT by and between the city of Aspen, Colorado (the "City")
and pitkin County, Colorado (the "County"), dated September 26,
1989 and recorded in Book 605 at Page 751 of the records of the
Pitkin County Clerk and Recorder's Office.
WIT N E SSE T H:
WHEREAS, Owner has purchased from APCHA at a price of
$
and owns as a result of that certain warranty deed
executed on the date hereof, an approximate
square foot
dwelling ("Dwelling") located on the real property more specifical­
ly described in Exhibit "A" attached hereto and incorporated
herein.
For purposes of this Agreement, the dwelling, the real
property and all appurtenances, improvements and fixtures associat­
ed therewith shall hereinafter be referred to as the "Property";
and
WHEREAS, as a condition of the sale to the Owner of the
Property, the Owner is required to enter into this Agreement; and
WHEREAS, Owner agrees to restrict the acquisition or transfer
of the Property to "Qualified Buyers," as thatterm is defined in
this Agreement, who fall within the
income sale
guidelines established and adopted by the APCHA from time to time.
In addition, the Owner agrees that this Agreement shall constitute
a resale agreement setting forth the maximum sale price for which
the Property may be sold ("Maximum Sale Price"), the amount of
appreciation and the terms and provisions controlling the resale of
the Property should Owner desire to sell the Property at any time
after the date of this Agreement.
Finally, by this Agreement,
Owner agrees to restrict the Property against use and occupancy
inconsistent with this Agreement.
WHEREAS, "Qualified Buyers" are natural persons meeting the
income, residency and all other qualifications set, forth in the
Aspen/pitkin County Housing Authority Affordable Housing Guide­
lines, or its SUbstitute, as adopted by the APCHA~ or its succes­
sor, and in effect at the time of the closing of the sale from
Owner to the Qualified Buyer ("the Affordable Housing Guidelines")
and who must represent and agree pursuant to this Agreement to
#330448 02(21/91 09~54 Rec $.00 BK 640 PG 125
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EXHIBIT
UNIT NUMBER
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
C
SQUARE FOOTAGE
1,354
1,568
1,568
1,568
1,354
1,354
1,568
1,568
1,036
1,036
1,568
1,568
1,568
1,568
1,036
1,036
1,568
1,568
1,568
1,568
1,036
1,036
1,568
1,568
1,568
1,036
1,036
1,568
1,568
1,036
-33­
UNIT INTEREST
3.25%
3.77%
3.77%
3.77%
3.24%
3.24%
3.77%
3.77%
2.49%
2.49%
3.77%
3.77%
3.77%
3.77%
2.49%
2.49%
3.77%
3.77%
3.77%
3.77%
2.49%
2.49%
3.77%
3.77%
3.77%
2.49%
2.49%
3.77%
3.77%
2.49%
~5~U44d U~/~1/91 09:54 Rec $.00 BK 640 PG 127
Silvia Davis, Pitkin Cnty Clerk, Doc $.00
occupy the Property as their sole place of residence, not to engage
in any business activity on the Property, and not to sell or
otherwise transfer the Property for use in a trade or business.
NOW THEREFORE, for value received, the receipt and sUfficiency
of which is hereby acknowledged, Owner hereby represents, covenants
and agrees as follows:
1.
The use and occupancy of the Property shall henceforth be
limited exclusively to housing for natural persons who
meet the definition of Qualified Buyers and their
families.
2.
Owner is a Qualified Buyer and, in connection with the
purchase of this Property, Owner agrees (i) to occupy the
Property as his or her sole place of residence during the
time that the Property is owned by the Owner, (ii) not to
engage in any business activity on or in the Property,
(iii) to sell or otherwise transfer the Property only in
accordance with this Agreement and the Affordable Housing
Guidelines, (iv) not to sell or otherwise transfer the
Property for use in a trade or business, and (v) not to
permit any use or occupancy of the Property except in
compliance with this Agreement.
3.(a)
It shall be a breach of this Agreement for Owner to
default in payments or other obligations due or to be
performed under a promissory note secured by a first deed
of trust encumbering the Property.
Owner hereby agrees
to notify the APCHA, in writing, of any notification
Owner receives from a lender, or its assigns, of past due
payments or default in payment or other obligations due
or to be performed under a promissory note secured by a
first deed of trust, as described herein, within five
calendar days of Owner's notification from lender, or its
assigns, of said default or past due payments.
(b)
Upon notification from Owner, as provided above,or
other notice of such default, the APCHA may offer loan
counseling or distressed loan services to Owner, if any
of these services are available, and is entitled to
require Owner to sell the Property to avoid the commence­
ment of any foreclosure proceeding against the Property.
In the event that the APCHA determines that sale of the
Property is necessary, Owner shall immediately execute a
standard Listing Contract on forms approved by the
Colorado Real Estate Commission with the APCHA, providing
for a 3D-day listing period. If a sales contract has not
been executed within the initial 3D-day period, Owner
shall extend the listing period for a~ additional 180
days, provided such extension does not conflict with the
statutory rights of any secured creditors.
The APCHA
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shall promptly advertise the Property for sale by
competitive bid to Qualified Buyers. Owner shall, upon
closing, pay a fee to the APCHA in an amount equal to two
percent (2%) of the sales price, or such other amount as
required by APCHA guidelines, to be distributed as
provided in paragraph 5.
In the event of a listing of
the Property pursuant to this Paragraph 3., the APCHA is
entitled to require Owner to accept the highest of any
qualified bids which satisfies the Owner's financial or
other obligations due under the promissory note secured
by a first deed of trust and deed of trust in favor of
APCHA, as described herein, and to sell the Property to
such qualified bidder.
(c) Upon receipt of notice as provided in paragraphs 3 (a)
and (b), APCHA shall have the right, in it's sole
discretion, to cure the default or any portion thereof.
In such event the Owner shall be personally liable to
APCHA for past due payments made by APCHA together with
interest thereon at the rate specified in the promissory
note secured by the first deed of trust, plus one percent.
(1%), and all actual expenses of APCHA incurred in curing
the default. Owner shall be required by APCHA to execute
a promissory note secured by deed of trust encumbering
the Property in favor of APCHA for. the amounts expended
by APCHA as specified herein, including future advances
made for such purposes. Owner may cure the default and
satisfy it's obligation to APCHA under this subparagraph
at any time prior to execution of a contract for sale,
upon such reasonable terms as specified fy APCHA.
otherwise, Owner's indebtedness to APCHA shall be
satisfied from the Owner's proceeds at closing.
4.
This Agreement shall constitute covenants running with
the real property, described in Exhibit A, as a burden
thereon, for the benefit of, and shall be specifically
enforceable by APCHA, the Board of County Commissioners
of the County (the "Board"), the City Council for the
city (the "City Council") and their respective successors
and assigns, as applicable, by any appropriate legal
action including but not limited to specific performance,
injunction, reversion, or eviction of non-complying
owners and/or occupants.
5.
In the event that the Owner desires to sell the Property,
Owner shall execute a standard Listing Contract on forms
approved by the Colorado Real Estate Commission with the
Village of Snowmass providing for a 180-day listing
period. The Village of Snowmass shall promptly advertise
the Property for sale by competitive ~id to Qualified
Buyers.
Owner shall, upon closing, pay a fee to the
Village of Snowmass in an amount equal to three percent
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(3%) of the sales price, or such other amount as required
by guidelines, which shall be allocated as follows; two
percent (2%) of the sales price shall be distributed to
the Village of Snowmass Real Estate Commission Account
and one percent (1%) shall be distributed to the APCHA
Mortgage Fund Account. This distribution may be amended
by APCHA guidelines.
MAXIMUM SALE PRICE
6.
In no event shall the Property be sold for an amount
("Maximum Sale Price") in excess of the lesser of:
(a)
APCHA's initial listed purchase price for the
Property of
, plus an increase of
three percent (3%) of such price per year from the
date of purchase to the date of Owner's notice of
intent to sell (prorated at the rate of .25 percent
for each whole month for any part of a year); or
(b)
an amount (based upon the Consumer Price Index, All
Items, U.S. City Average, Urban Wage Earners and
Clerical Workers (Revised), published by the U.S.
Department of Labor, Bureau of Labor statistics)
calculated as follows: the Owner's purchase price
mUltiplied by the Consumer Price Index last pub­
lished prior to the date of Owner's notice of
intent to sell divided by the Consumer Price Index
current at the date of this Agreement. In no event
shall the mUltiplier be less than one (1).
For
purposes of this Agreement, "date of intent to
sell" shall be the date of execution of a listing
contract when required by this agreement, or if a
listing contract is not otherwise necessary, the
date shall be determined to be the date upon which
a requirement for the Owner to sell is first appli­
cable.
NOTHING HEREIN SHALL BE CONSTRUED TO CONSTITUTE A
REPRESENTATION OR GUARANTEE BY THE APCHA, THE CITY OR THE
COUNTY THAT ON SALE THE OWNER SHALL OBTAIN THE MAXIMUM
SALE PRICE.
7.
•
(a)
For the purpose of determining the Maximum Sale
Price in accordance with this Section, the Owner
may add to the amount specified in Paragraph 6
above, the cost of Permitted Imp~ovements (as
defined in Exhibit "B") in a total amount not to
exceed $
, which is ten per~ent (10%) of
the APCHA initial listed purchase price set forth
in paragraph 6 (a) above.
In calculating such
amount only those Permitted Improvements identified
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in Exhibit B hereto shall qualify for inclusion.
All such Permitted Improvements installed or con­
structed over the life of the unit shall qualify.
However, the ten percent (10%) allowance shall at
all times be a fixed amount, beyond which no in­
crease in Maximum Sale Price is permitted.
(b)
Permitted Improvements shall not include any chang­
es or additions to the Property made by the Owner
during construction or thereafter, except in accor­
dance with Paragraph 7(a} above and Exhibit B
hereto.
Permitted Improvements shall not be in­
cluded in APCHA's listed purchase price, even if
made or installed during original construction.
(c)
In order to qualify as Permitted Improvements,
Owner must furnish to APCHA the following informa­
tion with respect to the improvements which the
Owner seeks to include in the calculation of Maxi­
mum Sale Price:
(i)
Original or duplicate receipts to verify the
actual costs expended by the Owner for the
Permitted Improvements;
(ii) Owner's affidavit verifying that the receipts
are valid and correct receipts tendered at the
time of purchase; and
(iii) True and correct copies of any building permit
or certificate of occupancy required to be
issued by the Aspen/pitkin County Building
Department with respect to the Permitted
Improvements.
(d)
For the purpose of determining the Maximum Sale
Price in accordance with this Section, Owner may
also add to the amount specified in Paragraphs 6
and 7 (a), the cost of any permanent improvements
constructed or installed as a result of any re­
quirement imposed by any governmental agency,
provided that written certification is provided to
the APCHA of both the applicable requirement and
the information required by Paragraph 7(c} (i)­
(iii).
(e)
In calculating the costs under Paragraphs 7(a} and
7(d}, only the Owner's actual out-of-pocket costs
and expenses shall be eligible for inclusion. Such
amount shall not include an amount attributable to
Owner's "sweat equity" or to any "appreciation in
the value of the improvements.
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8.
All disputes between Owner and the administrative staff
of the APCHA shall be heard in accordance with the
grievance procedures set forth in the Affordable Housing
Guidelines.
9.
Owner shall not permit any prospective buyer to assume
any or all of the Owner's customary closing costs nor
accept any other consideration which would cause an
increase in the purchase price above the bid price so as
to induce the Owner to sell to such prospective buyer.
10.
In the event that one qualified bid is received equal to
the Maximum Sale Price herein established, the Property
shall be sold to such bidder at the Maximum Sale Price;
and in the event Owner receives two or more such bids
equal to the Maximum Sale Price, the Qualified Buyer
shall be selected according to the priority for Sale
units set forth in the Affordable Housing Guidelines;
and, in the event that all such qualified bidders are of
equal priority pursuant to the Affordable Housing
Guidelines, the Qualified Buyer shall be selected by
lottery among the qualified bidders, whereupon the
Property shall be sold to the winner of such lottery at
the Maximum Sale Price. Owner shall have a period of two
(2) business days in which to consider and accept or
reject any purchase offer less than the Maximum Sale
Price. Bids in excess of the Maximum Sale Price shall be
rejected.
If all bids are below Maximum Sale Price,
Owner may accept the highest qualified bid. If all bids
are below Maximum Sale Price and two or more bids are for
the same price, the Qualified Buyer shall be selected by
lottery from among the highest qualified bidders.
11.
In the event that title to the Property vests by descent
in individuals and/or entities who are not Qualified
Buyers as that term is defined herein, (hereinafter "Non­
Qualified Transferee (s) II) , the Property shall immediately
be listed for sale as provided in Paragraph 5 above
(including the payment of the specified fee to the
APCHA) , and the highest bid by a Qualified Buyer, for not
less than ninety-five percent (95%) of the Maximum Sale
Price or the appraised market value, whichever is less,
shall be accepted; if all bids are below ninety-five
percent (95%) of the Maximum Sale Price or the appraised
market value, the Property shall continue to be listed
for sale until a bid in accordance with this section is
made, which bid must be accepted.
The' cost of the
appraisal shall be paid by the Non-Qualified Transfer­
ee (s) .
(a)
.
Non-Qualified Transferee(s) shall join in any sale,
conveyance or transfer of the Property to a Quali­
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fied Buyer and shall execute any and all documents
necessary to do so; and
(b)
Non-Qualified Transferee(s) agree not to (i) occupy
the Property, (ii) rent all or any part of the
Property, except in strict compliance with Para­
graph 15 hereof; (iii) engage in any other business
activity on or in the Property, (iv) sell or other­
wise transfer the Property except in accordance
wi th this Agreement and the Affordable Housing
Guidelines, or (v) sell or otherwise transfer the
Property for use in a trade or business.
(c)
The APCHA, the County, and the City, or their
respective successors, as applicable, shall have
the right and option to purchase the Property,
exercisable within a period of fifteen (15) calen­
dar days after receipt of any sales offer submitted
to the APCHA by a Non-Qualified Transferee(s), and,
in the event of exercising their right and option,
shall purchase the Property from the Non-Qualified
Transferee(s) for a price of ninety-five percent
(95%) of the Maximum Sale Price, or the appraised
market value, whichever is less.
The offer to
purchase shall be made by the Non-Qualified Trans­
feree within fifteen (15) days of acquisition of
the Property.
(d)
Where the provisions of this Paragraph 11 apply,
the APCHA may require the Owner to rent the Proper­
ty in accordance with the provisions of Paragraph
15, below.
OWNER RESIDENCE
12.
Owner represents and warrants that the Property shall be
and is to be utilized only as the sole and exclusive
place of residence of Owner.
13.
Owner agrees that, in the event Owner changes domicile or
ceases to utilize the Property as his sole and exclusive
place of residence, the Property will be offered for sale
pursuant to the provisions of Paragraph 11 of this
Agreement. Owner shall be deemed to have changed Owner I s
domicile by becoming a resident elsewhere or accepting
permanent employment outside Pitkin County, or residing
on the Property for fewer than nine (9) months per
calendar year without the express written approval of the
APCHA. Where the provisions of this Paragraph 13 apply,
the APCHA may require the Owner to rent, the Property in
accordance with the provisions of Paragraph 15, below.
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14.
If at any time the Owner of the Property also owns any
interest alone or in conjunction with others in any
developed residential prope-rty or dwell ing unit (s), Owner
agrees to immediately list said other property or unit
for sale and to sell owner's interest in such property at
a sales price comparable to like units or properties in
the area in which the property or dwelling unites) are
located.
In the event said other property or unit has
not been sold by Owner within one hundred twenty (120)
days of its listing, then Owner hereby agrees to immedi­
ately list this Property for sale pursuant to the
provisions of Paragraph 11 of this Agreement.
It is
understood and agreed between the parties hereto that, in
the case of an Owner whose business is the construction
and sale of residential properties or the purchase and
resale of such properties, the properties which consti­
tute inventory in such an Owner's business shall not
constitute "other developed residential property" or
"dwelling unit(s)" as those terms are used in this
Paragraph 14.
RENTAL
15.
Owner may not, except with prior written approval of the
APCHA, and subject to the APCHA's conditions of approval,
rent the Property for any period of time.
Prior to
occupancy any tenant must be approved by the Homeowner's
Association, if applicable, and the APCHA in accordance
with the income, occupancy and all other qualifications
established by the APCHA in its Affordable Housing
Guidelines.
The APCHA shall not approve any rental if
such rental is being made by Owner to utilize the
Property as an income producing asset, except as provided
below, and shall not approve a lease with a rental term
in excess of twelve (12) months.
A signed copy of the
lease must be provided to the APCHA prior to occupancy by
any tenant. Any such lease approved by the APCHA shall
be SUbject to the following rent calculations:
(a)
A rental rate not to exceed the monthly expenses
for the cost of principal and interest payments,
taxes, property insurance, condominium or homeowner
assessments, utilities plus an additional Twenty
Dollars ($20.00) and a reasonable (refundable)
security deposit; or
(b)
In the event that there is no outstanding mortgage
on the Property, the rental rate shal! be based on
Square Foot Rents as defined in the most current
Aspen/Pitkin County Housing Authority.Guidelines as
adopted from time to time.
The requirements of this Paragraph shall not preclude the
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Owner from sharing occupancy of the Property with non­
owners on a rental basis provided Owner continues to meet
the obligations contained -in this Agreement, including
Paragraph 12.
16.
IN NO EVENT SHALL THE OWNER CREATE AN ADDITIONAL DWELLING
UNIT, AS DEFINED IN THE PITKIN COUNTY OR CITY OF ASPEN
LAND USE CODE, IN OR ON THE PROPERTY.
17 .
NOTHING HEREIN SHALL BE CONSTRUED TO REQUIRE THE APCHA TO
PROTECT OR INDEMNIFY THE OWNER AGAINST ANY LOSSES
ATTRIBUTABLE TO THE RENTAL INCLUDING (NOT BY WAY OF
LIMITATION) NON-PAYMENT OF RENT OR DAMAGE TO THE PREMIS­
ES; NOR TO REQUIRE THE APCHA TO OBTAIN A QUALIFIED TENANT
FOR THE OWNER IN THE EVENT THAT NONE IS FOUND BY THE
OWNER.
BREACH
18.
In the event that the APCHA has reasonable cause to
believe the Owner is violating the provisions of this
Agreement, the APCHA by its authorized representative may
inspect the Property between the hours of 8:00 A.M. and
5:00 P.M., Monday through Friday, after providing the
Owner with no less than 24 hours' written notice.
19.
The APCHA, in the event a violation of this Agreement is
discovered, shall send a notice of violation to the Owner
detailing the nature of the violation and allowing the
Owner fifteen (15) days to cure. Said notice shall state
that the Owner may request a hearing before the APCHA
within fifteen (15) days to determine the merits of the
allegations.
If no hearing is requested and the viola­
tion is not cured within the fifteen (15) day period, the
Owner shall be considered in violation of this Agreement.
If a hearing is held before the APCHA, the decision of
the APCHA based on the record of such hearing shall be
final for the purpose of determining if a violation has
occurred.
REMEDIES
20.
There is hereby reserved to the parties hereto any and
all remedies provided by law for breach of this Agreement
or any of its terms. In the event the parties resort to
litigation with respect to any or all provisions of this
Agreement, the prevailing party shall be' entitled to
recover- damages
and
costs,
inclUding
reasonable
attorneys' fees.
21.
In the event the Property is sold and/or conveyed without
compliance herewith, such sale and/or conveyance shall be
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wholly null and void and shall confer no title whatsoever
upon the purported buyer. Each and every conveyance of
the Property, for all purposes, shall be deemed to
include and incorporate by this reference, the covenants
herein contained, even without reference therein to this
Agreement.
22.
In the event that the Owner fails to cure any breach, the
APCHA may resort to any and all available legal action,
including, but not limited to, specific performance of
this Agreement or a mandatory injunction requiring sale
of the Property by Owner as specified in Paragraphs 3,
11, 13, and 14.
The costs of such sale shall be taxed
against the proceeds of the sale with the balance being
paid to the Owner.
23.
In the event of a breach of any of the terms or condi­
tions contained herein by Owner, his heirs, successors or
assigns, the APCHA I s initial listed purchase price of the
Property as set forth in Section 6(a) of this Agreement
shall, upon the date of such breach as determined by the
APCHA, automatically cease to increase as set out in
paragraph 6 of this Agreement, and shall remain fixed
until the date of cure of said breach.
FORECLOSURE
The APCHA, the Board and the City Council may, pursuant to
that certain Option to Buy executed and recorded of even date
herewith, the terms of which are incorporated in this Agree­
ment by this reference as if fully set forth herein, agree to
release and waive their ability to enforce the resale deed
restrictions contained herein, in the event of foreclosure,
provided that said Option to Buy grants to the APCHA and
either the Board or the City Council, as the designee of the
APCHA, the option to acquire the Property within thirty (30)
days after the issuance of a pub Li,c trustee I s deed to the
holder (including assigns of the holder) of the promissory
note secured by a first deed of trust for an option price not
to exceed the redemption price on the last day of all statuto­
ry redemption period(s) and any additional reasonable costs
incurred by the holder during the option period which are
directly related to the foreclosure.
In the event that the APCHA and either the Board or the City
Council, as the designee of the APCHA, exercise the option
pursuant to the terms of that certain Option to BUy, described
above, the APCHA, and/or its designee, may sell the Property
to Qualified Buyers as that term is defined he~ein, or rent
the Property to qualified tenants who meet· the income,
occupancy and all other qualifications, est"ablished by the
APCHA in its Affordable Housing Guidelines until sale to a
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Qualified Buyer is effected.
GENERAL PROVLSIONS
24.
Notices.
Any notice, consent or approval which is
required to be given hereunder shall be given by mailing
the same, certified mail, return receipt requested,
properly addressed and with postage fully prepaid, to any
address provided herein or to any subsequent mailing
address of the party as long as prior written notice of
the change of address has been given to the other parties
to this Agreement.
25.
Said notices, consents and approvals shall be sent to the
parties hereto at the following addresses unless other­
wise notified in writing:
To Owner:
To APCHA:
Director
Aspen/Pitkin county Housing Authority
39551 Highway 82
Aspen, Colorado 81611
26.
Exhibits. All exhibits attached hereto, (Exhibits A & B)
are incorporated herein and by this reference made a part
hereof.
27.
Severability. Whenever possible, each provision of this
Agreement and any other related document shall be
interpreted in such manner as to be valid under applica­
ble law; but, if any provision of any of the foregoing
shall be invalid or prohibited under said applicable law,
such provisions shall be ineffective to the extent of
such invalidity or prohibition without invalidating the
remaining provisions of such document.
28.
Choice of Law. This Agreement and each and every related
document is to be governed and construed in accordance
with the laws of the State of Colorado.
29.
Successors.
Except as otherwise provided herein, the
provisions and covenants contained herein shall inure to
and be binding upon the heirs, successors and assigns of
the parties.
30.
section Headings. Paragraph or section"headings
within this Agreement are inserted solely for convenience
of reference, and are not intended to; and shall not,
govern, limit or aid in the construction of any terms or
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provisions contained herein.
31.
Waiver. No claim of waiver, consent or acquiescence with
respect to any provision of this Agreement shall be valid
against any party hereto except on the basis of a written
instrument executed by the parties to this Agreement.
However, the party for whose benefit a condition is
inserted herein shall have the unilateral right to waive
such condition.
32 .
Gender and Number.
Whenever the context so requires
herein, the neuter gender shall include any or all
genders and vice versa and the use of the singular shall
include the plural and vice versa.
33.
Personal Liability. Owner agrees that he or she shall be
personally liable for any of the transactions contemplat­
ed herein.
34.
Further Actions. The parties to this Agreement agree to
execute such further documents and take such further
actions as may be reasonably required to carry out the
provisions and intent of this Agreement or any agreement
or document relating hereto or entered into in connection
herewith.
35.
Modifications. The parties to this Agreement agree that
any modifications of this Agreement shall be effective
only when made by writings signed by both parties and
recorded with the Clerk and Recorder of Pitkin County,
Colorado. Notwithstanding the foregoing, APCHA reserves
the right to amend this Agreement unilaterally where
deemed necessary to effectuate the purpose and intent of
this Agreement, and where such unilateral action does not
materially impair the Owner's rights under this Agree­
ment.
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IN WITNESS WHEREOF 1 the parties hereto have executed this
instrument on the day and year above first written.
OWNER:
By:
---------------------
Name:
--------------------
Title:
--------------------
Mailing Address:
OWNER:
By:
---------------------
Name:
--------------------
Title:
--------------------
Mailing Address:
STATE OF
)
COUNTY OF
)
) ss.
The foregoing instrument was acknowledged before me this - - day of
1
19_ , by
and
Witness my hand and official seal.
My commission expires:
Notary Public
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l~Y
ACCEPTANCE BY THE ASPEN/PITKIN COUNTY HOUSING AUTHORITY
The foregoing Agreement and its terms are accepted by The
Aspen/Pitkin County Housing Authority.
STATE OF COLORADO
SSe
COUNTY OF PITKIN
Th\ foregoing instrument was acknowledged before me this
day of d4"A.:(.,V~
' 19~, by -rPnv\=esL,QJ~±ts
¥11
witness my hand and official seal.
M>y.commission expires:
P
N6tarY
·occup.agt
"
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FAIRWAY THREE
EXHIBIT liB"
TO
THE ASPEN/PITKIN COUNTY
HOUSING AUTHORITY'S
OCCUPANCY AND RESALE DEED RESTRICTION,
AGREEMENT, AND COVENANT
1.
The term "Permitted Improvement" as used in the Agreement
shall only include the following:
(a) The cost to finish unfinished bathroom space in the
3-bedroom units.
(b) The cost for additional doors and the conversion of
original doors to french doors, less the salvage value of the
original doors.
(c) The following items, provided they are fixtures,
i.e., permanent improvements to the Property:
(i)
ceiling fans;
(ii)
energy
approval of the APCHA;
conservation
improvements,
with
the
(iii)
improvements for the benefit of seniors and/or
handicapped persons;
2.
The term "Permitted Improvements"
Agreement shall not include the following:
as
used
in
this
(a)
Decks not included in the plans approved by the
(b)
Landscaping;
(c)
Upgrades of kitchen appliances;
(d)
Upgrades of plumbing fixtures;
(e)
Skylights not included in the plans approved by the
(f)
Jacuzzis;
APCHA;
APCHA;
(g) Window coverings, unless approved by·the APCHA as
energy conservation measures;
(h) Any redesign
approved by the APCHA;
(i)
of
floor
plans
not
in
the
plans
Addition of washer and/or dryer, even if fixtures;
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~55Y44~
(j)
Electric garage door openers;
(k)
Security systems;
(1)
Furniture, even if fixtures, such as wall units or
shelving;
(m) Additional cable TV or telephone wiring for rooms
not in the plans approved by the APCHA;
(n)
Upgrades of medicine cabinets;
(0)
Expansion of clothes closets or closet organizers;
(p)
Upgrades of carpeting;
(q)
Carports of any kind; and
(r)
Laundry chutes.
3.
The items listed in Paragraph 2 are set forth to reflect
those items which were specifically considered by the Aspen/pitkin
County Housing Authority Board of Directors and disapproved as
permitted improvements. The list is not intended to be a complete
list of all improvements which may be added to the property but not
included within the definition of permitted Improvements, it being
understood that only those items listed under Paragraph 1 above are
Permitted Improvements for purposes of the Agreement.
a:fairway.exh
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