HomeMy WebLinkAboutcoa.lu.co.1395 Sierra Vista Dr.900 Bonita Dr.A016-03
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CASE NUMBER
PARCEL ill #
CASE NAME
PROJECT ADDRESS
PLANNER
CASE TYPE
OWNER/APPLICANT
REPRESENTATIVE
DATE OF FINAL ACTION
CITY COUNCIL ACTION
PZ ACTION
ADMIN ACTION
BOA ACTION
DATE CLOSED
BY
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A016-03
2735-122-09003
Sierra Vista - Bonita Condominiumization
1395 Sierra Vista Dr/900 Bonita Dr
James Lindt
Condiminiumization
Epoch Aspen Dev
Neiley & Alder
3/05/03
Plat Recorded
03/10/03
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MEMORANDUM
To:
Richard Y. Neiley, Jr,
From:
James Lindt, Planner0l-
Date:
February 26, 2003
Re: 1395 Sierra Vista Drive Condo Plat- Community Development
Department's COmments,
Please make the following changes to the draft condominium plat:
I.
Obtain a letter of consent from the utility agency in which the five (5) foot wideJ
utility easement benefits to allow for the pond to be maintained over the
easement.
2.
Label the ADD on the floor plans and change the description of the structure on
the front page from "two story wood duplex with basement" to "two story wood j
duplex with basement and ADD",
3. Identify the designated on-site parking space for the ADD. It must not be stacked V
with that of the parking spaces for the main residence,
4. Address in the Condominium Declaration which unit of the duplex that the ADD V
is to be sold with.
5, Identify trash storage area,/,
6, Change City Engineer's signature block to be the Community Development
Engineer's signature blockV
7, Obtain all signatures with the exception of the City Community Development
Director, Community Development Engineer, and Pitkin County Clerk and
Recorder prior to submitting 2 mylar copies to Community Development
Department.
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NEILEY & ALDER
ATTORNEYS
iPlea" Reply To
201 No,th Mill Stmet, Suite 102
A'pen, Colamdo 81611
(970) 925-9393
Fax (970) 925-9396
Richard Y. Neiley, Jr.
Eugene M, Alder
o Plea" Reply To
6800 Highway 82, Suite 1, Upper Level
Glenwood Springs, Colorado 81601
(970) 928-9393
Fax (970) 928-9399
March 3, 2003
HAND DELIVERY
Mr. James Lindt
AspenlPitkin County Community Development
130 South Galena Street
Aspen, CO 81611
Re: Sierra Vista - Bonita Condominiums
Dear James:
Enclosed herewith are the two original my1ars for the above-referenced condo-
miniumization. All the changed requested in your memorandum of February 26,2003 have been
made. The my1ars have been fully executed, Also enclosed is our check in the amount of $61.00
to cover the recording fees for the Plat.
In accordance with our conversation of last week, I am also enclosing a copy of the
original subdivision Plat for the West Aspen Subdivision. This Plat depicts the grant of utility
easements on the property boundaries and contains a note regarding the establishment of the
underground utility easements, Thus, there is no specific beneficiary for the easements, It is my
understanding that, as a consequence, we are not required to provide a letter of consent from any
utility providers in connection with the pond on the eastern comer of Lot 16,
Finally, I enclose a copy ofthe Condominium Declaration which provides on page
1 that the ADU is appurtenant to Condominium Unit 1,
Please let me know if you have any questions or comments regarding the condo-
miniumization, If you would let me know when the Plat goes down to Kathy Strickland for
recording, I will coordinate with her the recordation of the Condominium Declaration. Thank you
for your assistance with this matter.
Very truly yours,
N,~Y & ALDER
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Richard Y. Neiley, Jr.
RYN/agk
Enclosures
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DECLARATION
FOR
SIERRA VISTA - BONITA CONDOMINIUMS
(A Condominium)
KNOW ALL MEN BY THESE PRESENTS:
A. EPOCH ASPEN DEVELOPMENT, LLC, hereinafter called "Declarant," is the owner
of an improved parcel of re\ll property situated in the City of Aspen, Pitkin County, Colorado,
described as follows: i
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Lot 16, I
WEST ASPEN SUBDNISION, Filing No, I,
According toi the Plat thereof recorded September 5, 1967 in Plat
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Book 3 at Page 252,
County of Pitkin,
State ofColohdo,
(hereinafter referred to as! the "Real Property") imd also known as Sierra Vista - Bonita
Condominiums, Unit 1 and Unit 2 (the "Condominium Units") and also known by the street address
of 1395 Sierra Vista Drive and 900 Bonita Drive, Aspen, Colorado 81611.
B, The above-described property is presently developed with the following improvements,
to wi!:
A wood frame two (2) unit residential duplex structure, including an
accessory dwelling unit appurtenant to Unit 1.
C. Declarant desires to create a condominium proj ect of the Real Property under the
Condominium Ownership Actofthe State of Colorado (C.R.S, S 38-33-101, et seq,), and to establish
thereby a plan for the ownership in fee simple ofreal property estates consisting of the area or space
contained in each of the "Units" as hereinafter defined, and the ownership by one or more of the
individual and separate owners thereof, as tenants in common, of all ofthe remaining real propeliy
hereinafter defined and referred to as the "Common Elements,"
NOW, THEREFORE, Declarant does hereby publish and declare that the following
terms, covenants, conditions, easements, uses, restrictions, limitations and obligations shall be
deemed to run with the land, shall be a burden upon and a benefit to Declarant, Declarant's heirs,
personal representatives, successors and assigns and any persons acquiring or owning an interest in
the real property and improvements, their grantees, lessees, successors, heirs, executors,
administrators, devisees or assigns.
1, DEFINITIONS. Unless the context shall expressly provide otherwise, the
following definitions shall apply:
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(a) "Unit" and/or" Condominium Unit" means the individual air space
contained within the interior surfaces of the perimeter walls, floors, ceilings, windows, doors and
built-in fireplaces, if any, of each of the residences located in the Duplex situated on the Real
Property, together with all fixtures and improvements therein contained, including balconies and
decks appurtenant to each Unit and including the undivided interests in the Common Elements
appurtenant to such Unit, but not including any of the structural components of such building within
a Unit, which Units are shown on the Condominium Plat and id"entified thereon as Unit I and Unit
2,
(b) "Owner" means the person or persons or entity or entities, including
Declarant, who owns fee simple title to a Condominium Unit, The tenn Owner shall not include
the owner or owners of any lesser estate or interest.
(c) "Mortgage" means any mortgage, deed of trust, or other security
instrument by which a Condpminium Unit or any part thereof is encumbered.
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(d) "[Mortgagee" means any person or entity named as the mortgagee or
beneficiary under any mortgage or deed of trust which encumbers the interest of any Owner,
(e) "Condominium Plat" means the Condominium Plat for Sierra Vista-
Bonita Condominiums filed in the records in the office of the Clerk and Recorder of Pitkin County,
Colorado. The Condominium Plat is recorded in Plat Book _ at Page _ as Reception
Number of the Records of the Clerk and Recorder of Pitkin County, Colorado,
(f) "Common Elements" means: (i) all of the Real Property; (ii) the
foundations, columns, girders, beams, supports, main walls, roofs and crawlspaces contained in each
of the building improvements which are the subject of this Declaration, and the "party wall" dividing
Units I and 2 as shown on the Condominium Plat; and (iii) the installations in such building
consisting of the equipment and materials making up the central services such as tanks, pumps,
motors, fans, compressors, ducts, power, sewer, light, gas, hot and cold water, heating, ventilating
and air conditioning and, in general, all apparatus and installations existing for common use, if any
(but excluding all mechanical systems and equipment serving only one Unit), None of the Common
Elements may be conveyed to a person or entity other than a Condominium Unit Owner.
(g) "General Common Elements" means all Common Elements except
Limited Common Elements, as hereinafter defined. None of the General Common Elements may
be allocated subsequently as Limited Common Elements, without the written consent of all Owners.
Care and maintenance of the General Common Elements and the costs thereof shall be the joint "
responsibility of the Owners of both Units, General Common Elements shall be designated on the
Condominium Plat as "GCE."
(h) "Limited Common Elements" means the portions of the Common
Elements designated herein or on the Condominium Plat for the exclusive use of the Owner or
Owners of a Condominium Unit or Units. The individual Unit Owners shall be responsible for the
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care and maintenance and the costs associated with the Limited COmmon Elements appurtenant to
each Unit. Limited Common Elements shall be designated on the Condominium Plat as "LCE."
The portions of the Real Property designated on the Condominium Plat, "Unit I ," and
the Limited Common Elements appurtenant thereto, are hereby designated for the exclusive use of
the Owner of Condominium Unit 1. The portions of the Real Property designated on the
Condominium Plat, "Unit 2," and the Limited Common Elements appurtenant thereto, are hereby
designated for the exclusive use of the Owner of Condominium Unit 2,
(i) "Real Property" means: the real property situated in the City of Aspen,
Pitkin County, Colorado, de~cribed in Exhibit "A" appended hereto,
(j) i "Project" means the Real Property and all buildings and other
improvements now or hereafter located on the Real Property, and all rights, easements and
appurtenances belonging thereto,
(k) !"Managing Agent" means the person or entity that is selected and
appointed by the Owners oflhe Condominium Units pursuant to the provisions of paragraph II of
this Declaration. .
2, DIVISION INTO CONDOMINIUM UNITS,
(a) The Project is hereby divided into two (2) condominium units, which
units may not be further divided into additional units, each consisting of a separate fee simple estate
in a particular Condominium Unit and the following described appurtenant undivided fee simple
interests in the Common Elements:
(1) Real Property Common Elements:
Unit 1
Unit 2
50%
50%
(2) Common Elements:
Unit I
Unit 2
50%
50%
(b) At the time of the recordation of this Declaration, the total floor area ratio
("FAR") allowed for the real property equals four thousand nine hundred eighty-one (4,981) square
feet. Unit 1 contains approximately two thousand five hundred twenty-four (2,524) square feet of
FAR. Unit 2 contains approximately two thousand four hundred fifty-seven (2,457) square feet of
FAR. Notwithstanding the equal interests in the Real Property Common Elements and the Common
Elements, in the event of destruction of the improvements on the Real Property, obsolescence or
other event resulting in the removal of the improvements from the Real Property, at the time of
reconstructionorredevelopment, Unit 1 shall be entitled to 50,7% of available FAR, and Unit 2 shall
be entitled to 49.3% of available FAR. In the event the term FAR is no longer utilized within the
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City of Aspen, the Units shall nonetheless be entitled to utilize the percentages set forth herein for
purposes of establishing the relative size of each Unit.
(c) Each Owner shall own his appurtenant undivided interests in the
Common Elements as a tenant in common with the Owner or Owners also owning an interest in such
Common Elements.
3, INSEPARABILITY OF A UNIT. Each Unit and the undivided interests in the
Common Elements appurtenant thereto shall be inseparable and may be conveyed, leased,
encumbered, devised or inherited only as a Condominium Unit.
4. DESCRIPTION OF A CONDOMINIUM UNIT. Every deed, lease, mortgage,
trust deed, will, or other instrument may legally describe a Condominium Unit byits identifying Unit
number, followed by "Sierra Vista - Bonita Condominiums," with further reference to the recorded
Declaration and Plat. For example "Unit 1, Sierra Vista - Bonita Condominiums, according to the
Plat recorded in Plat Book! at Page and subject to the Declaration for Sierra Vista
- Bonita Condominiums recorded as Reception No. of the Records ofthe Clerk
and Recorder of Pitkin County, Colorado. Every such description shall be deemed good and
sufficient for all purposes to sell, convey, transfer, encumber or otherwise affect not only the Unit,
but also the General Common Elements and the Limited Common Elements appurtenant thereto,
Each such description shall be construed to include the right to the use of the Limited Common
Elements appurtenant thereto to the exclusion of all third parties not lawfully entitled to use the
same.
5, SEPARATE ASSESSMENT AND TAXATION - NOTICE TO ASSESSOR.
Declarant shall give written notice to the assessor of Pitkin County, Colorado, of the operation of
condominium ownership of this property, as is provided by law, so that each Unit and the interests
appurtenant thereto shall be deemed a separate parcel and subj ect to separate assessment and
taxation,
6, TITLE. A Condominium Unit may be held and owned by more than one person
as joint tenants or as tenants in common, or in any real property tenancy relationship recognized
under the laws of Colorado.
7. NONPARTITIONABILITY OF COMMON ELEMENTS, The Common
Elements shall be owned in common by the Owners as herein provided, and there shall be no judicial
or other partition ofthe Common Elements or any part thereof, nor shall any Owner bring any action
seeking partition thereof.
8. USE OF UNITS: GENERAL AND LIMITED COMMON ELEMENTS
(a) Each Owner shall be entitled to exclusive ownership and possession of
his Unit. Each Owner may use the General and Limited Common Elements in accordance with the
purpose for which they are intended, without hindering or encroaching upon the lawful rights of the
other Owner. No Owner shall obstruct that portion of the driveway designated as a General
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Common Element on the Condominium Plat or otherwise hinder another Owner's access to his
garage.
(b) The Condominium Plat identifies the yard appurtenant to each Unit as
a Limited Common Element. Each ofthe Owners shaH be solely responsible for maintaining such
Owner's yard in good condition and repair. Each Owner shall perform all necessary mowing,
planting, pruning and other landscaping so as to maintain the exterior appearance of the yard as
viewable from the public road and the other Unit in an attractive, well-maintained condition, In the
event proper yard care is not maintained with respect to either or both yards, the managing agent may
give notice of necessary D;1aintenance and, if such maintenance is not promptly performed, the
managing agent may undeI;take such maintenance at the cost of such Owner.
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9. EASEMENTS FOR ENCROACHMENTS, If any portion of the Common
Elements now or hereafter iencroaches upon a Unit, a valid easement for the encroachment and for
its maintenance so long as it stands, shall and does exist. If any portion of a Unit now or hereafter
encroaches upon the Corrjmon Elements or upon an adjoining Unit, a valid easement for the
encroaclnnent and for its maintenance so long as it stands, shall and does exist, For title or other
purposes, such encroaclupent and easements shall not be considered or detern1ined to be
encumbrances either on Common Elements or the Units,
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10. TERMINATION OF MECHANIC'S LIEN RIGHTS AND INDEMNIFICA-
TION, No labor performed or materials furnished and incorporated in a Condominium Unit with the
consent or at the request of the Owner thereof or his agent or his contractor or subcontractor shaH
be the basis for the filing against the Condominium Unit Owner not expressly consenting to or
requesting the same, or against the interest in the Common Elements owned by any other Owner.
Each Owner shall indemnify and hold harmless each of the other Owners from and against all
liability arising from the claim of any lien against the Condominium Unit of any other Owner or
against the Common Elements for construction performed or for labor, materials, services, or other
products incorporated in or otherwise attributable to the Owner's Condominium Unit at such
Owner's request.
II, ADMINISTRATION ANI) MANAGEMENT.
(a) Administration. The administration ofthe Project shall be governed by
this Declaration and all duly adopted amendments thereto or supplements thereof and any Bylaws
adopted by the Declarant or the Owners, Each Owner shall manage his own Condominium Unit,
and the Limited Common Elements appurtenant thereto and the General Common Elements and the
business and affairs .of the Project shall be governed and managed jointly by the Owners unless the
Owners of Units 1 and 2 mutually agree upon the appointment of a Managing Agent to administer,
both such Condominium Units and the Common Elements as set forth further herein. Notices of
Appointment ofthe Managing Agent by the Owners of Units 1 and 2 hereunder shall be placed of
record insofar as required by law, The initial Managing Agent of such Condominium Units and the
Proj ect shall be Declarant.
(b) Dispute Resolution, In the event the Owners of Units 1 and 2 are unable
to mutually agree upon any matter related to the use, management, repair or replacement of any
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General Common Element or the business and affairs of the Project, they shall jointly appoint a
mutually acceptable third party who shall be authorized to make a binding decision resolving such
dispute, The appointment of the third party shall be in writing which shall identify the dispute
between the Owners and request a formal written resolution thereof. Any costs incurred in
connection with such dispute resolution shall be deemed acost of management ofthe Project payable
equally by the parties and subject to assessment as set forth in this Declaration, If the parties cannot
agree upon an acceptable third party to resolve any dispute, the third party shall be appointed by a
judge of the Pitkin County District Court, upon application, of either Owner. The costs associated
with seeking the appointment of the third party for dispute resolution shall be deemed a cost of
management ofthe Project, payable equally by the parties and subject to assessment as set forth in
this Declaration.
(c) Manai?ement Ai?reement, Until the sale of both Units, Declarant shall
act as Managing Agent. Upon sale of both Units Declarant shall cease to act as Managing Agent and
the Owners of Units I and 2 may vote to appoint a new Managing Agent as provided herein. The
Owners may enter into a management agreement (the "Agreement") with a Managing Agent which
shall provide for the management of the Project. The Agreement can be renewable for additional
periods at the discretion of the Owners, Each Owner, his successor and assigns, shall be bound by
the Agreement for the purposes therein expressed, including but not limited to: (i) Adopting,
ratifying, confirming, and consenting to the execution of the Agreement by the Owners, and (ii)
covenanting and promising to perform each and every one of the covenants, promises, and
undertakings to be performed by Owners as provided in the Agreement.
(d) Association. The Owners may establish an Association to manage the
Common Elements, to be appointed as attorney-in-fact for condemnation or obsolescence purposes
or for such other purposes and functions as the Owners deem desirable or appropriate, The
Association may, but need not, be a Colorado not-for-profit corporation, If established, the
Association shall be governed by Bylaws approved by the Owners, In the event of the establishment
of an Association, all Owners shall automatically become members thereof.
12,
EMERGENCIES,
RESERVATION FOR ACCESS - MAINTENANCE. REPAIR AND
(a) The Owners shall have the irrevocable right to have access to each Unit
from time to time during reasonable hours as may be necessary for the inspection, maintenance,
repair or replacement of any of the General Common Elements or for making emergency repairs
necessary to prevent damage to the 'General or Limited Common Elements or to another Unit or
Units,
(b) Damage to the interior of any part of a Unit resulting from maintenance,
repair, emergency repair or replacement of any ofthe General or Limited Common Elements or as
aresult of emergency repairs within a Unit at the instance of another Unit Owner shall be a Common
Expense of all of the Owners of Units having an interest in such General Common Elements;
provided, however, that if such damage is the result of the negligence of a Unit Owner, then such
Unit Owner shall be responsible for all of such damage.
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13. OWNERS' MAINTENANCE AND REPAIR RESPONSIBILITY.
(a) Forpurposes of maintenance, repair, alteration and remodeling, an Owner
shall be deemed to own and to be responsible for the exterior surfaces of such Owner's Unit and the
Limited Common Elements assigned thereto, and the windows, doors, interiornon-supporting walls,
materials, ceilings and floors within the Unit. An Owner shall not be deemed to own any utilities
running through his Unit which serve more than one Unit except as a tenant in common with the
adjoining Unit Owner. Such obligation and right to repair, alter and remodel shall carry the
obligation to replace any exterior finishing materials removed with similar or other types or kinds
of finishing materials of equal or better quality, and to maintain the Limited Common Elements
appurtenant thereto in good condition .and repair and in a neat and clean condition, Any material
alteration, remodeling or refinishing of the exterior of Units I and 2 or Common Elements shall
require the prior mutual consent and approval of the Owners of both Units.
(b) Ani Owner shall maintain and keep the interior of his own Unit and the
Limited Common Elements AjI fixtures and equipment installed within the Unit commencing at a
point where the utility lines, pipes, wires, conduits or systems enter the Unit shall be maintained and
kept in repair by the Owner th~reof.
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(c) No Owner may create ,obnoxious noise or activities or unsightly
appearances including trash, abandoned vehicles or TV antennae or similar activities that would
adversely affect the enjoyment or value of the other Unit. Declarant may from time to time adopt
and amend Rules and Regulations as may be necessary for the operation of the Project with regard
to matters not otherwise specifically addressed herein, After sale of both Units by Declarant, the
Owners may, by mutual agreement, from time to time adopt and amend Rules and Regulations
governing the operation of the Project with regard to matters not otherwise specifically addressed
herein.
(d) The Owners shall be obligated to and shall provide for the care,
operation, management, maintenance, improvement, repair and replacement of the General Common
Elements so that such are kept in a good, clean, attractive, sanitary condition, order and repair,
including without limitation removal of snow and other materials from the General Common
Elements to permit access to the Units keeping the Project safe, attractive and desirable; and making
necessary or desirable alterations, additions, betterments, or improvements to the Common Elements,
(e) The Owners, either together, or through their Managing Agent, shall be
jointly responsible for painting and/or staining the exterior of the Units, for maintaining the roof, the
exterior walls, foundation, parking areas and driveway, structural components, and all other areas
designated as General Common Elements. The Owners (1) may obtain and pay for legal and ,
accounting services necessary or desirable in connection with the operation of the Project, or the
enforcement of this Declaration; and (2) may arrange with others to furnish lighting, heating, water,
trash collection, sewer service, and other common services.
14. COMPLIANCE WITH PROVISIONS OF DECLARATION. Each Owner shall
comply strictly with the provisions ofthis Declaration as the same may be lawfully amended from
time to time. Failure so to comply shall be grounds for an action to recover sums due and for
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damages or injunctive relief or both, maintainable by the Managing Agent or by an aggrieved Owner
or Owners.
15. REVOCATION OR AMENDMENT TO DECLARATION, This Declaration
shall not be revoked nor shall any of the provisions herein be ainended unless the Owners of both
Condominium Units, and all of the holders of any recorded first mortgage or first priority deed of
trust covering or affecting any or all Condominium Units consent and agree to such revocation or
amendment by instruments which shall be duly recorded,
16. ASSESSMENT FOR UNITS 1 AND 2 COMMON EXPENSES.
(a) Annual Budget.
: (a) An annual budget for common expenses shall be adopted by the
Owners as hereinafter provided, Assessments shall be payable quarterly or at such greater or lesser
intervals as the Owners may mutually agree, but in no event less often than amlUally, The
assessments against each Unit shall be based upon advance estimates of cash requirements by the
Owners to provide for the paYment of all expenses growing out of or connected with the maintenance
and operation ofthe General Common Elements, or furnishing such utility services as shall not be
separately furnished and metered to the Units, whicl1 estimates may include, among other things:
(i) taxes and special assessments, until the Units are separately assessed as provided herein;
(ii) premiwns for all insurance which the Owners are required or permitted to maintain,
(iii) landscaping and care of grounds, including snow removal; (iv) common lighting, heating and
water charges; (v) any utility charges to the individual Condominium Units that are jointly metered;
(vi) trash collection; (vii) sewer service charges; (viii) repairs and maintenance of the General
Common Elements; (ix) security services; (x) management fees and expenses; (xi) legal and
accounting fees; (xii) any deficit remaining from a previous period; (xiii) the creation of a reasonable
contingency reserve, surplus and/or sinking fund; and, (xiv) any other expenses and liabilities which
may be incurred within the Project for the benefit of the Owners under or by reason of this
Declaration. All expenses will be assessed to the Units, as determined by the Owners in accordance
with applicable guidelines as set out in this Declaration.
(2) Annually it shall be the responsibility of the Owners to establish
and adopt an operating budget for the fiscal year. The budget shall be estimated based on the
previous year's budget and proj ected expenses for the coming year. The budget shall provide for the
allocation of any surplus funds remaining from any prior budget period and will identify and set apart
those expenses which are to be borne by the Owners of the Units, The Owners shall jointly adopt the
annual budget. In the event the Owners are unable to agree upon the proposed budget, the last
budget ratified by the Owners must be continued until such time as the Owners ratify a subsequent.
budget or enter into mediation to resolve the issue as further provided herein. The obligation to
establish and adopt the operating budget may be delegated to the Managing Agent subj ect to the right
of the Owners to review and adopt or rej ect the budget.
(3) The Owners of Units 1 and 2 shall be obligated to pay the
assessments to meet the Common Expenses incurred in connection with such Units. The
assessments shall be evenly divided between the Owner of Unit 1 and the Owner of Unit 2,
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Assessments for the estimated Common Expenses, including all insurance except liability, shall be
due as contracted for with the insurance company. The Managing Agent or other Owner incurring
the cost shall prepare and deliver or mail to each Owner an itemized statement showing the various
estimated or actual expenses for which the assessments are made.
(4) Any amount accumulated in excess ofthe amount required for
annual expenses and reserves shall be credited according to each Owner's percentage of ownership
in the Common Elements to the next installments due from the Owners under the current year's
estimate, until exhausted, and any net shortage shall be added, according to each Owner's percentage
of ownership in the Common Elements, to the next two installments due after rendering of the
accounting, However, if budgeted, such excesses may serve to fund a reasonable reserve for
contingencies and replacejnents. Extraordinary expenditures not originally included in the annual
budget which may becom6 necessary during the year shall be charged first against such reserve. If
said annual budget proves inadequate for any reason, including nonpayment of any Owner's regular
or special assessment, the Owners may at any time levy a fuiiher assessment, which shall be assessed
to the Owners according toieach Owner's percentage of ownership in the Common Elements. Notice
of such further assessmentishall be served on all Owners by a statement in writing giving the amount
and reasons therefor, andisuch further assessment shall become effective with the next payment
which is due in accordanc~ with the schedule of payment established by the Owners,
(5) In addition to the other provisions of this Declaration, the Owners
(or the Managing Agent acting for and on behalf of the Owners) shall maintain copies of the budget,
and accurate books and records of receipt, expenditures, assets, and liabilities of each of the Owners,
and the same shall be open for inspection by the Owners required to pay Assessments during any
financial report period for which inspection is sought, or any representative of such Owner duly
authorized in writing, at such reasonable time or times during normal business hours as may be
requested by such Owner. '
(6) All funds collected hereunder shall be held in an account
designated for such purpose and shall be expended solely for the purposes designated herein, and
shall be deemed to be held in trust for the benefit, use and account of the Owners.
(7) Assessments for reasonable actual Common Expenses may be
made, by the Managing Agent, or an Owner incurring the same, among other things, for the
following: driveway maintenance including snow plowing, approved expenses for management;
taxes and special assessments, until separately assessed; fire insurance with extended coverage and
vandalism and malicious mischief insurance with endorsements attached issued in the amount of the
maximum replacement value of Units I and 2; casualty and other insurance premiums; landscaping
and care of General Common Elements; common electrical, water, gas and sewer charges unless and ,
until any or all of the above are separately metered; repairs and renovations; garbage collections;
wages; legal and accounting fees; management fees; expenses and liabilities incurred by the
Managing Agent or other Owner under or by reason of this Declaration; the payment of any deficit
remaining from a previous period; the creation of a reasonable contingency or other reserve or
surplus fund as well as other costs and expenses relating to the appurtenant Common Elements. The
omission or failure of the Managing Agent to fix the assessment for any quarter shall not be deemed
a waiver, modification or a release of the subject Owrier from their obligation to pay,
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(b) Special Assessments. A special assessment is any assessment that is not
levied pursuant to an approved budget. The Owners may levy one or more special assessments to
provide, for the renovation, repair or replacement, to the extent not covered by insurance, or to
provide for extraordinary maintenance, if they determine, to the General Common Elements.
Owners shall ratify, by mutual agreement, any special assessment using the procedures set forth
above as if the special assessment proposal were an annual budget, except to the extent a special
assessment is necessary or appropriate for repair or replacement to the extent of an uninsured
casualty or loss by condemnation as provided by the Act and except as necessary for emergency
repairs, or except as necessary to assess against an Owner the expenses caused by such Owner.
Special Assessments levied for roof repair or replacement shall be kept in a fund for that purpose,
Such fund may be established in advance of such expenditures,
17. INSURANCE, Upon the sale of both Units by Declarant, one policy of public
liability insurance covering all of the General Common Elements shall be purchased and maintained
in effect at all times by the Owners of both of the Condominium Units, in an amount deemed
appropriate by such Owners, artd its cost shall be shared in accordance with such Owners' respective
undivided interests in the Real Property Common Elements. Fire, casualty and extended coverage
insurance shall be the sole responsibility of the Owners of Units 1 and 2 (or the Managing Agent as
above provided) with respect to Units 1 and 2, Insurance coverage on the furnishings, additions and
improvements incorporated into a Unit and all items of personal property belonging to an Owner,
and casualty and public liability insurance coverage within each undivided Unit and those Limited
Common Elements reserved for the exclusive use of a particular Unit Owner shall be the sole
responsibility of such Owner. Prior to the sale of both Units by Declarant, Declarant may maintain
"builders risk" insurance on any Unit owned by Declarant, and the Owner of the other Unit shall
maintain separate homeowners insurance on his Unit,
18, OWNER'S PERSONAL OBLIGATION FOR PAYMENT OF ASSESS-
MENTS. The amount of the Common Expenses assessed against or incurred on account of a
Condominium Unit shall be the personal and individual debt of such Owner. Suit to recover a
money judgment for unpaid Common Expenses shall be maintainable by the Managing Agent, or
any aggrieved Owner without foreclosure or waiving the lien securing it. No Owner may be exempt
from liability for contribution towards the Common Expenses by Waiver otthe use or enjoyment
of any of the Common Elements or by abandomnent of any Unit.
19. LIEN FOR NONPAYMENT OF COMMON EXPENSES. All sums due or
unpaid for the share of Common Expenses chargeable to Condominium Units 1 and 2, shall include
interest at fifteen percent (15%) per annum and shall constitute a lien on the Unit superior to all other
liens and encumbrances except:
assessing entity; and
(a) Tax and special assessment liens on the Unit in favor of any valid
(b) All sums unpaid on an obligation secured by a first mortgage or first deed
of trust of record, including all unpaid obligatory sums as may be provided by such encumbrance,
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including additional advances, refinance or extension of these obligations made prior to the
assessment lien.
To evidence such lien, the aggrieved Owner or Managing Agent shall prepare a
written notice setting forth the amount ofthe unpaid indebtedness, the name of the defaulting Owner
of the Condominium Unit and a description of the Condominium Unit. Such a notice shall be signed
by the aggrieved Owner or the Managing Agent, as appropriate, and may be recorded in the office
of the Clerk and Recorder of Pitkin County, Colorado. Such lien for the Common Expenses shall
attach from the date ofthe failure of payment of the debt, and maybe enforced by foreclosure on the
defaulting Owner's Condominium Unit by the aggrieved Owner or the Managing Agent in like
manner as a mortgage or deed oftrust on real property. In any such foreclosure the defaulting Owner
shall be required to pay th~ costs and expenses of such proceedings, the costs and expenses for filing
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the notice or claim of lien and all reasonable attorneys' fees. The defaulting Owner shall also be
required to pay to the forbclosing party a reasonable rental for the Condominium Unit during the
period offoreclosure, and'the foreclosing party shall be entitled to a receiver to manage the Unit. The
foreclosing party shall halve the power to bid on the Condominium Unit at foreclosure sale and to
acquire and hold, lease, rbortgage and convey such Condominium Unit.
The amouht of the Common Expenses chargeable against Condominium Units I and
2 and the costs and expenses, including attorneys' fees, of collection shall also be a debt of the
Owner at the time due. Suit to recover a money judgment for unpaid Common Expenses shall be
maintainable without foreclosing or waiving the lien right securing it.
Any encumbrancer holding a lien on Condominium Units A or B may pay any unpaid
Common Expense payable with respect to such Condominium Unit, and upon such payment such
encumbrancer shall have a lien on such Condominium Unit for the amounts paid of the same priority
as the lien for the encumbrancer's encumbrance.
20. LIABILITY FOR COMMON EXPENSE UPON TRANSFER OF
CONDOMINIUM UNIT. Upon payment of a reasonable fee not to exceed one hundred dollars
($100.00) and upon the written request of any Owner or any Mortgagee or prospective Mortgagee
of Condominium Units A or B, the Managing Agent or the Owner shall issue a written statement
setting forth the amount of the unpaid Common Expenses, if any, with respect to the subject
Condominium Unit, the amount of the current quarterly assessment and the date such assessment
becomes due, credit for advance payments or for prepaid items, including but not limited to
insurance premiums, which shall be conclusive upon the issuer of such statement in favor of all
persons who rely on it in good faith,
The grantee of a Condominium Unit shall be jointly and severally liable with the.
grantor for all unpaid assessments of the Common Expenses up to the time of the grant or
conveyance, without prejudice to the Grantee's right to recover from the Grantor the amounts paid
by the Grantee; provided, however, that upon payment of a reasonable fee not to exceed one hundred
($100.00) dollars, and upon written request, any prospective Grantee shall be entitled to a statement
from the Managing Agent or Owner ofthe other Condominium Unit, setting forth the amount of the
unpaid assessments, if any, with respeCt to the subject Unit, the amount of the current quarterly
assessment and the date that such assessment becomes due, credit for advance payments or for
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prepaid items including but not limited to insurance premiums, which shall be conclusive upon the
issuer of such statement. Unless such request for a statement of indebtedness shall be complied with
within ten (1 0) days of such request, then such Grantee shall not be liable for any unpaid assessments
against the subject Unit.
21, MORTGAGING A CONDOMINIUM UNIT - PRIORITY. Any Owner shall
have the right from time to time to encumber his interest by deed oftrust, mortgage or other security
instrument. A first mortgage shall be one which has first and paramount priority under applicable
law. The Owner of a Condominium Unit may create junior mortgages on the following conditions:
(1) Any such junior mortgages shall be subordinate to all of the terms, conditions, covenants,
restrictions, uses, limitations,'obligations, lien for Common Expenses, and other obligations created
by this Declaration; (2) The Mortgagee under any junior mortgage shall release, for the purpose of
restoration of any improvements upon the mortgage premises, all of his right, title and interest in and
to the proceeds under all insurance policies upon the premises which insurance policies were effected
and placed upon the mortgaged premises by the Managirig Agent or other Owners. Such release
shall be furnished forthwith by a junior mortgagee upon written request of the Managing Agent or
Owners of the other Unit.' ,
22. ATTORNEY-IN-FACT IN CASE OF DESTRUCTION. REPAIR OR
OBSOLESCENCE, This Declaration hereby makes rpandatory the irrevocable appointment of an
Attorney-in-Fact to deal with Condominium Units 1 and 2 upon their destruction, repair or
obsolescence.
Title to both of such Condominium Units is declared and expressly made subject to
the terms and conditions hereof, and acceptance by any Grantee of the Attorney-in-Fact herein
provided, All of the Condominium Unit Owners irrevocably constitute and appoint the Managing
Agent, from time to time appointed pursuant to this Declaration, their true and lawful attomey in
their name, place and stead for the purpose of dealing with the property upon its destruction, repair
or obsolescence as is hereafter provided. The Attorney-in-Fact shall have full and complete
authorization, right and power to make, execute and deliver any contract, deed or any other
instrument with respect to the interest of a Condominium Unit Owner which are necessary or
appropriate to the exercise of the powers herein granted, Repair and reconstruction of the
improvements as used in the succeeding paragraphs mean restoring the improvements to
substantially the same condition in which they existed prior to the damage, with each Unit and the
General and Limited Common Elements appurtenant thereto having the same vertical and horizontal
boundaries as before. The proceeds of any insurance collected shall be available to the Attorney-in-
Fact for the purpose of repair, restoration or replacement unless the Owners of Units 1 and 2 and all
first mo:tgagees thereon agree not to rebuild in accordance with the provisions set forth hereinafter.
(a) In the event of damage or destruction due to fire or other disaster, the
insurance proceeds, if sufficient to reconstruct the improvements, shall be applied by the AttOl;ney-
in-Fact to such reconstruction, and the improvements shall be promptly repaired and reconstructed,
The Attorney-in-Fact shall have full authority, right and power, as Attorney-in-Fact, to cause the
repair and restoration of the improvements.
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(b) If the insurance proceeds are insufficient to repair and reconstruct the
improvements, such daniage or destruction shall be promptly repaired and reconstructed by the
Attorney-in-Fact, using the proceeds of insurance and the proceeds of a special assessment to be
made against all of the Unit Owners and their Condominium Units. Such deficiency assessments
shall be a Common Expense and made pro rata according to each Owner's fractional interest in the
Common Elements, and shall be due and payable within thirty (30) days after written notice. The
Attorney- in-Fact shall have the authority to cause the repair orrestoration ofthe improvements using
all of the insurance proceeds for such purpose notwithstanding the failure of an Owner to pay the
special assessment. The special assessment shall be a debt of each Owner and a lien on his
Condominium Unit and may, be enforced and collected as is provided in paragraph 19. In addition,
the Attorney-in-Fact shall hive the absolute right and power to sell the Condominium Unit of any
Owner refusing or failing to pay such deficiency assessment within the time provided, and if not so
paid, the Attorney-in-Fact s~all cause to be recorded a notice that the Condominium Unit of the
delinquent Owner shall be sold by the Attorney-in-Fact. The proceeds derived from the sale of such
Condominium Unit shall be !used and disbursed by the Attorney-in-Fact in the following order:
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i (a) For payment of the balance of the lien of any first mortgage or
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deed of trust; and,
(2) For payment of taxes and assessment liens in favor of any
assessing entity; and,
(3) For payment of unpaid Common Expenses; and,
(4) For payment of junior liens and encumbrances in the order of and
to the extent of their priority; and,
(5) The balance remaining, if any, shall be paid to the Condominium
Unit Owner.
( c) The Owner of one of such Condominium Units may give notice to the
other Unit Owner that Units I and 2 are obsolete and that the same should be renewed or
reconstructed, Ifboth Owners agree, then the expense shall be payable by both of the Owners as
Common Expenses; provided, however, that any Owner not in agreement to such renewal or
construction may give written notice to the Attorney-in-Fact that such Unit shall be purchased by the
Attorney-in-Fact for fair market value, If such Owner and the Attorney-in-Fact can agree on the fair
market value then sale shall be consummated within thirty (3 0) days thereafter. If the parties are
unable to agree, the date when either party notifies the other that they are unable to agree with the
other shall be the "commencing date" from which all periods of time shall be measured. Within ten
(10) days following the commencing date, each party shall nominate in writing, and give notice of
such nomination to the other party, an appraiser who shall be a duly qualified appraiser qualified to
make appraisals of condominium and similar property in Pitkin County, Colorado. If either party
fails to make such a nomination, the appraiser nominated shall, within five (5) days after default by
the other party, appoint and associate with him another similarly qualified appraiser. If the two
appraisers designated by the parties, or selected as provided in the event of the default of one party,
are unable to agree, they shall appoint another similarly qualified appraiser to be arbitrator between
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them. The decision of the appraisers as to the fair market value shall be final, binding and not
subject to appeaL The expenses and fees of the appraisers shall be borne equally by the Owners.
The sale shall be consummated within fifteen (15) days thereafter, and the Attorney-in-Fact shall
disburse such proceeds as is provided in subparagraph (b)(1) through (5) of this paragraph,
(d) Owners of both Units may agree that Units I and 2 are obsolete and
should be sold. Such agreement must have the unanimous approval of every Mortgagee, In such
instance, the Attorney-in-Fact shall forthwith record a notice setting forth such fact or facts, and upon
the recording of such notice by the Attorney-in-Fact, Condominium Units 1 and 2 shall be sold by
the Attorney-in-Fact for bot):! of the Owners, subject to all of the provisions contained in this
Declaration and the Plat. The sales proceeds shall be apportioned among the affected Owners on the
basis of each Owner's fractional interest in the Common Elements, and such apportioned proceeds
shall be paid into separate accounts representing each Condominium Unit. Each account shall be in
the name of the Attorney-in-Fact, and shall be further identified by specific Unit, and the name of
the Owner. From each separate account, the Attorney-in-Fact shall disburse the total amount of such
accounts, without contribution from one account to another, for the same purposes and in the same
order as provided in subparagraph (b)(I) through (5) of this paragraph.
23. ATTORNEY-IN-FACT IN CASE OF CONDEMNATION. This Declaration
mandates the irrevocable appointment of an Attorney-in-Fact to deal with the Project in the event
of its complete or partial condemnation, Title to both of the Condominium Units is declared and
expressly made subject to the terms and conditions hereof, and acceptance by any grantee ofa deed
from the Declarant or from any Owner shall constitute consent to the appointment of any Attorney-
in-Fact identified by an appointment recorded in the real estate records of Pitkin County. The
Attorney-in-Fact may be changed at any time by mutual agreement ofthe Owners, such change only
to be effective upon the recording of a notice designating the new Attorney-in-Fact under this
paragraph in the Pitkin County, Colorado, Real Property records. The Attorney-in-Fact shall have
full and complete authorization, right and power to make, execute and deliver any contract, deed or
other instrument with respect to the interest of a Condominium Unit Owner which are necessary or
appropriate to the exercise of the powers herein granted. The initial Attorney-in-Fact shall be
appointed by mutual agreement of the Unit Owners,
(a) Consequences of Condemnation. If at anytime during the continuance
of the condominium ownership pursuant to this Declaration, all or any part of the Project shall be
taken or condemned by any public authority or sold or otherwise disposed of in lieu of or in
avoidance thereof, the following provisions shall apply:
(I) Proceeds: All compensation, damages or other proceeds (the
"Condemnation Award") shall be payable to the Attorney-in-Fact; and,
(2) Complete Taking: In the event that the entire project is taken or
condemned, or sold or otherwise disposed of in lieu of or in avoidance thereof, the condominium
ownership pursuant thereto shall terminate, The Condemnation Award shall be apportioned among
the Owners on the basis of each Owner's fractional interest in the Real :Property Common Elements,
provided that if a standard difference from the value of the property as a whole is employed to
measure the Condemnation Award in the negotiation, judicial decree, or otherwise, then in
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determining such share of the same standard shall be employed to the extent it is relevant and
applicable. On the basis of the principal set forth above the Attorney-in-Fact shall as soon as
practicable determine the share ofthe Condemnation Award to which each Owner is entitled. Such
shares shall be paid into separate accounts and disbursed as soon as practicable in the same manner
provided in paragraph 22( d); and,
(3) Partial Taking: In the event that less than the entire Project is
taken or condemned, or sold or otherwise disposed of in lieu of or in avoidance thereof, the
condominium ownership hereunder shall not terminate. Each Owner shall be entitled to a share of
the Condemnation Award tq be determined in the following manner: As soon as practicable, the
Attorney-in-Fact shall, reas9nably and in good faith, allocate the Condemnation Award between
compensation, damages or o~her proceeds, and shall apportion the amounts so allocated among the
owners, as follows: (a) the iotal amount allocated to taking of or injury to the General Common
Elements, (b) the total am6unt allocated to severance damages shall be apportioned to those
Condominium Units which ~ere not taken or condemned, (c) the respective amounts allocated to
the taking of or injury to a ~articular Unit and improvements an Owner had made within his own
Unit shall be apportioned tb the particular Unit involved, and (d) the total amount allocated to
consequential damages and dny other takings of injuries shall be apportioned as the Attorney-in-Fact
determines to be equitable i6 the circumstances. If an allocation of the Condemnation Award is
already established in negotiation, judicial decree or otherwise, then in allocating the Condemnation
Award the Attorney-in-Factishall employ such allocation to the extent it is relevant and applicable.
Distribution of apportionediproceeds shall be disbursed as soon as practical in the same manner
provided in paragraph 22( d); and,
(4) Reorganization: In the event a partial taking results in the taking
of a complete Unit, the Owner thereof automatically shall cease to be an Owner under this
Declaration; and,
(5) Reconstruction and Repair: Any reconstruction and repair
necessitated by condemnation shall be governed by the procedures specified in paragraph 22, in
which case such paragraph shall be construed to apply to both Condominium Units.
24. MAILING OF NOTICES. Each Owner shall register his mailing address with
the other Owner and all notices or demands intended to be served upon any Owner shall be sent by
either registered or certified mail, postage prepaid, addressed in the name of the Owner at such
registered mailing address. All notices or demands intended to be served upon the Owners shall be
given by registered or certified mail, postage prepaid, to the registered address. All notices or
demands to be served on Mortgagees shall be sent by either registered or certified mail, postage
prepaid, addressed in the name of the Mortgagee at such address as the Mortgagee may have.
furnished to the owners in writing, The Mortgagee must furnish its address, to be entitled to receive
notices provided for in this Declaration, Any notice referred to in ihis Section shall be deemed given
when deposited in the United States mail, postage prepaid,
25. PERIOD OF CONDOMINIUM OWNERSHIP. These separate condominium
estates created by this Declaration and the Condominium Plat shall continue until this Declaration
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is revoked in the manner provided in paragraph IS or paragraph 23 or until terminated by operation
at law.
26, GENERAL.
(a) If any of the provisions of this Declaration or any paragraph, sentence,
clause, phrase or word or the application thereofis in any circumstances invalidated, such invalidity
shall not affect the validity of the remainder of this Declaration; and,
(b) The; provisions ofthis Declaration shall be in addition and supplemental
to the Condominium OwnershIP Act oIthe State of Colorado and to all other provisions oIthe law;
and, '
(c) Whenever a dispute arises between the Owners regarding modifications
and repairs, remodels, care anq maintenance of Common dements and budget matters and they are
unable to resolve the dispute oetween themselves within fourteen calendar days, then the Owners
shall jointly appoint a mediator and share equally in the cost of such mediation. The mediation,
unless otherwise agreed, shall terminate in the event the entire dispute is not resolved within seven
(7) calendar days after the mediation commences. If the parties are unable to resolve the dispute
through mediation, they may agree to binding arbitration or thereafter either party may take such
further legal action as they deem necessary.
(d) Whenever used herein, unless the context shall otherwise provide, the
singular number shall include the plural, the plural the singular, and the use of any gender shall
include all genders.
Dated: Fe/~(u.CiU-.':.l j5iaoo3
Declarant:
EPOCH ASPEN DEVELOPMENT, LLC
By ~ Jrlh-
James H. Pugh, Jr., Manager
STATE OF COLORADO )
) ss.
COUNTY OF PITKIN )
Subscribed and sworn this Declaration has been duly executed this 25th day of ,
February, 2003, by James H. Pugh, Jr., as Manager of EPOCH ASPEN DEVELOPMENT, LLC.
Witness ~d offici~ seaL
My co~~lh~.~ :!:J / I '-f/Cl co/-
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