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HomeMy WebLinkAboutbocc.ord.021.2016 RECEPTION#: 652426. R. $0.00. D $0 00 DOC CODE: ORDINANCE Pg 1 of 10, 12/06/2018 at 10.20:43 AM Janice K Vos Caudill, Pitkin County. CO ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO AUTHORIZING ACCEPTANCE OF A COVENANT FOR THE MAINTENANCE OF ROCKFALL BARRIER AND STORMWATER FACILITIES, PURSUANT TO RESOLUTION NO. 054-2016 FROM LOT 20 LITTLE CLOUD, LLC ORDINANCE NO. 6.91 -2016 I. Lot 20 Little C loud, I.LC ("Applicant-) is the owner of real properly located in Pitkin County, Colorado, which is described as I Tact A of Parcel A of Government Lot 20 Subdivision Exemption, according the Plat thereof filed January 8, 1993 in Plat Book 30 at Page 23 2. Board of County Commissioners (-BOCCI Resolution No. 054-2016 approves with conditions a specific development plan for the parcel. Condition No 4B of this Resolution requires a rockfall barrier and stormwater facilities,and continued maintenance of the barrier and facilities. 3. '10 assure the continued maintenance of the required rockfall barrier and stormwater facilities, the Applicant has agreed to convey to the County an interest in the property with respect to the repair, maintenance, and replacement of the barrier and facilities 4. The BOCC reviewed the proposed Covenant on first reading at a regular meeting on September 14, 2016. The 130CC adopted the Ordinance accepting the Covenant on second reading at a public hearing on September 28, 2016. NOW,THEREFORE, BE IT ORDAINED by the Board of County Commissioners of Pitkin County, Colorado that 1. The BOCC approves and accepts the Covenant for Maintenance of Rockfall Barrier and Stonnwater Facilities from Lot _0I ittle Cloud LLC (Exhibit A) 2. Upon approval of the form of the C oN enant by the County Attorney, the Chair is authorized to execute the Covenant INTRODUCED AND FIRST READ ON TILE. le DAY OF SEPTEMBER, 2016 NOTICE OF PURI IC HEARING AND TITLE AND SHORT SUMMARY OF THE ORDINANCE PUBLISHED IN THE ASPEN LIMES WEEKl Y ON/e1-/ 0/6, 2016. NOTICE OF PUBLIC HEARING AND THE FULL TEXT OF TILE ORDINANCE POSTED ON TILE OFFICIAL. PI'LKIN COUNI Y WEBSITE ( wwvi.pitkincounty.com I ON THE /5 DAY OF (2�.7Y..ctat buY 2016. ADOPTED API ER A PUBLIC HEARING AND SECOND READING ON THE 28`h DAY OF SEPTEMBER, 2016. PUBLISHED BY I ITLE AND SHORT SUMMARY; AFTER ADOPTION, IN THE ASPEN TIMES WEEKLY ON THL �j t"- DAY OF (/r' '4+-r 2016 POSTED ON THE OF ILIAL P11 KIN COUNTY WEBSITE ( www pitkincounth.com 1 ON THE*d` DAY OF ?-tnr . 2016. ATTES I' BOARD OF COUNTY COMMISSIONERS x-U ieancI e Jones Rac 1E. Richards, Chair DepiiVy County Clerk Date: iD/I�) b 9-al(J APPROVED As-TetOHICr MANAGER APPROVAL - L — J-7. John Ely, County ume} Jon Peac ck. Count} Man: cr z APPROVED AS TO CONTENT: )ttc Cin Ilouben, Community yelopment Director P081-15,HID 273512420001 COVENANT FOR THE MAINTENANCE OF ROCKFALL BARRIER AND STORMWATER FACILITIES (PURSUANT TO PITKJN COUNTY BOARD OF COUNTY COMMISSIONERS RESOLUTION NO. 054-2016,AS AMENDED BY ADMINISTRATIVE DECISION NO. 3-2018) THIS COVENANT FOR THE MAINTENANCE OF ROCKFALL BARRIER AND STORMWATER FACILITIES ("Covenant") is made and entered into on the 12th day of October 2018 by LOT 20 LITTLE CLOUD, LLC, a Colorado limited liability company ("Owner"), for the benefit of the BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO ("Pitkin County') WHEREAS, Owner is the owner of real property located in Pitkin County, Colorado, described in Exhibit A, attached hereto and by this reference incorporated herein (the "Property") WHEREAS, Board of County Commissioners Resolution No 054-2016 recorded on August 2, 2016 at Reception No 631045, as amended by Administrative Decision No 3-2018 recorded on March 19, 2018 at Reception No 645921 (collectively, the "Approval Resolution") approves with conditions a specific development plan for the Property WHEREAS, pursuant to the requirements of the Approval Resolution, there will be located on the Property, among other improvements, the following improvements to be constructed pursuant to construction plans approved during the permitting process in accordance with the Approval Resolution (a) a flexible steel mesh rockfall barrier to be located within the Geo-Hazard Mitigation Envelope shown on the Lot 20 Little Cloud, LLC — Site Plan recorded on the same day as this Covenant in Plat Book 12'( at Page Ogg , and (b) a stormwater sewer system that will direct stormwater through a drainage system into a common stormwater drywell system (collectively, the"Mitigation Improvements") WHEREAS, Owner will be responsible for the repair, maintenance and cleaning of the Mitigation Improvements from time to time, WHEREAS, Pitkin County has an interest in assuring the ongoing repair, maintenance and cleaning of the Mitigation Improvements, and therefore, Pitkin County, pursuant to Section 4B of the Approval Resolution, has requested certain requirements be imposed upon the Property regarding the performance of repairs, maintenance and cleaning of the Mitigation Improvements from time to time, as more particularly set forth herein, WHEREAS, Owner is willing to covenant to Pitkin County pursuant to Section 4 B of the Approval Resolution, forever and in perpetuity, with respect to the repair, maintenance and cleaning of the Mitigation Improvements as may be required by Pitkin County from time to time, for and in consideration of the recitals, mutual covenants, terms, conditions and restrictions contained herein SAO 85099 3 1 NOW, THEREFORE, in consideration of the covenants, conditions and terms hereof, In addition to other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Owner does hereby covenant as follows 1 Covenant Regarding Repair, Maintenance and Cleaning of the Mitigation Improvements Owner covenants and agrees that, as the owner of the Mitigation Improvements, Owner shall at all times preserve the functionality of the Mitigation Improvements, and the repair, maintenance or cleaning of the Mitigation Improvements from time to time so that the Mitigation Improvements at all times comply with sound engineering standards and practices and any generally applicable requirements of Pitkin County, Colorado, and the State of Colorado with respect thereto (collectively, the "Mitigation Improvements Repair and Maintenance Obligations'") With respect to the flexible steel mesh rockfall barrier contemplated to be included as part of the Mitigation Improvements, the parties acknowledge that, subject to any necessary approvals from Pitkin County, Owner may reach an agreement with the Little Cloud Homeowners Association (the "LCHA") to permit such rockfall barrier to be located on such Association's adjoining common area property If this alternative solution for the rockfall barrier is agreed to, then the parties acknowledge that this Agreement will need to be amended and/or a supplement to this Agreement will need to be entered into to address the repair, maintenance and cleaning of such alternative rockfall barrier (which may also include an amendment to the existing agreement between Pitkin County and the LCHA regarding the maintenance of the rockfall barriers that already exist on the LCHA common area property) 2 Permitted Uses and Activities As owner of the Property, Owner retains the right to perform any act consistent with the Pitkin County Land Use Code (the "Land Use Code") to the extent such act is not prohibited or limited by the requirements of this Covenant These ownership rights include, but are not limited to, the right to exclude any member of the public trespassing on the Property and the right to sell, lease or otherwise transfer the Property to anyone Owner chooses Nothing herein shall be construed to be an approval by Pitkin County under the Land Use Code for any purpose other than the repair, maintenance and cleaning of the Mitigation Improvements 3 Enforcement and Inspection This Covenant and its terms and representations shall be fully enforceable by Pitkin County, its successors, assigns and agents in any action at law-or equity or both, to secure compliance, including but not limited to, seeking injunctive relief and/or specific performance requiring Owner or its successors or assigns to either perform actions provided for in this Covenant or to cease and desist all activity in violation of the terms of this Covenant Moreover, Pitkin County and its successors, assigns and agents shall be permitted access to, and to enter upon, the Property at reasonable times upon at least forty-eight (48) hours advance notice to Owner or Owner's representative, solely for the purpose of monitoring and inspecting the Mitigation Improvements in order to verify Owner's performance of the Mitigation Improvements Repair and Maintenance Obligations hereunder In the event of Owner's failure to perform the Mitigation Improvements Repair and Maintenance Obligations hereunder, Pitkin County shall, prior to the exercise of any right or remedy, give Owner written notice of such failure, together with (1) a written statement setting forth in reasonable particularity in what respect Owner has failed to perform its Mitigation Improvements Repair and Maintenance Obligations hereunder, including any appropriate I AOOtl599`) 5} 2 supporting documentation, and (2) a written description of any remedial actions and the basis of rationale therefor which Pitkin County requests to be taken by Owner in connection with the Mitigation Improvements (collectively, a "Default Notice") Upon Owner's receipt of a Default Notice, Owner shall thereafter have a period of fifteen (15) calendar days to cure said default by undertaking and completing the remedial actions set forth in the Default Notice If the requested remedial actions described in the Default Notice by their nature are not capable of being undertaken and completed within the time provided, Owner shall, provided that it is proceeding with all due diligence, have up to an additional thirty (30) calendar days to undertake and complete the requested remedial actions, which thirty (30) day period may automatically be extended by successive thirty (30) calendar day periods, provided that Owner continues to proceed with all due diligence to undertake and complete the requested remedial actions during each such successive thirty (30) calendar day period If Owner fails to undertake and complete the requested remedial actions within the time period(s) provided, Pitkin County shall then and thereafter be free to pursue any right or remedy allowed by this Covenant or otherwise by law 4 Pitkin County's Remediation of Owner's Failure to Undertake and Complete Remedial Actions In the event that Owner fails to undertake and complete the requested remedial action(s) descnbed in Pitkin County's Default Notice within the time period(s) set forth in Section 3 above, Pitkin County thereafter may enter the Property and undertake and complete such requested remedial actions at Owner's cost Owner shall reimburse Pitkin County for the cost of undertaking and completing the requested remedial actions within thirty (30) calendar days of Owner's receipt of Pitkin County's written demand for payment, together with copies of any receipts or invoices In the event of Owner's failure to pay in full the amount set forth in Pitkin County's written demand within the time set forth above, Pitkin County thereafter shall be entitled to assert a lien against the Property for the cost of Pitkin County's performance and completion of the requested remedial actions Any lien secured by Pitkin County against the Property pursuant to this Section shall have as a priority date the effective date of this Agreement, and Pitkin County shall be entitled to recover from Owner reasonable attorney's fees and costs incurred in securing and enforcing such lien 5 Costs and Liabilities Owner retains all responsibilities and shall bear all costs and liabilities of any kind related to ownership, operation, upkeep, taxes and maintenance of the Property, including but not limited to, costs associated with compliance with this Covenant Pitkin County's acceptance of this Covenant shall in no way be construed as an assumption of any duties or liabilities associated with the Property, and Owner acknowledges that by this Covenant, Owner continues to retain responsibility for any and all duties and liabilities associated with the Property 6 Covenant Running with the Land, Binding Effect The provisions of this Covenant shall constitute a covenant that runs with the title to the Property as a burden thereon for the benefit of Pitkin County and shall be deemed an appurtenance to the title to such land The Property may be established as a common interest community pursuant to the Colorado Common Interest Ownership Act in connection with the sale to separate parties of the two residences anticipated to be constructed on the Property pursuant to the Approval Resolution, and an owners' association may be established for the Property in connection therewith (an "Association") If an Association is established for the Property as described above, then such 1 400859,19 5 3 Association shall assume and be responsible for performing all of the obligations of the Owner pursuant to this Covenant 7 Subordination At the time of the making of this Covenant, Owner represents that, except as provided in the Lender Consent attached hereto, the Property is not subject to any mortgage, deed of trust or judgment lien, or any other instrument that might result in a foreclosure action that could affect the viability of this Covenant 8 Incorporation of the Land Use Code The Land Use Code, as may be amended from time to time, and any terms or definitions contained therein, are hereby incorporated by this reference in their entirety. 9 Modification The terms of this Covenant can only be modified by an amended covenant executed by Owner, and approved in writing and adopted by Pitkin County and recorded in the records of the Clerk and Recorder for Pitkin County, Colorado 10 Venue and Jurisdiction The interpretation, enforcement or any other matters relative to this Covenant shall be construed and determined in accordance with the laws of the State of Colorado Owner and Pitkin County consent to venue and jurisdiction in the District Court for Pitkin County, Colorado, for all matters concerning the interpretation and enforcement of this Covenant 11 Attorneys' Fees and Costs In the event of any action or suit between the parties hereto or their successors and assigns to enforce any of the agreements, covenants or restrictions contained herein, the substantially prevailing party in any such action or suit, whether by final judgment or out of court settlement, shall recover from the other party all costs and expenses of such action or suit including reasonable attorneys' fees 12 Headings Paragraph or section headings within this Covenant 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 provisions contained herein 13 Further Actions The parties to this Covenant 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 Covenant 14 Notices Any notice, demand, or document which any party is required or may desire to give, deliver or make to the other party shall be in writing and may be personally delivered or given by United States certified mail, return receipt requested, addressed as follows To Pitkin County. County Attorney Pitkin County 530 East Main Street Aspen, Colorado 81611 To Owner Lot 20 Little Cloud, LLC c/o Bart Johnson, Esq 420 E Main St , Ste 210 I A0085999 15 } 4 Aspen, CO 81611 Any notice, demand or document so given, delivered or made by United States mail shall he deemed to have been received on the date actually received, addressed as above provided, with postage prepaid Either party may change its address for the purpose of this Section by giving written notice of such change to the other party in the manner provided for in this Section In the event of sale of the Property by Owner, any notice to be sent to the new Owner(s) of the Property may be delivered to the address for such Owner(s) on file with the Pitkin County Assessor unless any such Owner pros ides notice to Pitkin County of a different address pursuant to the terms hereof IN WITNESS WHEREOF, the parties have executed this Covenant for the Maintenance of Mitigation Improvements to be effective as of the date set forth above LOT 20 LITTLE CLOUD, LLC, a Colorado limited liability company e By. ii� Name David S Cohen Title Receiver STATE OF COLORADO ) CITY & ) ss COUNTY OF DENVER The foregoing document was acknowledged before me this I)11' day of OrtP ber 2018, by David S Cohen as the Receiver for LOT 20 LITTLE CLOUD, LLC, a Colorado limited liability company Witness my hand and official seal My commission expires ion .2, 3c,,,t ,14-112)oti • GINA DANE Notary Public Notary Public-State of Colorado Notary ID 20174023553 My Commission Exp:res Jun 2,2021 IA5085999;5 } 5 ATTEST ACCEPTED BY BOARD OF COUNTY COMMISSIONERS BY J' rI / � 9 �J By' Jeanen- JonesC41134N06510ter , alet tot sat Deput County Clerk Date /9/ 7 , 2018 APPROVED AS TO FORM APPROVED AS TO CONTENT _� ciiy1 uCen mmu v John M Ely, Esg my Attome}� Cmd Houben, Commu 1 evelopment Director (A0085099 5 } 6 LENDER CONSENT Alpine Bank is a beneficiary under the Deed of Trust recorded on July 1, 2016, at Reception No 630415, in the office of the Clerk and Recorder of Pitkin County. Colorado, as it may he amended from time to time (the "Deed of Trust') Alpine Bank, for itself and its successors and assigns, consents to the recording of this Covenant and agrees that no foreclosure, deed granted in lieu of foreclosure, or other enforcement action by Alpine Bank under the Deed of Trust shall result in the termination or release of this Covenant and this Covenant shall remain in full force and effect with respect to the Property notwithstanding any such foreclosure or other enforcement action Alpine Bank By Name \,(, -� Title 7'ss, STATE OF COLORADO ) ss COUNTY OF PITKIN The foregoing Lender Consent was acknowledged before me this 111' day of 0C4(1.30i 2018, by Pi 0 WI213e as PfeSldcvtt of Alpine Bank Witness my hand and official seal & 0114.412-C4:3-+1 Notary 3-+- Notary Public My commission expires N. p.ti cI , 2.01 r1 ___� BENTLEY REIST Notary Public Stae Of Colorado Notary tII)20114022079 My Commission Expires May 9. 2019 (A0085999/5 1 11111 111111111111 119 11111111111111111 RECEPTIONS: 652427, R: 50.00, D. 50.00 DOC CODE COVENANTS Pg 1 of 8, 12/06/2018 at 10:2044 AM Janice K Vos Caudill, Pitkin County,CO COVENANT FOR THE MAINTENANCE OF ROCKFALL BARRIER AND STORMWATER FACILITIES (PURSUANT TO PITKIN COUNTY BOARD OF COUNTY COMMISSIONERS RESOLUTION NO. 054-2016,AS AMENDED BY ADMINISTRATIVE DECISION NO. 3-2018) THIS COVENANT FOR THE MAINTENANCE OF ROCKFALL BARRIER AND STORMWATER FACILITIES ("Covenant") is made and entered into on the 12th day of October 2018 by LOT 20 LITTLE CLOUD, LLC, a Colorado limited liability company ("Owner'), for the benefit of the BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO ("Pitkin County") WHEREAS, Owner is the owner of real property located in Pitkin County, Colorado, described in Exhibit A, attached hereto and by this reference incorporated herein (the "Property") WHEREAS, Board of County Commissioners Resolution No 054-2016 recorded on August 2, 2016 at Reception No 631045, as amended by Administrative Decision No 3-2018 recorded on March 19, 2018 at Reception No 645921 (collectively, the "Approval Resolution") approves with conditions a specific development plan for the Property WHEREAS, pursuant to the requirements of the Approval Resolution, there will be located on the Property, among other improvements, the following improvements to be constructed pursuant to construction plans approved during the permitting process in accordance with the Approval Resolution (a) a flexible steel mesh rockfall barrier to be located within the Geo-Hazard Mitigation Envelope shown on the Lot 20 Little Cloud, LLC — Site Plan recorded on the same day as this Covenant in Plat Book/ay at Page On , and (b) a stormwater sewer system that will direct stormwater through a drainage system into a common stormwater drywell system (collectively, the"Mitigation Improvements") WHEREAS, Owner will be responsible for the repair, maintenance and cleaning of the Mitigation Improvements from time to time, WHEREAS, Pitkin County has an interest in assuring the ongoing repair, maintenance and cleaning of the Mitigation Improvements, and therefore, Pitkin County, pursuant to Section 4 B of the Approval Resolution, has requested certain requirements be imposed upon the Property regarding the performance of repairs, maintenance and cleaning of the Mitigation Improvements from time to time, as more particularly set forth herein, WHEREAS, Owner is willing to covenant to Pitkin County pursuant to Section 4 B of the Approval Resolution, forever and in perpetuity, with respect to the repair, maintenance and cleaning of the Mitigation Improvements as may be required by Pitkin County from time to time, for and in consideration of the recitals, mutual covenants, terms, conditions and restrictions contained herein A0085999 5l NOW, THEREFORE, in consideration of the covenants, conditions and terms hereof, in addition to other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Owner does hereby covenant as follows Covenant Regarding Repair, Maintenance and Cleaning of the Mitigation Improvements Owner covenants and agrees that, as the owner of the Mitigation Improvements, Owner shall at all times preserve the functionality of the Mitigation Improvements, and the repair, maintenance or cleaning of the Mitigation Improvements from time to time so that the Mitigation Improvements at all times comply with sound engineering standards and practices and any generally applicable requirements of Pitkin County, Colorado, and the State of Colorado with respect thereto (collectively, the "Mitigation Improvements Repair and Maintenance Obligations") With respect to the flexible steel mesh rockfall barrier contemplated to be included as part of the Mitigation Improvements, the parties acknowledge that, subject to any necessary approvals from Pitkin County, Owner may reach an agreement with the Little Cloud Homeowners Association (the "LCHA") to permit such rockfall barrier to be located on such Association's adjoining common area property. If this alternative solution for the rockfall barrier is agreed to, then the parties acknowledge that this Agreement will need to be amended and/or a supplement to this Agreement will need to be entered into to address the repair, maintenance and cleaning of such alternative rockfall barrier (which may also include an amendment to the existing agreement between Pitkin County and the LCHA regarding the maintenance of the rockfall barriers that already exist on the LCHA common area property). 2 Permitted Uses and Activities As owner of the Property, Owner retains the right to perform any act consistent with the Pitkin County Land Use Code (the "Land Use Code") to the extent such act is not prohibited or limited by the requirements of this Covenant These ownership rights include, but are not limited to, the right to exclude any member of the public trespassing on the Property and the right to sell, lease or othenvise transfer the Property to anyone Owner chooses Nothing herein shall be construed to be an approval by Pitkin County under the Land Use Code for any purpose other than the repair, maintenance and cleaning of the Mitigation Improvements 3 Enforcement and Inspection This Covenant and its terms and representations shall be fully enforceable by Pitkin County, its successors, assigns and agents in any action at law or equity or both, to secure compliance, including but not limited to, seeking injunctive relief and/or specific performance requiring Owner or its successors or assigns to either perform actions provided for in this Covenant or to cease and desist all activity in violation of the terms of this Covenant Moreover, Pitkin County and its successors, assigns and agents shall be permitted access to, and to enter upon, the Property at reasonable times upon at least forty-eight (48) hours advance notice to Owner or Owner's representative, solely for the purpose of monitoring and inspecting the Mitigation Improvements in order to verify Owner's performance of the Mitigation Improvements Repair and Maintenance Obligations hereunder In the event of Owner's failure to perform the Mitigation Improvements Repair and Maintenance Obligations hereunder, Pitkin County shall, pnor to the exercise of any nght or remedy, give Owner written notice of such failure, together with: (1) a written statement setting forth in reasonable particularity in what respect Owner has failed to perform its Mitigation Improvements Repair and Maintenance Obligations hereunder, including any appropriate {A0085099 5 t 2 supporting documentation, and (2) a written description of any remedial actions and the basis of rationale therefor which Pitkin County requests to be taken by Owner in connection with the Mitigation Improvements (collectively, a "Default Notice") Upon Owner's receipt of a Default Notice, Owner shall thereafter have a period of fifteen (15) calendar days to cure said default by undertaking and completing the remedial actions set forth in the Default Notice If the requested remedial actions described in the Default Notice by their nature are not capable of being undertaken and completed within the time provided, Owner shall, provided that it is proceeding with all due diligence, have up to an additional thirty (30) calendar days to undertake and complete the requested remedial actions, which thirty (30) day period may automatically be extended by successive thirty (30) calendar day periods, provided that Owner continues to proceed with all due diligence to undertake and complete the requested remedial actions during each such successive thirty (30) calendar day period If Owner fails to undertake and complete the requested remedial actions within the time period(s) provided, Pitkin County shall then and thereafter be free to pursue any right or remedy allowed by this Covenant or otherwise by law 4 Pitkin County's Remediation of Owner's Failure to Undertake and Complete Remedial Actions. In the event that Owner fails to undertake and complete the requested remedial action(s) described in Pitkin County's Default Notice within the time period(s) set forth in Section 3 above, Pitkin County thereafter may enter the Property and undertake and complete such requested remedial actions at Owner's cost Owner shall reimburse Pitkin County for the cost of undertaking and completing the requested remedial actions within thirty (30) calendar days of Owner's receipt of Pitkin County's written demand for payment, together with copies of any receipts or invoices In the event of Owner's failure to pay in full the amount set forth in Pitkin County's written demand within the time set forth above, Pitkin County thereafter shall be entitled to assert a lien against the Property for the cost of Pitkin County's performance and completion of the requested remedial actions Any lien secured by Pitkin County against the Property pursuant to this Section shall have as a priority date the effective date of this Agreement, and Pitkin County shall be entitled to recover from Owner reasonable attorney's fees and costs incurred in securing and enforcing such lien. 5 Costs and Liabilities Owner retains all responsibilities and shall bear all costs and liabilities of any kind related to ownership, operation, upkeep, taxes and maintenance of the Property, including but not limited to, costs associated with compliance with this Covenant Pitkin County's acceptance of this Covenant shall in no way be construed as an assumption of any duties or liabilities associated with the Property, and Owner acknowledges that by this Covenant, Owner continues to retain responsibility for any and all duties and liabilities associated with the Property 6 Covenant Running with the Land, Binding Effect The provisions of this Covenant shall constitute a covenant that runs with the title to the Property as a burden thereon for the benefit of Pitkin County and shall be deemed an appurtenance to the title to such land The Property may be established as a common interest community pursuant to the Colorado Common Interest Ownership Act in connection with the sale to separate parties of the two residences anticipated to be constructed on the Property pursuant to the Approval Resolution, and an owners' association may be established for the Property in connection therewith (an "Association") If an Association is established for the Property as described above, then such ;.40085999'5 3 Association shall assume and be responsible for performing all of the obligations of the Owner pursuant to this Covenant 7 Subordination At the time of the making of this Covenant, Owner represents that, except as provided in the Lender Consent attached hereto, the Property is not subject to any mortgage, deed of trust or judgment lien, or any other instrument that might result in a foreclosure action that could affect the viability of this Covenant 8 Incorporation of the Land Use Code. The Land Use Code, as may be amended from time to time, and any terms or definitions contained therein, are hereby incorporated by this reference in their entirety 9 Modification The terms of this Covenant can only be modified by an amended covenant executed by Owner, and approved in writing and adopted by Pitkin County and recorded in the records of the Clerk and Recorder for Pitkin County, Colorado 10 Venue and Jurisdiction The interpretation, enforcement or any other matters relative to this Covenant shall be construed and determined in accordance with the laws of the State of Colorado Owner and Pitkin County consent to venue and jurisdiction in the District Court for Pitkin County, Colorado, for all matters concerning the interpretation and enforcement of this Covenant 11 Attorneys' Fees and Costs In the event of any action or suit between the parties hereto or their successors and assigns to enforce any of the agreements, covenants or restrictions contained herein, the substantially prevailing party in any such action or suit, whether by final judgment or out of court settlement, shall recover from the other party all costs and expenses of such action or suit including reasonable attorneys' fees. 12 Headings Paragraph or section headings within this Covenant 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 provisions contained herein 13 Further Actions The parties to this Covenant 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 Covenant 14 Notices Any notice, demand, or document which any party is required or may desire to give, deliver or make to the other party shall be in writing and may be personally delivered or given by United States certified mail, return receipt requested, addressed as follows: To Pitkin County County Attorney Pitkin County 530 East Main Street Aspen, Colorado 81611 To Owner Lot 20 Little Cloud, LLC c/o Ban Johnson, Esq 420E Main St , Ste 210 {A00R5999 5 i 4 Aspen, CO 81611 Any notice, demand or document so given, delivered or made by United States mail shall be deemed to have been received on the date actually received, addressed as above provided, with postage prepaid Either party may change its address for the purpose of this Section by giving written notice of such change to the other party in the manner provided for in this Section In the event of sale of the Property by Owner, any notice to be sent to the new Owner(s) of the Property may be delivered to the address for such Owner(s) on file with the Pitkin County Assessor unless any such Owner provides notice to Pitkin County of a different address pursuant to the terms hereof IN WITNESS WHEREOF, the parties have executed this Covenant for the Maintenance of Mitigation Improvements to be effective as of the date set forth above LOT 20 LITTLE CLOUD, LLC, a Colorado limited liability company By' �i� Name David S Cohen Title. Receiver STATE OF COLORADO ) CITY & ) ss. COUNTY OF DENVER The foregoing document was acknowledged before me this la lh day of Delp b e r 2018, by David S Cohen as the Receiver for LOT 20 LITTLE CLOUD, LLC, a Colorado limited liability company Witness my hand and official seal My commission expires jv.n a, GINA snrlt Notary Public Notary Public-State of Colorado Notary ID 20174023553 My Commuson Exprres Jun 2,2021 LA00859)915 5 ATTEST ACCEPTED BY BOARD OF COUNTY COMMISSIONERS B/ -'I ' By`- --- 1 Jeane - Jones I el‘pAI M itSWd[r - 1 ' . an" Depu , County Clerk i Date /a-/ , 2018 APPROVED AS TO FORM APPROVED AS TO CONTENT John M Ely, Es ..my Attorney Cin Houben, CommuiiiiSi Development Director A0085999 5 1 6 LENDER CONSENT Alpine Bank is a beneficiary under the Deed of Trust recorded on July 1, 2016, at Reception No 630415, in the office of the Clerk and Recorder of Pitkin County, Colorado, as it may be amended from time to time (the "Deed of Trust") Alpine Bank, for itself and its successors and assigns, consents to the recording of this Covenant and agrees that no foreclosure, deed granted in lieu of foreclosure, or other enforcement action by Alpine Bank under the Deed of Trust shall result in the termination or release of this Covenant and this Covenant shall remain in full force and effect with respect to the Property notwithstanding any such foreclosure or other enforcement action Alpine Bank By Name `, // Inn 1-4 Title Er- c^c STATE OF COLORADO ) ss COUNTY OF PITKIN The foregoing Lender Consent was acknowledged before me this Ic7l day of CLA- 0tr 2018, by 17-)( 11 Wh;}c, as Presidwtt of Alpine Bank Witness my hand and official seal &MALY. V22(4A Notary Public My commission expires M acti cl , 201 cl BENTLEY REIST Notary Public State Notary ID 20114022079 My Commission Expires May 9, 2019 {A9085999 5 } EXHIBIT A LEGAL DESCRIPTION Tract A, Parcel A, Government Lot 20 Subdivision Exemption according to the plat recorded December 10, 1995 in Plat Book 30 and Page 23, County of Pitkin, State of Colorado IAN 5999 5