HomeMy WebLinkAboutcoa.lu.ec.501 E Cooper Ave.Independence Sq.46A-85
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CASELOAD SUMKARY SHEET ..". - ,
Ci ty of Aspen . :'.' ..
DATE REC-EIVED;P:C'~I /9ts- . .' -. ..' ""':~~E 'Nd~ Lfbi!::..gs-
.1 ~TE RECEIVED COMPLETE: ?iJ.JJ.~ L[$:6fip ". STAFF: "76
(I ;'OJECT NAME: )nVG~'f~ ~. CoVrorYfIIUUlml?rrb'OV)" -
APPL lCANT:
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Representative Addres's/phPne~ll.J. (Yl,fCSE: /*t::I"FtV) Co tffotl
Type of Application:' 5 -8100
1. GMP/SUBDIV IS ION/PUD (4 step)
Conceptual Submission
_ Preliminary Plat
_ Final Plat
($2,730.00)
($1,640.00)
($" 820.00)
II. SUBDIV IS ION/PUD (4 st ep)
.
_ Conceptual Submission
_ Preliminary Plat
_ Final plat
I III. EXCEPTION/EXEMPTION/REZONING (2 step)
IV. SPECIAL RE-V IEW (1 step)
($1,900.00).
($1,220.00)
($ 820.00)
($1,490.00)
($ 680.00)
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Special Review
Use Determination
Condi ti onal Use
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(P~ CC MEETING DATE: '5/'<'-r--. '\ PUBLIC HEARING: YES @
DATE REFERRED: /.;2-3-1?6 INITIALS: -(1p
=== ===================',====::;=====,==================~=============
RE FERRALS :
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City Atty
City Engineer
Housing Dir.
Aspen vlater
City E;lectric
Envir, Blth.
_ Aspen Consolo S. D.
_ Mtn. Bell
_ Parks Dept.
_ Holy Cross Electric
_ Fire Marshall
_ Fire Chief
_ School District
_ Rocky Mtn. Nat. Gas
_ State Hwy Dept (Glenwd)
_ StateHwy Dept (Gr.Jtn)
~ B1dg: Zoning/lnspectn
_ Other:
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1~"'"eit!Y~1\ffY' _ City Engineer' _ Building Dept.
Ii Other: Othe
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FILE STATUS AND LOCATION:
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,R,~Vi'.li1cdbY: . C:i.5, .'n ~ City CounCil'
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A final condomi~iumization plat shall be recorded prior to the
sale of any um.ts. The Plat shall contain all inf .
requested in the Engineering Department memoranda of grmat~on
23 and 26, 1985 and shall conform to requirements of ~cem.er
20-15 of the f1unicipa1 Code. . ~ectJ.on
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3.
A statement of Subdivision Exception shall be submitted
prior to the sale of units through the City Attorney's
Office and shall be signed prior to the sale of any units.
Unit 012 shall be deed restricted to the lowemRloyee
housing guidelines. The General Common Element Area shown
on the working drawings as Room 006 Employee Area shall be
designated on the condominiumization plat for employee use.
4.
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!1li~ORANDUM
DATE: February 21,1986
TO: Planning Office
FROM: City Attorney
RE: Independence Building
Attached for your review and approval please find final drafts of
the following documents regarding the Independence Lodge:
1. Declaration of Covenants, Restrictions and Conditions.
2. Statement of Exception from the Full Subdivision Process.
3. Condominium Declaration.
By copy of this memo, I request that the Housing Office also
review and approve the Declaration of Covenants with regard to the
employee housing unit. Additionally, by copy of this memo, I am
requesting that Herb Klein provide evidence of the Independence
company's ownership and authorization to sign the documents.
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Attachments
cc: Housing Office
Herbert S. Klein, Esq.
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,{ecorded at J-. 3-'2";;'Clock-L-M., --------------- ---
'eceptlor. No. ,_=,;)-:2S:1Cj~-, Loretta Banner, Pitkin Co. Reco.BOOK 506 Ptl5E 386
STATEMENT OF EXCEPTION FROM THE FULL SUBDIVISION PROCESS
FOR THE PURPOSE OF CONDOMINIUMIZATION OF A LODGE
WHEREAS, The Independence Company, a Colorado limited part-
nership (hereinafter referred to as "Applicant"), is the owner of
certain real property situate in the City of Aspen, Pitkin County,
Colorado, described as Lots A and B and the West 7 1/2 feet of Lot
C, Block 96, City and Townsite of Aspen, having the street address
of 501 East Cooper Avenue, Aspen, Colorado 81611, commonly known
as The Independence Building and to be known as The Independence
Building, a condominium;
WHEREAS, Applicant has requested an exception from the full
subdivision process for the purpose of condominiumizing the build-
ing located on the above described real property into a Lodge
Condominium to be known as The Independence Square Hotel and to
also condominiumize a portion of said building into eight commer-
cial spaces;
WHEREAS, the Aspen Planning and Zoning Commission at its
meeting of January 7, 1986, determined that such exception would
be appropriate and recommended that the same be granted subject,
however, to certain conditions; and
WHEREAS, the City Council determined at its meeting of Janu-
ary 27, 1986, that Applicant's application for exception from the
full subdivision process for the purpose of condominiumization of
eight commercial spaces is proper and hereby grants exception from
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BOOK 506 PAGE387
the full subdivision process for such condominiumization and here-
by approves applicant's plan for condominiumization.
PROVIDED, HOWEVER, that the foregoing exception and approval
are expressly conditioned on the Applicant's, its successors' and
assigns' strict compliance with the provisions contained herein
and all other building conditions of approval on this matter set
by the Planning and Zoning Commission and/or the City Council, as
are set forth below:
1. Applicant shall submit a condominium map in the form of
two (2) mylar sets which show:
a. Individual units;
b. General and limited common elements;
c. Approval and recording certificate;
d. Existing utility meters;
e. Other items pertinent to condominium approval;
2. Applicant shall record the approved condominium map.
3. In the event the City Council of the City of Aspen
determines that any municipal improvements of a kind contemplated
in Section 20-16 of the Municipal Code of the City of Aspen, as
amended, become necessary or desirable to the area of the above
described property, Applicant shall make no objection to any
special assessment or special tax or proceeding therefor on the
basis that the property is adequately served by existing improve-
ments and/or on the basis that the premises will not be served or
benefited by the improvement or improvements proposed. Applicant
further agrees to join on the demand therefor by the City, any
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BOOK 506 PAGE388
special improvement district formed for construction of improve-
ments (including, without limitation, signage, drainage, under-
ground utilities, paved streets and alleys, planting, curbs,
gutters, sidewalks or street lights) in the area of the above
described property.
4. Applicant shall submit to the City Attorney for his
review and approval the condominium declaration for the condomin-
iumized lodge and the by-laws and articles of incorporation for
the lodge condominium association. The condominium declaration
shall be recorded after the review and approval by the City Attor-
ney has been obtained at such time as the Applicant records the
condominium map.
5. Applicant shall submit for review and approval by the
City Attorney an employee housing deed restriction for the one
(two pillows) unit of employee housing. This deed restriction may
be incorporated into the condominium declaration for the condomin-
iumized lodge or may be recorded as a separate document.
6. Applicant agrees to comply with any other applicable
provisions of Section 20-23 of the Municipal Code of the City of
Aspen, as amended.
7. Applicant agrees this Statement of Exception and the
conditions set forth herein shall be binding on it and its suces-
sors and assigns and shall be deemed to run with the land affected
hereby.
DaCed Chi, 4- day of ~____, 1986.
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BOOK 506 PAGE389
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William L. Stir ing, Mayor
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APPROVED AS TO FORM:
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Paul J. T adune, City Attorney
I, Kathryn S. Koch, do hereby certify that the foregoing
Statement of Exception from the Full Subdivision Process for the
purposes of condominiumization of The Independence Building, a
condominium, was considered and approved by the City Council at
its regular meeting held January 27, 1986, at which time the
Mayor, William L. Stirling, was authorized to execut€d ~~e same on
behalf of the City of Aspen. . /,/' ~~n~/t'
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. 506 PAGE390 ..,!:!J
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DECLARATION OF COVENANTS, RESTRICTIONS AND CONffiTI~S FOR
THE INDEPENDENCE BUILDING CONDOMINIUMS
The Independence Company, a Colorado limited partnership
(hereinafter "Covenantor"), for itself, its successors and
assigns, in consideration for the grant ing of an exception from
the full subdivision process for the purpose of condominiumization
of the following described property, hereby covenants with the
City of Aspen, Pitkin County, Colorado, to restrict such property,
and does hereby restrict such property as follows:
1. Covenantor is the owner of the following described pro-
perty (the "Property"), together with the improvements thereon,
conunonly known as the "Independence Building Condominiums" situ-
ated in the City of Aspen, County of Pitkin, State of Colorado:
Lots A and B and the West 7 1/2 feet of Lot C,
Block 96, City and Townsite of Aspen,
pitkin County, Colorado; also known as 501 East Cooper
Avenue, Aspen, Colorado 81611; also known as the Independence
Building, a condominium according to the Plat Map thereof
recorded in Book /:? at Page _5Z.L of the records of Pitkin
County and the Condomi~~um Declaration therefor recorded in
Book ..5:06 at Page 35/ of the rcords of Pitkin County,
Colorado.
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, in Plat
the condominium plat recorded ~~!
Book _JfY~~O~{ice of the pitkin
2. Room "012", shown on
County Clerk and Recorder, as Room 012, being aportion of the com-
mon elements, shall be and hereby is restricted exclusively to use
as "low income" rental only employee housing under and in accor-
dance with such City of Aspen employee housing use, occupancy and
rental guidelines and qualifications as may be in effect and
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BOOK 506 DAs~391
applicable from time to time. Provided always, that rental prices
shall be indexed to the annually adopted employee housing guide-
lines approved by the City.
3. Said area designated as Room 012 shall be and hereby is
restricted to a maximum occupancy of two persons, with first
priority being given at all times to employees of the Independence
Lodge Condominiums. Verification of the employee's income and
employment qualifications shall be accomplished by the City of
Aspen and its designee prior to and as a condition of each
employee's occupancy of said unit.
In addition, that portion of the general common elements
located at the lobby level referred to as "employee use area"
shall and hereby is restricted to uses which support the
employee(s) occupying said Room 012 and other employees of the
Independence Lodge, such as, without limitation, storage, coat
room, locker room, changing area, etc.
4. In the event that any municipal improvement or improve-
ments of any kind contemplated in Section 20-16 of the City of
Aspen, as amended, become, in the sole judgment or discretion of
the City Council of the City of Aspen, necessary or desirable to
the area of the Independence Building Condominiums, covenantor
will make no objection to any special assessment or special tax or
proceeding therefor on the basis that the property is adequately
served by existing improvements and/or on the basis that the pre-
mises will not be served or benefited by the improvement or
improvements proposed. Covenantor further agrees to join, upon
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BOOK 506 PAG::392
the City's demand therefor, any improvement district formed for
construction of such improvements (including, without limitation,
drainage, underground utilities, paving, curbs, gutters, side-
walks, street lights, etc.) in the area of the Independence Build-
ing Condominiums. Neither this declaration nor any of the cove-
nants contained herein shall be modified, released or waived in
any respect except by written instrument executed by both covenan-
tor or its successors or assigns and the City of Aspen, Colorado,
and duly recorded in the Office of the Pitkin County Clerk and
Recorder.
5. The dedication and covenants contained herein shall be
deemed a burden upon and to run with the title to the property,
shall be binding upon covenantor and its successors and assigns
and upon all other persons or entities having any right, title or
interest in or to the property or any part thereof, and shall
insure to the benefit of and be specifically enforceable by the
City of Aspen or its designee by any appropriate legal action
including injunction, abatement or eviction of non-complying
tenancies, all for a period of fifty (50) years from the date of
recording hereof in the Office of the Pitkin County Clerk and
Recorder.
6. In any legal proceeding to enforce the provisions of
these covenants, restrictions and conditions the prevailing party
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BOOK 506 PAGE393
shall be entitled to recover its costs and fees therein, including
its reasonable attorney's fees and expert witness fees.
IN WITNESS WHEREOF, this Declaration has been duly executed
this __~~_--- day of __--~~-------' 1986.
THE INDEP DENCE COMPANY, a
Col d im'te Partnership
STATE OF COLORADO )
) ss.
County of Pitkin )
--l'e foregoing instrument waS ac]<;nowlE;'!dged
_fl--1._?"" day of -4-~ _~~__.,.~.,.___, 1986,
and Gerald Luss a~~i;~partners.
before me this
by Robert Goldberg
Witness my hand and official seal.
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From:
STAN MATHIS
architecture and planning
p.o. box 1984
aspen, colorado 81612
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INDEPENDENCE SQUARE HOTEL
APPLICATION FOR LODGE CONDOMINIUMIZATION
TO:
City of Aspen Planning Office
FROM:
The Independence Company, a Colorado Limited Partnership
(Applicant)
BY:
DATE:
Herbert S. Klein, Attorney for Applicant
November 29, 1985
Statement of Intent
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A request for exe......tioo from th" definitton of subdivision for the
condominiumizatiol') of' both the hotel and the commercial space is hereby
submitted pursuant to Section 20-23 of the City of Aspen Code. In December
of 1984, a zoning enforcement officer verified the existence of ~ legal lodge
rooms and one employee apartment (Mell},o from Bill Drueding to City of Aspen
Planning Department, December 17, 198~). The renovated lodge facility has
',. 'c.l .2JLhotel rooms and one employee apartment. No increase in density is
iv,.,..",,'" .associated with the renovations or this request for condominium approval.
,,,,(f.jf lI1th:!, The commercial space is intende o-be-.s.u..bdivided into 8...s"r"~te commercial
l,te};;i~1 ,f'v)' condominium Un! s. ver, the utilization of the commercial space is
anticipated to remain as the Crossroads drugstore, at least through the
expiration of their current lease term which runs until 1991.
The Independence Square Hotel, formerly known as the Independence
Lodge, has recently been completely renovated into a first-class hotel facility
and is scheduled to open on or about January 1, 1986. The building in
which the hotel is located also contains retail space presently utilized by
Crossroad Drugs. The portion of the building in which the hotel is located
was formerly occupied by such notable hotel operations as "Ned's Beds" and
"Rick's Racks". Virtually no improvements were made to the hotel in the
preceding two decades and the Applicant believes that its renovations bring a
modern and luxurious hotel facility to one of the most prominent sections of
downtown Aspen.
Compliance with Section 20-23 the City of Aspen Municipal Code
Condommiumizatlon of Lodges
The following information is in response to and is in satisfaction of the
requirements of Section 20-23 et seq. of the City of Aspen Code. Information
is provided in the text. as well as by reference to attached documents and
exhibits. The listing of requirements is in the order set forth in Section
20-23 et seq. of the Code.
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1. Section 20-23(A) (1). Please see the condominium declarations
attached as Exhibit B, wherein at Paragraph 40 thereof the requirement is
,Imposed to maintain the lodge units for the short-term rental accommodations
market pursuant to the City of Aspen Municipal Code. In addition,
Paragraph 36 of the Declarations contains the personal use restriction which.
In this case, Is more restrictive than as required by the Code. The
Applicant has extended the definition of "high sea"on" to include the period
from November 24 through April 15 and June 8 through September 15.
Paragraph 37 of the declarations contains the provisions concerning the
violation of an owner's use restriction consistent with the Code requirements.
2. Section 20-23(A)(2) describes the requirements for employee
housing. As noted by Mr. Drueding, the previous manager's apartment
housed one employee who was the on-site manager. The manager and all the
guests shared common bathroom facilities located on each of the two floors of
~ the hotel. The present application demonstrates compliance with the minimum
,; \~f' two pillow employee housing requirement by providing an employee apartment
fl\f."j' \ .~. denominated on the condominium plat and floor plan as Room 012. This unit
~,~\,\.,J contains a private kitchen, private bath, and studio-style living space and
. \,~!V, bedroom and can comfortably sleep two persons. The floor plans for the
~'w W' ,M~ project are attached to this application as exhibits. The Declarations
1 f"~~"\'i' guarantee that this room will remain employee housing at Paragraph 39.
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5i$.....,~... 3. Section 20-23(A) (3). On-site management and maintenance is
provided and required by the Declarations at Paragraph 40 with the
particulars of this section set forth at Subparagraphs 40a through d. The
servic~ to be provided are far In excess of the services provided by the
previous lodge facility. Please see the affidavit attached at Exhibit E for
details on the differences between the past operation and the new hotel.
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4. Section 20-23(A)(4) and (5). These sections of the Code require
the condominium units remain available to the general tourist market by their
inclusion in a local reservation system at comparable rates and by maintenance
of common areas in a manner equal to or surpassing pre-existing facilities.
The Declarations address these issues at Paragraphs 40b and 40c.
5. Section 20-23(A) (6). This section requires the physical upgrading
of the lodge. During the past year, the Applicant has expended in excess of
$1,000,000.00 totally renovating the interior portions of the lodge. A new
hotel lobby and entryway has been constructed which has visually beautified
the exterior of the facility. The building has received Historic Preservation
Committee approval for the exterior renovations. This work by the Applicant
is anticipated to be completed approximately January 1, 1986 and is far in
excess of the assessed valuation of the property. The 1985 assessed
valuation pursuant to Tax Schedule 111-687 as provided by the Pitkin County
Assessor indicates an assessed valuation for the entire building of
$163,050.110. The code requirement of 30 percent of the assessed value of the
property being applied towards renovations is exceeded by the work
undertaken by the Applicant. It is self-evident that no additional
requirements for additional upgrading should be necessary in order to comply
with this section of the Code. Likewise, because the work has been
completed. no bonding or security for the improvements should be required.
The affidavit attached at Exhibit E contains further information with respect
to the upgrading.
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6. Section 20-23(A)(7). The final condominium map Is in the process of
being prepared and will contain appropriate certificates indicating approval by
appropriate City officers and boards.
7. Section 20-23(B). The duration of the Declarations Is established by
Paragraph 32m of the Declarations and the requirement that the City's
approval be obtained for any modification to the Declarations which affect the
matters of concern under Section 20-23 Isset forth at Paragraph 32b and 42
of the Declarations.
Index and Description of Exhibits
1. Proof of ownership - Exhibit A - Letter from attorney for Applicant,
certifying ownership.
2. Improvement su rvey for the property - attached as part of Plans.
3. Site inventory - attached as part of Plans.
4.. Proposed condominium documents:
(a) Condominium Declaration - Exhibit B
(b) Articles of Incorporation - Exhibit C
(c) Association Bylaws - Exhibit D
5. Affidavit of Services - Exhibit E.
6. Designation description of employee units - See attached floor plans
fo r liQ.om 012.
7. Plan of improvements - See attached Plans and Affidavit - Exhibit E.
Respectfully submitted.
1;//
By: H~S~~
Klein. Seig Ie & K rabacher, P. C.
201 North Mill Street, n01
Aspen, CO 81611
(303) 925-8700
Attorney for The Independence
Company
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HERBERT S. KLEIN
JON DAVID SEIGLE
8. JOSEPHKRABACHER
KLEIN. SE1GLE .& KRABACHER
PROFESSIONAL CORPORATION
ATTORNEYS AT LAW
201 NORTH MILL STREET
ASPEN. COLORADO 81811
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TELEPHONE
CS03) 825-8700
THOMAS C. HILL
November 29, 1985
City of Aspen
Planning Office
130 South Galena
Aspen, CO 81611
RE: Certification of Ownership for the Independence Building
Independence Square Hotel Lodge Condominiumization Application
To Whom It May Concern:
The purpose of this letter is to certify that the Independence Company,
a Colorado limited partnership, is the owner of the property commonly known
as the Independence Building located at 501 East Cooper Avenue, Aspen,
Colorado, and legally described as follows:
Lots A and B and the West 71 feet of Lot C, Block 96,
City and Townsite of Aspen
The Independence Company took title through a deed recorded at
Book 496. Page 815, of the records of Pitkin County.
If you have any further questions or concerns, please do not hesitate to
contact me.
Very truly yours,
KLEIN, SEIGLE & KRABACHER, P.C.
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Exhibit E
INDEPENDENCE SQUARE HOTEL
APPLICATION FOR CONDOMINIUMIZATION
AFFIDAVIT
COUNTY OF PITKIN )
) ss.
STATE OF COLORADO )
The undersigned Affiant, after being duly sworn upon his oath, deposes
and says as follows:
1. My name is Herbert S. Klein. I am the attorney for the
Independence Company, a Colorado limited partnership, the owner of the
Independence Square Hotel, formerly known as the Independence Lodge, and
the Applicant for condomlniumization approval pursuant to Section 20-23 of the
City of Aspen Municipal Code pursuant to which this Affidavit is provided.
The undersigned is familiar with the previous lodge facility and the
about-to-be completed improvements and renovation of said facility.
2. With respect to the services provided during the three years
preceding the date of this application, the following facts are true:
(a) Breakfast has not been provided by the hotel operator.
(b) There has not been a formal front desk serving the guests,
but there was a resident manager who supplied minimal front desk type
services.
(c) Transportation was not provided to guests.
(d) Check-in hours and procedures were very informal and based
upon the availability of the resident manager.
(e) There were no substantial amenities provided to the guests.
Common bath facilities existed on each floor of the hotel, as well as a
common kitchen.
(f) There is no comparison between the previous condition of the
lodge and the new renovated project. The upgrading is substantial and
in excess of requirements for upgrading the lodge required by the City
Code condominiumization procedures.
3.
provided:
Pursuant to Section 20-23(A) (6) (b), the following information is
During the past ten months in excess of $1,000,000.00 has been
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INDEPENDENCE SQUARE HOTEL
APPLICATION FOR LODGE CONDOMINIUMIZATION
TO:
City of Aspen Planning Office
FROM:
The Independence Company, a Colorado Limited Partnership
(Applicant]
BY:
Herbert S. Klein, Attorney for Applicant
DATE:
November 29, 1985
Statement of Intent
The Independence Square Hotel, formerly known as the Independence
Lodge, has recently been completely renovated into a first-class hotel facility
and is scheduled to open on or about January 1, 1986. The building in
which the hotel is located also contains retail space presently utilized by
Crossroad Drugs. The portion of the building in which the hotel is located
was formerly occupied by such notable hotel operations as "Ned's Beds" and
"Rick's Racks". Virtually no improvements were made to the hotel in the
preceding two decades and the Applicant believes that its renovations bring a
modern and luxurious hotel facility to one of the most prominent sections of
downtown Aspen.
A request for exemption from the definition of subdivision for the
condominiumization of both the hotel and the commercial space is hereby
submitted pursuant to Section 20-23 of the City of Aspen Code. In December
of 1984, a zoning enforcement officer verified the existence of 29 legal lodge
rooms and one employee apartment (Memo from Bill Drueding to City of Aspen
Planning Department, December 17, 1985). The renovated lodge facility has
28 hotel rooms and one employee apartment. No increase in density is
associated with the renovations or this request for condominium approval.
The commercial space is intended to be subdivided into 8 separate commercial
condominium units, however, the utilization of the commercial space is
anticipated to remain as the Crossroads drugstore, at least through the
expiration of their current lease term which runs until 1991.
Compliance with Section 20-23 the City of Aspen Municipal Code
Condomlnlumization of Lodges
The following information is in response to and is in satisfaction of the
requirements of Section 20-23 et seq. of the City of Aspen Code. Information
is provided in the text, as well as by reference to attached documents and
exhibits. The listing of requirements is in the order set forth in Section
20-23 et seq. of the Code.
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1. Section 20-23(A) (1). Please see the condominium declarations
attached as Exhibit B, wherein at Paragraph 40 thereof the requirement is
imposed to maintain the lodge units for the short-term rental accommodations
market pursuant to the City of Aspen Municipal Code. In addition,
Paragraph 36 of the Declarations contains the personal use restriction which,
in this case, is more restrictive than as required by the Code. The
Applicant has extended the definition of "high season" to include the period
from November 24 through April 15 and June 8 through September 15.
Paragraph 37 of the declarations contains the provisions concerning the
violation of an owner's use restriction consistent with the Code requirements.
2. Section 20-23(A)(2) describes the requirements for employee
housing. As noted by Mr. Drueding, the previous manager's apartment
housed one employee who was the on-site manager. The manager and all the
guests shared common bathroom facilities located on each of the two floors of
the hotel. The present application demonstrates compliance with the minimum
two pillow employee housing requirement by providing an employee apartment
denominated on the condominium plat and floor plan as Room 012. This unit
contains a private kitchen, private bath, and studio-style living space and
bedroom and can comfortably sleep two persons. The floor plans for the
project are attached to this application as exhibits. The Declarations
guarantee that this room will remain employee housing at Paragraph 39.
3. Section 20-23 (A) (3). On-site management and maintenance is
provided and required by the Declarations at Paragraph 40 with the
particulars of this section set forth at Subparagraphs 40a through d. The
services to be provided are far in excess of the services provided by the
previous lodge facility. Please see the affidavit attached at Exhibit E for
details on the differences between the past operation and the new hotel.
4. Section 20-23(A)(4) and (5). These sections of the Code require
the condominium units remain available to the general tourist market by their
inclusion in a local reservation system at comparable rates and by maintenance
of common areas in a manner equal to or surpassing pre-existing facilities.
The Declarations address these issues at Paragraphs 40b and 40c.
5. Section 20-23(A)(6). This section requires the physical upgrading
of the lodge. During the past year, the Applicant has expended in excess of
$1,000,000.00 totally renovating the interior portions of the lodge. A new
hotel lobby and entryway has been constructed which has visually beautified
the exterior of the facility. The building has received Historic Preservation
Committee approval for the exterior renovations. This work by the Applicant
is anticipated to be completed approximately January 1, 1986 and is far in
excess of the assessed valuation of the property. The 1985 assessed
valuation pursuant to Tax Schedule #1-687 as provided by the Pitkin County
Assessor indicates an assessed valuation for the entire building of
$163,050.00. The code requirement of 30 percent of the assessed value of the
property being applied towards renovations is exceeded by the work
undertaken by the Applicant. It is self-evident that no additional
requirements for additional upgrading should be necessary in order to comply
with this section of the Code. Likewise, because the work has been
completed, no bonding or security for the improvements should be required.
The affidavit attached at Exhibit E contains further information with respect
to the upgrading.
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6. Section 20-23 (A) (7). The final condominium map is in the process of
being prepared and will contain appropriate certificates indicating approval by
appropriate City officers and boards.
7. Section 20-23(B). The duration of the Declarations is established by
Paragraph 32m of the Declarations and the requirement that the City's
approval be obtained for any modification to the Declarations which affect the
matters of concern under Section 20-23 is set forth at Paragraph 32b and 42
of the Declarations. .
Index and Description of Exhibits
1. Proof of ownership - Exhibit A - Letter from attorney for Applicant,
certifying ownership.
2. Improvement survey for the property - attached as part of Plans.
3. Site inventory - attached as part of Plans.
4. Proposed condominium documents:
(a) Condominium Declaration - Exhibit B
(b) Articles of Incorporation - Exhibit C
(c) Association Bylaws - Exhibit D
5. Affidavit of Services - Exhibit E.
6. Designation description of employee units - See attached floor plans
for Room 012.
7. Plan of improvements - See attached Plans and Affidavit - Exhibit E.
Respectfully submitted,
~~~/
By: H;~ft~
Klein, Seigle & Krabacher, P.C.
201 North Mill Street, #201
Aspen, CO 81611
(303) 925-8700
Attorney for The Independence
Company
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HERBERT s. KLEIN
JON DAVID SEIGLE
8. JOSEPH KRABACHER
KLEIN. SEIGLE & KRABACHER
PROFESSIONAL CORPORATI'ON
ATTORNEYS AT LAW
201 NORTH MilL STREET
ASPEN, COLORADO B 1 61 1
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TELEPHONE
(303) 925-8700
THOMAS C. HILL
November 29, 1985
City of Aspen
Planning Office
130 South Galena
Aspen, CO 81611
RE: Certification of Ownership for the Independence Building
Independence Square Hotel Lodge Condominiumization Application
To Whom It May Concern:
The purpose of this letter is to certify that the Independence Company,
a Colorado limited partnership, is the owner of the property commonly known
as the Independence Building located at 501 East Cooper Avenue, Aspen,
Colorado, and legally described as follows:
Lots A and B and the West 7t feet of Lot C, Block 96,
City and Townsite of Aspen
The Independence Company took title through a deed recorded at
Book 496, Page 815, of the records of Pitkin County.
If you have any further questions or concerns, please do not hesitate to
contact me.
Very truly yours,
KLEIN, SEIGLE & KR.ABACHER, P.C.
By:
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Exhibit E
INDEPENDENCE SQUARE HOTEL
APPLICATION FOR CONDOMINIUMIZATION
AFFIDAVIT
COUNTY OF PITKIN )
) ss.
STATE OF COLORADO )
The undersigned Affiant, after being duly sworn upon his oath, deposes
and says as follows:
1. My name is Herbert S. Klein. am the attorney for the
Independence Company, a Colorado limited partnership, the owner of the
Independence Square Hotel, formerly known as the Independence Lodge, and
the Applicant for condominiumization approval pursuant to Section 20-23 of the
City of Aspen Municipal Code pursuant to which this Affidavit is provided.
The undersigned is familiar with the previous lodge facility and the
about-to-be completed improvements and renovation of said facility.
2. With respect to the services provided during the three years
preceding the date of this application, the following facts are true:
(a)
Breakfast has not been provided by the hotel operator.
(b)
but there
services.
There has not been a formal front desk serving the guests,
was a resident manager who supplied minimal front desk type
(c)
Transportation was not provided to guests.
(d) Check-in hours and procedures were very informal and based
upon the availability of the resident manager.
(e) There were no substantial amenities provided to the guests.
Common bath facilities existed on each floor of the hotel, as well as a
common kitchen.
(f) There is no comparison between the previous condition of the
lodge and the new renovated project. The upgrading is substantial and
in excess of requirements for upgrading the lodge required by the City
Code condominiumization procedures.
3.
provided:
Pursuant to Section 20-23(A) (6) (b), the following information is
During the past ten months in excess of $1,000,000.00 has been
I"',
expended by the Applicant to upgrade the lodge facility. The entire interior
of the building has been completely gutted and brand new rooms, atriums,
common areas, lobbies, sitting rooms, an employee apartment, utility services,
wires, pipes, and facilities have been completely renovated. New stairways
have been provided and a brand new elevator installed. There is a rooftop
hot tub and patio amenity which previously did not exist. The exterior
appearance of the building has been enhanced by a new entryway approved
by the City of Aspen Historic Preservation Committee. A brand new lobby
and front desk facility has been provided, as well as ski storage lockers.
The best evidence of the work which has been undertaken will be obtained
through a site visit where interested persons can see for themselves the
quality and character of the improvements.
Further the Affiant sayeth not.
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Herbe~< ,1:ln
of
Subscribed and sworn to before me by Herbert S. Klein this H day
/I/d>~/"4~-, 1985.
Witness my hand and official seal.
My commission expires: '3'/0/'61
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MEMORANDUM
From:
Steve Burstein, Planning Department
Elyse Elliott, Engineering Department~
December 26, 1985
TO:
Date:
Re:
Independence Square Lodge Condominiumization
-------------------------------------------------------------
-------------------------------------------------------------
The following items are missing from the plat submitted for the
above application:
- Description of survey monuments found and set
- Distance from lot lines to the centerline of adjacent streets
and alley
- Sidewalks
- Curb and gutter
- Existing utility sources and meter locations
- Zone district
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ME~10RANDUM
To:
Steve Burstein, Planning Department
/
Elyse Ell iott, Engineering Department~. ''L~
Independence Square Lodge Condominiumization
From:
Re:
Date:
December 23, 1985
==================================================================
After reviewing the above application and making a site inspection,
this department has the following comments:
1. The plan that was submitted does not include a site plan of
reasonable detail as required in the Municipal Code section
20-24 (D) (3-5). The Engineering Department is interested in
seeing features such as le>t lines, adjacent streets and alleys,
sidewalks, curb a.nd. gutter, landscaping, utili ties and meter
locations, easements and encroachments, trash location, etc. A
check list of all items of concern can be obtained through this
office.
2. This project was granted an Encroachment License in March,
1985, on the condition that five items be completed. These
conditions have been met and the owners will be required to sign
our standard encroachment agreement.
3. The brick work that was done on the f1all adj acent to the
Independence Lodge by the contractors was found to be inadequate.
Almost all of this will have to be redone in the when the ground
thaws.
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MEM>RANOOM
TO:
Aspen City Council
Hal Schilling, City Manage@
Steve Burstein, Planning Office ~
Independence Square Hotel Condominiumization
THRU:
FROM:
RE:
DATE:
January 21, 1986
----------------------------------------------------------------------
----------------------------------------------------------------------
APPLICANT'S REQUEST: The applicant requests to condominiumize the 28
room hotel and 8 commercial spaces of the Independence Square Hotel
(formerly known as the Independence Lodge).
LOCATION: Corner of E. Cooper and S. Galena, Block 96, Townsite and
City of Aspen.
ZONING: Commercial Core (CC) and Individual Historic Designation (H-
Overlay) .
PREVIOUS ACTIONS BY CITY COUNCIL AND OTHER BOARDS: The Historic
Preservation Committee reviewed exterior changes and gave final
approval on March 26, 1985. Amendments to the HPC approval regarding
the rear of the building and the fencing were approved by the Committee
on November 26, 1985. On March 11, 1985 City Council gave approval
for the encroachment of the Galena Street entrance. The Planning
Commission reviewed a viewp1ane application in June, 1985 to allow
construction of a stairway enclosure on the rooftop of the Independence.
Approval was given with the condition that a variance from the applicable
height restrictions be obtained through the Board of Adjustment.
However, the Board denied that request, and the improvements were
therefore not constructed.
APPLICABLE SECTIONS OF ZONING CODE: Provisions for lodge condominium-
ization are given in Section 20-23 of the Municipal Code. The letter
of application submitted by Herbert S. Klein gives a detailed explanation
of compliance with each of the requirements. The requirements most
pertinent from a planning standpoint include Section 20-23(A)(1),
short-term rental market use, Section 20-23 (A) (6), physical upgrading
of the lodge, and Section 20-23 (A) (2), employee housing.
It should be noted that the changes in commercial space encompassed in
this condominiumization is exempt from GMP through Section 24-11.2 (b)
for an individually designated historic structure. No review by the
Planning Commission or Council is required.
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PROBLEM DISCUSSION:
A. REFERRAL COMMENTS:
1. ENGINEERING DEPARTMENT: In memoranda dated December 23 and
December 26, 1985 from Elyse Elliott missing information on
the condominiumization plat was requested.
2. HOUSING AUTHORrfY: The Housing Office reported on December
26, 1985 that Room Ol2 was the traditional manager's apartment
and will be adequate to house 2 employees. The floor area
of approximately 287 sq. ft. is below the standard of 150
sq. ft. per per son. However, with the employee area prov ided
on the lobby level to store possessions and to use as lounge
area, there will be adequate space for employee use.
B. PLANNING OFFICE COMMENTS: The applicants has provided evidence of
compliance with Section 20-23 through the application letter,
proposed condominium declaration statement, articles of incorpor-
ation, by-laws, and affidavit of services. It is stated that the
units will continue to be used for short-term rental use at a
higher level of service than has historically been the case. The
physical upgrade of the lodge is well in excess of the code
requirement of 30 percent of the property assessed valuation
demonstrated by the statement that over $1,000,000 has been spent
on interior renovation. The owner's personal use of the condominium
units is restricted to fourteen (14) days during the high season
periods and three weeks on either side of the high seasons as
defined in Municipal Code Section 20-23(a) (1) (a). This restriction
exceeds the requirements of the Code. Employee housing consisting
of two pillows, as required in Section 20-23(A) (2) is being
provided as acceptable to the Housing Authority.
It should be noted that the uses of the commercial spaces have
not been specified yet, beyond the continuation of Crossroads
Drugs through the end of their lease. If any conditional uses is
intended for this space, then special review approval by the
Planning Commission will be necessary.
ADVISORY COMMITTEE VOTE: The Planning Commission recommended approval,
in a vote of 5 in favor and 2 abstaining, of the requested subdivision
exception for the purpose of condominiumization of the Independence
Square Hotel, subject to the conditions listed below. At the request
of the Planning Office, P&Z also considered whether the improvements
project was a substantial upgrade and should therefore be reviewed as
a "substantial modification" to the hotel conditional use subject to
Section 24-3.3(c). The Planning Commission voted 4 in favor and 3
opposed to pass a motion determining that the project was a minor
modification of the hotel conditional use, therefore not necessitating
p&Z approval.
RECOMMENDATION: The Planning Commission and Planning Office recommend
approval of the requested subdivision exception for the purpose of
condominiumizing the Independence Square Hotel SUbject to the following
1""""-"'""
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conditions:
1. A final condominiumization plat shall be recorded prior to
the sale of any units. The plat shall contain all information
requested in the Engineering Department memoranda of December
23 and 26, 1985 and shall conform to requirements of Section
20-15 of the Municipal Code.
2. The owner shall agree to join any special improvement
districts formed in the future. Precise language of this
agreement shall be in a form acceptable to the City Attorney,
and included in the Statement of Subdivision Exception.
3. A statement of Subdivision Exception shall be submitted
prior to the sale of units through the City Attorney's
Office and shall be signed prior to the sale of any units.
4. Unit 012 shall be deed restricted to the low employee
housing guidelines. The General Common Element Area shown
on the working drawings as Room 006 Employee Area shall be
designated on the condominiumization plat for employee use.
RECOMMENDED lIOrION:
"Move to approve the requested subdivision exception for the
purpose of condominiumizing the Independence Square Hotel subject
to the four conditions recommended by the Planning Commission and
Planning Office.
SB.60
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MEK>RANDUM
TO:
Aspen Planning and Zoning Commission
FROM:
Steve Burstein, Planning Office
Independence Square Hotel Condominiumization
December 26, 1985
RE:
DATE:
=======================================================================
APPLICANT' S REQUEST: The app1 icant request s to condominiumize the 28
room hotel and 8 commercial spaces of the Independence Square Hotel
(formerly known as the Independence Lodge).
LOCATION: Corner of E. Cooper and S. Galena, Block 96, Townsite and
City of Aspen.
ZONING: Commercial Core (CC) and Individual Historic Designation (H-
Overlay).
PREVIOUS CITY REVIEWS: The Historic Preservation Committee reviewed
exterior changes and gave final approval on March 26, 1985. Amendments
to the HPC approval regarding the rear of the building and the fencing
were approved by the Committee on November 26,l985. On March 11, 1985
City Council gave approval for the encroachment of the Galena Street
entrance. The Planning Commission reviewed a viewplane application in
June, 1985 to allow construction of a stairway enclosure on the
rooftop of the Independence. Approval was given with the condition
that a variance from the applicable height restrictions be obtained
through the Board of Adjustment. However, the Board denied that
request, and the improvements were therefore not constructed.
APPLlCABLESECl'IONS OJ? ZONINGCOI>E: Provisions for lodge condominium-
ization are given in Section 20-23 of the Municipal Code. The letter
of application submitted by Herbert S. Klein gives a detailed explanation
of compliance with each of the requirements. The requirements most
pertinent from a planning standpoint include Section 20-23 (A) (l),
short-term rental market use, Section 20-23 (A) (6), physical upgrading
of the lodge, and Section 20-23 (A) (2), employee housing.
It should be noted that the change in commercial space encompassed in
this condominiumization is exempt from GMP through Section 24-11.2 (b)
for an individually designated historic structure. No review by the
Planning Commission or Council is required.
~
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PROBLEM DISCUSSION:
A. REFERRAL COMMENTS:
1. ENGINEERING DEPAR'rMEN'l': In memoranda dated December 23 and
December 26, 1985 from Elyse Elliott missing information on
the condominiumization plat was requested.
2. HOUSING AUTHORlTY: The Housing Office reported on December
26,1985 that Room 012 was the traditional manager's apartment
and will be adequate to house 2 employees. The floor area
of approximately 287 sq. ft. is below the standard of 150
sq. ft. per person. However, with the employee area provided
on the lobby level to store possessions and to use as lounge
area, there will be adequate space for employee use.
B. PLANNING OFFICE COMMEN'l'S:The applicant has provided evidence of
compliance with Section 20-23 through the application letter,
proposed condominium declaration statement, articles of incorpora-
tion, by-laws, and affidavit of services. It is stated that the
units will continue to be used for short-term rental use at a
higher level of service than has historically been the case. The
physical upgrade of the lodge is well in excess of the code
requirement of 30 percent of the property assessed valuation
demonstrated by the statement that over $1,000,000 has been spent
on interior renovation. The owner's personal use of the condominium
units is restricted to fourteen (14) days during the high season
periods and three weeks on either side of the high seasons as
defined in Municipal Code Section 20-23(A)(1)(a). Employee
housing consisting of two pillows, as required in Section 20-23
(A) (2) is being provided as acceptable to the Housing Authority.
It should be noted that the uses of the commercial spaces have not
been specified yet, beyond the continuation of Crossroads Drugs
through the end of their lease. If any conditional use is intended
for this space, then special review approval by the Planning
Commission will be necessary.
In our review of this project, we have recognized that staff may
have made an error in judgement during the pre-application
phase. Early in 1985, representatives of the applicant were
informed that the Independence Lodge renovation project did not
require Planning Commission review. In retrospect, since a hotel
is a conditional use in the CC zone, the substantial upgrade
probably should have been considered by the P&Z as a "substantial
modification". Instead, the project was considered by the staff
to have been a "minor change in the operation of a conditional
use". We find this determination to be a poor precedent, given
the massive reconstruction which has taken place with the proj ect
and ask P&Z to make a finding whether or not condi tiona1 use
review should have been required. If you find that a conditional
use review should have occurred, we will schedule such a public
hearing simply to maintain the integrity of the process and to
address any concerns which may arise.
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RECOMMENDATION: The Planning Office recommends that the Planning
Commission recommend approval of the requested subdivision exception
for the purpose of condominiumizing the Independence Square Hotel
subject to the following conditions:
~
3.
4.
SB.60
1.
A final condominiumization plat shall be recorded prior to the
sale of any units. The Plat shall contain all information
requested in the Engineering Department memoranda of December
23 and 26, 1985 and shall conform to requirements of Section
20-15 of the Muni ci pal Code.
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The owners shall agree to join any l?p_e,c-i--a-;L-i,~enta._I., v,,", t.
districts formed in the future,E:and shall include tl11:--s)',~,,;t'hIt1;
agreement in the Statement of Subdivision Exception. '" Ci+, ~^t~
A statement of Subdivision Exception shall be submitted
prior to the sale of units through the City Attorney's
Office and shall be signed prior to the sale of any units.
Unit 012 shall be deed restricted to the low employee
housing guidelines. The General Common Element Area shown
on the working drawings as Room 006 Employee Area shall be
designated on the condominiumization plat for employee use.
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HERBERT S. KLEIN
JON DAVID SEIGLE
8. JOSEPH KRABACHER
KLEIN. SEIGLE & KRABACHER
PROFESSIONAL CORPORATION
ATTORNEYS AT LAW
201 NORTH MILL STREET
ASPEN. COLORADO 8161 1
TELEPHONE
(303) 925.8700
THOMAS C. HILL
December 10, 1985
D [g@[g D\w(g ~I
DEe I 31985 Ii II
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Pitkin County Planning Office
City Hall, Third Floor
130 South Galena Street
Aspen, Colorado 81611
Attention: Steven Burstein
. ..._..__J
Re: The Independence Square Hotel Condominiumization
Dear Steve:
Enclosed please find an original Certificate of Authority to Process
Condominiumization Application executed by Robert Goldberg, general partner
of the Independence Company, owner of the subject property.
This Certificate is provided to you pursuant to your request.
If you require any additional information, please do not hesitate to
contact me.
Very truly yours,
KLEIN, SEIGLE & KRABACHER P.C.
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By ~<<:7'>---"-~'
Herbert S. Klein
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Enclosure
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CERTIFICATE OF AUTHORITY
TO PROCESS CONDOMINIUMIZATION APPLICATION
The undersigned, a general partner of the Independence Company, a
Colorado limited partnership, hereby authorizes Herbert S. Klein to seek an
approval for the condominiumization of the Independence building as a
condominiumized lodge under the city of Aspen municipal code as well as to
obtain the condominiumization of certain commercial spaces located on the
ground floor and basement levels of said bUilding. The property is located at
501 East Cooper Avenue, Aspen, Colorado.
The undersigned further represents that he has reviewed the application
prepared by Mr. Klein and hereby verifies the truth of its contents including
the affidavit executed by Mr. Klein attached at Exhibit E to said application.
T Compan~, a
Colorado Limited Partners ip, by
Robert Goldberg, Gener Partner
STATE OF COLORADO)
) ss.
COUNTY OF PITKIN )
The foregoing )nstrument was
cxY~~n~~.v, 198 '> , by Robert
Independence Company.
acknowledged before me
Goldberg as General
this 5 'i-L day of
Partner of The
Witness my hand and official seal.
My commission expires: ? II!, 1\\1
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CONDOMINIUM DECLARATION
FOR
THE INDEPENDENCE BUILDING,
a candominium
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, THE INDEPENDENCE COMPANY, a Colorado Limited
Partnership. hereinafter called the "Declarant" is the owner af the following
described real property sItuated in the City af Aspen, County of Pitkin.
State of Colorado:
Lots A and B and the West 7t Feet of Lot C, Block 96, City and
Townsite of Aspen, Pitkin County, Colorado..
also known as 501 East Cooper Avenue, Aspen, Calorado 81611;
and,
WHEREAS. Declarant desires to establish a condamini project under
the Condominium Ownership Act of the State af Colorado and the relevant
portions of the Municipal Code af the City of Aspen; and
WHEREAS, there is currently canstructed
improvements cansisting of separately designated
condominium units and other improvements; and
on said real
commercial
property
and lodge
WHEREAS. Declarant does hereby establish a plan far the ownership in
fee simple af the condominium estates subject to the easements. restrictions,
reservations. rights af way. canditions. taxes and assessments af record and
reservations in this Declaration consisting of the area or space c'ontained in
each of the air space units located In the building improvements and the
co-ownership by the individual and separate owners thereof as tenants in
common of all of the remaining property (except such property as is otherwise
reserved herein), Which property is hereinafter defined and referred to as
the general common elements; and
WHEREAS. Declarant desires to establish a portion of this condominium
project as a "Condominiumized Lodge" pursuant to the provisions of Ordinance
No. 14 (Series of 1980), and specifically Section 20-23 adopted by amendment
to Chapter 20 and pursuant to other applicable provisIons of Chapter 20 of
the Municipal Code of the City of Aspen. Colorado, as such Ordinance and
Municipal Code are presently constituted.
NOW THEREFORE, Declarant does hereby publiSh and declare that the
following terms, covenants. conditions. easements. restrictions, uses,
limitations and obligations shall be deemed to run with the land, shall be a
burden and benefit to' Declarant, Declarant's heirs. personal representatives,
SUCCessors and assigns and any persons acquiring or owning interest in the
real property and improvements. their grantees, successors. heirs,
executors, administrators, devisees or assigns.
DEFINITIONS
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1 . The following definitions shall apply unless the cantext expressly
provides otherwise.
a. "Unit" means one (1) individual air space Which is contained
within the unfinished perimeter walls. floors, ceilings. windows and doors O'f
each unit as shown on the CondO'minium Map to be filed for record. together
with all fixtures and improvements therein contained and not including any
structural components of the building 0'1" other general commOn elements, if
any, located within the unit.
b. "Condominium Unit" means the fee sImple interest title in and
to a unit. together with the undivided interest in the general cammon
elements as set forth at Exhibit A attached hereto and incorporated herein by
this reference and the appurtenant limited common elements thereto.
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c. "Lodge Unit" means a unit located O'n the SecO'nd O'r third floor
level of the building as described O'n the map.
d. "CO'mmercial Unit" means a unit located en the lobby level O'r
grO'und floor level ef the building as described en the map.
e. "Owner" means the persO'n er persans,as hereinafter defined,
O'wning a unit in fee simple tO'gether with an undivided Interest In fee simple
in the general cO'mmon elements in the percentage Specified and established in
this Declaration and as set forth at Exhibit A, Including the Declarant, as
long as any cO'ndominium unit, as hereinafter defined, is O'wned by Declarant.
f. "General common elements" means all of the project, as
hereinafter defined, except the portions thereof which constitute units and
also means ail parts of a building or any facilities, improvements and fixtures
which may be within a unit which are er may be necessary or convenient to
the support, existence, use, occupation, operation, maintenance, repair er
safety of a building or any part thereof er any other unit therein.
Without limiting the generality of the foregoing, the following shall
constitute general common elements:
(1) all of the land and easements which are part of the property,
all jacuzzi or swimming pool(s) and related facilities designated as general
common elements on the Condominium Map, and any recreational facilities and
building (s) which may be IO'cated on the property;
(2) all foundatiO'n, columns, girders, beams and supports of a
building;
(3) all deck or yard areas, porches, storage lockers er areas,
balconies, patios, fireplaces, doors and windows (subject to specific
designations for individual owner use as limited common elements, as may be
hereinafter defined and provided);
(4) the exterior walls of a building, the main or bearing walls
within the building, the main or bearing subflooring and the reofs of a
building;
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(5) all entrances, exits, vestibules, halls, corridors, lobbies,
lounges, linen rooms, laundry reoms, kitchen facilities, stairs, stairways,
elevator and fire escapes, if any, not within any unit;
(6) aliA utility, service and maintenance rooms, space, fixtures,
apparatus, instal{ations and central facilities fer PO'Wer, light, gas, telephone,
television, hot water, CO'ld water, heating, refrigeration, air cenditioning,
trash, incineration or simi lar utility, service er maintenance purposes,
including furnaces, tanks, pumps, motors, fans, compressers, flues, vents,
similar fixtures, apparatus, installations and facilities; and
(7) all other parts of the project used in common by the owners or
convenient to the project's existence, maintenance and safety.
g. "Mortgage" means any mortgage, deed of trust or other
security instrument by which a condeminium unit O'r any part thereof is
encumbered.
h. "Mortgagee" means any person named as the mortgagee or
beneficiary under any mortgage by which the interest of any ewner is
encumbered.
i. "Limited common elements" means those general common
elements which are specifically designated O'n the map as limited common
elements (LCE) and reserved for the use of certain owners to the exclusion of
the others. including and not limited to certain balconies, porches, patios,
fireplaces, deck or yard areas, parking spaces and storage lockers or areas.
j. "Person" means an individual, corporation, partnership,
combination, association, trustee or any other legal entity.
k. "Project" means all of the real property, condominium units,
building(s) fixtures, persenal prO'perty and Improvements submitted to this
declaration.
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I. "Common expenses" means and Includes:
(1) all sums lawfully assessed against the owners by the board. as
hereinafter defined;
(2) expenses of administration, maintenance, repair or replacement
of the general common elements, as hereinafter defined;
(3) expenses declared common expenses by provisions of this
Declaration and the Bylaws; and
(41 expenses which do not directly relate to the common elements
but are for mutual benefit of the unit owners and which are agreed upon as
common expenses by a vote of the owners representing an aggregate
ownership interest of at least fifty-one percent (51 %) of the general common
elements.
m. "Map" means the COndominium Map referred to In para'graph
two (2) below.
n. "Building" means the building improvement comprising a part
of the project.
o. "Association" means The Independence Building Owners'
Association, a nonprofit corporation organized under the laws of Colorado, of
which all owners of units shall be members and which shall be charged with
the management and maintenance of the project.
p. "Board of Directors" or "board" means the governing body of
th association.
q. "Managing agent" means the person employed by the board to
perform the management and operational functions of the project.
r. "Bylaws" means the bylaws of the association.
s.
association.
"Articles" means the articles of incorporation of the
t. "Guest" means any agent, employee, tenant, guest, licensee or
invitee of an owner.
u.
successor or
written notice
"Declarant" means the Declarant named herein and such
successors as may be designated hereafter by Declarant by
duly recorded.
v. "Declaration" means this
supplement or amendment hereto recorded
Recorder of Pitkin County, Colorado.
2. Map. There shall be filed for record in the office of the Clerk and
Recorder or:t>itkin County, Colorado, a map, hereinafter referred to as the
"map", which map may be filed In whole or in part, depicting thereon:
Declaration together with any
In the office of the Clerk and
a. the legal description of the property and a survey thereof;
b. the name and general location of the project;
c. the linear measurements and location, with reference to the
exterior boundaries of the land, of the buildlng(s) and all improvements on
the land;
d. floor plans and elevation plans of the building (s) showing the
location, the designation and the linear dimensions of each unit and the
designation of the limited common elements;
e. the elevations of the unfinished Interior surfaces of the floor
and ceilings as established from a datum plan and the linear. measurements
showing the thickness of the perimeter and common walls of the building.
The map and any supplement(s) thereto shall contain the statements
of (1) the Declarant, submitting the property to the provisions of this
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Declaration and (2) a registered land surveyor certifying that the map fully
and accurately depicts the layout, measurements and location of all of the
bullding(s) and Improvements, the unit designations, the dimensions of such
units and the elevations of the floors and ceilings.
3. Specific Reservation by Declarant.
a. Declarant hereby reserves unto Itself and the board the right,
from time to time, without the consent of any Owner being reqUired, to amend
the map and supplement(s) thereto, to conform the map to the actual location
of any of the constructed Improvements, to establish, vacate and relocate
utility easements, access easements and parking spaces, if any, and to
establish certain general common elements as limited common elements.
b. Declarant hereby reserves unto itself and any successor(s 1 of
Declarant who is (are) an owner(s) of a commercial unit(s) the right, from
time to time, without the consent of any owner (except the owner of a
commercial unit whose unit Is directly affected) or mortgagee (except the
mortgagee of the commercial unit so affected if required by said mortgagee)
being required, to do any or all of the fol lowing:
1. Combine, re-subdivide and/or revise the layout,
description and boundaries of the commercial units provided said revised
boundary does not encroach upon the perimeter walls of the building nor
deprive any owner any preexisting right of access to a unit nor encroach
upon any other unit without the consent of the owner of said other unit.
2. To construct new aCcess areas 0" modify, remove, alter,
reconstruct, renovate, or relocate the stairway access areas leading to the
commercial units located on the lobby level as described on the map. and
further to construct a new access area or relocate any existing access area
anywhere within the existing alleyway lying along the easterly property line
of the Project between the building perimeter wall and the adjacent property
line, including the right to excavate and construct a stairway, ramp or other
physical access together with an appropriate facade or entryway as necessary
for the use and benefit of commercial units.
3. To modify, reconstruct and/or renovate the ground level
northerly, westerly and easterly perimeter walls of the building where
contiguous to the commercial unit(s) in order to install store fronts including
windows and decorative glass, trim, awnings, fences, lighting, lamp posts,
doorways, ventilation equipment and shafts, utility apparatus, and access
structures, stairways, ramps and any other struc.tural or nonstructural
design elements.
4. With the consent of a majority of the Board of Directors
to install, construct, maintain and repair an access to lobby level commercial
units through the lobby level common elements.
5. The owner of any commercial unit shall be permitted to
construct, improve. change, or alter such unit (and any portion of the
General Common Elements contiguous to, and serving exclusively, such unit,
if the same is not visible on the exterior of the building) in any manner.
6.
(Subparagraphs 3a
requi rements:
All of the foregoing work and riM "mpnrlmpnt~
and 3b 1-5) shall be undertaken according to the following
(i) The structural integrity of the building will not
thereby by impaired;
(i1) The common assessments payable by the other unit
owners hereunder are not increased directly or indirectly as the result of
such construction, improvement, change Or alteration;
(iii) Such wQrk and plat amendments will be done at the
sole cost and expense of owners benefitting and in full compliance with all
applicable laws, ordinances and regulations Including any applicable Historic
Preservation Review, and the provisions of the Declaration;
(iv) Except as provided for in Paragraph 3.b.1., the
external boundaries of such unit, as shown on the Condominium Map, will not
thereby be changed or altered; and,
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(v) Such owner shall indemnify all other owners of units
from any and all claims, liens, liabilities, suits or demands whatsoever
relating to or arising out of such work.
(vi) The design of any work undertaken pursuant to
Paragraph 3b.2 or 3b.3 shall first be approved by the architectural control
committee. Said committee shall approve of such designs and work which are
') compatible with the existing exterior architecture of the project and 2)
compatible with the existing hotel entrance If said work is planned for the
westerly exterior wall. If the foregoing criteria are reasonably satisfied, the
approval of the architecture committee shall not be unreasonably withheld.
(vii) An amended Map shall be prepared and reCOrded
describing the work and changes as necessary to comply with the State.IDlQ.
Local law concerning the legal description of a condominium unit.
7. Architectural Committee. The Architectural Committee
shall be composed of the Declarant so long as Declarant owns a unit within
the project. Thereafter the Architectural Committee shall be the Board of
Directors of the Association, as said Board shall be constituted from time to
time in the future. Said Architectural Committee shall have and exercise all
of the powers, duties, and responsibilities set out In this instrument, and
may, but shall not be required to, establish guidelines and requirements for
compliance with its authority with respect thereto, including the establishment
of costs and fees reasonably related to the processing and evaluation of
requests for Committee action.
(i) Approval b Architectural Committee. No exterior
changes, improvements or slgnage 0 any Ind, sha I ever e constructed or
altered on any part of the project, unless the complete architectural plans for
such construction or alteration or signage are approved in writing by the
Architectural Committee prior to the commencement of such work. Signage
located within a unit but visible from the exterior of the project shall be
included in the authority to regulate granted herein. In the event the
Architectural Committee fails to take any action within 60 days after complete
architectural plans for such work have been submitted to it, then all of such
submitted architectural plans shall be deemed to be approved. In the event
the Architectural Committee shall disapprove any architectural plans, the
person or association submitting such architectural plans may appeal the
matter to the next annual or special meeting of the Members of the
Association, where a vote of at least two-thirds of the voting interest entitled
to be cast at said meeting shall be required to change the decision Of the
Architectural Committee.
(Ii) General Requirements. The ArchitecturafCoriiriiiHee
shall exercise its best jUdgment to see that all improvements, construction,
alterations and signage within the project conform and harmonize with the
existing architecture as to external design, materials, color, siding and
height.
(iii) Preliminary Approvals. Persons or a~~Odations who
anticipate constructing improvements or slgnage on or within the project,
whether they already own units in the project or are contemplating the
purchase of such unit(s), may submit preliminary sketches of such
improvements to the Architectural Committee for Informal and preliminary
approval or disapproval, but the Architectural Committee shall never be
finally committed or bound by any preliminary or informal approval or
disapproval until such time as complete architectural plans are submitted and
approved or disapproved.
(Iv) Architectural Plans. The Architectural Committee
shall disapprove any architectural plans submitted to it which are not
sufficient for It to exercise the judgment required of It by these Covenants.
(v) Architectural Committee . Not Liable. The
Architectural Committee shall not be liable in damages to' any person or
association submitting any architectural plans for approval, or to any owner
or owners of units within the project, by reason of any action, failure to act,
approval, disapproval, or failure to approve or disapprove, with regard to
such architectu ral plans. Any person or association acquiring the title to any
units in the project, or any person or association submitting plans to the
Architectural Committee for approval, by so doing does agree and covenant
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that he or it will not bring any action or suit to recover damages against the
Architectural Committee, its members;!, as individuals, or its advisors,
employees, or agents.
(vi) Written Records. The Architectural Committee shall
keep and safeguard for at least five years complete permanent written records
of all applications for approval submitted to it (including one set of all
architectural plans so submitted) and of all actions of approval or disapproval
and all other actions taken by it under the provisions of this instrument.
4. Division into Units. Declarant does hereby submit the project to
condominium ownership pursuant to the Colorado Condominium Ownership Act
and applicable ordinances of the City of Asp~n , and the project is hereby
divided into 28 lodge condominium units and 8 commercial condominium units.
Each condominium unit shall consist of a separate fee simple estate in a
particular unit and an appurtenant undivided fee simple interest in the
general common elements. Each unit shall have appurtenant to it an
undivided interest in the general common elements as set forth at Exhibit A.
With respect to the commercial units, until such time as any or all of the
"Future Walls" as referred to on the Map are constructed, commercial units
1, 2, 3, 4, and 5 shall be collectively deemed one unit and commercial units
6, 7, and 8 shali be collectively deemed one unit. From time to time, upon
the construction of any or all "Future Walls", each commercial unit(s) which
becomes an enclosed air space by reason of the construction of a "Future
Wall" shall be deemed a separate unit. The owner(s) of the commercial
unites) shall have the right to construct said "Future Wall" and shall file an
amended map which accurately describes the location of a "Future Wall" which
has been constructed.
In interpreting any and all provisions of this Declaration or the
articles, bylaws, subsequent deeds to and/or mortgages of condominium units,
the actual location of a unit shall be deemed conclusively to be the property
intended to be conveyed, reserved or encumbered, notwithstanding any minor
deviations from the location of such unit indicated on the map.
5. Right to Combine Units. Subject to any applicable requlations of
the City of Aspen with regard~lat amendmen!s, any owner(s) shall have
the'rfghT"to'physically combine the area or space of one (1) lodge unit with
the area or space of one (1) or more adjoining lodge units provided,
however, that said owner(s) shall not exercise the right without the written
consent of a majority of the Board of Directors and any first mortgagee
having an interest in the units to be combined. In the event of any such
physical combining of units to create a combined unit, such combined unit
shall also include the combining of the fixtures and improvements and of the
undivided interests in. general common elements appurtenant to the units so
combined. Said owner(s) shall have the right to designate and convey to any
purchaser of the combined units, the additional limited common elements
appurtenant thereto, any walls, floors or other structural separations between
the units so combined or any space which would be occupied by such
structural separations or such space shall automatically become general
common elements and shall no longer be limited common elements if the
combined units become subject to separate ownership in the future.
CClllmercial Unit 7 may not be conveyed as a separate unit and shall only
be conveyed in conjunction with anyone or more adjacent commercial unit(s).
6. Limited Common Elements. Subject to the definition thereof, the
limited common elements shall be identified on the map and designated as
appurtenant to a particular condominium unit on the map or In a deed from
the Declarant. Any door, window, balcony, porth or patio which is
accessible from, associated with and adjoins a unit, deck or yard areas,
parking spaces and storage lockers or any other areas identified as limited
common elements on the map and designated as appurtenant to a particular
condominium unit shall, without further reference thereof, be used in
connection with the unit to which It is appurtenant to the exclusion of the
use thereof by the other owners, except by Invitation.
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7. of a Condominium Unit. An owner's undivided
Interest comman e ements an n any appurtenant limited
common elements shall not be separated fram the unit to which they are
appurtenant and shall be deemed to be conveyed or encumbered with the unit
even theugh the interest is not expressly mentioned 0'1' described in a deed or
other instrument.
8. Description of a Condominium Unit. Every de'ed, lease, mortgage,
trust deed, will or other instrument may legally describe a candominium unit
by its description as a lodge unit or a commercial unit, Its Identifying unit
number followed by the words The I ndependence Building, a candominium,
with reference to the recorded Declaration and map and the street address af
the property, which legal descriptlen shall be in the following form:
(Lodge or Commercial) Unit ,The Independence Building, a
condominium, as defined ana described In the Cendominium
Declaration for The Independence Building, a Candeminium,
recorded in Book at Page of the recards of the Clerk
and Recorder of Pitkin County, Colorado, and the condeminium map
for The Independence Building, a condominium, recorded in plat
book at page of the records of the Clerk and Recorder of
PitkinCOunty, Colorado.
CITY OF ASPEN
PITKIN COUNTY, COLORADO
alsO' known as Lodge or Commercial Unit _, 501 East Cooper
Avenue, Aspen, Colorado 81611.
This description shall be deemed good and sufficient fer all purpases to sell,
convey, transfer, encumber or otherwise affect net enly the unit but also the
common elements appurtenant to it. This description shall be construed to
Include a nenexclusive easement for Ingress and egress throughout the
common elements appurtenant thereto to the exclusion of all third parties not
lawfully entitled to use the same.
9. Title. A condominium unit may be held and ewned by mar'e than (1)
person as joint tenants or as tenants in common 0'1' In any real property
tenancy relationship or other entity recognized under the laws of the State of
ColoradO'.
10. No Partition. The common elements shall remain undivideda'nd nO'
owner 0'1' any other person shall bring any action for partition or divisien af
the commen elements. Similarly, no action shall be braught for the partition
of a unit 0'1' a condominium unit between or amang the owners there'ef. Each
owner expressly waives any and all such rights of partition he may have by
virtue of his ownership of a condeminium unit. A violation of this pravision
shall entitle the association to personally collect, jointly or severally, from the
parties vielating the same the actual attorney's fees, costs and other dama'gees
the association incurs in connection therewith.
11. Separate Taxation. Each condominium unit shall be deemed to be a
separate parcel and shall be subject to' separate assessment and taxation by
each assessing unit and special district for all types af taxes authorized by
law. Including ad valorem levies and special assessments. Neither the
buiJding(s). the property nor any use of the general common elements shall
be deellled to be a parcel. The lien for taxes assessed to any candominium
unit shall be confined to that condominium unit. No forfeiture 0'1' sale of any
condominium unit far delinquent taxes, assessments 0'1' other gavernmental
charges shall divest or in any way affect the title to any other condominium
unit. In the event that such taxes or assessments for any year are not
separately assessed to each owner and rather are assessed on the property as
a whole. each owner shall pay his proportionate share thereof in accordance
with his ownership interest in the general common elements; and, in such
event, such taxes or assessment shall be a cammon expense. Without limiting
the authority of the board provided for elsewhere herein, the board shall
have the authority to collect from the owners their proportionate share of
taxes or assessments for any year In which taxes are assessed an the
property as a whole.
12. Certain Work Prohibited. Except as provided for in Paragraph :>b
et seq., no awner shall undertake any work in his unit which would
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jeopardize the soundness or safety of the project, reduce the value thereof or
impair an easement or hereditament thereon or thereto; nor shall any owner
enclose, by means of screening or otherwise, any balcony, yard, deck, patio
or porch which is accessible from, associated with and which adjoins a unit
without having first obtained the prior written approval of the board (which
approval may be withheld for any reason) for such enclosure and with respect
to the materials, plans and specifications for such enclosure. Structural
alterations shall not be made by an owner to the exterior portions of his unit
or to the building(s) or In the water, gas or steam pipes, electric conduits,
plumbing or other fixtures connected therewith; nor shall an owner remove
any additions, Improvements or fixtures from the building (s) without the
prior written approval of the board (which approval may be withheld for any
reason) first having been obtained.
13. Liens Against Condominium Units -- Removal from Lien -~ Effect of
Part Payment.
a. No labor performed or materials furnished with the consent or'
at the request of an owner of a particular condominium unit or his agent shail
be the basis for the filing of a lien pursuant to law against the condominium
unit or other property of another owner not expressly consenting to or
requesting the same, In writing signed by the owner except that express
consent shall be deemed to be given by the owner of any condominium unit to
the managing agent or the board in the case of emergency repairs. labor
performed or materials furnished for the general common elements, If duly
authorized by the managing agent or the board of directors in accordance
with the Declaration or bylaws, shall be deemed to be performed or furnished
with the express consent of each owner and shall be the basis for the filing
of a lien pursuant to law against each of the condominium units in the
project.
b. In the event a lien is effected against two (2) or more
condominium units, the owners of the separate condominium units may remove
their condominium units from the lien by payment of the fractional or
proportional amount attributable to each of the condominium units affected.
Individual payment shall be computed by reference to the percentages
appearing in this Declaration. Subsequent to payment, discharge or other
satisfaction, the condominium unit shall be released from the lien paid,
satisfied or discharged. Partial payment, satisfaction or discharge shall not
prevent the lienor from proceeding to enforce his rights against any
condominium unit not so released or discharged.
c. Each owner shall indemnify and hold each of the other owners
harmless from and against liability or loss arising from the claim of any lien
against the condominium unit of the owner or any part thereof for labor
performed or for materials furnished in work on such owner's condominium
unit. At the written request of an owner, the association shall enforce such
indemnity by collecting from the owner of the condominium unit on which the
labor was performed or materials furnished the amount necessary to discharge
any such lien and all costs incidental thereto, including reasonable attorney's
fees and costs. If not promptly paid, the association may proceed to collect
the same in the manner provided herein for collection of assessments for the
purpose of discharging the lien.
14. Use and Occupancy of Units. Each owner shall be entitled to the
exclusive ownership and possession of his unit subject to the restrictions and
reservations contained in this Declaration.
15. Use of Ceneral and limited Common Elements, Each owner may use
the general common elements and his appurtenant limited common elements in
accordance with the purpose for which they are Intended without hindering or
encroaching on the lawful rights of the other owners. Owners of commercial
units shall not have the right, merely by virtue of their ownership of a
commercial unit, to access or use of the common elements which exclusively
serve the lodge use of the project nor the right to use any recreational
amenities of the lodge. The association and/or the board may, from time to
time, adopt rules and regulations governing the use of general and limited
common elements and such rules and regulations shall be uniform and
nondiscriminatory. Each owner, by the acceptance of his deed or other
instrument of conveyance or assignment, agrees to accept and be bound by
any such adopted rules and regulations.
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16. Various Right and Easements.
a. Cammon Elements. Subject to the
other provisions a t IS ec arat on, eac awner, IS ami y and guests shall
have an exclusive right to use and enjoy the limited common elements
designated in the map 0'1' in the initial deed from Declarant as appurtenant to
the condominium unit owned by such awner.
b. Association Rights. The association, the board and the
managing agent shall have a nonexclusive right and easement to make such
use of and enter IntO' or en the general common elements, the limited commen
elements and the units as may be necessary or appropriate fer the
performance of the duties and functions which they are obligated 0'1' permitted
to perform under this Declaration, the Articles, the Bylaws and/or rules and
regulations as adopted 0'1' amended hereafter.
c. Owner's Easements for Access, Support and Utilities. Except
as limited by Paragraph 15, each owner shall have a nonexclusive easement
for access between his unit and the roads and streets adjacent to the preject
and the roads, streets and driveways in the project, over and en the lobby,
halls, corridors, stairs, walks, and exterior access and other easements which
are part of the general common elements. Each owner shall have a
nonexclusive easement in, en and ever the general com men elements, including
the general cemmon elements within the unit af another owner, for horizontal
and lateral support ef the unit which is part af this condominium unit, for
utility service to' that unit, Including and net limited to water, sewer, gas,
electricity, telephone and television service and far the release of smoke
arising from any fireplace within a unit through the flue leading therefrom.
d. Easements far Encroachments. If any part of the general
common elements encroaches or shall hereafter encroach on a unit, an
easement for such encroachment and for the maintenance of the same shall and
does exist. If any part af a unit encroaches 0'1' shall hereafter encreach on
the general common elements 0'1' an another unit, the" owner of. that unit shall
and does have an easement for such encroachment and fer the maintena'rH::e of
same. Such encroachments shall not be considered to be encumbrances either
on the general common elements 0'1' on a cendominium unit fer pUrpO'se's of
marketability of title or otherwise. Encroachments referr-ed to herein include
and are not limited to encroachments caused by errer in the original
construction of the building (s l. by error in the map, by settlin'g, rising or
shifting of the earth, or by changes in position caused by repair 0'1'
reconstruction of the project or any part thereof or other constructian
permitted pursuant to these Declarations.
e. Easements in Units for Repair, Maintenance and l':mergencies.
Some of the general common elements are or may be located within a unit 0'1'
may be conveniently accessible anly thraugh a particular unit. The
association, board and managing agent and each awner shall have an
easement, which may be exercised for any owner by the association, the
board or the managing agent, as his agent, for access through each unit and
to all general common elements, from time to time, during such reasonable
hours as may be necessar:y for the location, placement, existence,
maintenance, repair 0'1' replacElment of any ef the general common elements
lacated therein or accessible therefrom or for making emergency repairs
therein necessary to prevent damage to the general common elements or to
another unit or for making repairs 0'1' replacements pursuant to paragraph
sixteen (16) hereafter. Damage to the interior of any part of a unit resulting
from the maintenance, repair, emergency repair or replacement of any of the
general common elements or as a result of emergency repairs within anather
unit, at the instance of the association, the board or the managing agent,
shall be a rommon expense of all of the owners. NO' diminution or abatement
of common expense assessments shall be claimed or allowed for inconvenience
or dlscanfort arising from the making of repairs or improvements or from
action taken to comply with any law, ordinance or order of any governmental
authority. Restoration of the damaged improvements shall be substantially the
same as the condition in which they existed prior to the damage.
Notwithstanding the feregoing, if any such damage is the result of the
carelessness or negligence of any ewner, such owner shall be Solely
responsible for the costs and expenses of repairing such damage.
f. Easements Deemed Apl'urtenant. ihe easements, uses and
rights herein created far an awner' shall be appurtenant to the Condominium
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unit of that owner; and all conveyances of and other instruments affecting
title to a condominium unit shall be deemed to grant and reserve the
easements, uses and rights as are provided for herein, even though no
specific reference to such easements, uses and rights appear In any such
conveyance.
g. Emergenca Easement. A nonexclusive easement for ingress and
egress is hereby grante to the managing agent and its employees and to all
police, sheriff, fire protection, ambulance and other similar emergency
agencies or persons now or hereafter servicing the project to enter on all
streets, roads and driveways located in the project and on the property in
the performance of their duties.
17. Owners' Maintenance Responsibility. For purposes of maintenance,
and repair and subject to unit standards as described in Paragraph 40e, an
owner shall be deemed to own and shall have the right and obligation to
maintain and repair the interior nonsupporting walls, the materials (such as
and not limited to plaster, gypsum drywall, paneling, wallpaper, paint, wall
and floor tile and flooring, not including the subflooring) making up the
finished surfaces of the perimeter walls, ceilings and floors within the unit
and the unit's doors and windows and any and all new additions to a unit
made by the owner thereof including, without limitation, any new fence or
other structure enclosing a patio, balcony or deck area. The obligation to
maintain any fence or other structure enclosing a patio, balcony, yard or
deck area originally conveyed by Declarant shall be that of the association.
No owner shall, however, make any changes or alterations of any type or
kind to the exterior surfaces of the doors or windows to his unit or to any
general common elements (including and not limited to the exterior portions of
his unit or any interior portions of the unit which may be visible from the
outside of the unit) (except as provided for in Paragraph 36 et.seq. of the
Declarations). The owner shall not be deemed to own lines, pipes, wires,
conduits or systems (which, for brevity, are hereinafter referred to as
"utilities") running through his unit which serve one (1) or more other units,
except as a tenant in common with the other owners. Each owner shall have
the obligation to replace any finishing or other materials removed with similar
or other types or kinds or materials. An owner shall maintain and keep In
good repair and in a clean, safe, attractive and sightly condition the interior
of his unit, including the fixtures, doors and windows thereof and the
improvements affixed thereto and such other items and areas as may be
required in the bylaws. Also, an owner shall maintain, clean and keep in a
neat and clean condition the fireplace, if any, within his unit and keep in a
neat and clean condition and free and clear of snow, ice and any accumulation
of water the deck, yard, porch, balcony and/or patio area adjoining and/or
leading to a unit, if any, which areas are limited common elements
appurtenant to such owner's condominium unit. All fixtures, appliances and
equipment installed within a unit commencing at a point where the utilities
enter the unit shall be maintained and kept in repair by the owner thereof.
If any owner fails to carry out or neglects the responsibilities set forth in
this paragraph, the board or the managing agent may fulfill the same and
charge such owner therefor. Any expense incurred by an owner under this
paragraph shall be the sole expense of the owner.
18. Com liance with Provisions of Declaration, Articles and B laws of
the Association. ach owner s a comp y strict y WIth and s a cause each
of his guests to comply strictly with all of the provisions of this Declaration
and the articles and bylaws and the decisions, rules, regulations and
resolutions of the association or the board adopted pursuant thereto, as the
same may be lawfully amended from time to time. Failure to comply with any
of the same shall be grounds for an action to recover sums due and for
damages or injunctive relief or both, along with costs of suit and reasonable
attorney's fees, maintainable by the managing agent or board of directors in
the name of the association on behalf of the owners or, in a proper case, by
an aggrieved owner.
19. The Association.
a. General Purposes and Power. The association, through the
board or the managing agent, shall perform functions and hold and manage
property as provided in th is Declaration so as to further the interests of
owners of condominium units in the project. It shall have all powers
necessary or desirable to effectuate such purposes.
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b. Membership. The owner of a condominium unit shall
automatically become a member of the association. The membership Is
appurtenant to the condominium unit of the owner and the ownership of the
membership for a condominium unit shall automatically pass with fee simple
title to the condominium unit. Each owner shall automatically be entitled to
the benefits and subject to the burdens relating to the membership for his
condominium unit. If the fee simple title to a condominium unit is held by
more than one (1) person, each owner of a condominium unit shall be a
member of the association but voting of multiple owners of a unit shall be as
specified In the By-Laws of the Association. Fractional voting shall not be
permitted. Memberships in the association shall be limited to owners of
condominium units In the project.
c. Board of Directors. The affairs of the association shall be
managed by a board of directors which may by resolution delegate any portion
of Its authority to an executive committee or to a director or managing agent
for the association. There shall be not less than three (3) or more than
seven (7) members of the board of directors, the specific number to be set
forth from time to time In the bylaws, all of whom shall be owners elected by
owners. The original board shall serve for an initial term of two years and
thereafter regardless of the number of members of the board of directors, the
terms of at least one-third (1/3) of such board shall expire annually.
Notwithstanding anything to the contrary provided for herein however, until
Declarant has conveyed seventy-five percent (75%) of the condominium units
in the project or until December 31, 1987, whichever event shall first occur,
the members of the board of directors shall be appointed by Declarant or its
successors or assigns.
(I) It is the intention of these Declarations to assure that at
least one Board member is an owner of a commercial unit. Therefore, in the
event that at least one owner of a commercial unit is not elected to the Board
at a general election, then in such event, the owners of commercial units, by
majority vote of said owners, shall elect an owner of a commercial unit to the
Board. In such event, the lodge owner candidate for the Board receiving the
fewest votes in said election shall not be elected to the Board and the
commercial unit owner so elected as provided for herein shall be deemed
elected to the Board. Vacancies in the Board shall be filled by the remaining
Board in a manner which assures that at least one Board member is an owner
of a commercial unit.
d. Voting of Owners. The owner or owners of each condominium
unit shall be entitled to one (1) vote for each point assigned to such
condominium unit owned by the owner or owners according to the p'ercentage
interest in the general common elements and voting points as are provided in
Exhibit A for each unit.
e. B~laws and Articles. The purposes and powers of the
association and t e rights and obligations with respect to owners set forth in
this Declaration may be supplemented or amplified by provisions of the
articles and bylaws of the association but in the event of any inconsistency
the provisions of this Declaration shall control.
20. Certain Rights and Obligations of the Association.
a. Association as Attorney-in-Fact for Owners. The association is
hereby irrevocably appOinted attorneY-in-fact for the owners and each of
them to manage, control and deal with the interest of each owner In the
common elements so as to permit the association to fulfill all of its duties and
obligations hereunder and to exercise all of its rights hereunder, to deal with
the project on its destruction or obsolescence as hereinafter provided and to
grant utility easements through any portion of the common elements. The
acceptance by any person of any interest in any condominium unit shall
constitut! an appointment of the association as. attorney-in-fact as provided
above and hereinafter. The association is hereby granted all of the powers
necessary to govern, manage, maintain, repair, rebuild, administer and
regulate the project and to perform all of the duties required of it.
Notwithstanding the above and subject to the provisions contained in this
Declaration, unless at least three-fourths (3/4) of the first mortgagee's of
condominium units (based on one (1) vote for each first mortgage owned) and
at least three fourths (3/4) in interest of the owners have given their prior
written approval, the association shall not be empower'ed or entitled to:
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(1) by act or omission seek to abandon or terminate the
project;
(2) change the pro rata interest or obligations of any
individual condominium unit for the purpose of levying assessments or charges
or allocating distributions of hazard insurance proceeds or condemnation
awards;
(3) partition or subdivide any condominium unit;
(4) by act or omission seek to abandon, partition, subdivide,
encumber, sell or transfer (excluding the granting of easements for public
utilities or other public purposes consistent with the Intended use of the
general common elements) any of the general or limited common elements; and
(5) use hazard insurance proceeds for
(whether. units or general common elements) for
replacement or reconstruction thereof.
Provided. however, no action set forth in paragraphs twenty (20)(a)( 1-5)
above may be taken without the prior written approval of the owner and first
mortgagee of the specific unit or units being affected.
loss to the project
other than repair,
b. General Common Elements. The association shall provide for
the care, operation, management, maintenance, repair and replacement of the
general common elements except as Is provided for in paragraph seventeen
(17) herein. Without limiting the generality of the foregoing. the obligations
shall included the keeping of such general common elements in a good, clean,
attractive and sanitary condition, order and repair; removing snow and any
other materials from such general common elements which might impair access
to the project or the units; keeping the project safe, attractive and
desirable; and making necessary or desirable alterations, additions,
betterments or improvements to or on the general common elements.
c. Other Association Functions. The association may undertake
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
common-assessment basis. Such activities, functions or services may include
the providing of maid and cleaning service for Individual units and those
services reasonable and necessary to operate a first ciass lodge facility.
d. labor and Services. The association (1) may obtain and pay
for the services of a managing agent to manage its affairs or any part thereof
to the extent it deems advisable, as well as such other personnel as the
association shall determine to be necessary or desirable for the proper
operation of the project, whether such personnel are furnished or employed
directly by the association or by any person with whom or which it contracts;
(2) 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 (3) may arrange with others to furnish lighting,
heating, water, trash collection, sewer service and other common services
necessary and proper for the operation of a first class lodge facility.
e. Property of Association. The association may pay for, acquire
and hold or lease real property for the purposes set forth within this
Declaration and tangible and intangible personal property and may dispose of
the same by sale or otherwise. Subject to the provisions of this Declaration
and rules and regulations of the association, each owner and each owner's
family and guests may use such property. On termination of condominium
ownership of the project and dissolution of the association, if ever, the
beneficial interest in any such property shall be deemed to be owned by the
then owners as tenants in common in the same proportion as their respective
interests in the general common elements. A transfer of a condominium unit
shall transfer to the transferee ownership of the transferor's beneficial
interest in such property without any reference thereto. Each owner may
use such property in accordance with the purposes for which it is intended,
without hindering or encroaching on .the lawful rights of the other owners.
The transfer of title to a condominium unit under foreclosure shall entitle the
purchaser to the beneficial interest in such property associated with the
foreclosed condominium unit.
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f. Association and License General Common
Elements. The association s a ave t e right to ease or Icense or permit
the use of by less than all owners or by nonowners on either a short-term
basis or long-term basis and with or without charge as the association may
deem desirable any portion of the general common elements or imy
condominium unit owned by the association. The rights granted to the
association in this subparagraph shall only be used in the promotion of the
collective best Interests of the owners. Further, the association shall have
the right to grant utility easements under, through or over the general
common elements which are reasonably necessary to the ongoing development
and operation of the project.
g. Mortgagee Notification. The association shall notify each flrst
mortgagee of any proposed material amendment of the association's articles or
bylaws at least ten (10) days prior to the effective date of such amendment
or change. Further, on the written request of any first mortgagee, such
first mortgagee shall be entitled to receive the most recent annual finandal
statement of the association and written notice of all meetings of the
association and such first mortgagee shall have the right to designate a
representative to attend any such meeting. The cost of any notice shall be
paid by the owner of the unit encumbered by said mortgage.
h. Enforcement by Association. The board may suspend any
owner's voting rights in the association or the right of an owner to use the
recreational facilities of the project during any period or periods during
which such owner fails to comply with the association's rules and regulations
or with any other obligations of such owner under this Declaration. The
association may also take jUdicial action against any owner to enforce
compliance with such rules, regulations or other obligations hereunder or In
the bylaws contained or to obtain damages for noncompliance, all to the extent
permitted by law. The board may impose a fine, not to exceed fifty dollars
($50.00], on any owner for each violation or act of noncompliance by any
such owner or his guest which charges shall constitute a lien on the owner's
unit as per the provisions of Paragraph 24, below. In addition, the
Association shall be entitled to an award of attorney's Tees incurred in
bringing any such action.
i. Certificate. The board of directors may, from time to time,
record a certificate of the identity and the mailing addresses of the persons
then comprising the board of directors, together with the identity and
address of the managing agent, If any there be. Such certificate shall be
conclusive evidence thereof in favor of any person relying thereon in good
faith regardless of the time elapsed since the date thereof.
j. Implied Rights. The association and its managing a'gent Shall
have and may exercise any right or privilege given to it expressly by this
Declaration or the articles or bylaws or reasonably to be implied from the
provisions of those documents or given or implied by law or which may be
necessary or desirable to fulfill its duties, obligations, rights or privileges.
21. Assessment for Common Expenses.
a. Each owner shall be obligated to pay the assessments imposed
by the board of directors to meet the estimated common expenses. The
assessments shall be made pro rata according to each owner's Inte'rest in and
to the general common elements except that owners of commercial units shall
not be assessed for any common expenses attributable to the operation,
administration, maintenance, repair and replacement of common elements or
limited common elements solely used by the lodge units or utilized solely for
the operation of the project as a lodge. By way of example and without
limitation, recreational amenities, lobbies, elevator, employee rooms,
fireplaces, corridors, linen closets, etc. are considered to be solely Tor the
operation of the lodge. Likewise, lodge unit owners shall not be assessed for
any common expenses attributable to the operation, administration,
maintenance, repair and replacement of common elements or limited common
elements solely used by the commercial units or utilized solely for the
operation of the commercial units. By way of example and without limitation,
store front or basement entrances, basement entrance enclosures and roofs
which exclusively serve commercial units, and bathro'oms located within
commercial units, are considered solely for the operation of commercial units.
Except as hereinbefore provided, the limited common elements shall be
maintained as limited common elements and owners having the exclusive use
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thereof shall be subject to any special charges or assessments related thereto.
Assessments for the estimated common expenses shall be due quarterly, In
advance, on the first day of each quarter. The managing agent or board of
directors shall prepare and deliver or mall to each owner an itemized annual
budget showing the various estimated or actual expenses for which the
assessments are made. Contribution for quarterly assessments shall be
prorated if the ownership of a condominium unit commences on a day other
than the first day of a quarter. The assessments made for common expenses
shall be based on the requirements deemed to be such aggregate sum as the
board of directors shall from time to time determine is to be paid or accrued
to be paid to provide for the payment of all estimated expenses growing out
of or connected with the maintenance and operation of the common elements,
which sum may include, among other things, a working capital fund; expenses
of management; taxes and special assessments. until separately assessed;
premiums for insurance of the types and kinds provided for in paragraph
twenty-four (24) hereafter; landscaping and care of grounds; common lighting
and heating; repairs and renovations; trash collections; firewood; cable
television service; telephone service; wages; water and sewer charges; legal
and accounting fees; capital expenditures made by the board not exceeding
ten thousand dollars ($10,000.00). in anyone (1) calendar year (unless a
greater amount is approved by a majority of the votes of the association);
expenses and liabilities incurred by the managing agent or board of directors
under or by reason of this Declaration; deficits remaining from a previous
period; and other costs and expenses relating to the general common
elements. Further, it shall be mandatory for the board to establish and
segregate, out of such quarterly assessments, a contingency or reserve fund
for the repair, replacement and maintenance of those general common elements
that must be replaced periodically. The omission or failure of the board of
directors to fix the assessment for any quarter shall not be deemed a waiver,
modification or a release of the owners from their obligation to pay same. On
ten (10) days' notice to the board of directors or managing agent, any owner
or first mortgagee may, pursuant to C.R.S. Section 38-33-107 (1973, as
amended), inspect the association's records of receipts and expenditures at
any reasonable time during convenient weekday business hours; and on
payment of a reasonable fee, not to exceed twenty dollars ($20.00), any
owner or first mortgagee of such owner shall be furnished a statement of
account setting forth the amount of any unpaid assessments or other charges
due and owing from such owner. At the end of any calendar year, the board
of directors may but shall not be required to refund to each owner his
proportionate share of funds then held by the association which are not
deemed to be necessary to meet the common expenses. Each owner shall be
obligated to pay all charges for any separately metered utilities servicing his
unit. All utilities that are master metered shall be a common expense
hereunder.
b. The board of directors shall have the right during any calendar
year to levy and assess against all of the owners a special assessment for
such purpose or purposes, in accordance with this Declaration, the articles or
bylaws, as may be necessary to keep the project as a first-class ski lodge
condominium. Such special assessment shall be borne by the owners in
accordance with each owner's Interest in the general common elements and
shall be due and payable as determined by the board of directors except that
owners of commercial units shall not be assessed for any common expenses
attributable to the operation, administration, maintenance, repair and
replacement of common elements or limited common elements solely used by the
lodge units or utilized solely for the operation of the project as a lodge.
22. Assessment Reserves. The association may require an owner, other
than Declarant, to deposit with the association an amount not exceeding three
(3) times the amount of the original estimated quarterly common assessment,
which sum shall be held by the association as a reserve to be used for paying
such owner's quarterly common assessment and for working capital. This
deposit shall not accrue any interest for the benefit of the owner. Such an
advance payment shall not relieve an owner from making the regular quarterly
payment of the quarterly common assessment as the same comes due. On the
transfer of his condominium unit, an owner shall be entitled to a credit from
his transferee for any unused portion thereof. Such reserves shall, at all
times, remain as capital of the association.
23. Additions, Alterations and 1m rovement - General and Limited
Common Elements. ere s a e no specla assessments In excess 0 ten
thousand dollars ($10,000.00). levied by the board of directors in anyone
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(1) calendar year or any capital additions, alterations or improvements of or
to the general or limited common elements by the association requiring
expenditure(s) in excess of ten thousand dollars ($10,000.00). in anyone (1)
calendar year without, in each case, prior approval by a majority of the votes
in the association, except in the event of an emergency; the I imitations set
forth above shall not apply to any expenditures made by the association for
maintenance and repair of the general common elements as set forth in
paragraph twenty (20) hereof or for repair in the event of damage,
destruction or condemnation as provided in paragraph thirty (30) and
paragraph thirty-one (31) hereof.
24. Insurance.
a. Insurance Requirements Generally. The association shall obtain
and maintain in full force and effect at all times certain casualty, liability,
directors and officers liability, and other insurance as hereinafter provided.
All such insurance shall be obtained, to the extent possible, from responsible
companies duly authorized to do insurance business in the State of Colorado.
All such insurance shall name as Insureds the association, the board of
directors of the association, the association's officers, employees and agents,
and, if practicable, the owners. All such Insurance shall protect each of the
insureds as if each were separately insured under separate policies. To the
extent possible, such casualty insurance shall: (a) provide for a waiver of
subrogation of the insurer as to claims against Declarants, the assoclation"its
directors, officers, employees and agents and against each owner and each
owner's employees and guest; (b) provide that the Insurance cannot be
cancelled, invalidated or suspended on account of the conduct of the
association, its officers, directors, employees and agents or of any owner or
such owner's employees or guests; (c) provide that any "no other Insurance"
clause in the insurance policy shall exclude any policies of Insurance
maintained by any owner or mortgagee and that the Insurance policy shall not
be brought into contribution with insurance maintained by anyown"et or
mortgagee; (d) contain an standard mortgage clause endorsement in favor of
the mortgagee of any condominium unit or part of the proje.tt except a
mortgagee of a condominium unit or part of the project who is covered by
other and separate insurance; (e) provide that the policy of Insurance shall
not be terminated, cancelled or substantially modified without at least ten (10)
days prior written notice to the association and to each owner and to each
mortgagee covered by any standard mortgage clause endorsement; and (f)
provide that the insurer shall not have the option to restore the premises if
condominium ownership of the project is to be terminated in accordance with
the terms of this Declaration or the project is to be sold in its entirety in
accordance with the destruction, condemnation and obSolescence provisions of
this Declaration. To the extent possible, public liability and property damage
insurance shall provide for coverage of any cross liability claims of owners
against the association or other owners and of the association against owners
without the right of subrogation. Any insurance policy may contain such
deductible provisions as the board of directors of the association deems
consistent with good business practice.
The association shall obtain an Independent appraisal of the project
at least every five (5) years or more often if the board of directors deems it
advisable; provided, however, that said appraisal may be performed by an
appraiser employed by an insurance company.
Certificates of insurance coverage or copies of insurance policies
shall be issued to each owner and each mortgagee who makes written request
to the association for any such certificate or copy of an insurance policy.
The cost and expense of all insurance obtained by the association,
except insurance covering additions, alterations or improvements made to a
condominium unit by an owner or other insurance obtained at the request of
and specifically benefiting any particular owner, shall be an expense of the
association.
b. Casualty Insurance. The association shall obtain and maintain
casualty insurance covering the project and each condominium unit covering
loss or damage by fire and such other hazards as are covered under standard
extended coverage policies, with vandalism and malicious mischief
endorsl!lllents, and if available and if deemed appropriate by the association,
other GSualty risks, for the full insurable replacement cost of the project,
includi~ each condominium unit with an inflation guard endorsement that
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automatically increases the amount of coverage by a fixed percentage at least
annually. At the option of the assoclation such insurance may also cover
additions, alterations or improvements to a condominium unit made by an
owner if the owner reimburses the assoclation for any additional premiums
attributable to such coverage. The association shall not be obligated to apply
any insurance proceeds to restore a condominium unit to a condition better
than the conditions existing prior to the making of additions, alterations or
improvements by an owner in the absence of insurance covering such
additions, alterations or improvements as aforesaid. Premiums for plate glass
insurance shall be equitably adjusted and separately assessed between the
lodge unit owners and the commerclal unit owners.
c. Public Liabilit and Pro ert Damae Insurance. The
association sha I 0 taln and maintain comprehenSIve pu IC la I ity and
property damage insurance covering personal liability, property damage
liability and automobile personal and property damage liability of the
association, its officers, managers, employees and agents and of each owner
and each owner's employees and guests, arising in conjunction with
ownership, operation, maintenance., occupancy or use of the project or of any
condominium unit in the project with limits of no less than $1,000,000 for each
occurrence involving bodily injury liability and/or property damage liability.
d. Workmen's Compensation and Employer's Liability Insurance.
The association shall obtain and maintain workmen's compensation and
employer's liability insurance as may be necessary to comply with applicable
laws.
e. Insurance by Owners. Insurance coverage on contents,
merchandise, furnishings, including cabinets, counters, carpet and the floor
coverings, draperies, oven range, refrigerator, wallpaper, disposal, plumbing
fixtures such as tubs and sinks and other items of personal. or other property
belonging to an owner and public liability coverage within each unit shall be
the sole and direct responsibility of the unit owner thereof, and the board of
directors, the association and the managing agent shall have no responsibility
therefor. The Board may establish minimum coverages for said insurance and
may require each owner to present a certificate of complying insurance to the
managing agent.
Any insurance policy obtained by an owner shall be such that it
will not diminish or adversely affect or invalidate any insurance or insurance
recovery under policies carried by the association and shall, to the extent
possible, contain a waiver of the right of subrogation by the insurer as to
any claim against the association, its officers, managers, agents and
employees and against the owners and their employees and guests.
f. Receipt and Application of Insurance Proceeds. Except as
some particular person has a legal right to receive insurance proceeds
directly, all insurance proceeds and recoveries shall be paid to and received
by the association. All insurance proceeds or recoveries received by the
association shall be applied by the association; first, as expressly provided
elsewhere in this Declaration; second, to the owners or persons whom the
association may determine are legally or equitably entitled thereto; and third,
the balance, if any, to owners in proportion to their respective interests in
common elements.
g. Other Insurance by Association. The association shall have
the power and authority to obtain and maintain other and additional insurance
coverage, including casualty insurance covering personal property of the
association, fidelity bonds or insurance covering employees and agents of the
association and insurance indemnifying officers, managers, employees and
guests of the association.
h. Owner-Increased Premiums. In the event that, as a
consequence of the hazardous use of any condominium unit, or of any owner
installed improvements to any condominium unit, the premiums of any policy of
insurance purchased by the association are increased, or special policy is
required, the cost of such increase or speCific policy shall be payable by the
owner of such condominium unit.
2~. Lien for Non a ment of Common Expenses, Penalties and t=ines. All
sums assesse y t e oar pursuant to any proVIS ons 0 t s ec a ration ,
including, without limitation, the share of common expenses chargeable to any
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condominium unit, attorney's fees, costs and fines. shall constitute a' lien.
whether or not recorded of record. on such condominium unit superior (p'rior)
to all other liens and encumbrances. except (1) tax and special asse'ssment
liens on the condominium unit In favor of any governmental assessing unit and
(2) all sums unpaid on a first mortgage of record. including all unpaid
obligatory sums as may be provided by such encumbrance. For purposes of
these Declarations a first mortgage shall be one which the time of its
recording was superior (prior) to any other mortgage and which has n'ot been
subordinated to any other mortgage.
a. If any assessment shall remain unpaid after twenty CtOldays
after the due date thereof, such unpaid sums shall bear interest fr'om a'nd
after the due date thereof at the rate of eighteen percent (18%) per aTl'n'Urn;
and the board of directors may Impose a late charge on such defaultln'9 OWlter
in an amount not to exceed twenty five dollars ($25.00) to cover the extra
cost and expenses involved in handling such delinquent as'sessments.
b. The association may evidence Its lien by recording in the office
of the Clerk and Recorder of the County of Pitkin, Colorado. written notice
which shall set forth the amount of such unpaid indebtedness. the name of
the owner of the condominium unit, a description Of the condominium' unit and
be signed by one (1) of the board of directors Or the managing agent or an
attorney acting at the request of the Board or Managing Agent. Such lien
may be enforced by foreclosure of the defaulting owner's condominium unit by
the association in like manner as a mortgage on real property on the
recording of a notice or claim thereof. In any such foreclosure. the owner
shall be required to pay the costs and expenses of such proceedings. the
costs and expenses for filing the notice or claim of lien and all reasonable
attorney's fees and court costs. The owner shall also be required to pay to
the association the quarterly assessment for the condominium unit during the
period of foreclosure. and the association shall be entitled to the appointment
of a receiver to collect the same. The board of directors Shall have the
power to bid on the condominium unit at foreClosure sale and to acquire and
hold, lease. mortgage and convey same.
c. Any encumbrancers holding a lien on a condominium unit may
pay but shall not be required to pay any unpaid common expenses payable
with respect to such condominium unit; and. on such payment. such
encumbrances shall have a lien on such condominium unit for the amounts paid
of the same rank as the lien of his encumbrance. provided any first
mortgagee who acquires a condominium unit by foreclosure or by a deed in
lieu thereof shall acquire title to such condominium unit free and clear of any
lien for unpaid common expenses and shall only be responSible for common
expenses arising after the date on which such first mortgagee acquires title
to the condominium unit.
d. The association shall, on request and on the payment of $25.00
to the association, deliver written notice to the first mortga-gee of a
condominium unit of any assessments remaining unpaid for longer than thirty
(30) days after the same are due as well as of any other default of an owner
hereunder known to the association which is not cured within sixty (60)
days.
e. Declarant states. in accordance with the requirements of the
Colorado Condominium Ownership Act, that it is possible that liens other th'an
mechanic's liens, assessment liens and tax liens may be obtained against the
general common elements, including judgment liens and mortgage liens.
f. Each owner hereby agrees that the association's lien o'n a
condominium unit for assessments as hereinbefore described shall be superior
to the Homestead Exemption provided by C.R.S. Section 3S-41';'201. et seq.
(1973, as amended) and each owner hereby agrees that the acceptance of the
deed or other instrument of conveyance in regard to any condominium unit
within the project shall signify such grantee's waiver of the Homestead right
granted in that section of the Colorado statutes.
g. Any recorded lien for nonpayment of the common expenses may
be released by recording a release of lien executed by a member of the board
of directors or the managing agent or an attorney acting at the request of
the Board or Managing Agent.
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26. Owners' Obli ations for Pa ment of Assessments, Penalties or Fines.
The amount 0 t e common expenses an any pena ties or ines proved or
herein or any special assessment assessed against each condominium unit shall
be the personal and individual debt of the owner or ownerS thereof at the
time the assessment is made. Suit to recover a money judgment for unpaid
common expenses or special assessments and costs of suit and attorney's fees
shall be maintainable without foreclosing or waiving the lien securing same.
No owner may exempt himself from liability for his contribution towards the
common expenses or any special assessment by waiver of the use or enjoyment
of the general common elements or by abandonment of his condominium unit.
27. liability for Common Expenses on Transfer of Condominium Unit.
a. On payment of a reasonable fee not to exceed twenty-five
dollars ($25.00). and on fourteen (14) days prior written notice from any
owner or any mortgagee or prospective mortgagee of a condominium unit, the
association, by its managing agent or board of directors, 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, the date such assessment becomes due, the amount of
any assessment reserve on deposit with the association and any credit for
advanced payments for prepaid Items, which statement shall be conclusive on
the association in favor of all persons who rely thereon in good faith. Unless
such request for such a statement shall be complied with within ten (10)
business days from receipt thereof, all unpaid common expenses which become
due prior to the date of making such request shall be subordinate to the lien
of the person requesting such statement.
b. The grantee of a condominium unit, except a first mortgagee
who acquires a condominium unit by foreclosure or a deed in lieu of
foreclosure, shall be jointly and severally liable with the grantor for all
unpaid assessments against the grantor for his proportionate share 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 therefor provided, however, that on payment of a reasonable fee not
to exceed twenty-five dollars ($25.00), on written request, any such
prospective grantee shall be entitled to a statement from the managing agent
or board of directors 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, the date that such assessment becomes
due, the amount of any assessment reserve on deposit with the association
and any credit for advanced payments for prepaid items" which statement
shall be conclusive on the association in favor of all persons who rely thereon
in good faith. Unless such request for such a statement shall be complied
with within thirty (30) business days from the receipt thereof, such
requesting grantee shall not be liable for and the condominium unit conveyed
shall not be subject to a lien for any unpaid assessments against the subject
condominium unit. The provisions contained in this paragraph shall not apply
on initial transfer of the condominium units by Declarant.
28. Mort a in a Condominium Unit - Priorit. Any owner shall have
the right rom time to time to mortgage or encum er his condominium unit by
deed of trust, mortgage or other security instrument. The owner of a
condominium unit may create junior mortgages (junior to the lien, deed of
trust or other encumbrance of the first mortgagee) on his condominium unit
on the following conditions: (1) that any such junior mortgages shall always
be subordinate to all of the terms, conditions, covenants, restrictions, uses,
limitations, obligations, liens for common expenses and other obligations
created by this Declaration, the articles, the bylaws and rules and
regulations promulgated thereunder, and (2) that the mortgagee under any
junior IlOrtgage shall release for the purpose of restoration of any
improvements on the mortgaged premises all of his right, title and interest in
and to the proceeds under all insurance policies effected and placed on the
project by the association. Such release shall be furnished forthwith by a
junior mortgagee on written request of the managing agent or one (1) or more
of the board of directors of the association, and if not furnished, may be
executed by the association as attorney in fact for such junior mortgagee.
29. Restrictive Covenants and Obligations.
a. No Imperiling of Insurance. No owner and no owner's guests
shall do anything or cause anything to be kept in or on the project which
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might cause cancellation of any Insurance effected and pla'ced on the ptaject
by the association.
b. No Violation af Law. NO' Dwner and no Dwner's guests shall do
anything Dr keep anything In Dr Dn the ptDject which wauld be ImmDral,
Improper, Dffensive Dr In violation Df any statute, rule, erdinance,
regulation, permit Dr other validly imposed requirement Df any gavernmental
body.
c. No NDXlous, Offensive, Hazardous or Annaylng Activities. No
noxious er effensive activity shall be carried en er any part ef the preject;
ner shall anything be done er placed en er in any part ef the project which
Is or may become a nuisance er cause embarrassment, disturbance Dr
annoyance to other owners er their guests. No activity shall be conducted an
any part Df the prDject and no improvements shall be made or censtructed an
any part of the prDject which are er might be unsafe er hazardous to any
person or property. No sound shall be emitted on any part ef the preject
which is unreasonably loud or annoying. NO' edor shall be emitted Dn any
part of the project which is noxious or offensive to' others. No light shall be
emitted frDm any part of the project which Is unreasonably bright or causes
unreasonable glare.
. d. No Unsl~htliness. No unsightliness or waste shall be permitted
on or in any part 0 the project. Without limiting the generality Df the
foregoing; no owner shall keep or stDre anything (except in designated
storage areas) on or in any Df the general commen elements; no owner shall
hang, erect, affix Dr place anything en any of the general cemmon elements;
and, nothing shall be placed on or in windows or doors of units, which wauld
or might create an unsightly appearance.
e. Restriction on Animals. NO' animals of any kind, including
domesticated dogs or cats, livestock, reptiles and birds, shall be kept on any
part of the project unless such is expressly permitted by the bylaws of the
association and regulated by rules and regulations promulgated by the
association.
f. Restrlctien on Signs. No signs or advertising devices of any
nature shall be erected ar maintained on any part of the project without the
prior written consent of the board. The board shall permit the placing af at
least (1] sign of reasonable size and dignified form to' identify the project and
the condominium units therein. So long as any condominium unit owned by
Declarant in the projects remains unsold, no owner shall be permitted to place
any sign on the project or on his unit er en any building advertising his
condominium unit for sale or lease.
. g. No Violation of Rules. No ewner al"ld no, owner's guests shall
violate the rules and regulations adapted fram time to' time 6y the association,
whether relating to the use of units, the use af general ar limite'd cemman
elements or otherwise.
h. Owner Caused Damages,. If, due to the act ar neglect af an
awner or such awner's guests or family, lass or damage shall be caused to
any person ar property, including the praject ar any unit therein, such
owner shall be liable and responsible for the same except to the extent that
such damage ar loss is covered by insuranCe' abtained by the association and
the carrier af the insurance has waived its rights of subrogation against such
owner. The amount of such loss er damage may be collected by the
association from such owner as an assessment against su'ch ownet by legal
proceedings or otherwise, and such amaunt (including reasonable attorney's
fees) shall be secured by a lien on the' condaminium unit af such awner as
provided hereinabove for assessments ar ether charges.
i. Parking of Vehicles. Parking of any and all vehicles an the
project shall be subject to the rules and regulations of the association.
j. Restrictions an Parkin~ and Storage. No part of the project,
including the alleys, drives or par ing areas, unless specifically designated
by the association therefor, shall be used as a parking, sterage, display or
accommodation area for any type of trailer, camping trailer, boat trailer.
hauling trailer, running gear, boat or accessaries thereto, truck or
recreational vehicle, except as a temporary expedience for laading, delivery,
emergency, etc. (provided this restriction shall not restrict trucks ar other
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commercial vehicles within the project which are necessary for the
construction or maintenance of the project or portions thereof).
Determination with respect to whether a particular activity or
occurrence shall constitute a violation of this paragraph twenty-nine (29)
shall be made by the board of directors.
30. Association as Attorney-in-Fact Damage and Destruction
Obsolescence. This Declaration does hereby make mandatory the irrevocable
appointment of an attorney-in-fact to deal with the project on its destruction,
repair or obsolescence.
Title to any condominium unit is declared and expressly made
subject to the terms and conditions hereof, and acceptance by any grantee of
a deed from the Declarant or from any owner shall constitute appointment of
the attorney-in-fact herein provided. All of the owners irrevocably constitute
and appoint the association their attorney-In-fact for the purpose of dealing
with the project on Its destruction, repair or obsolescence as Is hereinafter
provided. As attorney-in-fact, the association, by its president and
secretary, 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 an owner which is nece~sary and appropriate to
exercise the powers herein granted. Repair and reconstruction of the
improvements as used in the succeeding subparagraphs means restoring the
improvements to substantially the same condition in which the improvements
existed prior to the damage with each unit and the general common elements
and limited common elements having substantially the same vertical and
horizontal boundaries as before. Except as is otherwise herein provided, the
proceeds of any insurance collected shall be available to the association for
the purpose of repair, restoration or replacement unless the owners and first
mortgagees agree not to rebuild in accordance with the provisions set forth
hereinafter.
Assessments for common expenses shall not be abated during "the
period of insurance adjustment and repair and reconstruction.
a. In the event of damage or destruction to the project to the
extent of not more than sixty-six and two-thirds percent (66 2/3%) of the
total replacement cost thereof, not including land, due to fire or other
disaster. the insurance proceeds if sufficient to reconstruct the improvements
shall be applied by the association, as attorney-in-fact, to such
reconstruction; and the improvements shall be promptly repaired and
reconstructed. The association shall have full authority, right and power, at
attorney-in-fact, to cause the repair and restoration of the improvements.
b. If the insurance proceeds are insufficient to repair and
reconstruct the improvements, and if such damage is to the extent of not
more than sixty-six and two-thirds percent (66 2/3%) of the total replacement
cost of the project, not including land, such damage or destruction shall be
promptly repaired and reconstructed by the association, as attorney-in-fact,
using the proceeds of insurance and the proceeds of an assessment to be
made against all of the owners and their condominium units. Such deficiency
assessment shall be a common expense and made pro rata according to each
owner's interest in the general common elements and shall be due and payable
within thirty (30) days after written notice thereof. The association shall
have full authority, right and power, as attorney-In-fact, to cause the repair
or reslDration of the Improvements using all of the Insurance proceeds and
such assessment. The assessment provided for herein shall be a debt of each
owner and a lien on his condominium unit and may be enforced and collected
as is provided hereinbefore. In addition thereto, the association, as
attorney-In-fact, shall have 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 association shall
cause to be recorded a notice that the condominium unit of the delinquent
owner shall be sold by the association, as attorney-In-fact. The proceeds
derived from the sale of such condominium unit shall be used and disbursed
by the association, as attorney-in-fact, in the following order.
(1) For payment of taxes and special assessment I iens in
favor of any assessing entity.
mortgage .
(2) For payment of the balance of the lien of any first
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(3) For payment of unpaid common expenses. In'CIudln'g the
pro rata share of the deficiency assessment.
(4) For payment of junior mortgages and e-ncUmbnlfl'ees In the
order of and to the extent of their priority.
(5) The balance remaining, if any, shall be paid to the
owner.
c. If the project is destroyed or damaged to the extent of more
than sixty-six and two-thirds percent (66 2/3%) of the total replacement cost
thereof, not including land, the board shall adopt a plan for the repair and
reconstruction of the project; and all owners shall be bound by the terms and
provisions of such plan unless the owners representing an aggregate
ownership interest of seventy-five percent (75%) or more of the general
common elements and at least seventy-five percent (75%) of the first
mortgagees (based on one (1) vote for each first mortgage owned) vote not to
adopt such plan within one hundred (100) days after the damage or
destruction. The association shall have the right to use, in accordance with
such plan, all proceeds of insurance for such destruction or damages as well
as the proceeds of an assessment to be made against all of the owners and
their condominium units. Any assessment made in connection with such plan
shall be a common expense and made pro rata according to each owner's
percentage interest in the general common elements and shall be due and
payable as provided by the terms of such plan and not sooner. than thirty
(30) days after written notice thereof. The association shall have full
authority, right and power. as attorney-in-fact, to cause the repair and
restoration of the improvements using all of the insurance proceeds for such
purpose, notwithstanding the failure of an owner to pay the assessment. The
assessment provided for herein shall be a debt of each owner and a lien on
his condominium unit and may be enforced and collected as Is provided
hereinabove. In addition thereto, the association. as attorney-in-fact, shall
have the absolute right and power to sell the condominium unit of any owner
refusing or fail ing to pay such assessment within the time provided; and. if
not so paid. the association shall cause to be recorded a notice that the
condominium unit of the delinquent owner shall be sold by the association.
The proceeds derived from the sale of such condominium unit shall be used
and disbursed by the association, as attorney-in-fact, for the same purposes
and in the same order as is provided in subparagraph b. (1) through (5) of
this paragraph.
d. If the project is damaged or destroyed to the extent of more
than sixty-six and two-thirds percent (66 2/3%) of the total replacement cost
thereof, not including land. and if the owners representing an aggregate
ownership interest of seventy-five percent (15%) or more .of the general
common elements and at least seventy-five percent (75%) of the first
mortgagees (based on one (1) vote for each first mortgage owned) vote not to
adopt a plan for repair and reconstruction, the association shall forthwith
record a notice setting forth such fact or facts; and, on the recording of
such notice by the association's president and secretary, the entire remaining
project shall be sold by the association. as attorney-In-fact for all of the
owners, free and clear of the provisions contained -in this Declaration, the
map and the articles and bylaws. The insurance settlement proceeds shall be
collected by the association, and such proceeds shall be divided by the
association according to each owner's interest (as such interests appear on
the policy or policies); and such divided proceeds shall be paid into separate
accounts, each such account representing one (1) of the condominium units.
Each such account shall be In the name of the association and shall be further
identified by the condominium unit designation and the name of the owner.
Thereafter, each such account shall be supplemented by the apportioned
amount of the proceeds derived from the sale of the entire project. Such
apportionment shall be based on each owner's percentage interest in the
general common elements. The total funds of each account shall be used and
disbursed, without contribution from one (1) account to another by the
association. as attorney-in-fact, for the same purposes and in the same order
as is provided in subparagraph b. (1) through (5) of this paragraph. The
provisions contained in this subparagraph shall not hinder the protection
given tD a first mortgagee under a mortgagee endorsement.
e. The owners representing an aggregate ownership interest of
seventy five percent (75%) or more of the general common elements may agree
that the general common elements are obsolete and adopt a plan for the
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renewal and reconstruction provided the plan shall have the approval of
seventy-five percent (75%) or more of the first mortgagees of record at the
time of the adoption of such plan. If a plan for the renewal or
reconstruction is adopted, notice of such plan shall be recorded; and the
expense of renewal and reconstruction shall be payable by all of the owners
as a common expense, whether or not they have previously consented to the
plan or renewal and reconstruction. The association, as attorney-in-fact,
shall have the absolute right and power to sell the condominium unit of any
owner refusing or falling to pay such assessment within the time provided;
and, if not so paid, the association shall cause to be recorded a notice that
the condominium unit of the delinquent owner shall be sold by the association.
The delinquent owner shall be required to pay to the association the costs
and expenses for filing the notices, interest at the rate of eighteen I'ercerit
(18%) per annum on the amount of the assessment and all reasonable
attorney's fees. and costs. The proceeds derived from the sale of the
condominium unit shall be used arid disbursed by the association, as
attorney-in-fact, for the same purposes and in the same order as Is provided
in subparagraph b. (1) through (5) of this paragraph.
f. The owners representing an aggregate ownership interest of
seventy-five percent (75%) or more of the general common elements may agree
that the condominium units are obsolete and the same should be sold. Such
plan (agreement) must have the unanimous approval or consent of every first
mortgagee. In such instance, the association shall forthwith record a notice
setting forth such fact or facts; and, on the recording of such notice by the
association's president and secretary, the entire project shall be sold by the
association, as attorney-in-fact for all of the owners, free and clear of the
provisions contained in this Declaration, the map, the articles and the
bylaws. The sales proceeds shall be apportioned between the owners on the
basis of each owner's percentage Interest in the general common elements, and
such apportioned proceeds shall be paid into separate accounts, each such
account representing one (1) condominium unit. Each such account shall be
in the name of the association and shall be further identified by the
condominium designation and the name of the owner. From each separate
account, the association, as attorney-in-fact, shall use and disburse the total
amount (of each) of such accounts without contribution from one (1) account
to another for the same purposes and in the same order as is provided in
subparagraphs b. (1) through (5) of this paragraph.
31. Condemnation.
a. Consequences of Condemnation. If, at any time or times
during the continuance of condominium ownership pursuant to this
Declaration, all or any part of the project shall be taken condemned by any
public authority or sold or otherwise disposed of in lieu of or in avoidance
thereof, the provisions of this paragraph thirty-one (31) shall apply.
b. Proceeds. All compensation, damages or other proceeds
therefrom, the sum of which is hereinafter called the "condemnation award",
shall be payable to the association.
c. Complete Taking. In the event the entire project is taken or
condemned or sold or otherwise disposed of in lieu of or in avoidance thereof,
condominium ownership pursuant to this Declaration shall terminate. The
condemnation award shall be apportioned among the owners in proportion to
their respective undivided interests in the general common elements, provided
that, if a standard different from the value of the project as a whole is
employed to measure the condemnation award in the negotiation, judicial
decree or otherwise, in determining such share the same standard shall be
employed to the extent it is relevant and applicable.
d. Partial Takin~. In the event less than the entire project is
taken or condemned or so d 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 to be
determined in the following manner. As soon as practicable, t,he
association shall reasonably and In good faith allocate the condemnation award
among compensation, damages and other proceeds and shall apportion the
amounts so allocated among the owners as follows:
(1) The total amount allocated to taking of or injury to the
general common elements shall be apportioned among the owners in proportion
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to their respective undivided Interests In the general common elements.
(2) The total amount allocated to severance damages shall be
apportioned to those condominium units which were not taken or condemned.
(3) The respective amounts allocated to the taking of or
injury to a particular unit and/or Improvements an owner had made within his
own unit shall be apportioned to the particular condominium unit involved.
(4) The amount allocated to consequential damages and any
other takings or injuries shall be apportioned as the association determines to
be equitable In the circumstances.
If an allocation of the condemnation award Is already established In
negotiation, judicial decree or otherwise, in allocating the condemnation
award, the association shall employ such allocation to the extent it Is relevant
and applicable. Any distribution of the condemnation award made pursuant to
this subparagraph shall be made by checks payable jointly to the owne'r-s and
their first mortgagees.
e. Distribution. The association shall, a's soon as pr-Clcticable,
determine the share of the condemnation awar-d to which each owner is
entitled. Such shares shall be paid into separ-ate accounts and disbur-sed as
soon as practicable, provided, In the event of a complete taking, such
distribution shall be made in the same manner as is provided In paragraph
thirty (30)b. of this Declaration.
f. Mortgagee Notice. The association shall give tiitr~ly wr-itten
notice to each first mortgagee of the commencement of any condemn'ation or
eminent domain proceedings and shall notify the fir-st mortgagees In the event
of the taking of all or any part of the general common elements.
g. Reorganization. In the event a partial taking results in the
taking of a complete unit, the owner- ther-eof automatically shall cease to be a
member of the association; and such owner's interest in the general common
elements shall thereupon terminate and the association, as attorney-in-fact for
such owner, may take whatever action is necessary and execute such
documents as are necessary to reflect such termination. Thereafter the
association shall reallocate the ownership and assessment ratio determined in
accordance with this Declaration according to the same principles employed in
this Declaration at its inception and shall submit such reallocation to the
owners of remaining condominium units for amendment of this Declaration as
provided in paragraph thirty-two (32)b. hereof.
32. Miscellaneous.
a. Duration of Declaration. All of the provisions contained in
this Declaration shall continue and remain in full force and effect until
condominium ownership of the project and this Declar-ation are terminated,
revoked or amended as hereinafter provided.
b. Amendment and Termination. Any provision contained in this
Declaration may be amended or additional provisions may be added to this
Declaration and condominium ownership of the project may be ter-mlnated or-
revoked by the recording of a written instrument or instruments specifying
the amendment or addition or the fact of termination and of the Clerk and
Recorder of the County of Pitkin, Colorado, of condominium units
representing an aggregate ownership Interest of seventy-five percent (75%),
or more, of the general common elements and first mortgagees whose liens
encumber an aggregate ownership interest of seventy-five percent (75%) or
more of the general common elements (except no provision of this Declaration
requiring the approval or consent of more than seventy-five percent (75%) of
such first mortgagees may be amended without the consent of at least the
minimum number of first mortgagees whose approval or consent is required
under such prOVision) provided, however, in no event shall the undivided
interest llf an Owner in the general common elements be decr-eased without the
unanimous consent of each owner and each first mortgagee and provided,
further, so long as Declarant continues to own one (1) or more condominium
units, which he is holding for rental or sale, no right of Declar-ant contained
in this Declaration may be amended or modified without the consent of
Declarant. The consent of any junior mortgagees shall not be required under
the prO'lisions of this paragraph. The association shall, at least ten (10)
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days prior to the effective date of any amendment to this Declaration, notify
all first mortgagees of record of such amendment. Notwithstanding the
foregoing, no provision contained in this Declaration which is required by or
for the benefit of the City of Aspen pursuant to the provisions of Chapter 20
of the Municipal Code of the City of Aspen, Colorado, as amended, may be
amended or terminated without the prior written approval of the City of
Aspen.
c. Effect of Provisions of Declaration. Each provision of this
Declaration and an agreement, promise, covenant and undertaking to comply
with each provision of this Declaration and any necessary exception or
reservation or grant of title, estate, right or interest to effectuate any
provision of this Declaration shall:
(1) be deemed incorporated in each deed or other instrument
by which right, title or interest In the project or in any condominium' unit is
granted, devised or conveyed, whether or not set forth or referred to in
such deed or Instrument;
(2) by virtue of acceptance of any right, title or interest in
the project or in any condominium unit by an owner be deemed accepted,
ratified, adopted and declared as a personal covenant of such owner and, as
a personal covenant, shall be binding on such owner and such owner's heirs,
personal representatives, successors and assigns and shall be deemed a
personal covenant to, with and for the benefit of the association and not to,
with or for the benefit of any other non-aggrieved owner;
(3) be deemed a real covenant by Declarant, for itself, its
successors and assigns and also an equitable servitude running, in each case,
as a burden w.ith and on the title to the project and each condominium unit
and, as a real covenant and also as an equitable servitude, shall be deemed a
covenant and servitude for the benefit of the project and each condominium
unit; and
(4) be deemed a covenant, obligation and restriction secured
by a lien In favor of the association burdening and encumbering the title to
the project and each condominium unit in favor of the association.
d. Protection of Encumbrancer. Subject to the provisions of
paragraph twenty-eight (28) above, no violation or breach of. or failure to
comply with any provision shall affect, defeat, render invalid or impair the
lien of any first mortgage or other lien on any condominium unit taken in
good faith and for value and perfected by recording in the office of the Clerk
and Recorder of the County of Pitkin, Colorado, prior to the time of
recording in such office an instrument describing the condominium unit and
listing the name or names of the owner or owners of fee simple title to the
condominium unit and giving notice of such violation, breach or failure to
comply; nor shall such violation, breach, failure to comply or action to
enforce, affect, defeat, render invalid or impair the title or interest of the
holder of any such first mortgage or other lien or the title or interest
acquired by any purchaser on foreclosure of any such first mortgage or other
lien result in any liability, personal or otherwise, of any such holder or
purchaser. Any such purchaser on foreclosure shall, however, take subject
to this Declaration provided, however, that violation or breaches of or failure
to comply with any provision of this Declaration which occurred prior to the
vesting of fee simple title in such purchaser shall not be deemed breaches or
violations hereof or failures to comply herewith with respect to such
pUrchaser, his heirs, personal representatives, successors or assigns.
e. Supplemental to Law. The provisions of this Declaration shall
be in addition and supplement to the Condominium Ownership Act of the State
of Colorado and to all other provisions of law.
f. N umbers and Cenders. Whenever used herein, unless the
context shall otherwise provide, the singular number shall include the plural,
the singular and the use of any gender shall include all genders.
g. Re istratlon b Owner of Mailin Address. Each owner shall
register his mal Ing a ress w t t e association an except for quarterly
statements and other routine notices which shall be personally delivered or
sent by regular mail, all other notices or demands intended to be served on
an owner shall be delivered personally or sent by either registered or
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certified mail, postage prepaid, addressed in the name of the Owner at such
registered mailing address. All notices, demands or other notices Intended to
be served on the board of directors of the asso-clation or the association shall
be sent certified mail, postage prepaid, to
Herbert S. Klein,
Klein, Seigle & Krabacher P.C.
201 North Mill Street, 11201
Aspen, Colorado 81611
agent for service, until such address Is changed by a notice of address
duly recorded with the office of the Secretary of State of Colorado.
h. Successors in Interest, This Declaration shall be binding on
and shall inure to the benefit of the Declarant, the association and each
owner and the heirs, personal representatives, sueeessdrs and assigns of
each of them.
i. severabilit~. Invalidity or unenforceabillty of any prOvision of
this Declaration In who e or in part shall not affect the validity or
enforceability of any other provision or any valid and enforceable part of a
provision of this Declaration.
j. Caption. The captions and headings in this Declaration are
for convenience only and shall not be considered in construing any provision
of this Declaration.
k. No Waiver. Failure to
Declaration shali not operate as a waiver
other provision of this Declaration.
enforce any provISIon of this
of any such provision or of any
I. Sales and Construction Facilities and Activities of Declarant.
Notwithstanding any provision to the contrary contained herein, Declarant, its
agents, employees and contractors shall be permitted to maintain during the
period of any construction and/or sale of the condominium units in the
project, on such portion of the project as Declarant may choose, such
facilities as in the sole opinion of the Declarant may be reasonably required,
convenient or incidental to the construction, sale or rental. of condominium
units, including without limitation, a business office, storage are'a,
construction yards, signs, model units, sales office, construction office,
parking areas and lighting and temporary parking facilities for all prospective
tenants or purchasers of condominium units. I n addition, Declarant, its
agents, employees and contractors shall have the right to ingress and egress
in and through all units during the period of the construction and/or sale of
the condominium units for the purpose of any required or desired
refurbishment, construction, maintenance or repair to such units or the
building or any part thereof.
m. Rule Against Perpetuities. If any of the options, privileges,
covenants, or rights created by this Declaration shall be unlawful, void or
voidable for violation of the rule against perpetuities, such provision shail
continue only until twenty-one (21) years after the death of the survivor of
the now living descendants of the President of the United States, Ronald
Reagan and Governor of Colorado, Richard Lamm.
33. Recreational Facilities. The recreational facilities of the project,
shall be subject to any rules and regulations promulgated by the association;
and same shall be available for the use of all owners and their guests.
34. New Additions of General Common Elements and Limited. Common
Elements. The Declarant does not Intend to make any major additions of
general or limited common elements. I f the association subsequently would
make any additions,
a. each owner would be responsible for his percentage of any
increase in common expenses created thereby,
b. each owner would own, as a tenant in common with the other
owners, an undivided percentage Interest in the new additions in accordance
with the interest set forth In paragraph 4, above,
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c. each owner's relative percentage interest in the existing general
and limited common elements would be unaffected by such additions, and
d. each owner's voting Interest in the association would be
unaffected by the additions.
35. Cer.tlficate of Identity. There shall be recorded with the Pitkin
County Clerk and Recorder from time to time a certificate of Identity which
shall include the addresses of the persons then comprising the management
body (directors and officers) together with the identity and address of the
managing agent. Such certificate shall be conclusive evidence of the
information contained therein In favor of any person relying thereon in good
faith regardless of the time elapsed since the date thereof.
36. Personal Use Restriction. An owner's personal use of his lodge
unit shall be restricted to not more than fourteen (14) days during the
seasonal periOd of November 24 - April 15 and June 8 - September 15. These
seasonal periods are hereinafter referred to as "high season". "Owner's
personal use" shall be defined as owner occupancy of a lodge unit or
occupancy of a lodge unit by a nonpaying guest of the owner or taking the
lodge unit off the rental market during high season for any reason other than
for necessary repairs which cannot be postponed or which make the unit
unrentable. This restriction shall not preclude the occupancy of the lodge
unit by a lodge manager or staff employed by the lodge. This restriction has
been imposed by the City of Aspen and is not included to benefit the
Declarant but rather to continue a use deemed necessary by the City of
Aspen. In the event the City of Aspen amends or repeals these portions of
its Municipal Code such that the restrictions embodied in this paragraph 36
and paragraphs 38, 39 and 40 below are no longer required as a condition to
approval for the condominiumization of a lodge, then the restrictions contained
in this paragraph 36 and paragraphs 37, 38, 39 and 40 below shall be deemed
to lapse and the Board of Directors of the Association shall be authorized to
obtain from the City of Aspen and record a certificate which reflects that the
property is released from such restriction.
37. Assessment for Violation of Personal Use Restriction. A violation of
the owner's personal use restriction by a unit owner as such personal use
restriction as defined In paragraph thirty-six (36) above, shall subject the
owner to a daily assessment by the association of three (3) times the daily
rental rate for the unit as such rental rate is at the time of the violation.
This assessment shall be due and owing from the time of violation. The
assessment, when paid, shall be deposited in the general fund of the
associatio[l and shall be used to upgrade and repair the common elements of
the condominium. All sums assessed against an owner for violation of an
owner's personal use restriction and unpaid shall constitute a lien for the
benefit of the association on that owner's unit, which lien may be evidenced
by written notice placed of record In the office of the Clerk and Recorder of
Pitkin County, Colorado, and may be collected by foreclosure on an owner's
condominium unit by the association in like manner as a mortgage or deed of
trust on real property. In the event the association fails to enforce the
owner's personal use restriction, the City of Aspen shall have the right to
enforce the restriction by the assessment, lien and right of foreclosure
provided for herein. I n the event the City enforces the restriction, the City
shall be entitled to the funds collected as a result of the assessment for
violation. in the event of litigation resulting from the enforcement of this
personal use restriction, as part of its award to the prevailing party, the
court shall award such party its court costs together with reasonable
attorney's fees Incurred.
"
38. Annual Report to City. The City of Aspen shall have the right to
require from the association an annual report of owner's personal use during
high seson for all the lodge units.
\ 39. Employee Apartment. ~ ~ortion of the common elements of the
: project, known as Rool!l_Q..1 2, contains sleeping accommodations for not less
: than tllO 2 -- ,",. hereby restricted solely to use as employee
I housi 9(ll'~~.~1! ,.}.40:g: of the Municipal Code of the City of Aspen and
) to ren~e:s: s and price guidelines, qualifications guidelines, and
to occl4l'lncy limitation w.i.th1n employee housing guidelines now established by
the City Council of the City of Aspen or Its designee, or as such guidelines
may fl"/lm time to time be amended by the City Council. I n addition, the
portion of the general common elements located at the lobby level referred to
as "Ellployee Use Area" shall be restricted to uses which support the
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employees of the Lodge Units, such as without limitation, storage, coat room,
locker room, changing area, etc.
40. Lod e Condominium Pro'ect
Declarant, or tse an ts successors In Interest, ere y ac nowe ges t at
by virtue of the establishment of this lodge condominium project as a
"Condominiumized Lodge" pursuant to the p;.~ovlsions of 20-23 Of. the Municipal
Code of the City of Aspen, Colorado~his Code section Is hereinafter
referred to as "the Lodge Condominiumization Ordinance"), use and
maintenance of the common elements are restricted by the provisions of the
Lodge Condominlumization Ordinance and these restrictions .are set forth in
this paragraph forty (40 l. use of the lodge units Is restrlct.ed by the Lodge
Condominiumization Ordinance which restrictions are set forth above In
paragraphs thirty-six (36) and thirty-seven (37) and this paragraph
forty (40); maintaining portions of the condominium project as a lodge facility
is required by the lodge Condominiumization Ordinance, as Is set forth In this
paragraph forty (40); and, availability of the lodge units to the general
tourist market is required by Lodge Condominlumization Ordinance as set
forth in paragraph thirty-six (36) above and In this paragraph forty (40).
a. On site management required by City is for the benefit of the
individual lodge unit owner should the owner desire it, but any owner is free
to obtain his own manager for his specific unit.
b. The lodge units shall remain in the short-term rental market to
be used as temporary accommodations available to the general tourist market.
This condition shall be met by inclusion of the lodge units, at comparable
rates, in any local reservation system for the rental of lodge units in the
City of ASJ)€n, Colorado, or by such other means as may be approved by the
Aspen City Council. Paragraph thirty-six (36) above sets forth the
restriction relative to a lodge unit owner's personal use of a lodge unit.
c. The association shall provide on-site management and
maintenance and other tourist accommodation services for the management and
operation of the common elements and for the compliance with the provisions
and restrictions of the Lodge Condominiumization Ordinance, consistent 1!1
quality and quantity or better to those provided by the Independence Lodge
as of the date of the Declaration. Specifically, the following minimum tourist
services shall be provided by the Association or contracted for by the
Association in order to comply with the requirements of the Lodge
Condominiumization Ordinance, all of which services shall be deemed
condominium common expenses:
(1) on-site management from 8:00 a.m. to 8:00 p.m. seven
days a week between December 18 and March 20, and between June 15 and
Labor Day weekend of each year;
(2) twenty-four (24) hour services on call between December
18 and March 20, and between June 15 and Labor Day weekend of each year;
(3) the following amenities shall be available to the lodge
guests: cable television, lobby common area, telephone in room;
(4) front desk service between 8:00 a.m. and 8:00 p.m.
seven days per week between December 18 and March 20 and between June 15
and Labor Day weekend of each year, which service shall include Check-in,
key pick-up and check-out;
(5) maid service for the lodge guests on a daily basis
between December 18 and March 20 and between June 15 and Labor Day
weekend of each year.
d. The common areas of the Condominium project shall remain
common areas and the lodge portion of the condominium project shall be
maintained in a manner consistent with its character as of the date of this
Declaration. Any changes, alterations or renovations made to common areas
shall not diminish the size or quality of the common areas.
e, In order to comply with the provisions of the Lodge
Condominiumization Ordinance, the Declarant and each lodge unit owner agree
for themselves and their successors, grantees and assigns that the personal
property, furniture and fixtures (including, but not limited to furniture,
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fixtures, decorations, wall surfacing, window covers, bathroom fixtures and
carpeting) contained within each unit shall be maintained in a uniform,
first-class condition comparable to such condition as of the date of this
Declaration. The board of directors of the association shall decide when and
how such personal property, furniture and fixtures shall be maintained
and/or replaced and the respective lodge unit owners shall comply with such
decisions of the board. The board shall notify a lodge unit owner of any
such decisions and such unit owner shall have thirty (30) days within which
to commence compliance with such decisions, and full compliance shall be made
within the ensuing sixty (60) day period. Payment for the maintenance and
replacement of such furniture, fixtures and personal property within the
units shall be the responsibility of each respective unit owner. The
association shall not be responsible for such payment and the common elements
shall not be subject to a lien a.s a result of nonpaYment by any unit owner.
In the event that a unit owner fails to comply with the decisions of the
board, as required by this paragraph forty (40)e., the association may
replace and/or maintain the said furniture, fixtures or personal property
within a unit in order to maintain such uniform and first-class condition. In
such event, the unit owner shall reimburse the association for all monies
expended thereby, including a service charge in the amount of twenty
percent (20%) of such monies expended, within three (3) days of delivery of
notice to the unit owner of such monies expended by the association on behalf
of the unit owner. In the event a unit owner does not so timely reimburse
the association, the amount shall be deemed an unpaid special assessment in
default and the association shall have a lien on the unit foreclosable pursuant
to the provisions contained in paragraph twenty-six (26) above.
f. In order to comply with the provisions of the Lodge
Condominiumization Ordinance, and in order that the condominium project may
be maintained in a first-ciass lodge facility as contemplated by the Lodge
Condominiumization Ordinance, the Declarant agrees for itself and its
successors in interest, that the following requirements will be complied with:
(1) If a lodge unit owner desires to sell a lodge unit, the
showing of the unit to prospective purchasers shall be done through the
appointment with the front desk management only, in order that any lodge
guests in the unit shall not be inconvenienced.
(2) A lodge unit owner's choice of days to be utilized for
personal use during any given high season (subject to the restrictions
contained in paragraph thirty-six (36) shall be delivered in writing to the
board of managers prior to the first day of August preceding commencement
of each winter season.
(3) Rates for the rental of lodge units shall be established by
the board and complied with by each owner.
g. The failure to comply with any provision of this paragraph
forty (40) or an action to enforce any such provision shall not in any way
impair the lien of any mortgage, deed of trust or other lien on any
condominium unit taken in good faith and for value and perfected by
recording in the office of the County Clerk and Recorder of Pitkin County,
Colorado, prior to the time of recording in said office of an instrument
describing the condominium unit and listing the name or names of the owner
or owners of fee simple title to the condominium unit and giving notice of the
failure to comply. The failure to comply or an action to enforce shall not
impair the title or interest of the holder of any such mortgage, deed of trust
or other lien or the title or interest acquired by any purchaser upon
foreclosure of any such mortgage, deed of trust or other lien and shall not
result in any liability, personal or otherwise, of any such holder or
purchaser. Any such purchaser on foreclosure shall, however, take subject
to this Declaration except oniy the violations or breaches of, or failure to
comply with, any provisions of this paragraph forty (40) which occurred
prior to the vesting of fee simple title in such purchaser shall not
be deemed breaches or violations hereof or failures to comply herewith with
respect to such purchaser or his successors in interest.
41. Time Sharinrr. Subject to applicable governmental regulations,
timesharing or other s milar, legally recognized time span or fractional fee
ownership interests shall be permitted in The Independence Building, a
condominium.
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42. SO' lemental Declarations and SO' lemental Condominium ma s.
The modificat ons to commercia un ts an common e ements perm tte pursuant
to Paragraph 3b et seq. shall be made part of the project by filing for record
by Declarant in the Pitkin County. Colorado, real estate records no later than
twenty (20) years from the date of the Declaration a sUpplement to this
Declaration describing the revised units and improvements together with a
supplemental condominium map containing the same Information with respect to
the revised units and lor improvements as was required on the original
condominium map with respect to the presently existing buildings and
improvements or as otherwise required by iaw. Prior to the recordation of
any such supplemental declarations and supplemental maps, said supplemental
declaration and supplemental maps shall be submitted to the City of Aspen for
its review and approval. The City's right of review and approval shall be
limited to those matters over which it has authority by virtue of the
provisions ~iE::haPter 20 of the Municipal Code of the City of Aspen.
a. Expansion of Definitions. In the event of said revisions to
commercial units and to modifications of common elements or to the expansion
of the lodge portion of the project, the definitions used in this Declaration
automatically shall encompass and refer to the project as so revised. All
conveyances of condominium units thereafter shall be effective to transfer
rights in the project as revised or modified by use of the form of description
set forth in paragraph 8 hereof.
The recordation in the PItkin County, Colorado, real estate
records of a supplemental condominium map incident to any revision or
modification shall operate automatically to grant, transfer and convey to the
owners of condominium units in the project as it existed prior thereto the
undivided interest in the new common elements added to the project as the
result of the modification. The recordation shall also operate to expand the
security interest of any then mortgagee of a condominium In the project as it
existed before the modification to include the undivided interest acquired by
the owner of the condominium unit in the common elements so added to the
project. The recordation shall also operate automatically to grant, transfer
and convey to the owners of condominium units on the real property
described in the supplemental declaration eth undivided interest in the
previously existing common elements of the pr'oject.
b. Declaration Operative on Revised Units. Any such revised
units and improvements shall be subject to all the terms and conditions of this
Declaration and of any supplemental declaration or declarations, and shall be
subject to condominium ownership with all the incidents pertaining thereto as
specified herein on placing the supplemental condominium map and
supplemental condominium declaration of public record in the Pitkin County,
Colorado, real estate records.
c. Com utation of Fractional Undivided Interest in Common
Elements. For t e purpose 0 computing t e un IV' e Interest 0 owners In
common elements. each of the condominium units has been assigned an
undivided percentage interest determined by Declarant. as is set forth in
paragraph 4 above and Exhibit A, which determination has been made by
allocating 65% of the common elements equally among the 28 lodge units and
35% of the common elements equally among the eight commercial units. The
undivided interest in common elements constituting part of any condominium
unit shall be changed as a result of the modification so that the interest of an
owner(s) of a revised unit(s) and the existing units shall be recomputed
using the same method of computation originally used when and if the revision
provided for herein is completed and this Declaration shall be accordingly
amended to reflect these adjusted interests and to allocate these interests in
common elements created appurtenant to the revised condominium units.
d. Reservation of Easement. Declarant for itself. its successors,
assigns and owners of commercial units, reserves for twenty (20) years an
easement over the real property of the condominium to the extent necessary
for the construction of the modifications to common elements provided for in
paragraph 3b et seq. of these Declarations.
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I N WITNESS WHEREOF, Declarant has duly executed this Declaration this
day of , 1986.
THE INDEPENDENCE COMPANY,
a Colorado Limited Partnership
By
General Partner
By
General Partner
APPROVED AS TO FORM:
PAUL J. TADDUNE, CITY ATTORNEY
FOR THE CITY OF ASPEN'
This Condominium Declaration and the provIsions thereof pertaining to
approvals by the City of Aspen (paragraphs 32, 36, 37, 38, 39, 40 and 42)
are hereby accepted by the City of Aspen.
CITY OF ASPEN
By
WILLIAM STIRLING, MAYOR
The above set forth approval as to form and acceptance are limited only to
those provisions over which the City of Aspen has authority pursuant to
/,._~bapter 20 of the Municipal Code of the City of Aspen.
ATTEST:
KATHRYN S. KOCH, CITY CLERK
STATE OF
COUNTY OF
)
) ss.
)
of
The foregoing instrument was acknowledged before me this _ day of
, 1986, by as
Witness my hand and official seal.
My commission expires:
Notary Public
STATE OF
COUNTY OF
)
) ss.
)
The foregoing instrument was acknowledged before me this _ day of
1986 by as
of
WITNESS my hand and official seal.
My commission expires:
Notary Public
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EXHIBIT 8
r1
CONDOMINIUM DECLARATION
FOR
THE INDEPENDENCE BUILDING,
a condominium
KNOW ALL MEN BY THESE PRESENTS;
WHEREAS, THE INDEPENDENCE COMPANY, a Colorado Limited
Partnership, hereinafter called the "Declarant" is the owner of the following
described real property situated in the City of Aspen, County of Pitkin,
State of Colorado;
Lots A and B and the West 7t Feet of Lot C, Block 96, City and
Townsite of Aspen, Pitkin County, Colorado.
also known as 501 East Cooper Avenue, Aspen, Colorado 81611;
and,
WHEREAS, Declarant desires to establish a condominium project under
the Condominium Ownership Act of the State of Colorado; and
WHEREAS, there is currently constructed
improvements consisting of separately designated
condominium units and other improvements; and
on said real property
commercial and lodge
WHEREAS, Declarant does hereby establish a plan for the ownership in
fee simple of the condominium estates subject to the easements, restrictions,
reservations, rights of way, conditions, taxes and assessments of record and
reservations in this Declaration consisting of the area or space contained in
each of the air space units located in the building improvements and the
co-ownership by the individual and separate owners thereof as tenants in
common of all of the remaining property (except such property as is otherwise
reserved herein), which property is hereinafter defined and referred to as
the general common elements; and
WHEREAS, Declarant desires to establish a portion of this condominium
project as a "Condominiumized Lodge" pursuant to the provisions of Ordinance
No. 14 (Series of 1980), and specifically Section 20-23 adopted by amendment
to Chapter 20 of the Municipal Code of the City of Aspen, Colorado, as such
Ordinance and Municipal Code are presently constituted.
NOW THEREFORE, Declarant does hereby publish and declare that the
following terms, covenants, conditions, easements, restrictions, uses,
limitations and obligations shall be deemed to run with the land, shall be a
burden and benefit to Declarant, Declarant's heirs, personal representatives,
successors and assigns and any persons acquiring or owning interest in the
real property and improvements, their grantees, successors, heirs,
executors, administrators, devisees or assigns.
DEFINITIONS
1. The following definitions shall apply unless the context expressly
provides otherwise.
a. "Unit" means one (1) individual air space which is contained
within the unfinished perimeter walls, floors, ceilings, windows and doors of
each unit as shown on the Condominium Map to be filed for record, together
with all fixtures and improvements therein contained and not including any
structural components of the building or other general common elements, if
any, located within the unit.
b. "Condominium Unit" means the fee simple interest title in and
to a unit, together with the undivided interest in the general common
elements as set forth at Exhibit A attached hereto and incorporated herein by
this reference and the appurtenant limited common elements thereto.
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c. "Lodge Unit" means a unit located on the second or third floor
level of the building as described on the map.
d. "Commercial Unit" means a unit located on the lobby level or
ground floor level of the building as described on the map.
e. "Owner" means the person or persons, as hereinafter defined,
owning a unit in fee simple together with an undivided interest in fee simple
in the general common elements in the percentage specified and established in
this Declaration and as set forth at Exhibit A, including the Declarant, as
long as any condominium unit, as hereinafter defined, is owned by Declarant.
f. "General common elements" means all of the project, as
hereinafter defined, except the portions thereof which constitute units and
also means all parts of a building or any facilities, improvements and fixtures
which may be within a unit which are or may be necessary or convenient to
the support, existence, use, occupation, operation, maintenance, repair or
safety of a building or any part thereof or any other unit therein.
Without limiting the generality of the foregoing, the following shall
constitute general common elements:
(1) all of the land and easements which are part of the property,
all jacuzzi or swimming pool(s) and related facilities designated as general
common elements on the Condominium Map, and any recreational facilities and
building(sl which may be located on the property;
building;
(2) all foundation, columns, girders, beams and supports of a
(3) all deck or yard areas, porches, storage lockers or areas,
balconies, patios, fireplaces, doors and windows (subject to specific
designations for individual owner use as limited common elements, as may be
hereinafter defined and provided);
(4) the exterior walls of a building, the main or bearing walls
within the building, the main or bearing subflooring and the roofs of a
building;
(5) all entrances, exits, vestibules, halls, corridors, lobbies,
lounges, linen rooms, laundry rooms, kitchen facilities, stairs, stairways,
elevator and fire escapes, if any, not within any unit;
(6) all offices, utility, service and maintenance rooms, space,
fixtures, apparatus, installations and central facilities for power, light, gas,
telephone, television, hot water, cold water, heating, refrigeration," air
conditioning, trash, incineration or similar utility, service or maintenance
purposes, including furnaces, tanks, pumps, motors, fans, compressors,
flues, vents, similar fixtures, apparatus, installations and facilities; and
(7) all other parts of the project used in common by the owners or
convenient to the project's existence, maintenance and safety.
g. "Mortgage" means any mortgage, deed of trust or other
security instrument by which a condominium unit or any part thereof is
encumbered.
h. "Mortgagee" means any person named as the mortgagee or
beneficiary under any mortgage by which the interest of any owner is
encumbered.
i. "Limited common elements" means those general common
elements which are specifically designated on the map as limited common
elements (LeE) and reserved for the use of certain owners to the exclusion of
the others, including and not limited to certain balconies, porches, patios,
fireplaces, deck or yard areas, parking spaces and storage lockers or areas.
j. "Person" means an individual, corporation, partnership,
combination. association, trustee or any other legal entity.
k. "Project" means all of the real property, condominium units,
building(s) fixtures, personal property and improvements submitted to this
declaration.
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I. "Common expenses" means and includes:
(l) all sums lawfully assessed against the owners by the board, as
hereinafter defined;
(2) expenses of administration, maintenance, repair or replacement
of the general common elements, as hereinafter defined;
(3) expenses declared common expenses by provisions of this
Declaration and the Bylaws; and
(4) expenses which do not directly relate to the common elements
but are for mutual benefit of the unit owners and which are agreed upon as
common expenses by a vote of the owners representing an aggregate
ownership interest of at least fifty-one percent (51%) of the general common
elements.
m. "Map" means the Condominium Map referred to in paragraph
two (2) below.
n. "Building" means the building improvement comprising a part
of the project.
o. "Association" means The Independence Building Owners'
Association, a nonprofit corporation organized under the laws of Colorado, of
which all owners of units shall be members and which shall be charged with
the management and maintenance of the project.
p. "Board of Directors" or "board" means the governing body of
th association.
q. "Managing agent" means the person employed by the board to
perform the management and operational functions of the project.
r. "Bylaws" means the bylaws of the association.
s.
association.
"Articles" means the articles of incorporation of the
t. "Guest" means any agent, employee, tenant, guest, licensee or
invitee of an owner.
u.
successor or
written notice
"Declarant" means the Declarant named herein and such
successors as may be designated hereafter by Declarant by
duly recorded.
v. "Declaration" means this
supplement or amendment hereto recorded
Recorder of Pitkin County, Colorado.
Declaration together with any
in the office of the Clerk and
2. Map. There shall be filed for record in the office of the Clerk and
Recorder or Pitkin County, Colorado, a map, hereinafter referred to as the
"map", which map may be filed in whole or in part, depicting thereon:
a. the legal description of the property and a survey thereof;
b. the name and general location of the project;
c. the linear measurements and location, with reference to the
exterior boundaries of the land, of the building(s) and all improvements on
the land;
d. floor plans and elevation plans of the building(s1 showing the
location, the designation and the linear dimensions of each unit and the
designation of the limited common elements;
e. the elevations of the unfinished interior surfaces of the floor
and ceilings as established from a datum plan and the linear measurements
showing the thickness of the perimeter and common walls of the building.
The map and any supplement(s) thereto shall contain the statements
of (1) the Declarant, submitting the property to the provisions of this
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Declaration and (2) a registered land surveyor certifying that the map fully
and accurately depicts the layout, measurements and location of all of the
building(s) and improvements, the unit designations, the dimensions of such
units and the elevations of the floors and ceilings.
3. Specific Reservation by Declarant.
. a. Declarant hereby reserves unto itself and the board the right,
from time to time, without the consent of any owner being required, to amend
the map and supplement(s) thereto, to conform the map to the actual location
of any of the constructed improvements, to establish, vacate and relocate
utility easements, access easements and parking spaces, if any, and to
establish certain general common elements as limited common elements.
b. Declarant hereby reserves unto itself and any successor(s) of
Declarant who is (are) an owner(s) of a commercial unit(s) the right, from
time to time, without the consent of any owner (except the owner of a
commercial unit whose unit is directly affected) or mortgagee (except the
mortgagee of the commercial unit so affected if required by said mortgagee)
being required, to do any or all of the following:
1. Combine, re-subdivide and/or revise the layout,
description and boundaries of the commercial units provided said revised
boundary does not encroach upon the perimeter walls of the building nor
deprive any owner any preexisting right of access to a unit nor encroach
upon any other unit without the consent of the owner of said other unit.
2. To construct new access areas or modify, remove, alter,
reconstruct, renovate, or relocate the stairway access areas leading to the
commercial units located on the lobby level as described on the map, and
further to construct a new access area or relocate any existing access area
anywhere within the existing alleyway lying along the easterly property line
of the Project between the building perimeter wall and the adjacent property
line, including the right to excavate and construct a stairway, ramp or other
physical access together with an appropriate facade or entryway as necessary
for the use and benefit of commercial units.
3. To modify, reconstruct and/or renovate the ground level
northerly, westerly and easterly perimeter walls of the building where
contiguous to the commercial unit(s) in order to install store fronts including
windows and decorative glass, trim, awnings, fences, lighting, lamp posts,
doorways, ventilation equipment and shafts, utility apparatus, and access
structures, stairways, ramps and any other structural or nonstructural
design elements.
4. With the consent of a majority of the Board of Directors
to install, construct, maintain and repair an access to lobby level commercial
units through the lobby level common elements.
5. The owner of any commercial unit shall be permitted to
construct, improve, change, or alter such unit (and any portion of the
General Common Elements contiguous to, and serving exclusively, such unit,
if the same is not visible on the exterior of the building) in any manner.
6. All of the foregoing work (Subparagraphs 1-5) shall be
undertaken according to the following requirements:
(i) The structural integrity of the building will not
thereby by impaired;
(iil The common assessments payable by the other unit
owners hereunder are not increased directly or indirectly as the result of
such construction, improvement, change or alteration;
(Hi) Such work will be done at the
of owners benefitting and in full compliance with
ordinances and regulations including any applicable
Review, and the provisions of the Declaration;
sole cost and expense
all applicable laws,
Historic Preservation
(iv\ The external boundaries of such unit, as shown on
the Condominium Map, will not thereby be changed or altered; and,
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(v) Such owner shall indemnify all other owners of units
from any and all claims, liens, liabilities, suits or demands whatsoever
relating to or arising out of such work.
(vi) The design of any work undertaken pursuant to
Paragraph 3b.2 or 3b.3 shall first be approved by the architectural control
committee. Said committee shall approve of such designs and work which are
1) compatible with the existing exterior architecture of the project and 2)
compatible with. the existing hotel entrance if said work is planned for the
westerly exterior wall. If the foregoing criteria are reasonably satisfied, the
approval of the architecture committee shall not be unreasonably withheld.
7. Architectural Committee. The Architectural Committee
shall be composed of the Declarant so long as Declarant owns a unit within
the project. Thereafter the Architectural Committee shall be the Board of
Directors of the Association, as said Board shall be constituted from time to
time in the future. Said Architectural Committee shall have and exercise all
of the powers, duties, and responsibilities set out in this instrument, and
may, but shall not be required to, establish guidelines and requirements for
compliance with its authority with respect thereto, including the establishment
of costs and fees reasonably related to the processing and evaluation of
requests for Committee action.
(i) Approval by Architectural Committee. No exterior
changes, improvements or signage of any kind, shall ever be constructed or
altered on any part of the project, unless the complete architectural plans for
such construction or alteration or signage are approved in writing by the
Architectural Committee prior to the commencement of such work. Signage
located within a unit but visible from the exterior of the project shall be
included in the authority to regulate granted herein. In the event the
Architectural Committee fails to take any action within 60 days after complete
architectural plans for such work have been submitted to it, then all of such
submitted architectural plans shall be deemed to be approved. In the event
the Architectural Committee shall disapprove any architectural plans, the
person or association submitting such architectural plans may appeal the
matter to the next annual or special meeting of the Members of the
Association, where a vote of at least two-thirds of the voting interest entitled
to be cast at said meeting shall be required to change the decision of the
Architectural Committee.
(ii) General Requirements. The Architectural Committee
shall exercise its best judgment to see that all improvements, construction,
alterations and signage within the project conform and harmonize with the
existing architecture as to external design, materials, color, siding and
height.
(iii) Preliminary Approvals. Persons or associations who
anticipate constructing improvements or signage on or within the project,
whether they already own units in the project or are contemplating the
purchase of such unit(s), may submit preliminary sketches of such
improvements to the Architectural Committee for informal and preliminary
approval or disapproval, but the Architectural Committee shall never be
finally committed or bound by any preliminary or informal approval or
disapproval until such time as complete architectural plans are submitted and
approved or disapproved.
(iv) Architectural Plans. The Architectural Committee
shall disapprove any architectural plans submitted to it which are not
sufficient for it to exercise the judgment required of it by these covenants.
(v) Architectural Committee Not Liable. The
Architectural Committee shall not be liable in damages to any person or
association submitting any architectural plans for approval, or to any owner
or owners of units within the project, by reason of any action, failure to act,
approval, disapproval, or failure to approve or disapprove, with regard to
such architectural plans. Any person or association acquiring the title to any
units in the project, or any person or association submitting plans to the
Architectural Committee for approval, by so doing does agree and covenant
that he or it will not bring any action or suit to recover damages against the
Architectural Committee, its members as individuals, or its advisors,
employees, or agents.
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(vi) Written Records. The Architectural Committee shall
keep and safeguard for at least five years complete permanent written records
of all applications for approval submitted to it (including one set of all
architectural plans so submitted) and of all actions of approval or disapproval
and all other actions taken by it under the provisions of this instrument.
4. Division into Units. Declarant does hereby submit the project to
condominium ownership pursuant to the Colorado Condominium Ownership Act,
and the project is hereby divided into 28 lodge condominium units and 8
commercial condominium units. Each condominium unit shall consist of a
separate fee simple estate in a particular unit and an appurtenant undivided
fee simple interest in the general common elements. Each unit shall have
appurtenant to it an undivided interest in the general common elements as set
forth at Exhibit A.
In interpreting any and all provIsions of this Declaration or the
articles, bylaws, subsequent deeds to and/or mortgages of condominium units,
the actual location of a unit shall be deemed conclusively to be the property
intended to be conveyed, reserved or encumbered, notwithstanding any minor
deviations from the location of such unit indicated on the map.
5. Right to Combine Units. Any owner(s) shall have the right to
physically combine the area or space of one (1) lodge unit with the area or
space of one (1) or more adjoining lodge units provided, however, that said
owner(s) shall not exercise the right without the written consent of a majority
of the Board of Directors and any first mortgagee having an interest in the
units to be combined. I n the event of any such physical combining of units
to create a combined unit, such combined unit shall also include the combining
of the fixtures and improvements and of the undivided interests in general
common elements appurtenant to the units so combined. Said owner(s) shall
have the right to designate and convey to any purchaser of the combined
units, the additional limited common elements appurtenant thereto, any walls,
floors or other structural separations between the units so combined or any
space which would be occupied by such structural separations or such space
shall automatically become general common elements and shall no longer be
limited common elements if the combined units become subject to separate
ownership in the future.
Commercial Unit
only be conveyed in
unit(s).
may not be conveyed as a separate unit and shall
conjunction with anyone or more adjacent commercial
6. Limited Common Elements. Subject to the definition thereof, the
limited common elements shall be identified on the map and designated as
appurtenant to a particular condominium unit on the map or in a deed from
the Declarant. Any door, window, balcony, porch or patio which is
accessible from, associated with and adjoins a unit, deck or yard areas,
parking spaces and storage lockers or any other areas identified as limited
common elements on the map and designated as appurtenant to a particular
condominium unit shall, without further reference thereof, be used in
connection with the unit to which it is appurtenant to the exclusion of the
use thereof by the other owners, except by invitation.
7. Inseparability of a Condominium Unit. An owner's undivided
interest in the general common elements and in any appurtenant limited
common elements shall not be separated from the unit to which they are
appurtenant and shall be deemed to be conveyed or encumbered with the unit
even though the interest is not expressly mentioned or described in a deed or
other instrument.
8. Description of a Condominium Unit. Every deed, lease, mortgage,
trust deed, will or other instrument may legally describe a condominium unit
by its description as a lodge unit or a commercial unit, its identifying unit
number followed by the words The Independence Building, a condominium,
with reference to the recorded Declaration and map and the street address of
the property, which legal description shall be in the following form:
(lfldge or Commercial) Unit ,The Independence Building, a
condominium, as defined ancr described in the Condominium
Declaration for The Independence Building, a condominium,
recGrded in Book at Page of the records of the Clerk
and Recorder of Pitkin County, Colorado, and the condominium map
for The Independence Building, a condominium, recorded in plat
book at page of the records of the Clerk and Recorder of
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Pitkin County, Colorado.
CITY OF ASPEN
PITKIN COUNTY, COLORADO
also known as Lodge or Commercial Unit
Avenue, Aspen, Colorado 81611.
This 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
common elements appurtenant to it. This description shall be construed to
include a nonexclusive easement for ingress and egress throughout the
common elements appurtenant thereto to the exclusion of all third parties not
lawfully entitled to use the same.
501 East Cooper
9. Title. A condominium unit may be held and owned by more than (1)
person aSJOint tenants or as tenants in common or in any real property
tenancy relationship or other entity recognized under the laws of the State of
Colorado.
10. No Partition. The common elements shall remain undivided and no
owner or any other person shall bring any action for partition or division of
the common elements. Similarly, no action shall be brought for the partition
of a unit or a condominium unit between or among the owners thereof. Each
owner expressly waives any and all such rights of partition he may have by
virtue of his ownership of a condominium unit. A violation of this provision
shall entitle the association to personally collect, jointly or severally, from the
parties violating the same the actual attorney's fees, costs and other damages
the association incurs in connection therewith.
11. Separate Taxation. Each condominium unit shall be deemed to be a
separate parcel and shall be subject to separate assessment and taxation by
each assessing unit and special district for all types of taxes authorized by
law, including ad valorem levies and special assessments. Neither the
building(s), the property nor any use of the general common elements shall
be deemed to be a parcel. The lien for taxes assessed to any condominium
unit shall be confined to that condominium unit. No forfeiture or sale of any
condominium unit for delinquent taxes, assessments or other governmental
charges shall divest or in any way affect the title to any other condominium
unit. In the event that such taxes or assessments for any year are not
separately assessed to each owner and rather are assessed on the property as
a whole, each owner shall pay his proportionate share thereof in accordance
with his ownership interest in the general common elements; and, in such
event, such taxes or assessment shall be a common expense. Without limiting
the authority of the board provided for elsewhere herein, the board shall
have the authority to collect from the owners their proportionate share of
taxes or assessments for any year in which taxes are assessed on the
property as a whole.
12. Certain Work Prohibited. Except as provided for in Paragraph 3b
et seq., no owner shall undertake any work in his unit which would
jeopardize the soundness or safety of the project, reduce the value thereof or
impair an easement or hereditament thereon or thereto; nor shall any owner
enclose, by means of screening or otherwise, any balcony, yard, deck, patio
or porch which is accessible from, associated with and which adjoins a unit
without having first obtained the prior written approval of the board (which
approval may be withheld for any reason) for such enclosure and with respect
to the materials, plans and specifications for such enclosure. Structural
alterations shall not be made by an owner to the exterior portions of his unit
or to the building(s) or in the water, gas or steam pipes, electric conduits,
plumbing or other fixtures connected therewith; nor shall an owner remove
any additions, improvements or fixtures from the building(s) without the
prior written approval of the board (which approval may be withheld for any
reason) first having been obtained.
13. Liens Against Condominium Units -- Removal from Lien -- Effect of
Part Payment.
a. No labor performed or materials furnished with the consent or
at the request of an owner of a particular condominium unit or his agent shall
be the basis for the filing of a lien pursuant to law against the condominium
unit or other property of another owner not expressly consenting to or
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requesting the same, in writing signed by the owner except that express
consent shall be deemed to be given by the owner of any condominium unit to
the managing agent or the board in the case of emergency repairs. Labor
performed or materials furnished for the general common elements, if duly
authorized by the managing agent or the board of directors in accordance
with the Declaration or bylaws, shall be deemed to be performed or furnished
with the express consent of each owner and shall be the basis for the filing
of a lien pursuant to law against each of the condominium units in the
project.
b. In the event a lien is effected against two (2) or more
condominium units, the owners of the separate condominium units may remove
their condominium units from the lien by payment of the fractional or
proportional amount attributable to each of the condominium units affected.
Individual payment shall be computed by reference to the percentages
appearing in this Declaration. Subsequent to payment, discharge or other
satisfaction, the condominium unit shall be released from the lien paid,
satisfied or discharged. Partial payment, satisfaction or discharge shall not
prevent the lienor from proceeding to enforce his rights against any
condominium unit not so released or discharged.
c. Each owner shall indemnify and hold each of the other owners
harmless from and against liability or loss arising from the claim of any lien
against the condominium unit of the owner or any part thereof for labor
performed or for materials furnished in work on such owner's condominium
unit. At the written request of an owner, the association shall enforce such
indemnity by collecting from the owner of the condominium unit on which the
labor was performed or materials furnished the amount necessary to discharge
any such lien and all costs incidental thereto, including reasonable attorney's
fees and costs. If not promptly paid, the association may proceed to collect
the same in the manner provided herein for collection of assessments for the
purpose of discharging the lien.
14. Use and Occupancy of Units. Each owner shall be entitled to the
exclusive ownership and possession of his unit subject to the restrictions and
reservations contained in this Declaration.
15. Use of General and Limited Common Elements. Each owner may use
the general common elements and his appurtenant limited common elements in
accordance with the purpose for which they are intended without hindering or
encroaching on the lawful rights of the other owners. Owners of commercial
units shall not have the right, merely by virtue of their ownership of a
commercial unit, to access or use of the common elements which exclusively
serve the lodge use of the project nor the right to use any recreational
amenities of the lodge. The association and/or the board may, from time to
time, adopt rules and regulations governing the use of general and limited
common elements and such rules and regulations shall be uniform and
nondiscriminatory. Each owner, by the acceptance of his deed or other
instrument of conveyance or assignment, agrees to accept and be bound by
any such adopted rules and regulations.
16. Various Right and Easements.
a. Owner's Ri hts in Limited Common Elements. Subject to the
other provisions 0 t IS ec aratlOn, eac owner, IS ami y and guests shall
have an exclusive right to use and enjoy the limited common elements
designated in the map or in the initial deed from Declarant as appurtenant to
the condominium unit owned by such owner.
b. Association Rights. The association, the board and the
managing agent shall have a nonexclusive right and easement to make such
use of and enter into or on the general common elements, the limited common
elements and the units as may be necessary or appropriate for the
performance of the duties and functions which they are obligated or permitted
to perform under this Declaration, the Articles, the Bylaws and/or rules and
regulations as adopted or amended hereafter.
c. Owner's Easements for Access, Su port and Utilities. Except
as limited by aragrap ,eac owner s a aye a nonexc uSlve easement
for access between his unit and the roads and streets adjacent to the project
and the roads, streets and driveways in the project, over and on the lobby,
halls, corridors, stairs, walks, and exterior access and other easements which
are part of the general common elements. Each owner shall have a
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nonexclusive easement in, on and over the general common elements, including
the general common elements within the unit of another owner, for horizontal
and lateral support of the unit which is part of this condominium unit, for
utility service to that unit, including and not limited to water, sewer, gas,
electricity, telephone and television service and for the release of smoke
arising from any fireplace within a unit through the flue leading therefrom.
d. Easements for Encroachments. . If any part of the general
common elements encroaches or shall hereafter encroach on a unit, an
easement for such encroachment and for the maintenance of the same shall and
does exist. If any part of a unit encroaches or shall hereafter encroach on
the general common elements or on another unit, the owner of that unit shall
and does have an easement for such encroachment and for the maintenance of
same. Such encroachments shall not be considered to be encumbrances either
on the general common elements or on a condominium unit for purposes of
marketability of title or otherwise. Encroachments referred to herein include
and are not limited to encroachments caused by error in the original
construction of the building(s), by error in the map, by settling, rising or
shifting of the earth, or by changes in position caused by repair or
reconstruction of the project or any part thereof or other construction
permitted pursuant to these Declarations.
e. Easements in Units for Repair, Maintenance and Emergencies.
Some of the general common elements are or may be located within a unit or
may be conveniently accessible only through a particular unit. The
association, board and managing agent and each owner shall have an
easement, which may be exercised for any owner by the association, the
board or the managing agent, as his agent, for access through each unit and
to all general common elements, from time to time, during such reasonable
hours as may be necessary for the location, placement, existence,
maintenance, repair or replacement of any of the general common elements
located therein or accessible therefrom or for making emergency repairs
therein necessary to prevent damage to the general common elements or to
another unit or for making repairs or replacements pursuant to paragraph
sixteen (16) hereafter. Damage to the interior of any part of a unit resulting
from the maintenance, repair, emergency repair or replacement of any of the
general common elements or as a result of emergency repairs within another
unit, at the instance of the association, the board or the managing agent,
shall be a common expense of all of the owners. No diminution or abatement
of common expense assessments shall be claimed or allowed for inconvenience
or discomfort arising from the making of repairs or improvements or from
action taken to comply with any law, ordinance or order of any governmental
authority. Restoration of the damaged improvements shall be substantially the
same as the condition in which they existed prior to the damage.
Notwithstanding the foregoing, if any such damage is the result of the
carelessness or negligence of any owner, such owner shall be solely
responsible for the costs and expenses of repairing such damage.
f. Easements Deemed Ap~urtenant. The easements, uses and
rights herein created for an owner s all be appurtenant to the condominium
unit of that owner; and all conveyances of and other instruments affecting
title to a condominium unit shall be deemed to grant and reserve the
easements, uses and rights as are provided for herein, even though no
specific reference to such easements, uses and rights appear in any such
conveyance.
g. Emergenc~ Easement. A nonexclusive easement for ingress and
egress is llereoy grante to the managing agent and its employees and to all
police, sheriff, fire protection, ambulance and other similar emergency
agencies or persons now or hereafter servicing the project to enter on all
streets, roads and driveways located in the project and on the property in
the performance of their duties.
17. Owners' Maintenance Responsibility. For purposes of maintenance,
and repair and subject to unit standards as described in Paragraph 40e, an
owner shall be deemed to own and shall have the right and obligation to
maintain and repair the interior nonsupporting walls, the materials (such as
and not Iilllfted to plaster, gypsum drywall, panel jng, wallpaper, paint, wall
and floor tile and flooring, not including the subflooring) making up the
finished surfaces of the perimeter walls, ceilings and floors within the unit
and the U1Iit's doors and windows and any and all new additions to a unit
made by tire owner thereof including, without limitation, any new fence or
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other structure enclosing a patio, balcony or deck area. The obligation to
maintain any fence or other structure enclosing a patio, balcony, yard or
deck area originally conveyed by Declarant shall be that of the association.
No owner shall, however, make any changes or alterations of any type or
kind to the exterior surfaces of the doors or windows to his unit or to any
general common elements (including and not limited to the exterior portions of
his unit or any interior portions of the unit which may be visible from the
outside of the unit) (except as provided for in Paragraph 36 et.seq. of the
Declarations). The owner shall not be deemed to own lines. pipes, wires.
conduits or systems (which, for brevity, are hereinafter referred to as
"utilities") running through his unit which serve one (1) or more other units.
except as a tenant in common with the other owners. Each owner shall have
the obligation to replace any finishing or other materials removed with similar
or other types or kinds or materials. An owner shall maintain and keep in
good repair and in a clean. safe, attractive and sightly condition the interior
of his unit. including the fixtures. doors and windows thereof and the
improvements affixed thereto and such other items and areas as may be
required in the bylaws. Also, an owner shall maintain. clean and keep in a
neat and clean condition the fireplace. if any. within his unit and keep in a
neat and clean condition and free and clear of snow. ice and any accumuiation
of water the deck, yard. porch, balcony and/or patio area adjoining and/or
leading to a unit, if any. which areas are limited common elements
appurtenant to such owner's condominium unit. All fixtures. appliances and
equipment installed within a unit commencing at a point where the utilities
enter the unit shall be maintained and kept in repair by the owner thereof.
If any owner fails to carry out or neglects the responsibilities set forth in
this paragraph. the board or the managing agent may fulfill the same and
charge such owner therefor. Any expense incurred by an owner under this
paragraph shall be the sole expense of the owner.
18. Compliance with Provisions of Declaration. Articles and Bylaws of
the Association. Each owner shall comply strictly with and shall cause each
of his guests to comply strictly with all of the provisions of this Declaration
and the articles and bylaws and the decisions. rules, regulations and
resolutions of the association or the board adopted pursuant thereto. as the
same may be lawfully amended from time to time. Failure to comply with any
of the same shall be grounds for an action to recover sums due and for
damages or injunctive relief or both. along with costs of suit and reasonable
attorney's fees. maintainable by the managing agent or board of directors in
the name of the association on behalf of the owners or. in a proper case. by
an agg rieved owner.
19. The Association.
a. General Purposes and Power. The association. through the
board or the managing agent, shall perform functions and hold and manage
property as provided in this Declaration so as to further the interests of
owners of condominium units in the project. It shall have all powers
necessary or desirable to effectuate such purposes.
b. Membership. The owner of a condominium unit shall
automatically become a member of the association. The membership is
appurtenant to the condominium unit of the owner and the ownership of the
membership for a condominium unit shall automatically pass with fee simple
title to the condominium unit. Each owner shall automatically be entitled to
the benefits and subject to the burdens relating to the membership for his
condominium unit. If the fee simple title to a condominium unit is held by
more than one (1) person. each owner of a condominium unit shall be a
member of the association but voting of multiple owners of a unit shall be as
specified in the By-Laws of the Association. Fractional voting shall not be
permitted. Memberships in the association shall be limited to owners of
condominium units in the project.
c. Board of Directors. The affairs of the association shall be
managed by a ooard of directors which may by resolution delegate any portion
of its authority to an executive committee or to a director or managing agent
for the association. There shall be not less than three (3) or more than
seven (7) members of the board of directors, the specific number to be set
forth from time to time in the bylaws, all of whom shall be owners elected by
owners. The original board shall serve for an initial term of two years and
thereafter regardless of the number of members of the board of directors, the
terms of at least one-third (1/3) of such board shall expire annually.
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Notwithstanding anything to the contrary provided for herein however, until
Declarant has conveyed seventy-five percent (75%) of the condominium units
in the project or until December 31, 1987, whichever event shall first occur,
the members of the board of directors shall be appointed by Declarant or its
successors or assigns.
(i) It is the intention of these Declarations to assure that at
least one Board member is an owner of a commercial unit. Therefore, in the
event that at least one owner of a commercial unit is not elected to the Board
at a general election, then in such event, the owners of commercial units, by
majority vote of said owners, shall elect an owner of a commercial unit to the
Board. In such event, the lodge owner candidate for the Board receiving the
fewest votes in said election shall not be elected to the Board and the
commercial unit owner so elected as provided for herein shall be deemed
elected to the Board. Vacancies in the Board shall be filled by the remaining
Board in a manner which assures that at least one Board member is an owner
of a commercial unit.
d. Voting of Owners. The owner or owners of each condominium
unit shall be entitled to one (1) vote for each point assigned to such
condominium unit owned by the owner or owners according to the percentage
interest in the general common elements and voting points as are provided in
Exhibit A for each unit.
e. Bylaws and Articles. The purposes and powers of the
association and the rights and obligations with respect to owners set forth in
this Declaration may be supplemented or amplified by provisions of the
articles and bylaws of the association but in the event of any inconsistency
the provisions of this Declaration shall control.
20. Certain Rights and Obligations of the Association.
a. Association as Attorney-in-Fact for Owners. The association is
hereby irrevocably appointed attorney-in-fact for the owners and each of
them to manage, control and deal with the interest of each owner in the
common elements so as to permit the association to fulfill all of its duties and
obligations hereunder and to exercise all of its rights hereunder, to deal with
the project on its destruction or obsolescence as hereinafter provided and to
grant utility easements through any portion of the common elements. The
acceptance by any person of any interest in any condominium unit shall
constitute an appointment of the association as attorney-in-fact as provided
above and hereinafter. The association is hereby granted all of the powers
necessary to govern, manage, maintain, repair, rebuild, administer and
regulate the project and to perform ail of the duties required of it.
Notwithstanding the above and subject to the provisions contained in this
Declaration, unless at least three-fourths (3/4) of the first mortgagees of
condominium units (based on one (1) vote for each first mortgage owned) and
at least three fourths (3/4) in interest of the owners have given their prior
written approval, the association shall not be empowered or entitled to:
(1) by act or omission seek to abandon or terminate the
project;
(2) change
individual condominium unit
or allocating distributions
awards;
the pro rata interest or obligations of any
for the purpose of levying assessments or charges
of hazard insurance proceeds or condemnation
(3) partition or subdivide any condominium unit;
(4) by act or omission seek to abandon, partition, subdivide,
encumber, sell or transfer (excluding the granting of easements for public
utilities or other public purposes consistent with the intended use of the
general common elements) any of the general or limited common elements; and
(5) use hazard insurance proceeds for
(whether units or general common elements) for
replacement or reconstruction thereof.
loss to the project
other than repair,
Provided, however, no action set forth in paragraphs twenty (20) (a) (1-5)
above lIIilY be taken without the prior written approval of the owner and first
mortgagee of the specific unit or units being affected.
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b. General Common Elements. The association shall provide for
the care, operation, management, maintenance, repair and replacement of the
general common elements except as is provided for in paragraph seventeen
(17) herein. Without limiting the generality of the foregoing, the obligations
shall included the keeping of such general common elements in a good, clean,
attractive and sanitary condition, order and repair; removing snow and any
other materials from such general common elements which might impair access
to the project or the units; keeping the project safe, attractive and
desirable; and making necessary or desirable alterations, additions,
betterments or improvements to or on the general common elements.
c. Other Association Functions. The association may undertake
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
common-assessment basis. Such activities, functions or services may include
the providing of maid and cleaning service for individual units and those
services reasonable and necessary to operate a first class lodge facility.
d. Labor and Services. The association (1) may obtain and pay
for the services of a managing agent to manage its affairs or any part thereof
to the extent it deems advisable, as well as such other personnel as the
association shall determine to be necessary or desirable for the proper
operation of the project, whether such personnel are furnished or employed
directly by the association or by any person with whom or which it contracts;
(2) 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 (3) may arrange with others to furnish lighting,
heating, water, trash collection, sewer service and other common services
necessary and proper for the operation of a first class lodge facility.
e. Property of Association. The association may pay for, acquire
and hold or lease real property for the purposes set forth within this
Declaration and tangible and intangible. personal property and may dispose of
the same by sale or otherwise. Subject to the provisions of this Declaration
and rules and regulations of the association, each owner and each owner's
family and guests may use such property. On termination of condominium
ownership of the project and dissolution of the association, if ever, the
beneficial interest in any such property shall be deemed to be owned by the
then owners as tenants in COmmon in the same proportion as their respective
interests in the general common elements. A transfer of a condominium unit
shall transfer to the transferee ownership of the transferor's beneficial
interest in such property without any reference thereto. Each owner may
use such property in accordance with the purposes for which it is intended,
without hindering or encroaching on the lawful rights of the other owners.
The transfer of title to a condominium unit under foreclosure shall entitle the
purchaser to the beneficial interest in such property associated with the
foreclosed condominium unit.
f. Association and License General Common
Elements. The association s a I have t e right to ease or license or permit
the use of by less than all owners or by nonowners on either a short-term
basis or long-term basis and with or without charge as the association may
deem desirable any portion of the general common elements or any
condominium unit owned by the association. The rights granted to the
association in this subparagraph shall only be used in the promotion of the
collective best interests of the owners. Further, the association shall have
the right to grant utility easements under, through or over the general
common elements which are reasonably necessary to the ongoing development
and operation of the project.
g. Mortgagee Notification. The association shall notify each first
mortgagee of any proposed material amendment of the association's articles or
bylaws at least ten (10) days prior to the effective date of such amendment
or change. Further, on the written request of any first mortgagee, such
first mortgagee shall be entitled to receive the most recent annual financial
statement of the association and written notice of all meetings of the
association and such first mortgagee shall have the right to designate a
representative to attend any such meeting. The cost of any notice shall be
paid by the owner of the unit encumbered by said mortgage.
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h. Enforcement by Association. The board may suspend any
owner's voting rights in the association or the right of an owner to use the
recreational facilities of the project during any period or periods during
which such owner fails to comply with the association's rules and regulations
or with any other obligations of such owner under this Declaration. The
association may also take judicial action against any owner to enforce
compliance with such rules, regulations or other obligations hereunder or in
the bylaws contained or to obtain damages for noncompliance, all to the extent
permitted by law. The board may impose a fine, not to exceed fifty dollars
($50.00). on any owner for each violation or act of noncompliance by any
such owner or his guest which charges shall constitute a lien on the owner's
unit as per the provisions of Paragraph 24, below. In addition, the
Association shall be entitled to an award of attorney's fees incurred in
bringing any such action.
i. Certificate. The board of directors may, from time to time,
record a certificate of the identity and the mailing addresses of the persons
then comprising the board of directors, together with the identity and
address of the managing agent, if any there be. Such certificate shall be
conclusive evidence thereof in favor of any person relying thereon in good
faith regardless of the time elapsed since the date thereof.
j. Implied Rights. The association and its managing agent shall
have and may exercise any right or privilege given to it expressly by this
Declaration or the articles or bylaws or reasonably to be implied from the
provisions of those documents or given or implied by law or which may be
necessary or desirable to fulfill its duties, obligations, rights or privileges.
21. Assessment for Common Expenses.
a. Each owner shall be obligated to pay the assessments imposed
by the board of directors to meet the estimated common expenses. The
assessments shall be made pro rata according to each owner's interest in and
to the general common elements except that owners of commercial units shall
not be assessed for any common expenses attributable to the operation,
administration, maintenance, repair and replacement of common elements or
limited common elements solely used by the lodge units or utilized solely for
the operation of the project as a lodge. By way of example and without
limitation, recreational amenities, lobbies, elevator, employee rooms,
fireplaces, corridors, linen closets, etc. are considered to be solely for the
operation of the lodge. Likewise, lodge unit owners shall not be assessed for
any common expenses attributable to the operation, administration,
maintenance, repair and replacement of common elements or limited common
elements solely used by the commercial units or utilized solely for the
operation of the commercial units. By way of example and without limitation,
store front or basement entrances, basement entrance enclosures and roofs
which exclusively serve commercial units, and bathrooms located within
commercial units, are considered solely for the operation of commercial units.
Except as hereinbefore provided, the limited common elements shall be
maintained as limited common elements and owners having the exclusive use
thereof shall be subject to any special charges or assessments related thereto.
Assessments for the estimated common expenses shall be due quarterly, in
advance, on the first day of each quarter. The managing agent or board of
directors shall prepare and deliver or mail to each owner an itemized annual
budget showing the various estimated or actual expenses for which the
assessments are made. Contribution for quarterly assessments shall be
prorated if the ownership of a condominium unit commences on a day other
than the first day of a quarter. The assessments made for common expenses
shall be based on the requirements deemed to be such aggregate sum as the
board of directors shall from time to time determine is to be paid or accrued
to be paid to provide for the payment of all estimated expenses growing out
of or connected with the maintenance and operation of the common elements,
which sum may include, among other things, a working capital fund; expenses
of management; taxes and special assessments, until separately assessed;
premiUllls for insurance of the types and kinds provided for in paragraph
twenty-four (24) hereafter; landscaping and care of grounds; common lighting
and heating; repairs and renovations; trash collections; firewood; cable
televisilln service; telephone service; wages; water and sewer charges; legal
and acmunting fees; capital expenditures made by the board not exceeding
ten thllusand dollars ($10,000.00), in anyone (1) calendar year (unless a
greater amount is approved by a majority of the votes of the association);
expenses and liabilities incurred by the managing agent or board of directors
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under or by reason of this Declaration; deficits remaining from a previous
period; and other costs and expenses relating to the general common
elements. Further, it shall be mandatory for the board to establish and
segregate, out of such quarterly assessments, a contingency or reserve fund
for the repair, replacement and maintenance of those general common elements
that must be replaced periodically. The omission or failure of the board of
directors to fix the assessment for any quarter shall not be deemed a waiver,
modification or a release of the owners from their obligation to pay same. On
ten (10) days' notice to the board of directors or managing agent, any owner
or first mortgagee may, pursuant to C.R.S. Section 38-33-107 (1973, as
amended), inspect the association's records of receipts and expenditures at
any reasonable time during convenient weekday business hours; and on
payment of a reasonable fee, not to exceed twenty dollars ($20.00). any
owner or first mortgagee of such owner shall be furnished a statement of
account setting forth the amount of any unpaid assessments or other charges
due and owing from such owner. At the end of any calendar year, the board
of directors may but shall not be required to refund to each owner his
proportionate share of funds then held by the association which are not
deemed to be necessary to meet the common expenses. Each owner shall be
obligated to pay all charges for any separately metered utilities servicing his
unit. All utilities that are master metered shall be a common expense
hereunder.
b. The board of directors shall have the right during any calendar
year to levy and assess against all of the owners a special assessment for
such purpose or purpOses, in accordance with this Declaration, the articles or
bylaws, as may be necessary to keep the project as a first-class ski lodge
condominium. Such special assessment shall be borne by the owners in
accordance with each owner's interest in the general common elements and
shall be due and payable as determined by the board of directors except that
owners of commercial units shall not be assessed for any common expenses
attributable to the operation, administration. maintenance, repair and
replacement of common elements or limited common elements solely used by the
lodge units or utilized solely for the operation of the project as a lodge.
22. Assessment Reserves. The association may require an owner, other
than Declarant, to deposit with the association an amount not exceeding three
(3) times the amount of the original estimated quarterly common assessment,
which sum shall be held by the association as a reserve to be used for paying
such owner's quarterly common assessment and for working capital. This
deposit shall not accrue any interest for the benefit of the owner. Such an
advance payment shall not relieve an owner from making the regular quarterly
payment of the quarterly common assessment as the same comes due. On the
transfer of his condominium unit, an owner shall be entitled to a credit from
his transferee for any unused portion thereof. Such reserves shall, at all
times, remain as capital of the association.
23. Additions, Alterations and Improvement - General and Limited
Common Elements. There shall be no special assessments In excess of ten
thousand dollars ($10,000.00). levied by the board of directors in anyone
(1) calendar year or any capital additions. alterations or improvements of or
to the general or limited common elements by the association requiring
expenditure(s) in excess of ten thousand dollars ($10,000.00), in anyone (1)
calendar year without, in each case, prior approval by a majority of the votes
in the association, except in the event of an emergency; the limitations set
forth above shall not apply to any expenditures made by the association for
maintenance and repair of the general common elements as set forth in
paragraph twenty (20) hereof or for repair in the event of damage,
destruction or condemnation as provided in paragraph thirty (30) and
paragraph thirty-one (31) hereof.
24. Insurance.
a. Insurance Requirements Generally. The association shall obtain
and maintain in full force and effect at all times certain casualty, liability,
directors and officers liability, and other insurance as hereinafter provided.
All such insurance shall be obtained, to the extent possible, from responsible
companies duly authorized to do insurance business in the State of Colorado.
All such insurance shall name as insureds the association, the board of
directors of the association, the association's officers, employees and agents,
and, if practicable, the owners. All such insurance shall protect each of the
insureds as if each were separately insured under separate policies. To the
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extent possible, such casualty insurance shall: (a) provide for a waiver of
subrogation of the insurer as to claims against Declarants, the association, its
directors, officers, employees and agents and against each owner and each
owner's employees and guest; (b) provide that the insurance cannot be
cancelled, invalidated or suspended on account of the conduct of the
association, its officers, directors, employees and agents or of any owner or
such owner's employees or guests; (c) provide that any "no other insurance"
clause in the insurance policy shall exclude any pOlicies of insurance
maintained by any owner or mortgagee and that the insurance policy shall not
be brought into contribution with insurance maintained by any owner or
mortgagee; (d) contain an standard mortgage clause endorsement in favor of
the mortgagee of any condominium unit or part of the project except a
mortgagee of a condominium unit or part of the project who is covered by
other and separate insurance; (e) provide that the policy of insurance shall
not be terminated, cancelled or substantially modified without at least ten (10)
days prior written notice to the association and to each owner and to each
mortgagee covered by any standard mortgage clause endorsement; and (f)
provide that the insurer shall not have the option to restore the premises if
condominium ownership of the project is to be terminated in accordance with
the terms of this Declaration or the project is to be sold in its entirety in
accordance with the destruction, condemnation and obsolescence provisions of
this Declaration. To the extent possible, public liability and property damage
insurance shall provide for coverage of any cross liability claims of owners
against the association or other owners and of the association against owners
without the right of subrogation. Any insurance policy may contain such
deductible provisions as the board of directors of the association deems
consistent with good business practice.
The association shall obtain an independent appraisal of the project
at least every five (5) years or more often if the board of directors deems it
advisable; provided, however, that. said appraisal may be performed by an
appraiser employed by an insurance company.
Certificates of insurance cover-age or copies of insurance policies
shall be issued to each owner and each mortgagee who makes written request
to the association for any such certificate or copy of an insurance policy.
The cost and expense of all insurance obtained by the association,
except insurance covering additions, alterations or improvements made to a
condominium unit by an owner or other insurance obtained at the request of
and specifically benefiting any particular owner, shall be an expense of the
association.
b. Casualty Insurance. The association shall obtain and maintain
casualty insurance covering the project and each condominium unit covering
loss or damage by fire and such other hazards as are covered under standard
extended coverage policies, with vandalism and malicious mischief
endorsements, and if available and if deemed appropriate by the association,
other casualty risks, for the full insurable replacement cost of the project,
including each condominium unit with an inflation guard endorsement that
automatically increases the amount of coverage by a fixed percentage at least
annually. At the option of the association such insurance may also cover
additions, alterations Or improvements to a condominium unit made by an
owner if the owner reimburses the association for any additional premiums
attributable to such coverage. The association shall not be obligated to apply
any insurance proceeds to restore a condominium unit to a condition better
than the conditions existing prior to the making of additions, alterations or
improvements by an owner in the absence of insurance COVering such
additions, alterations or improvements as aforesaid. Premiums for plate glass
insurance shall be equitably adjusted and separately assessed between the
lodge unit owners and the commercial unit owners.
c. Public Liabilit and Property The
association sha 0 taln an maintain compre
Property damage insurance covering personal
liability and automobile personal and property damage liability of the
association, its officers, managers, employees and agents and of each owner
and each owner's employees and guests, arising in conjunction with
ownership, operation, maintenance, occupancy or use of the project or of any
condominium unit in the project with limits of no less than $1,000,000 for each
occurrence involving bodily injury liability and/or property damage liability.
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d. Workmen's Compensation and Employer's Liability Insurance.
The association shall obtain and maintain workmen's compensation and
employer's liability insurance as may be necessary to comply with applicable
laws.
e. Insurance by Owners. Insurance coverage on contents,
merchandise, furnishings, including cabinets, counters, carpet and the floor
coverings. draperies, oven range. refrigerator. wallpaper, disposal, plumbing
fixtures such as tubs and sinks and other items of personal or other property
belonging to an owner and public liability coverage within each unit shall be
the sole and direct responsibility of the unit owner thereof, and the board of
directors, the association and the managing agent shall have no responsibility
therefor. The Board may establish minimum coverages for said insurance and
may require each owner to present a certificate of complying insurance to the
managing agent.
Any insurance policy obtained by an owner shall be such that it
will not diminish or adversely affect or invalidate any insurance or insurance
recovery under pol icies carried by the association and shall. to the extent
possible, contain a waiver of the right of subrogation by the insurer as to
any claim against the association, its officers, managers, agents and
employees and against the owners and their employees and guests.
f. Receipt and Application of Insurance Proceeds. Except as
some particular person has a legal right to receive insurance proceeds
directly. all insurance proceeds and recoveries shall be paid to and received
by the association. All insurance proceeds or recoveries received by the
association shall be applied by the association; first, as expressly provided
elsewhere in this Declaration; second, to the owners or persons whom the
association may determine are legally or equitably entitled thereto; and third,
the balance, if any, to owners in proportion to their respective interests in
common elements.
g. Other Insurance by Association. The association shall have
the power and authority to obtain and maintain other and additional insurance
coverage, including casualty insurance covering personal property of the
association, fidelity bonds or insurance covering employees and agents of the
association and insurance indemnifying officers, managers, employees and
guests of the association.
h. Owner-Increased Premiums. In the event that, as a
consequence of the hazardous use of any condominium unit, or of any owner
installed improvements to any condominium unit, the premiums of any policy of
insurance purchased by the association are increased, or special policy is
required, the cost of such increase or specific policy shall be payable by the
owner of such condominium unit.
25. Lien for Nonpayment of Common Expenses, Penalties and Fines. All
sums assessed by the board pursuant to any provisions of this Declaration,
including. without limitation, the share of common expenses chargeable to any
condominium unit, attorney's fees, costs and fines. shall constitute a lien,
whether or not recorded of record, on such condominium unit superior (prior)
to all other liens and encumbrances. except (1) tax and special assessment
liens on the condominium unit in favor of any governmental assessing unit and
(2) all sums unpaid on a first mortgage of record, including all unpaid
obligatory sums as may be provided by such encumbrance. For purposes of
these Declarations a first mortgage shall be one which the time of its
recording was superior (prior) to any other mortgage and which has not been
subordinated to any other mortgage.
a. If any assessment shall remain unpaid after twenty (20) days
after the due date thereof, such unpaid sums shall bear interest from and
after the due date thereof at the rate of eighteen percent (18%) per annum;
and the board of directors may impose a late charge on such defaulting owner
in an amount not to exceed twenty five dollars ($25.00) to cover the extra
cost and expenses involved in handling such delinquent assessments.
b. The association may evidence its lien by recording in the office
of the Clerk and Recorder of the County of Pitkin, Colorado, written notice
which shalf set forth the amount of such unpaid indebtedness, the name of
the owner of the condominium unit, a description of the condominium unit and
be signed by one (1) of the board of directors or the managing agent or an
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attorney acting at the request of the Board or Managing Agent. Such lien
may be enforced by foreclosure of the defaulting owner's condominium unit by
the association in like manner as a mortgage on real property on the
recording of a notice or claim thereof. In any such foreclosure, the owner
shall be required to pay the costs and expenses of such proceedings, the
costs and expenses for filing the notice or claim of lien and all reasonable
attorney's fees and court costs. The owner shall also be required to pay to
the association the quarterly assessment for the condominium unit during the
periOd of foreclosure, and the association shall be entitled to the appointment
of a receiver to collect the same. The board of directors shall have the
power to bid on the condominium unit at foreclosure sale and to acquire and
hold, Jease, mortgage and convey same.
c. Any encumbrancers holding a lien on a condominium unit may
pay but shall not be required to pay any unpaid common expenses payable
with respect to such condominium unit; and, on such payment, such
encumbrances shall have a lien on such condominium unit for the amounts paid
of the same rank as the lien of his encumbrance, provided any first
mortgagee who acquires a condominium unit by foreclosure or by a deed in
lieu thereof shall acquire title to such condominium unit free and clear of any
lien for unpaid common expenses and shall only be responsible for common
expenses arising after the date on which such first mortgagee acquires title
to the condominium unit.
d. The association shall, on request and on the payment of $25.00
to the association, deliver written notice to the first mortgagee of a
condominium unit of any assessments remaining unpaid for longer than thirty
(30) days after the same are due as well as of any other default of an owner
hereunder known to the association which is not cured within sixty (60)
days.
e. Declarant states, in accordance with the requirements of the
Colorado Condominium Ownership Act, that it is possible that liens other than
mechanic's liens, assessment liens and tax liens may be obtained against the
general common elements, including judgment liens and mortgage liens.
f. Each owner hereby agrees that the association's lien on a
condominium unit for assessments as hereinbefore described shall be superior
to the Homestead Exemption provided by C.R.S. Section 38-41-201, et seq.
(1973, as amended) and each owner hereby agrees that the acceptance of the
deed or other instrument of conveyance in regard to any condominium unit
within the project shall signify such grantee's waiver of the Homestead right
granted in that section of the Colorado statutes.
g. Any recorded lien for nonpayment of the common expenses may
be released by recording a release of lien executed by a member of the board
of directors or the managing agent or an attorney acting at the request of
the Board or Managing Agent.
26. Owners' Obli ations for Pa ment of Assessments, Penalties or Fines.
The amount 0 t e common expenses an any pena ties or Ines provided or
herein or any special assessment assessed against each condominium unit shall
be the personal and individual debt of the owner or owners thereof at the
time the assessment is made. Suit to recover a money judgment for unpaid
common expenses or special assessments and costs of suit and attorney's fees
shall be maintainable without foreclosing or waiving the lien securing same.
No owner may exempt himself from liability for his contribution towards the
common expenses or any special assessment by waiver of the use or enjoyment
of the general common elements or by abandonment of his condominium unit.
27. Uability for Common Expenses on Transfer of Condominium Unit.
a. On payment of a reasonable fee not to exceed twenty-five
dollars ($25.00), and on fourteen (14) days prior written notice from any
owner or any mortgagee or prospective mortgagee of a condominium unit, the
association, by its managing agent or board of directors, 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, the date such assessment becomes due, the amount of
any assessment reserve on deposit with the association and any credit for
advanced payments for prepaid items, which statement shall be conclusive on
the association in favor of all persons who rely thereon in good faith. Unless
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such request for such a statement shall be complied with within ten (10)
business days from receipt thereof, all unpaid common expenses which become
due prior to the date of making such request shall be subordinate to the lien
of the person requesting such statement.
b. The grantee of a condominium unit, except a first mortgagee
who acquires a condominium unit by foreclosure or a deed in lieu of
foreclosure, shall be jointly and severally liable with the grantor for all
unpaid assessments against the grantor for his proportionate share 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 therefor provided, however, that on payment of a reasonable fee not
to exceed twenty-five dollars ($25.00), on written request, any such
prospective grantee shall be entitled to a statement from the managing agent
or board of directors 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, the date that such assessment becomes
due, the amount of any assessment reserve on deposit with the association
and any credit for advanced payments for prepaid items, which statement
shall be conclusive on the association in favor of all persons who rely thereon
in good faith. Unless such request for such a statement shall be complied
with within thirty (30) business days from the receipt thereof, such
requesting grantee shall not be liable for and the condominium unit conveyed
shall not be subject to a lien for any unpaid assessments against the subject
condominium unit. The provisions contained in this paragraph shall not apply
on initial transfer of the condominium units by Declarant.
28. Mort a in a Condominium Unit - Prior it . Any owner shall have
the right rom tIme to time to mortgage or encum er his condominium unit by
deed of trust, mortgage or other security instrument. The owner of a
condominium unit may create junior mortgages (junior to the lien, deed of
trust or other encumbrance of the first mortgagee) on his condominium unit
on the following conditions: (1) that any such junior mortgages shall always
be subordinate to all of the terms, conditions, covenants, restrictions, uses,
limitations, obi igations, liens for common expenses and other obi igations
created by this Declaration, the articles, the bylaws and rules and
regulations promulgated thereunder, and (2) that the mortgagee under any
junior mortgage shall release for the purpose of restoration of any
improvements on the mortgaged premises all of his right, title and interest in
and to the proceeds under all insurance policies effected and placed on the
project by the association. Such release shall be furnished forthwith by a
junior mortgagee on written request of the managing agent or one (1) or more
of the board of directors of the association, and if not furnished, may be
executed by the association as attorney in fact for such junior mortgagee.
29. Restrictive Covenants and Obligations.
a. No Imperiling of Insurance. No owner and no owner's guests
shall do anything or cause anything to be kept in or on the project which
might cause cancellation of any insurance effected and placed on the project
by the association.
b. No Violation of Law. No owner and no owner's guests shall do
anything or keep anything in or on the project which would be immoral,
improper, offensive or in violation of any statute, rule, ordinance,
regulation, permit or other validly imposed requirement of any governmental
body.
c. No Noxious, Offensive, Hazardous or Anno in No
noxious or of enslve actIvity s a e carrie on or any part 0 t e project;
nor shall anything be done or placed on or in any part of the project which
is or may become a nUIsance or cause embarrassment, disturbance or
annoyance to other owners or their guests. No activity shall be conducted on
any part of the project and no improvements shall be made or constructed on
any part of the project which are or might be unsafe or hazardous to any
person (W property. No sound shall be emitted on any part of the project
which is unreasonably loud or annoying, No odor shall be emitted on any
part of 1he project which is noxious or offensive to others. No light shall be
emitted from any part of the project which is unreasonably bright or causes
unreasonable glare.
I
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d. No Unsi~htliness. No unsightliness or waste shall be permitted
on or in any part 0 the project. Without limiting the generality of the
foregoing; no owner shall keep or store anything (except in designated
storage areas) on or in any of the general common elements; no owner shall
hang, erect, affix or place anything on any of the general common elements;
and, nothing shall be placed on or in windows or doors of units, which would
or might create an unsightly appearance.
e. Restriction on Animals. No animals of any kind, including
domesticated dogs or cats, livestock, reptiles and birds. shall be kept on any
part of the project unless such is expressly permitted by the bylaws of the
association and regulated by rules and regulations promulgated by the
association.
f. Restriction on Signs. No signs or advertising devices of any
nature shall be erected or maintained on any part of the project without the
prior written consent of the board. The board shall permit the placing of at
least (1) sign of reasonable size and dignified form to identify the project and
the condominium units therein. So long as any condominium unit owned by
Declarant in the projects remains unsold. no owner shall be permitted to place
any sign on the project or on his unit or on any building advertising his
condominium unit for sale or lease.
g. No Violation of Rules. No owner and no owner's guests shall
violate the rules and regulations adopted from time to time by the association,
whether relating to the use of units, the use of general or limited common
elements or otherwise.
h. Owner Caused Damages. If. due to the act or neglect of an
owner or such owner's guests or family. loss or damage shall be caused to
any person or property. including the project or any unit therein. such
owner shall be liable and responsible for the same except to the extent that
such damage or loss is covered by insurance obtained by the association and
the carrier of the insurance has waived its rights of subrogation against such
owner. The amount of such loss or damage may be collected by the
association from such owner as an assessment against such owner by legal
proceedings or otherwise. and such amount (including reasonable attorney's
fees) shall be secured by a lien on the condominium unit of such owner as
provided hereinabove for assessments or other charges.
i. Parking of Vehicles. Parking of any and all vehicles on the
project shall be subject to the rules and regulations of the association.
j. Restrictions on Parkin~ and Storage. No part of the project,
including the alleys, drives or par rng areas, unless specifically designated
by the association therefor. shall be used as a parking. storage, display or
accommodation area for any type of trailer. camping trailer, boat trailer.
hauling trailer. running gear. boat or accessories thereto, truck or
recreational vehicle. except as a temporary expedience for loading, delivery,
emergency. etc. (provided this restriction shall not restrict trucks or other
commercial vehicles within the project which are necessary for the
construction or maintenance of the project or portions thereof).
Determination with respect to whether a particular activity or
occurrence shall constitute a violation of this paragraph twenty-nine (29)
shall be made by the board of directors.
30. Association as Attorne -in-Fact
Obsolescence. IS ec aratlOn does
appointment of an attorney-in-fact to deal
repair or obsolescence.
Destruction
t e Irrevoca Ie
its destruction,
Title to any condominium unit is declared and expressly made
subject to the terms and conditions hereof, and acceptance by any grantee of
a deed from the Declarant or from any owner shall constitute appointment of
the attorney-in-fact herein provided. All of the owners irrevocably constitute
and appoint the association their attorney-in-fact for the purpose of dealing
with the project on its destruction. repair or obsolescence as is hereinafter
provided. As attorney-in-fact, the association, by its president and
secretary, 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 an owner which is necessary and appropriate to
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exercise the powers herein granted. Repair and reconstruction of the
improvements as used in the succeeding subparagraphs means restoring the
improvements to substantially the same condition in which the improvements
existed prior to the damage with each unit and the general common elements
and limited common elements having substantially the same vertical and
horizontal boundaries as before. Except as is otherwise herein provided, the
proceeds of any insurance collected shall be available to the association for
the purpose of repair, restoration or replacement unless the owners and first
mortgagees agree not to rebuild in accordance with the provisions set forth
hereinafter.
Assessments for common expenses shall not be abated during the
period of insurance adjustment and repair and reconstruction.
a. In the event of damage or destruction to the project to the
extent of not more than sixty-six and two-thirds percent (66 2/3%) of the
total replacement cost thereof, not including land, due to fire or other
disaster, the insurance proceeds if sufficient to reconstruct the improvements
shall be applied by the association, as attorney-in-fact, to such
reconstruction; and the improvements shall be promptly repaired and
reconstructed. The association shall have full authority, right and power, at
attorney-in-fact, to cause the repair and restoration of the improvements.
b. If the insurance proceeds are insufficient to repair and
reconstruct the improvements, and if such damage is to the extent of not
more than sixty-six and two-thirds percent (66 2/3%) of the total replacement
cost of the project, not including land, such damage or destruction shall be
promptly repaired and reconstructed by the association, as attorney-in-fact,
using the proceeds of insurance and the proceeds of an assessment to be
made against all of the owners and their condominium units. Such deficiency
assessment shall be a common expense and made pro rata according to each
owner's interest in the general common elements and shall be due and payable
within thirty (30) days after written notice thereof. The association shall
have full authority, right and power, as attorney-in-fact, to cause the repair
or restoration of the improvements using all of the insurance proceeds and
such assessment. The assessment provided for herein shall be a debt of each
owner and a lien on his condominium unit and may be enforced and collected
as is provided hereinbefore. In addition thereto, the association, as
attorney-in-fact, shall have 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 association shall
cause to be recorded a notice that the condominium unit of the delinquent
owner shall be sold by the association, as attorney-in-fact. The proceeds
derived from the sale of such condominium unit shall be used and disbursed
by the association, as attorney-In-fact, in the following order.
(1) For payment of taxes and special assessment liens in
favor of any assessing entity.
mortgage.
(2) For payment of the balance of the lien of any first
(3) For payment of unpaid common expenses, including the
pro rata share of the deficiency assessment.
(4) For payment of junior mortgages and encumbrances in the
order of and to the extent of their priority.
owner.
(5) The balance remaining, if any, shall be paid to the
c. If the project is destroyed or damaged to the extent of more
than sixty-six and two-thirds percent (66 213%) of the total replacement cost
thereof, not including land, the board shall adopt a plan for the repair and
reconstruction of the project; and all owners shall be bound by the terms and
provisillllS of such plan unless the owners representing an aggregate
ownership interest of seventy-five percent (75%) or more of the general
common elements and at least seventy-five percent (75%) of the first
mortgagees (based on one (1) vote for each first mortgage owned) vote not to
adopt such plan within one hundred (100) days after the damage or
destruction. The association shall have the right to use, in accordance with
such plan, all proceeds of insurance for such destruction or damages as well
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as the proceeds of an assessment to be made against all of the owners and
their condominium units. Any assessment made in connection with such plan
shall be a common expense and made pro rata according to each owner's
percentage interest in the general common elements and shall be due and
payable as provided by the terms of such plan and not sooner than thirty
(30) days after written notice thereof. The association shall have full
authority, right and power, as attorney-in-fact, to cause the repair and
restoration of the improvements using all of the insurance proceeds for such
purpose, notwithstanding the failure of an owner to pay the assessment. The
assessment provided for herein shall be a debt of each owner and a lien on
his condominium unit and may be enforced and collected as is provided
hereinabove. In addition thereto, the association, as attorney-in-fact, shall
have the absolute right and power to sell the condominium unit of any owner
refusing or failing to pay such assessment within the time provided; and, if
not so paid, the association shall cause to be recorded a notice that the
condominium unit of the delinquent owner shall be sold by the association.
The proceeds derived from the sale of such condominium unit shall be used
and disbursed by the association, as attorney-in-fact, for the same purposes
and in the same order as is provided in subparagraph b. (1) through (5) of
this paragraph.
d. If the project is damaged or destroyed to the extent of more
than sixty-six and two-thirds percent (66 2/3%) of the total replacement cost
thereof, not including land, and if the owners representing an aggregate
ownership interest of seventy-five percent (75%) or more of the general
common elements and at least seventy-five percent (75%) of the first
mortgagees (based on one (1) vote for each first mortgage owned) vote not to
adopt a plan for repair and reconstruction, the association shall forthwith
record a notice setting forth such fact or facts; and, on the recording of
such notice by the association's president and secretary, the entire remaining
project shall be sold by the association, as attorney-in-fact for all of the
owners, free and clear of the provisions contained in this Declaration, the
map and the articles and bylaws. The insurance settlement proceeds shall be
collected by the association, and such proceeds shall be divided by the
association according to each owner's interest (as such interests appear on
the policy or policies); and such divided proceeds shall be paid into separate
accounts, each such account representing one (1) of the condominium units.
Each such account shall be in the name of the association and shall be further
identified by the condominium unit designation and the name of the owner.
Thereafter, each such account shall be supplemented by the apportioned
amount of the proceeds derived from the sale of the entire project. Such
apportionment shall be based on each owner's percentage interest in the
general common elements. The total funds of each account shall be used and
disbursed, without contribution from one (1) account to another by the
association, as attorney-in-fact" for the same purposes and in the same order
as is provided in subparagraph b. (1) through (5) of this paragraph. The
provisions contained in this subparagraph shall not hinder the protection
given to a first mortgagee under a mortgagee endorsement.
e. The owners representing an aggregate ownership interest of
seventy five percent (75%) or more of the general common elements may agree
that the general common elements are obsolete and adopt a plan for the
renewal and reconstruction provided the plan shall have the approval of
seventy-five percent (75%) or more of the first mortgagees of record at the
time of the adoption of such plan. If a plan for the renewal or
reconstruction is adopted, notice of such plan shall be recorded; and the
expense of renewal and reconstruction shall be payable by all of the owners
as a common expense, whether or not they have previously consented to the
plan or renewal and reconstruction. The association, as attorney-in-fact,
shall have the absolute right and power to sell the condominium unit of any
owner refusing or failing to pay such assessment within the time provided;
and, if not so paid, the association shall cause to be recorded a notice that
the condominium unit of the delinquent owner shal,l be sold by the association.
The delinquent owner shall be required to pay to the association the costs
and expenses for filing the notices, interest at the rate of eighteen percent
(18%) per annum on the amount of the assessment and all reasonable
attorney's fees and costs. The proceeds derived from the sale of the
condominium unit shall be used and disbursed by the association, as
attorney-In-fact, for the same purposes and in the same order as is provided
in subparagraph b. (1) through (5) of this paragraph.
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f. The owners representing an aggregate ownerShip interest of
seventy-five percent (75%) or more of the general common elements may agree
that the condominium units are obsolete and the same should be sold. Such
plan (agreement) must have the unanimous approval or consent of every first
mortgagee. In such instance, the association shall forthwith record a notice
setting forth such fact or facts; and, on the recording of such notice by the
association's president and secretary, the entire project shall be sold by the
association, as attorney-in-fact for all of the owners, free and clear of the
provisions contained in this Declaration, the map, the articles and the
bylaws. The sales proceeds shall be apportioned between the owners on the
basis of each owner's percentage interest in the general common elements, and
such apportioned proceeds shall be paid into separate accounts, each such
account representing one (1) condominium unit. Each such account shall be
in the name of the associatioh and shall be further identified by the
condominium designation and the name of the owner. From each separate
account, the association, as attorney-in-fact, shall use and disburse the total
amount (of each) of such accounts without contribution from one (1) account
to another for the same purposes and in the same order as is provided in
subparagraphs b. (1) through (5) of this paragraph.
31. Condemnation.
a. Consequences of Condemnation. If, at any time or times
during the continuance of condominium ownership pursuant to this
Declaration, all or any part of the project shall be taken condemned by any
public authority or sold or otherwise disposed of in lieu of or in avoidance
thereof, the provisions of this paragraph thirty-one (31) shall apply.
b. Proceeds. All compensation, damages or other proceeds
therefrom, the sum of which is hereinafter called the "condemnation award",
shall be payable to the association.
c. Complete Taking. In the event the entire project is taken or
condemned or sold or otherwise disposed of in lieu of or in avoidance thereof,
condominium ownership pursuant to this Declaration shall terminate. The
condemnation award shall be apportioned among the owners in proportion to
their respective undivided interests in the general common elements, provided
that, if a standard different from the value of the project as a whole is
employed to measure the condemnation award in the negotiation, judicial
decree or otherwise, in determining such share the same standard shall be
employed to the extent it is relevant and applicable.
d. Partial Takin~. In the event less than the entire project is
taken or condemned or so d 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 to be
determined in the following manner. As soon as practicable, the
association shall reasonably and in good faith allocate the condemnation award
among compensation, damages and other proceeds and shall apportion the
amounts so allocated among the owners as follows:
(1) The total amount allocated to taking of or injury to the
general common elements shall be apportioned among the owners in proportion
to their respective undivided interests in the general common elements.
(2) The total amount allocated to severance damages shall be
apportioned to those condominium units which were not taken or condemned.
(3) The respective amounts allocated to the taking of or
injury to a particular unit and/or improvements an owner had made within his
own unit shall be apportioned to the particular condominium unit involved.
(4) The amount allocated to consequential damages and any
other takings or injuries shall be apportioned as the association determines to
be equitable in the circumstances,
If an allocation of the condemnation award is already established in
negotiation, judicial decree or otherwise, in allocating the condemnation
award, the association shall employ such allocation to the extent it is relevant
and applicable. Any distribution of the condemnation award made pursuant to
this subparagraph shall be made by checks payable jointly to the owners and
their first mortgagees.
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e. Distribution. The association shall. as soon as practicable,
determine the share of the condemnation award to which each owner is
entitled. Such shares shall be paid into separate accounts and disbursed as
soon as practicable, provided, in the event of a complete taking, such
distribution shall be made in the same manner as is provided in paragraph
thirty (30)b. of this Declaration.
f. Mortgagee Notice. The association shall give timely written
notice to each first mortgagee of the commencement of any condemnation or
eminent domain proceedings and shall notify the first mortgagees in the event
of the taking of all or any part of the general common elements.
g. Reorganization. In the event a partial taking results in the
taking of a complete unit, the owner thereof automatically shall cease to be a
member of the association; and such owner's interest in the general common
elements shall thereupon terminate and the association, as attorney-in-fact for
such owner, may take whatever action is necessary and execute such
documents as are necessary to reflect such termination. Thereafter the
association shall reallocate the ownership and assessment ratio determined in
accordance with this Declaration according to the same principles employed in
this Declaration at its inception and shall submit such reallocation to the
owners of remaining condominium units for amendment of this Declaration as
provided in paragraph thirty-two (32)b. hereof.
32. Miscellaneous.
a. Duration of Declaration. All of the provisions contained in
this Declaration shall continue and remain in full force and effect until
condominium ownership of the project and this Declaration are terminated,
revoked or amended as hereinafter provided.
b. Amendment and Termination. Any provision contained in this
Declaration may be amended or addItional provisions may be added to this
Declaration and condominium ownership of the project may be terminated or
revoked by the recording of a written instrument or instruments specifying
the amendment or addition or the fact of termination and of the Clerk and
Recorder of the County of Pitkin, Colorado, of condominium units
representing an aggregate ownership interest of seventy-five percent (75%),
or more, of the general common elements and first mortgagees whose liens
encumber an aggregate ownership interest of seventy-five percent (75%) or
more of the general common elements (except no provision of this Declaration
requiring the approval or consent of more than seventy-five percent (75%) of
such first mortgagees may be amended without the consent of at least the
minimum number of first mortgagees whose approval or consent is required
under such provision) provided, however, in no event shall the undivided
interest of an owner in the general common elements be decreased without the
unanimous consent of each owner and each first mortgagee and provided,
further. so long as Declarant continues to own one (1) or more condominium
units, which he is holding for rental or sale, no right of Declarant contained
in this Declaration may be amended or modified without the consent of
Declarant. The consent of any junior mortgagees shall not be required under
the provisions of this paragraph. The association shall, at least ten (10)
days prior to the effective date of any amendment to this Declaration, notify
all first mortgagees of record of such amendment. Notwithstanding the
foregoing, no provision contained in this Declaration which is required by or
for the benefit of the City of Aspen pursuant to the provisions of paragraphs
20-23 of the Municipal Code of the City of Aspen, Colorado, as amended, may
be amended or terminated without the prior written approval of the City of
Aspen.
c. Effect of Provisions of Declaration. Each provision of this
Declaration and an agreement, promise, covenant and undertaking to comply
with each provision of this Declaration and any necessary exception or
reservation or grant of title, estate, right or interest to effectuate any
provision of this Declaration shall:
(1) be deemed incorporated in each deed or other instrument
by which right, title or interest in the project or in any condominium unit is
granted, devised or conveyed, whether or not set forth or referred to in
such deed or instrument;
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(2) by virtue of acceptance of any right, title or interest in
the project or in any condominium unit by an owner be deemed accepted,
ratified, adopted and declared as a personal covenant of such owner and, as
a personal covenant, shall be binding on such owner and such owner's heirs,
personal representatives, successors and assigns and shall be deemed a
personal covenant to, with and for the benefit of the association and not to,
with or for the benefit of any other non-aggrieved owner;
(3) be deemed a real covenant by Declarant, for itself, its
successors and assigns and also an equitable servitude running, in each case,
as a burden with and on the title to the project and each condominium unit
and, as a real covenant and also as an equitable servitude, shall be deemed a
covenant and servitude for the benefit of the project and each condominium
unit; and
(4) be deemed a covenant, obligation and restriction secured
by a lien in favor of the association burdening and encumbering the title to
the project and each condominium unit in favor of the association.
d. Protection of Encumbrancer. Subject to the provisions of
paragraph twenty-eight (28) above, no violation or breach of or failure to
comply with any provision shall affect, defeat, render invalid or impair the
lien of any first mortgage or other lien on any condominium unit taken in
good faith and for value and perfected by recording in the office of the Clerk
and Recorder of the County of Pitkin, Colorado, prior to the time of
recording in such office an instrument describing the condominium unit and
listing the name or names of the owner or owners of fee simple title to the
condominium unit and giving notice of such violation, breach or failure to
comply; nor shall such violation, breach, failure to comply or action to
enforce, affect, defeat, render invalid or impair the title or interest of the
holder of any such first mortgage or other lien or the title or interest
acquired by any purchaser on foreclosure of any such first mortgage or other
lien result in any liability, personal or otherwise, of any such holder or
purchaser. Any such purchaser on foreclosure shall, however, take subject
to this Declaration provided, howev€r, that violation or breaches of or failure
to comply with any provision of this Declaration which occurred prior to the
vesting of fee simple title in such purchaser shall not be deemed breaches or
violations hereof or failures to comply herewith with respect to such
purchaser, his heirs, personal representatives, successors or assigns.
e. Supplemental to Law. The provisions of this Declaration shall
be in addition and supplement to the Condominium Ownership Act of the State
of Colorado and to all other provisions of law.
f. Numbers and Genders. Whenever used herein, unless the
context shall otherwise provide, the singular number shall include the plural,
the singular and the use of any gender shall include all genders.
g. Registration by Owner of Mailing Address. Each owner shall
register his mailing address with the association and except for quarterly
statements and other routine notices which shall be personally delivered or
sent by regular mail, all other notices or demands intended to be served on
an owner shall be delivered personally or sent by either registered or
certified mail, postage prepaid, addressed in the name of the owner at such
registered mailing address. All notices, demands or other notices intended to
be served on the board of directors of the association or the association shall
be sent certified mail, postage prepaid, to
Herbert S. Klein,
Klein, Seigle & Krabacher P.C.
201 North Mill Street, 11201
Aspen, Colorado 81611
agent fOr service, until such address is changed by a notice of address
duly recorded with the office of the Secretary of State of Colorado.
h. Successors in Interest. This Declaration shall be binding on
and shall inure to the benefIt of the Declarant, the association and each
owner and the heirs, personal representatives, successors and assigns of
each of them.
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i. Severabilit~. Invalidity or unenforceability of any provision of
this Declaration in who e or in part shall not affect the validity or
enforceability of any other provision or any valid and enforceable part of a
provision of this Declaration.
j. Caption. The captions and headings in this Declaration are
for convenience only and shall not be considered in construing any provision
of this Declaration.
k. No Waiver. Failure to enforce any provIsion of this
Declaration shall not operate as a waiver of any such provision or of any
other provision of this Declaration.
I. Sales and Construction Facilities and Activities of Declarant.
Notwithstanding any provision to the contrary contained herein, Declarant, its
agents, employees and contractors shall be permitted to maintain during the
period of any construction and/or sale of the condominium units in the
project, on such portion of the project as Declarant may choose, such
facilities as in the sole opinion of the Declarant may be reasonably required,
convenient or incidental to the construction, sale or rental of condominium
units, including without limitation, a business office, storage area,
construction yards, signs, model units, sales office, construction office,
parking areas and lighting and temporary parking facilities for all prospective
tenants or purchasers of condominium units. In addition, Declarant, its
agents, employees and contractors shall have the right to ingress and egress
in and through all units during the period of the construction and/or sale of
the condominium units for the purpose of any required or desired
refurbishment, construction, maintenance or repair to such units or the
building or any part thereof.
m. Rule Against Perpetuities. If any of the options, privileges,
covenants, or rights created by this Declaration shall be unlawful, void or
voidable for violation of the rule against perpetuities, such provision shall
continue only until twenty-one (21) years after the death of the survivor of
the now living descendants of the President of the United States, Ronald
Reagan and Governor of Colorado, Richard Lamm.
33. Recreational Facilities. The recreational facilities of the project,
shall be subject to any rules and regulations promulgated by the association;
and same shall be available for the use of all owners and their guests.
34. New Additions of General
Elements. The Declarant does not
general or limited common elements.
make any additions,
Common Elements and Limited Common
intend to make any major additions of
If the association subsequently would
a. each owner would be responsible for his percentage of any
increase in common expenses created thereby,
b. each owner would own, as a tenant in common with the other
owners, an undivided percentage interest in the new additions in accordance
with the interest set forth in paragraph 4, above,
c. each owner's relative percentage interest in the existing general
and limited common elements would be unaffected by such additions, and
d. each owner's voting interest in the association would be
unaffected by the additions.
35. Certificate of Identity. There shall be recorded with the Pitkin
County Clerk and Recorder from time to time a certificate of identity which
shall include the addresses of the persons then comprising the management
body (directors and officers) together with the identity and address' of the
managing agent. Such certificate shall be conclusive evidence of the
information contained therein in favor of any person relying thereon in good
faith regardless of the time elapsed since the date thereof.
36. Personal Use Restriction. An owner's personal use of his lodge
unit shall be restricted to not more than fourteen (14) days during the
seasonal period of November 24 - April 15 and June 8 - September 15. These
seasonal periods are hereinafter referred to as "high season". "Owner's
personal use" shall be defined as owner occupancy of a lodge unit or
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occupancy of a lodge unit by a nonpaying guest of the owner or taking the
lodge unit off the rental market during high season for any reason other than
for necessary repairs which cannot be postponed or which make the unit
unrentable. This restriction shall not preclude the occupancy of the lodge
unit by a lodge manager or staff employed by the lodge. This restriction has
been imposed by the City of Aspen and is not included to benefit the
Declarant but rather to continue a use deemed necessary by the City of
Aspen. In the event the City of Aspen amends or repeals these portions of
its Municipal Code such that the restrictions embodied. in this paragraph 36
and paragraphs 38, 39 and 40 below are no longer required as a condition to
approval for the condominiumization of a lodge, then the restrictions contained
in this paragraph 36 and paragraphs 37, 38, 39 and 40 below shall be deemed
to lapse and the Board of Directors of the Association shall be authorized to
obtain from the City of Aspen and record a certificate which reflects that the
property is released from such restriction.
37. Assessment for Violation of Personal Use Restriction. A violation of
the owner's personal use restriction by a unit owner as such personal use
restriction as defined in paragraph thirty-six (36) above, shall subject the
owner to a daily assessment by the association of three (3) times the daily
rental rate for the unit as such rental rate is at the time of the violation.
This assessment shall be due and owing from the time of violation. The
assessment, when paid, shall be deposited in the general fund of the
association and shall be used to upgrade and repair the common elements of
the condominium. All sums assessed against an owner for violation of an
owner's personal use restriction and unpaid shall constitute a lien for the
benefit of the association on that owner's unit, which lien may be evidenced
by written notice placed of record in the office of the Clerk and Recorder of
Pitkin County, Colorado, and may be collected by foreclosure on an owner's
condominium unit by the association in like manner as a mortgage or deed of
trust on real property. In the event the association fails to enforce the
owner's personal use restriction, the City of Aspen shall have the right to
enforce the restriction by the assessment, lien and right of foreclosure
provided for herein. I n the event the City enforces the restriction, the City
shall be entitled to the funds collected as a result of the assessment for
violation. In the event of litigation resulting from the enforcement of this
personal use restriction, as part of its award to the prevailing party, the
court shall award such party its court costs together with reasonable
attorney's fees incurred.
38. Annual Report to City. The City of Aspen shall have the right to
require from the association an annual report of owner's personal use during
high season for all the lodge units.
39. Employee Apartment. One portion of the common elements of the
project, known as Room 012, contains sleeping accommodations for not less
than one (1) person and is hereby restricted solely to use as employee
housing as required by 20-23, of the Municipal Code of the City of Aspen and
to rental and sales terms and price guidelines, qualifications guidelines, and
to occupancy limitations within employee housing guidelines now established by
the City Council of the City of Aspen or its designee, or as such guidelines
may from time to time be amended by the City Council.
40. Lod e Condominium Project as
Declarant, or Itse an Its successors m mterest, ere y ac nowe ges t at
by virtue of the establishment of this lodge condominium project as a
"Condominiumized Lodge" pursuant to the provisions of 20-23 of the Municipal
Code of the City of Aspen, Colorado, adopted by Amendment to Chapter 20 of
the code denominated Ordinance No. 14 (Series of 1980) (this Code section is
hereinafter referred to as "the Lodge Condominiumization Ordinance"), use
and maintenance of the common elements are restricted by the provisions of
the Lodge Condominiumization Ordinance and these restrictions are set forth
in this paragraph forty (40), use of the lodge units is restricted by the
Lodge Condominiumization Ordinance which restrictions are set forth above in
paragraphs thirty-six (36) and thirty-seven (37) and this paragraph
forty (110); maintaining portions of the condominium project as a lodge facility
is required by the lodge Condominiumization Ordinance, as is set forth in this
paragraph forty (40); and, availability of the lodge units to the general
tourist market is required by Lodge Condominiumization Ordinance as set
forth in paragraph thirty-six (36) above and in this paragraph forty (40).
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a. On site management required by City is for the benefit of the
individual lodge unit owner should the owner desire it. but any owner is free
to obtain his own manager for his specific unit.
b. The lodge units shall remain in the short-term rental market to
be used as temporary accommodations available to the general tourist market.
This condition shall be met by inclusion of the lodge units. at comparable
rates. in any local reservation system for the rental of lodge units in the
City of Aspen. . Colorado, or by such other means as may be approved by the
Aspen City Council. Paragraph thirty-six (36) above sets forth the
restriction relative to a lodge unit owner's personal use of a lodge unit.
c. The association shall provide on-site management and
maintenance and other tourist accommodation services for the management and
operation of the common elements and for the compliance with the provisions
and restrictions of the Lodge Condominiumization Ordinance. consistent in
quality and quantity or better to those provided by the Independence Lodge
as of the date of the Declaration. Specifically. the following minimum tourist
services shall be provided by the Association or contracted for by the
Association in order to comply with the requirements of the Lodge
Condominiumization Ordinance, all of which services shall be deemed
condominium common expenses:
(1) on-site management from 8:00 a.m. to 8:00 p.m. seven
days a week between December 18 and March 20, and between June 15 and
Labor Day weekend of each year;
(2) twenty-four (24) hour services on call between December
18 and March 20. and between June 15 and Labor Day weekend of each year;
(3) the following amenities shall be available to the lodge
guests: cable television. lobby common area. telephone in room;
(4) front desk service between 8:00 a.m. and 8:00 p.m.
seven days per week between December 18 and March 20 and between June 15
and Labor Day weekend of each year. which service shall include check-in.
key pick~up and check-out;
(5) maid service for the lodge guests on a daily basis
between December 18 and March 20 and between June 15 and Labor Day
weekend of each year.
d. The common areas of the condominium project shall remain
common areas and the lodge portion of the condominium project shall be
maintained in a manner consistent with its character as of the date of this
Declaration. Any changes. alterations or renovations made to common areas
shall not diminish the size or quality of the common areas.
e. In order to comply with the provisions of the Lodge
Condominiumization Ordinance. the Declarant and each lodge unit owner agree
for themselves and their successors. grantees and assigns that the personal
property. furniture and fixtures (including. but not limited to furniture.
fixtures. decorations. wall surfacing, window covers, bathroom fixtures and
carpeting) contained within each unit shall be maintained in a uniform.
first-class condition comparable to such condition as of the date of this
Declaration. The board of directors of the association shall decide when and
how such personal property. furniture and fixtures shall be maintained
and/or replaced and the respective lodge unit owners shall comply with such
decisions of the board. The board shall notify a lodge unit owner of any
such decisions and such unit owner shall have thirty (30) days within which
to commence compliance with such decisions, and full compliance shall be made
within the ensuing sixty (60) day period. Payment for the maintenance and
replacement of such furniture, fixtures and personal property within the
units shall be the responsibility of each respective unit owner. The
association shall not be responsible for such payment and the common elements
shall not be subject to a lien as a result of nonpayment by any unit owner.
In the event that a unit owner fails to comply with the decisions of the
board. as required by this paragraph forty (40)e., the ~~s?ciation may
replace and/or maintain the said furniture. fixtures or per/sonal property
within a unit in order to maintain such uniform and first-class condition. In
such event. the unit owner shall reimburse the association! for all monies
expended thereby. including a service charge in the amount of twenty
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percent (20%) of such monies expended, within three (3) days of delivery of
notice to the unit owner of such monies expended by the association on behalf
of the unit owner. In the event a unit owner does not so timely reimburse
the association, the amount shall be deemed an unpaid special assessment in
default and the association shall have a lien on the unit foreclosable pursuant
to the provisions contained in paragraph twenty-six (26) above.
f. In order to comply with the provisions of the lodge
Condominiumization Ordinance, and in order that the condominium project may
be maintained in a first-class lodge facility as contemplated by the lodge
Condominiumization Ordinance, the Declarant agrees for itself and its
successors in interest, that the following requirements will be complied with:
(1) If a lodge unit owner desires to sell a lodge unit, the
showing of the unit to prospective purchasers shall be done through the
appointment with the front desk management only, in order that any lodge
guests in the unit shall not be inconvenienced.
(2) A lodge unit owner's choice of days to be utilized for
personal use during any given high season (SUbject to the restrictions
contained in paragraph thirty-six (36) shall be delivered in writing to the
board of managers prior to the first day of August preceding commencement
of each winter season.
(3) Rates for the rental of lodge units shall be established by
the board and complied with by each owner.
g. The failure to comply with any provision of this paragraph
forty (40) or an action to enforce any such provision shall not in any way
impair the lien of any mortgage, deed of trust or other lien on any
condominium unit taken in good faith and for value and perfected by
recording in the office of the County Clerk and Recorder of Pitkin County,
Colorado, prior to the time of recording in said office of an instrument
describing the condominium unit and listing the name or names of the owner
or owners of fee simple title to the condominium unit and giving notice of the
failure to comply. The failure to comply or an action to enforce shall not
impair the title or interest of the holder of any such mortgage, deed of trust
or other lien or the title or interest acquired by any purchaser upon
foreclosure of any such mortgage, deed of trust or other lien and shall not
result in any liability, personal or otherwise, of any such holder or
purchaser. Any such purchaser on foreclosure shall, however, take subject
to this Declaration except only the violations or breaches of, or failure to
comply with, any provisions of this paragraph forty (40) which occurred
prior to the vesting of fee simple title in such purchaser shall not
be deemed breaches or violations hereof or failures to comply herewith with
respect to such purchaser or his successors in interest.
41. Time Sharinl'l' Subject to applicable governmental regulations,
timesharing or other sImilar, legally recognized time span or fractional fee
ownership interests shall be permitted in The Independence Building, a
condominium.
42. Supplemental Declarations and Supplemental Condominium maps.
The modifications to commercial units and common elements permitted pursuant
to Paragraph 3b et seq. shall be made part of the project by filing for record
by Declarant in the Pitkin County, Colorado, real estate records no later than
twenty (20) years from the date of the Declaration a supplement to this
Declaration describing the revised units and improvements together with a
supplemental condominium map cOhtaining the same information with respect to
the revised units and/or improvements as was required on the original
condominium map with respect to the presently existing buildings and
improvements or as otherwise required by law. Prior to the recordation of
any such supplemental declarations and supplemental maps, said supplemental
declaration and supplemental maps shall be submitted to the City of Aspen for
its review and approval. The City's right of review and approval shall be
limited to those matters over which it has authority by virtue of the
provisions of 20-19, 20-21 and 20-23 of the Municipal Code of the City of
Aspen.
a. Expansion of Definitions. In the event of said reVISions to
commercial units and to modifIcations of common elements or to the expansion
of the lodge portion of the project, the definitions used in this Declaration
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automatically shall encompass and refer to the project as so revised. All
conveyances of condominium units thereafter shall be effective to transfer
rights in the project as revised or modified by use of the form of description
set forth in paragraph 8 hereof.
The recordation in the Pitkin County, Colorado, real estate
records of a supplemental condominium map incident to any revision or
modification shall operate automatically to grant, transfer and convey to the
owners of condominium units in the project as it existed prior thereto the
undivided interest in the new common elements added to the project as the
result of the modification. The recordation shall also operate to expand the
security interest of any then mortgagee of a condominium in the project as it
existed before the modification to include the undivided interest acquired by
the owner of the condominium unit in the common elements so added to the
project. The recordation shall also operate automatically to grant, transfer
and convey to the owners of condominium units on the real property
described in the supplemental declaration an undivided interest in the
previously existing common elements of the project.
b. Declaration 0 erative on Revised Units. Any such revised
units and improvements s a e su Ject to ate terms and conditions of this
Declaration and of any supplemental declaration or declarations, and shall be
subject to condominium ownership with all the incidents pertaining thereto as
specified herein on placing the supplemental condominium map and
supplemental condominium declaration of public record in the Pitkin County,
Colorado, real estate records.
c. Computation of Fractional Undivided Interest in Common
Elements. For the purpose of computing the undivided interest of owners in
common elements, each of the condominium units has been assigned an
undivided percentage interest determined by Declarant, as is set forth in
paragraph 4 above and Exhibit A, which determination has been made by
allocating 65% of the common elements equally among the 28 lodge units and
35% of the common elements equally among the eight commercial units. The
undivided interest in common elements constituting part of any condominium
unit shall be changed as a result of the modification so that the interest of an
owner(s) of a revised unit(s) and the existing units shall be recomputed
using the same method of computation originally used when and if the revision
provided for herein is completed and this Declaration shall be accordingly
amended to reflect these adjusted interests and to allocate these interests in
common elements created appurtenant to the revised condominium units.
d. Reservation of Easement. Declarant for itself, its successors,
assigns and owners of commercial units, reserves for twenty (20) years an
easement over the real property of the condominium to the extent necessary
for the construction of the modifications to common elements provided for in
paragraph 3b et seq. of these Declarations.
IN WITNESS WHEREOF, Declarant has duly executed this Declaration this
day of , 1985.
THE INDEPENDENCE COMPANY,
a Colorado Limited Partnership
By
General Partner
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APPROVED AS TO FORM:
PAUL J. TADDUNE, CITY ATTORNEY
FOR THE CITY OF ASPEN
This Condominium Declaration and the provisions thereof pertaining to
approvals by the City of Aspen (paragraphs 32, 36, 37, 38, 39, 40 and 42)
are hereby accepted by the City of Aspen.
CITY OF ASPEN
By
WILLIAM STIRLING, MAYOR
The above set forth approval as to form and acceptance are limited only to
those provisions over which the City of Aspen has authority pursuant to
20-23 of the Municipal Code of the City of Aspen.
ATTEST:
KATHRYN S. KOCH, CITY CLERK
STATE OF COLORADO)
) ss.
COUNTY OF PITKIN )
of
The foregoing instrument was acknowledged before me this
, 1985, by as
day of
Witness my hand and official seal.
My commission expires:
Notary Public
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EXHIBIT A
-------.
Percentage of Common Elements
For Each Unit
-------
~od9~_~~~~~~!
1 - 28
Tota I for a II
lodge units
~~~~!~~~~l!_~umb~!
1 - 8
Total for all
commercial units
Total for all
uni ts
2.32 %
65 %
4.375 %
35 %
100 %
Voting Points
For Each Un it
-----------
2.32
65 points
4.375
35 points
100 points
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EXHr1r f2
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ARTICLES OF INCORPORATION
OF
THE INDEPENDENCE BUILDING OWNERS' ASSOCIATioN
The undersigned, acting as
Colorado Non-Profit Corporation
Incorporation for the corporation.
incorporator of a corporation under the
Act, adopts the following Articles of
ARTICLE
Name
The name of the corporation shall be: The Independence Building
Owners' Association. This corporation shall be hereinafter referred to as
"the Association".
ARTICLE II
Duration
The period of duration of the corporation is perpetual.
ARTICLE I II
Non-Profit Purpose
The corporation is formed exclusively for purposes for which a
corporation may be formed under the Colorado Non-Profit Corporation Act
(hereinafter referred to as "Act") and not to distribute income or profit to its
members, directors, or officers except to the extent permitted under the Act.
ARTICLE IV
Purposes
The purposes for which the corporation is organized are as follows:
A. To be and to constitute the Association referred to in the
Condominium Declaration for The Independence Building, a condominium,
(hereinafter referred to as "Declaration"), this Declaration executed by
the owner of the property described therein, and recorded in the office of
the County Clerk and Recorder of Pitkin County, Colorado, which Declaration
established a plan of condominium ownership for certain real property situated
within Pitkin County, Colorado, described within the Declaration (this
property hereinafter referred to as "the Condominium"), pursuant to the
Colorado Condominium Ownership Act and the City of Aspen Municipal Code.
B. To perform the obligations and duties and to exercise the
rights and powers of the Association as set forth in the Declaration.
C. To purchase or otherwise acquire and own, hold, manage,
develop, maintain, rehabilitate, improve and sell, lease, exchange, encumber
or otherwise dispose of and deal in real property, whether improved or
unimproved, and any interest therein, of every kind and description, whether
in connection with or incident or related to the foregoing purposes.
D. To purchase or otherwise acquire and own, hold, manage,
maintain, rehabilitate, improve, develop and sell, lease exchange, encumber
or otherwise dispose of and deal in personal property in connection with or
incident or related to the foregoing purposes.
E. To provide an entity for the establishment and maintenance of
the Condominium as a prime lodge and commercial condominium of the highest
quality and value and further to do all things necessary and proper to
enhance and protect its value, desirability and attractiveness.
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ARTICLE V
Powers
In furtherance of its purposes, the corporation shall have the following
powers:
Act.
A. All those powers conferred on non-profit corporations under the
B. All those powers necessary to perform obligations and duties and to
exercise the rights and powers of the Association as set forth in the
Declaration.
C. To do everything necessary, suitable or proper for the
accomplishment of any of its non-profit corporate purposes, including, but
without limitation thereto, the following:
1. To make and collect assessments whether annual, special or
otherwise against members for the purpose of defraying the costs, expenses
and losses, if any, of the Association.
2. To manage, control, operate, maintain, repair, and improve the
general common elements of the condominium, as defined in the Colorado
Condominium Act and the Declaration.
3. To enforce covenants, restrictions or conditions affecting any
property of the Association to the extent the Association may be authorized
under the Declaration or otherwise.
4. To make and enforce rules and regulations with respect to the
use of the property in the condominium.
5.
hereafter be
advance the
condominium.
To engage in activities and endeavors which may now or
allowed or permitted by law to actively foster, promote and
common interests of owners of condominium units within the
ARTICLE VI
Memberships
A. The Association shall be a membership corporation without
certificates or shares of stock. There shall be one membership in the
Association for each condominium unit as defined in the Declaration so
existing from time to time in the condominium. No person or entity other
than an owner as defined in the Declaration may be a member of the
Association. The owner of each condominium unit shall have as it vote, the
number of points set forth at Exhibit A to the Declaration for all matters on
which members are entitled to vote, unless otherwise specified in the
Declaration.
B. The owner or owners of a condominium unit shall hold and share a
membership in the Association in the same proportional interest and by the
same type of tenancy as the title to that condominium unit so owned is held.
However, there shall be no fractional voting.
C. The Association may suspend any owner's voting rights in the
Association during any period or periods which such Owner fails to comply
with any rules or regulations of the Association or with any other obligation
of the owner of the condominium unit under the Declaration.
D. A membership in the Association and the shares of a member in the
assets of the Association shall not be assigned, encumbered or transferred in
any manner except appurtenant to transfer of title to a condominium unit to
which the membership pertains, provided, however, that the right of
membership may be assigned to the holder of a mortgage, deed of trust, or
other security instrument on a condominium unit as further security
instrulIII!nt on a condominium unit as further security for a loan secured by a
lien Ill! the condominium unit. A transfer of membership shall occur
automatically upon transfer of title to the. condominium unit to which the
membership pertains, provided, however, that the By-Laws of the Association
may cOlltain reasonable provisions and requirements with respect to recording
the transfers on the books and records of the Association.
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E. Members shall have no preemptive right to purchase other
condominium units or the memberships appurtenant thereto, except as may be
provided in the Declaration.
F. The By-Laws may contain provIsIons, not inconsistent with the
foregoing, setting forth the rights privileges, duties and responsibilities of
the members.
ARTICLE VII
Board of Directors
A. The business and affairs of the Association shall be conducted,
managed and controlled by the Board of Directors.
B. The Board of Directors shall consist of from three (3) to seven (7)
members, the specific number to be set forth from time to time in the
By-Laws of the Association. A change in these limits shall be made only by
amendment to these Articles of Incorporation. No decrease in the number of
directors shall have the effect of shortening the term of any incumbent
director. In the absence of any provision in the By-Laws, the Board shall
consist of three (3) members.
C. Members of the Board of Directors shall be elected at the annual
meeting of the members in the manner provided by the By-Laws.
D. The initial Board of Directors shall consist of the following three
(3) directors:
ROBERT B. GOLDBERG
1875 Century Park East
Suite 1300 Century City
Los Angeles, California 90067
GERALD LUSS
205 E. 42nd Street, Room 1515
New York, New York 10017
STAN MATHIS
Stan Mathis Architecture and Planning
720 East Hyman Avenue
Aspen, Colorado 81611
The directors shall serve for the periOd of time commensurate with the
designated group as specified in the By-Laws and until their respective
successors are duly elected and qualified.
E. The Board of Directors shall have the power to adopt such prudent
By-Laws and to alter the same as it may from time to time deem proper for
the management of the affairs of the Association, so long as they are not
inconsistent with the provisions of these Articles of Incorporation or the
Declaration.
ARTICLE VIII
Officers
The Board of Directors may appoint a President, one or more
Vice-Presidents. a Secretary, a Treasurer and any other officers as the
Board of Directors believes will be in the best interest of the Association.
The ofTtcers shall have duties as may be prescribed in the By-Laws of the
Association and shall serve at the pleasure of the Board of Directors.
ARTICLE IX
Rights of Association
The Association reserves the right to amend. alter, change or repeal any
provision contained in these Articles of Incorporation by a vote of
three-fourths (3/4) in voting interest of the members present and constituting
a quorUl/f at any regular or special meeting of the members.
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ARTICLE X
Initial Registered Office and Agent
The initial registered office and mailing address of the Association is at
Klein, Seigle and Krabacher P.C., 201 North Mill Street, Aspen, Colorado
81611. The initial registered agent at such address shall be Herbert S.
Klein.
ARTICLE XI
Incorporator
The incorporator of the Association is Robert B. Goldberg and his
address is 1875 Century Park East, Suite 1300 Century City. Los Angeles,
California 90067.
ARTICLE XII
Contracts with Directors
The following provision is inserted for the management of the business
and for the conduct of the affairs of the Association and the same is in
furtherance of and not in limitation or exclusion to any power conferred by
these Articles or by the law. No contract or other transaction of the
Association with any person, firm or corporation shall be affected or
invalidated by: (I) the fact that anyone or more of the directors or officers
of the Association is interested in or is a director or officer of another
corporation; or (ii) the fact that any director or officer, individually or
jointly with others, may be a party to or may be interested in any such
contract or transaction. Each person who may become a director or officer of
the Association is hereby relieved from any liability that might otherwise arise
by reason of his or her contracting with the Association for the benefit of
himself or herself or any firm or corporation in which he or she may be in
any way interested.
Signed this
day of
, 1985.
Robert B. Goldberg
I
I
I
STATE OF COLORADO)
) ss.
COU~nY OF PITKIN )
The foregoing instrument was acknowledged before me this
, 198_, by Robert B. Goldberg.
day of
Witness my hand and official seal.
My commission expires:
Notary Public
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EXHIBiT [)
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BYLAWS
OF
THE INDEPENDENCE BUILDING OWNERS' ASSOCIATION
The name of the corporation is The Independence Building Owners'
Association and is hereinafter referred to as the Association.
SECTION 1
Object
1.1 The purpose for which this Association is formed is to govern the
condominium property situated in the County of Pitkin, State of Colorado,
which property is describep as:
Lots A and B, and the West 7t feet of Lot C, Block 96, City and
Townsite of Aspen, Pitkin County, Colorado, and commonly known
as The Independence Building.
also known as 501 East Cooper Avenue, Aspen, Colorado 81611;
and,
and which property has been submitted to the provIsions of the Condominium
Ownership Act for the State of Colorado by a Declaration entitled
"Condominium Declaration for The Independence Building, a condominium,"
which declaration is hereinafter referred to as the Declaration.
1 . 2 AI I present or future owners, tenants, future tenants or any other
person having the facilities of the project in any manner are subject to the
regulations set forth in these bylaws. The mere acquisition or rental; of any
of the condominium units (hereinafter referred to as units) of the project or
the mere act of occupancy of any of the units will signify that these bylaws
are accepted, ratified and will be complied with.
SECTION 2
Membership, Voting, Majority of Owners, Quorum, Proxies
2.1 Members.
following:
Membership in the Association shall consist of the
a. Any person acquiring an interest in the real property other
than a mortgagee, beneficiary under trust deeds or as a lien claimant shall
automatically become a member of this Association. On the sale or transfer of
a unit by an owner, his membership shall terminate.
b. The Declarant under the Declaration or its successors or
assigns, for so long as it is an owner of any condominium unit in the project.
2.2 The voting shall be as provided for in the Declaration and in the
Articles of I ncorporation of the Association.
2.3 Majority of Unit Owners. As used in these bylaws, the term
"majority of unit owners" shall mean more than fifty percent (50%) of the
voting interest (points) held by the owners of the units. As used in this
paragraph, each unit shall be deemed to have one (1) owner.
2.4 Quorum. Except as otherwise provided in these bylaws, the
presence in person or by proxy of more than two-thirds (2/3) of the voting
interest of the membership of the Association shall constitute a quorum. An
affirmative vote of a majority of the votes entitled to be cast at a meeting,
determined by the presence of the voters or by proxy, shall be required to
transact business.
2.5 Proxies. Votes may be cast in person or by proxy. Proxies shall
be in writing and the signatures must be witnessed and acknowledged.
Proxies must be filed with the secretary before the appointed time of each
meeting.
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SECTION 3
Administration, Meetings of Members
3.1 Association Responsibilities. The owners of the units will constitute
the Association, which will have the responsibility of administering the project
through its board of directors.
3.2 Place of Meetings. Meetings of the Association shall be held at
such place as the board of directors may determine.
3.3 Annual Meetin1s. The annual meeting of the Association shal I be
held on the 1 st day of une of each year. At such meetings there shall be
elected by ballot of the owners a board of directors in accordance with the
requirements of Section 4.5 of these bylaws. The owners may also transact
such other business of the Association as may properly come before them.
3.4 Special Meetings. The president shall call a special meeting of the
owners when so directed by resolution of the board of directors or on
presentation to the secretary of a petition signed by a majority of the
owners. No business shall be transacted at a special meeting except as
stated in the notice unless by consent of three-fourths (3/4) of the unit
owners either in person or by proxy.
3.5 Notices. Notices of annual and specific meetings shall be given by
the president or secretary of the Association by regular mail addressed to the
registered addresses of the owners of the units at least fifteen (15) days
prior to the date set for such meeting. Any such notice shal I state the date,
time and place of the meeting and, if the meeting is a special meeting, the
purposes thereof. Waiver of notice, either in person or by proxy and signed
either before, at or after any meeting, shall be a valid substitute for service.
The certificate of the president or secretary that notice was duly given shall
be prima facie evidence thereof.
3.6 Adjourned Meeting. If any meeting of owners cannot be organized
because a quorum has not attended, the owners who are present either in
person or by. proxy may adjourn the meeting to a time not less than
forty-eight (48) hours from the time the original meeting was called.
3.7 Order of Business. The order of business at all meetings of the
owners of units shall be as follows:
a. Roll call.
b. Proof of notice of meeting or waiver of notice.
c. Reading of minutes of preceding meeting.
d. Reports of officers.
e. Reports of committees.
f. Election of directors.
g. Unfinished business.
h. New business.
SECTION 4
Board of Directors
(Powers and Meetings)
4.1 Number and Qualification. The affairs of this Association shall be
governed by a board of directors composed of between three (3) and seven
(7) persons and as provided for in the Declaration.
4.2 Powers and Duties. The board of directors shall have the powers
and duties necessary for the administration of the affairs of the Association
and for the operation and maintenance of a first-class project.
4.3 Other Powers and Duties. The board of directors shall be
empowered and shall have the following duties.
a. To administer and enforce the
restrictiOns, easements. uses, limitations, obligations
set forth in the Declaration.
covenants, conditions,
and all other provisions
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b. To establish, make and enforce compliance with such
reasonable house rules as may be necessary for the operation, use and
occupancy of this condominium project with the right to amend same from time
to time.
c. To keep or cause to be kept in good order, condition and
repair all of the general and limited common elements and all items of common
personal property, if any.
d. To insure and keep in force insurance as provided in
the Declaration.
e. To fix, determine, levy and collect the quarterly prorated
assessments to be paid by each of the owners toward the gross expenses of
the entire premises and by majority vote of the board to adjust, decrease or
increase the amount of the quarterly assessments. To levy and collect special
assessments whenever in the opinion of the board it is necessary to do so in
order to meet increased operating or maintenance expenses or cOsts or
additional capital expenses or because of emergencies. All quarterly or other
assessments shall be mailed to the registered mailing address of the owner not
later than on the first day of each quarter.
f. To set aside from time to time those sums it deems expedient
as a reserve fund to meet contingencies for maintaining any property of the
Association and for any other Association purposes.
g. To collect delinquent assessments by suit or otherwise and to
enjoin or seek damages from an owner as is provided in the Declaration and
these bylaws.
h. To protect and defend the entire premises from loss and
damage by suit or otherwise.
i. To borrow funds only when so authorized by seventy-five
percent (75%) written consent and authority of the voting interests of the
unit owners and, when so authorized to execute all such instruments
evidencing such indebtedness as is expressly authorized. Any such
authorized indebtedness shall be the several obligation of all of the unit
owners only in the same proportion as their interest in the general common
elements. Additional liens, other than judgment liens, mechanic's liens,
assessments liens or tax liens, may be obtained against existing general or
limited common elements only when so authorized by seventy-five percent
(75%) written consent of the voting interest of the unit owners or when so
authorized by unanimous consent of the Board of Directors and one hundred
percent (100%) of the first mortgagees of record.
powers.
j. To enter into contracts within the scope of their duties and
k. To establish a bank account for the common treasury and for
all separate funds which are required or may be deemed advisable by the
board of directors,
I. To keep and maintain full and accurate books and records
showing all of the receipts, expenses of disbursements and to permit
examinatioo thereof at any reasonable time by each of the owners and their
mortgagees .
m. To prepare and deliver annually to each owner a statement
showing in a least summary form all receipts, expenses or disbursements since
the last such statement.
n. To meet at least semiannually.
o. To designate and remove the personnel necessary for the
maintenance and operation of the general and limited common elements.
p. To adopt rules and regulations governing the operation and
use of tfle common elements and rules and regulations specifying the
restrictioTlS on and requirements respecting the use and maintenance of the
units and the use of the general and limited common elements so as to prevent
unreasonable interference with the use of their respective units and the
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common elements by the several units owners. Copies of all rules and
regulations adopted shall be furnished to unit owners at or prior to the time
the rules and regulations become effective.
q.
and to do all
the communal
In general, to carryon the administration
of those things necessary and reasonable in
aspect of condominium ownership.
of this Association
order to carry out
4.4 Management Agent. The board of directors may employ for the
Association a management agent at a compensation established by the board to
perform such duties and services as the board shall authorize including and
not limited to the duties listed in Section 4.3 hereof; however, the board of
directors, when so delegating, shall not be relieved of its responsibility
under the Declaration. Any management agreement shall be subject to the
terms of the Declaration.
4.5 Election and Term of Office. At the organizational meeting of the
Association, the initial directors of the corporation shall be elected for a term
which will expire on the second annual meeting of the Association. At each
annual meeting thereafter, a board of directors shall be elected by and from
the unit owners for a term of one (1) year; and they shall serve until their
successors have been elected and hold their first meeting.
4.6 Vacancies. Vacancies in the board of directors by any reason other
than the removal of a director by a vote of the Association shall be filled by
vote of the majority of the remaining directors, even though they may
constitute less than a quorum; and each person so elected shall be a director
until a successor is elected in the next annual meeting of the Association.
4.7 Removal of Directors. At any regular meeting or at any special
meeting called for that purpose, anyone (1) or more of the directors may be
removed with or without cause by a majority in interest of the unit owners;
and a successor then and there may be elected to fill the vacancy thus
created. Any director whose removal has been proposed by the owners shall
be given an opportunity to be heard at the meeting.
4.8 Organization Meeting. The first meeting of a newly elected board
of directors shall be held within ten (10) days of election at such place as
shall be fixed by the directors at the meeting at which such directors were
elected; and no notice shall be necessary to the newly elected directors in
order legally to institute such meeting, providing a majority of the whole
board shall be present.
4.9 Regular Meetings. Regular meetings of the board of directors may
be held at such time and place as shall be determined from time to time by a
majority of the directors, and at least two (2) such meetings shall be held
during each fiscal year. Notice of regular meetings of the board of directors
shall be given to each director personally or by mail, telephone or telegraph
at least three (3) days prior to the day named for such meeting.
4.10 Special Meetings. Special meetings of the board of directors may
be called by the president on three (3\ days notice to each director given
personally or by mail, telephone or telegraph, which notice shall state the
time, place (as hereinabove provided) and purpose of the meeting. Special
meetings of the board of directors shall be called by the president or
secretary in like manner and on like notice on the written request of at least
two (2} directors.
4.11 Waiver of Notice. Before, at or after any meeting of the board of
directors, any director may, in writing, waive notice of such meeting; and
such waiver shall be deemed equivalent to the giving of such notice.
Attendance by a director at any meeting of the board shall be a waiver of
notice by him of the time and place thereof. If all the directors are present
at any meeting of the board, no notice shall be required; and any business
may be transacted at such meeting.
4.12 Quorum. At all meetings of the board of directors, a majority
thereof shall constitute a quorum for the transaction of business; and the
acts of the majority of the directors present at a meeting at which a quorum
is present shall be the acts of the board of directors. If, at any meeting of
the blliiird of directors, there is less than a quorum present, the majority of
those present may adjourn the meeting from time to time. At any such
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adjourned meeting any business which might have been transacted at the
meeting as originally called may be transacted without further notice.
4.13 Fidelity Ronds. The board of directors may require that all
officers and employees of the Association handling or responsible for the
Association funds shall furnish adequate fidelity bonds. The premiums on
such bonds shall be paid by the Association.
SECTION 5
Officers
5.1 Designation. The officers of the Association shall be a president, a
vice president, a secretary and a treasurer, all of whom shall be elected by
and from the board of directors.
5.2 Election of Officers. The officers of the Association shall be
elected annually by the board of directors at the organizational meeting of
each new board and shall hold office at the pleasure of the board. One (1)
person may hold concurrently any two (2) offices except president and
secretary. The office of vice president need not be filled.
5.3 Removal of Officers. On an affirmative vote of a majority of the
members of the board of directors, any officer may be removed with or
without cause and his successor elected at any regular meeting of the board
or at any special meeting of the board called for such purpose.
5.4 President. The president shall be the chief executive officer of the
Association. He shall preside at all meetings of the Association and the board
of directors. He shall have all of the general powers and duties which are
usually vested in the office of president of a corporation including and not
limited to the power to appoint committees from among the owners from time to
time as he may in his discretion decide is appropriate to assist in the conduct
of the affairs of the Association.
5.5 Vice President. The vice president shall have all the powers and
authority and perform all of the functions and duties of the president, in the
absence of the president and his inability for any reason to exercise such
powers and functions or perform such duties.
5.6 Secretary. The secretary shall keep the minutes of meetings of the
board of directors and minutes of the Association; he shall have charge of
such books and papers as the board of directors may direct; and he shall, in
general. perform all the duties incident to the office of secretary. The
secretary shall compile and keep up to date at the principal office of the
Association a complete list of members and their registered mailing addresses.
Such list shall also show opposite each member's name the number or other
appropriate designation of the apartment unit owned by such member. Such
list shall be open to inspection by members and other persons lawfully
entitled to inspect the same at reasonable times during regular business
hours.
5.7 Treasurer. The treasurer shall have responsibility for Association
funds and shall be responsible for keeping full and accurate accounts of all
receipts and disbursements in books belonging to the Association. He shall
be responsible for the deposit of all monies and other valuable effects in the
name and to the credit of the Association in such depositories as may from
time to time be designated by the board of directors.
SECTION 6
Indemnification of Officers and Directors
The Association shall indemnify every director or officer, his heirs,
executors and administrators against all loss, costs and expense, including
attorney's fees, reasonably incurred by him in connection with any action,
suit or proceeding to which he may be made a party by reason of his being
or having been a director or officer of the Association, except as to matters
to which he shall be finally adjudged in such action, suit or proceeding to be
liable for gross negligence or willful misconduct. In the event of a
settlement, indemnification shall be provided only in connection with such
matters covered by the settlement as to which the Association is advised by
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counsel that the person to be indemnified has not been guilty of gross
negligence or willful misconduct in the performance of his duty as such
director or officer in relation to the matter involved. The foregoing rights
shall n?t be exclusi:-e .o.f other rights to which such director or officer may
be entitled. All liabIlity, loss, damage, costs and expense incurred or
suffered by the Association by reason of or arising out of or in connection
with the foregoing indemnification provisions shall be treated and handled by
the Association as common expenses provided, however, that nothing
contained in this Section 6 shall be deemed to obligate the Association to
indemnify any member or owner of a condominium unit who is or has been a
director or officer of the Association with respect to any duties or obligation
assumed or liabilities incurred by him under and by virtue of the Declaration
as a member or owner of a condominium unit covered thereby.
SECTION 7
Obligation of the Owners
7.1 Assessments. Except as otherwise provided in the Declaration, all
owners shall be obligated to pay the quarterly assessments imposed by the
Association to meet the common expenses; and payment thereof shall be made
not later than on the tenth day following the mailing of the quarterly
statement to the registered mailing address of the owner. The assessments
shall be made on a prorata basis according to percentage interest in and to
the general common elements and shall be due quarterly in advance. A
member shall be deemed to pe in good standing and entitled to vote at any
annual or at a special meeting of members within the meaning of these bylaws,
if and only if he shall have fully paid all assessments made or levied against
him and the condominium unit owned by him.
7.7 Maintenance and Repair.
a. Except as provided in the Declaration, every owner must
perform promptly at his own expense all maintenance and repair work within
his own unit and limited common elements which, if omitted, would adversely
affect the project in its entirety or in part or undermine the quality and
status of the Condominium as a first-class ski resort lodge and commercial
condominium.
b. All the repairs of internal installations of the unit, such as
water, light, gas, power, sewage, telephones, sanitary installations, doors,
windows, electrical fixtures and all other accessories, equipment and fixtures,
including any air conditioning equipment belonging to the unit and including
appurtenant limited common elements, shall be at the owner's expense.
c. An owner shall be obligated to reimburse the Association or
another unit owner promptly on receipt of a statement for any expenditures
incurred by the Association or other unit owner or both in repairing,
replacing, restoring any general common elements or the interior or any part
of an apartment unit damaged as a result of negligent or other tortious
conduct of such owner, a member of his family, his agent, employee, invitee,
licensee or tenant.
7.3 Mechanic's Lien. Each owner agrees to indemnify and hold each of
the other owners harmless from any and all claims of mechanic's lien filed
against other units and the appurtenant general common elements for labor,
materials, services or other products incorporated in the owner's unit. In
the event suit for foreclosure of mechanic's lien is commenced, within ninety
(90) days thereafter, such owner shall be required to deposit with the
Association cash or negotiable securities equal to the amount of such claim
plus interest for one (1) year together with the sum of two hundred dollars
($200."). Such sum or securities shall be held by the Association pending
final judgment or settlement. Any deficiency shall be paid forthwith by the
subject owner, and his failure to so pay shall entitle the Association to make
such payment; and the amount thereof shall be a debt of the owner and a lien
against his condominium unit which may be foreclosed as is provided for in
the DEdaration.
7.11 General.
a.
Declaration.
Each owner shall comply strictly with the provisions of the
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b. Each owner shall always endeavor to observe and promote the
cooperative purposes for which the condominium project was established.
7.5 Use of Units - Internal Changes.
Except as permitted by the Declaration:
a.
Declaration.
Units shall be utilized for only those purposes permitted in the
b. An owner shall not make interior modifications or alterations to
his unit or installations located therein without previously notifying the
Association in writing through the managing agent or, if no managing agent is
employed, through the president of the board of directors. The Association
shall have the obligation to answer within ten (10) days after receipt of the
notice, and failure to do so shall mean there is no objection to the proposed
modification or alteration.
7.6 Use of General Common Elements. Each owner may use the general
common elements in accordance with the purposes for which they are intended
so long as this use does not hinder or encroach on the lawful rights of the
other owners.
7.7 Right of Entry.
a. An owner shall grant the right of entry to the managing agent
or to any other person authorized by the board of directors in case of any
emergency originating in or threatening his unit, whether the owner is
present at the time or not.
b. An owner shall permit the other owners or their
representatives, when so required, to enter his unit for the purpose of
performing installations, alterations or repairs to the mechanical or electrical
services, provided such requests for entry are made in advance and such
entry is at a time convenient to the owner. In the case of an emergency,
such right of entry shall be immediate.
7.8 Rules and Regulations.
a. No resident of the project shall place any advertisement or
poster of any kind in or on the project except as authorized by the
Association provided, however, that th is shall not apply to the Association or
Declarant or to approved signage for the commercial units.
b. Owners and occupants of condominium units shall exercise
extreme care to avoid making or permitting to be made loud or objectionable
noises and in using or playing or permitting to be used or played musical
instruments, radios, phonographs, television sets, amplifiers and any other
instruments or devices in such manner as may disturb or tend to disturb
owners, tenants or other occupants of condominium units.
c. It is prohibited to hang garments, rugs and other materials
from the windows or from any of the facades or balconies of a building or any
of the improvements.
d. It is prohibited to throw garbage or trash outside the disposal
installations provided for such purposes.
e. No owner, resident or lessees shall install wiring for electrical
or telephone installation, television antenna machines or air conditioning units
on the exterior of the project or that protrude through the walls or the roof
of the project except as expressly authorized by the Association or by the
Declarations.
f. Pets shall not be permitted on the project.
g. There is to be no parking in the driveways.
h. The board of directors or the managing agent reserves the
power to establish, make and enforce compliance with such additional house
rules as may be necessary for the operation, use and occupancy of this
condominium project with the right to amend same from time to time.
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7.9 Power of Attorney. Each owner shall, on becoming an owner of a
condominium unit, execute a power of attorney in favor of the Association,
irrevocably appointing the Association his attorney in fact to maintain, repair
and improve the building and general and limited common elements and to deal
with the owner's condominium unit on its destruction or obsolescence as is
provided in the Declaration. The purpose of such execution shall be more
fully to evidence such appointment, and failure to execute such power of
attorney shall in no way derogate from the appointment provided in the
Declaration.
SECTION 8
Amendments
These bylaws may be amended by the Association members at a duly
constituted meeting for such purpose, and no amendment shall take effect
unless approved by two-thirds (2/3) in interest of the owners. The notice of
such meeting shall contain a summary of the proposed changes or a copy of
such proposed changes provided, however, as long as the Declarant is in
control of the selection of the board of directors of the Association as
provided for in the Declaration, the Declarant may amend these bylaws so
long as a copy of any change is mailed to the registered address of each
owner. These bylaws may also be amended by a two-thirds (2/3) vote of the
Board of Directors.
SECTION 9
Mortgages
9.1 Notice to Association. An owner who mortgages his unit shall
notify the Association through the managing agent, if any, or the president
of the Association, giving the name and address of his mortgagee. The
Association shall maintain such information in a book entitled "Mortgagees of
Units."
9.2 Notice of Unpaid Assessments.
request of the first mortgagee of a unit
from the owner of such unit.
The Association shall at the written
report any unpaid assessments due
SECTION 10
Evidence of Ownership, Registration
of Mailing Address and Required Proxies
10.1 Proof of Ownership. Any person on becoming an owner of a
condominium unit shall furnish to the managing agent or board of directors a
photocopy or a certified copy of the recorded instrument vesting that person
with an interest or ownership, which instrument shall remain in the files of
the Association. A member shall not be deemed to be in good standing or
entitled to vote at any annual or at a special meeting of members unless this
requirement is first met.
10.2 Registration of Mailing Address. The owners of each condominium
unit shall have one (1) and the same registered mailing address to be used
by the Association for mailing monthly statements, notices, demands and all
other communications; and such registered address shall be the only mailing
address of a person or persons, firm corporation, partnership, association or
other legal entity or any combination thereof to be used by the Association.
Such registered address of a condominium unit owner or owners shall be
furnished by such owners to the secretary within five (5) days after transfer
of title, such registration shall be in written form and signed by all of the
owners of the condominium unit or by such persons as are authorized by law
to represent the interests of all of the owners thereof. If no such address is
registered or if all of the owners cannot agree, then the address of the unit
shall be the registered address until another registered address is
furnished as permitted under this section. Registered addresses may be
changed from time to time by similar designation.
10.3 Required Proxies. If title to a condominium unit is held by more
than one (1) person or by a firm, corporation, partnership, association or
other legal entity or any combination thereof, such owners shall execute a
proxy appointing and authorizing one (1) person or alternate persons to
attend all annual and special meetings of members and threat to cast whatever
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vote the owner himself might cast if he were personally present. Such proxy
shall be effective and remain in force unless voluntarily revoked. amended or
sooner terminated by operation of law provided. however. that. within thirty
(30) days after such revocation. amendment or termination, the owner shall
reappoint and authorize one (1) person or alternate persons to attend all
annual and special meeting as is provided by this Section 10.3.
10.4 The requirements contained in this Section 10 shall be first met
before an owner of a condominium unit shall. be delilmed in good standing and
entitled to vote at any special or annual meeting of members.
SECTION 11
Compliance
These bylaws are intended to comply with the requirements of the
Colorado Condominium Ownership Act. If any of these bylaws conflicts with
the provision of the statute, the provisions of the statute will apply.
SECTION 12
Not for Profit
This Association is not organized for profit. No member, member of the
board of directors or persons from whom the Association may receive any
property or funds shall receive or shan be lawfully entitled to receive any
pecuniary profit from the operation thereof; and in no event shall any part of
the funds or assets of the Association be paid as salary or compensation to be
distributed to or inure to the benefit of any member of the board of directors
provided, however. always (1) that reasonable compensation may be paid to
any member or manager while acting as an agent or employee of the
Association for the services rendered in effecting one or more of the purposes
of the Association and (2) that any member or director may, from time to
time, be reimbursed for his actual and reasonable expenses incurred in
connection with the administration of the affairs of the Association.
SECTION 13
Unpaid Common Expenses - Ascertaining Liability
On payment of a reasonable fee, not to exceed twenty-five dollars
($25.00). and on the written request of any owner or any mortgagee or
prospective mortgagee of a condominium unit. the Association, by its
managing agent or, if there is none, by its board of directors, shall issue a
written statement setting forth the amount of the unpaid common expenses, if
any. with respect to such unit. the amount of the current monthly assessment
and the date such assessment becomes due, credit for advanced payments or
for prepaid items, including and not limited to insurance premiums. which
statement shall be conclusive on the Association in favor of all persons who
rely thereon in good faith. Unless the request for such statement is complied
with within ten (10) days, all unpaid common expenses which become due
prior to the date of making such request shall be subordinate to the lien of
the person requesting such statement.
SECTION 14
Recreational Facilities
Any recreational facilities of the condominium shall be available to all
lodge unit owners and lodge guests. Fees or charges in conjunction with the
use. maintenance and upkeep of these facilities shall be included within the
regular assessment.
SECTION 15
Seal
The corporate seal shall consist of concentric circles with the name of
the corporation and the word "Colorado" between and the word "Seal" in the
center.
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SECTION 16
Services
The following services are provided by the Association and are paid for
out of the regular assessment.
1." Snow removal.
2. Trash removal.
3. Groundskeeping.
4. Cable television.
5. Maintenance and repairs to exterior of building and all other
common areas.
6. Payment of all common utility expenses.
7. Payment of common elements insurance expenses.
8. Establish and maintain reserve-sinking fund.
Additional services may be provided as may be determined by the Board
of Directors.
I N WITNESS WHEREOF. the undersigned have adopted these bylaws this
_ day of . 1985.
BOARD OF DIRECTORS
The undersigned secretary of The Independence Building Owners'
Association, a Colorado corporation not for profit, does hereby certify that
the above and foregoing bylaws were duly adopted by the board of directors
as the bylaws of the corporation on the day of , 1985, and
that they do now constitute the bylaws orne corporation.
Secretary
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MEMJRANDUM
FROM:
f/ OV,l;"J Autl.c,j1y
City Attorney
City Engineer
Steve Burstein, Planning Office
Independence Square Lodge Condominiumization
City Case No. 046A-85
December 3, 1985
I
TO:
RE:
DATE:
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Attached for your review is an application submitted by Herb Klein of
Klein, Seigle & Krabacher, on behalf of their client The Independence
Company, requesting approval of condominiumization of the Independence
Square Lodge (f/k/a Independence Building) at the southeast corner of
Galena and Durant.
Please review this application and return your Comments to the
Planning Office no later than December 23rd, in order for this
office to have adequate time to prepare for its presentation at the
fir st meeti ng of the City P&Z on January 7, 1986.
Should you have any questions, or if you anticipate any problems
meeting this deadline, please contact the Planning Office immediately.
Thank you.