HomeMy WebLinkAboutLanduse Case.EX.101 W Main St.59-80
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MEMORANDUM
TO: Jim Reents, Housing Director
Dan McArthur, City Engineer
City Attorney
FROM: Sunny Vann, Planning Office
RE: Aspen Ski Lodge Subdivision Exception
DATE: October 27, 1980
The attached application, submitted by JPW Partners and the Aspen Ski Lodge
Associates, requests subdivision exception for the purpose of condominiumi-
zation for the Aspen Ski Lodge, located on Main Street. This item is
scheduled to come before the Aspen Planning and Zoning Commission on
November 18, 1980; therefore, may I please have your written comments regarding
this application no later than November 7, 1980? Thank you.
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. f\L TA ,"wner's "'olicy - Form B -- Amended 10"17-70
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The following matters are expressly excluded from the coverage of this policy: ( . ~
1. Any law, ordinance or governmental regulation (including but not limited to building and zoning ordinances) restricting or regulating or i,,', ly<~
prohibiting the occupancy, use or enjoyment of the land, or regulating the character, dimensions or location of any improvement now or ~. ..~
hereafter erected on the land, or prohibiting a separation in ownership or a reduction in the dimensions or area of the land, or the e~fect t~ ti:..,
of any violation of any such law, ordinance or governmental regulation. ~t.' .~.
2. Rights of eminent domain or governmental rights of police power unless notice of the exercise of such rights appears in the public ;:; . ~.
records at Date of Policy. ~.
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3. Defects, liens. encumbrances, adverse claims. or other matters la) created, suffered. assumed or agreed to by the insured claimant, (b) not
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known to the Company and not shown by the public records but known to the insured claimant either at Date of Polley or at the date t t
such claimant acquired an estate or interest insured by this policy and not disclosed in writing by the insured claimant to the Company 1,= ~:',...
prior to the date such insured claimant became an insured hereunder; Icl resulting in no loss or damage to the insured claimant; (d) _'~
attaching or created subsequent to Date of Policy; or Ie) resulting in loss or damage which would not have been sustained if the insured,~ l~;~
claimant had paid value for the estate or interest insured by this policy. f ':fi:
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POLICY OF TITLE INSURANCE ISSUED BY
s"'rEWART TITLE
GUARANTY
COMPANY
SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE EXCEPTIONS CONTAINED IN SCHEDULE BAND
THE PROVISIONS OF THE CONDITIONS AND STIPULATIONS HEREOF, STEWART TITLE GUARANTY
COMPANY, a corporation of Galveston, Texas, herein called the Company, insures, 3S of Date of Policy shown in
Schedule A, against loss or damage, not exceeding the amount of insurance stated in Schedule A, and costs, attorneys'
fees and expenses which the Company may become obligated to pay hereunder, sustained or incurred by the insured by
reason of:
1. Title to the estate or interest described in Schedule A being vested otherwise than as stated therein;
2. Any defect in or lien or encumbrance on such title;
3.
4.
Lack of a right of access to and from the land; or
Unmarketability of such title
IN WITNESS WHEREOF, Stewart Title Guarantv Company has caused this poticV to be signed and sealed by its
duly authorized officers as of Date of Policy shown in Schedule A.
STK\VAR'l' 'l'I'l'LE
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GUARANTY COMPANY
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Chairman of the Board
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Countersigned:
President
EXCLUSIONS FROM COVERAGE
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Page 1 of 0
Policy Serial No.
3?2905
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1. DEFINITION OF TERMS
,
,.CONDITIONS AND STIPULATIONS
The following terms when used in this policy mean:
(a) "insured": th~ insured named in Schedu'le A, and,
subject to any rights or defenses the Company may have
against the named insured, those who succeed to the
interest of such insured by operation of law as distinguished
from purchase including, but not limited to, heirs, dis-
tributees, devisees, survivors, personal representatives, next
of kin, or corporate or fiduciary successors.
(b) "insured claimant": an insured claiming loss or
damage hereunder.
(c) "knowledge": actual knowledge, not constructive
knowledge or notice which may be imputed to an insured
by reason of any public records.
(d) "land", the land described, specifically or by
reference in Schedule A, and improvements affixed thereto
which by law constitute real property; provided, however,
the term "land" does not include any property beyond the
lines of the area specifically described or referred to in
Schedu Ie A, nor any right, title, interest, estate or easement
in abutting streets, roads, avenues, alleys, lanes, ways or
waterways, but nothing herein shall modify or limit the
extent to which a right of access to and from the land is
insured by this policy.
(el "mortgage": mortgage, deed of trust, trust deed, or
other security instrument.
(f) "public records": those records which by law
impart constructive notice of matters relating to said land,
2. CONTINUATION OF INSURANCE AFTER CON-
VEYANCE OF TITLE
The coverage of this policy shall continue in force as of
Date of Policy in favor of an insured so long as such insured
retains an estate or interest in the land, or holds an
indebtedness secured by a purchase money mortgage given
by a purchaser from such insured, or so long as such insured
shall have liability by reason of covenants of warranty made
bv such insured in any transfer or conveyance of such
estate or interest; provided, however, this policy shall not
continue in force in favor of any purchaser from such
insured of either said estate or interest or the indebtedness
secured by a purchase money mortgage given to such
insured.
3. DEFENSE AND PROSECUTION OF ACTIONS-
NOTICE OF CLAIM TO BE GIVEN BY AN INSURED
CLAIMANT
(a) The Company, at its own cost and without undue
delay, shall provide for the defense of an insured in all
litigation consisting of actions or proceedings commenced
against such insured, or a defense interposed against an
insured in an action to enforce a contract for a sale of its
estate or i"nterest in said land, to the extent that such
litigation is founded upon an alleged defect, lien,
encumbrance, or other matter insured against by this
policy.
(b) The insured shall notifv the Company promptly in
writing (i) in case any action or proceeding is begun or
defense is interposed as set forth in (a) above, (ii) in case
knowledge shalt come to an insured hereunder of any claim
of title or interest which is adverse to the title to the estate
or interest as insured, and which might cause loss or damage
for ,,,,hich the Company may be liable by virtue of this
policy or, (iii) if title to the estate or interest, as insured, is
rejected as unmarketable. If such prompt notice shall not
be given to the Company, then as to such insured all
liability of the Company shall cease and terminate in regard
to the matter or matters for which such prompt notice is
required; provided, however, that failure to notify shall in
no case prejudice the rights of any such insUfed under this
policy unless the Company shall be prejudiced by such
failure and then only to the extent of such prejudice.
(c) The Company shall have the right at its own cost tc
institute and without undue delay prosecute any action 01
proceeding or to do any other act which in its opinion ma\,
be necessary or desirable to establish the title to the estate
or interest as insured, and the Company may take any
appropriate action under the terms of this policy, whether
or not it shall be liable thereunder, and shall not thereby
concede liability or waive any provision of this policy.
(d) Whenever the Company shall have brought any
action or interposed a defense as required or permitted by
the provisions of this policy, the Company may pursue any
such litigation to final determination by a court of
competent jurisdiction and expressly reserves the right, in
its sole discretion, to appeal from any adverse judgment or
order.
(e) In all cases where this policy permits or requires
the Company to prosecute or provide for the defense of
any action or proceeding, the insured hereunder shall secure
to the Company the right to so .prosecute or provide
defense in such action or proceeding, and all appeals
therein, and permit the Company to use, at its option, the
name of such insu red for such pu rpose. Whenever requested
by the Company, such insured shall give the Company all
reasonable aid in any such action or proceeding, in effecting
settlement, securing evidence, obtaining witnesses, or pros-
ecuting or defending such action or proceeding, and the
Company shall reimburse such insured for any expense so
incurred.
4. NOTICE OF LOSS - LIMITATION OF ACTION
In addition to the notices required under paragraph
3(b) of these Conditions and Stipulations, a statement in
writing of any loss or damage for which it is claimed the
Company is liable under this policy shall be furnished to
the Company within 90 days after such loss or damage shall
have been determined and no right of action shall accrue to
an insured claimant until 30 days after such statement shall
have been furnished. Failure to furnish such statement of
loss or damage shall terminate any liability of the Company
under this policy as to such loss or damage.
5. OPTIONS TO PAY OR OTHERWISE SETTLE
CLAIMS
The Company shall have the option to payor otherwise
settle for or in the name of an insured claimant any claim
insured against or to terminate all 1i2bility and obligations
of the Company hereunder by paying or tendering payment
of the amount of insurance under this policy together with
any costs, attorneys' fees and expenses incurred up to the
time of such payment or tender of payment, by the insured
claimant and authorized by the Company.
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(continued and concluded on last page of this policy)
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AL TA OW~ER'S POLICY - Amend~{O!l7/70
SCHEDULE A
Order No.: 8374
Policy No.: 0 322905
Date of Policy:
JAt~ARY 8, 1979 AT 8:00 A.M.
Amount of Insurance: $ 850,000.00
1. Name of Insured: J. P. W., A COLORADO GENERAL PARTNERSHIP
2. The estate or interest in the land'described herein and which is covered by this policy is:
IN FEE SIMPLE
3. The estate or interest referred to herein is at Date of Policy vested in:
J. P. W., A COLORADO GENERAL PARTNERSHIP
4. The land referred to in this policy is described as follows:
Lots E, F, G, H and I, Block 59,
CITY AND TOWNSITE OF ASPEN,
County of Pitkin, State of Colorado.
Page 2
~'1'E",AHT TITLE
(;CARA.~TY CO~I'\'\
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SCHEDULE B
Order 1'0. 8374
Policy No.: 0 322905
This policy does not insure against loss or damage by reason of the following:
1 Rights or claims of parties in possession not shown by the public records.
"} Easements, or claims of easements, not shown by the public records.
3. Discrepancies, conflicts in boundary lines, shortage in area, encroachments, and any facts which 3
correct survey and inspection of the premises would disclose and which are not shown by the
public records.
4. Any lien, or right to a lien, for services, labor or material heretofore or hereafter furnished, imposed
by law and not shown by the public records. .
5.Taxes for the year 1978 and thereafter, and any special assessment or charges
not yet certified to the office of the County Treasurer.
6.Any tax, assessment, fees or charges by reason of the inclusion of subject property
in Aspen Fire Protection District, Aspen Sanitation District, Aspen Street Improve-
ment District and the City of Aspen.
7.Terms, conditions, restrictions and obligations as set forth in instrument assigning
subject property Historic Designation, recorded December 9, 1976 in Book 321
at page 51.
8.Deed of Trust from Smuggler Lodge Inc., to the Public Trustee of Pitkin County
for the use of Lime1ite, Inc., to secure $275,000.00 dated October 15, 1973
and recorded October 16, 1973 in Book 280 at page 509.
9.Security interest under the Uniform Commercial Code affecting the subject property,
notice of which is given by Financing Statement from Smuggler Lodge, Inc., debtor
to Lime1ite, Inc., Secured party, filed October 16, 1973, as Filing No. 02442.
~o.Deed of Trust from J. P. W., a Colorado corporation, to the Public Trustee of
Pitkin County for the use of Smuggler Lodge, Inc., a Colorado corporation, to
secure $361,449.00 dated December 14, 1978 recorded December 19, 1978 in Book
360 at page 219.
Page 3
STB,\\TART TITLE
GUARANTY COMPANY
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6. DETERMINATION AND PAYMENT OF LOSS
(a) The liability of the Company under this policy
s.'1all in no case exceed the least of:
. (i) the actual loss of the insured claimant; or
(iit the amount of insurance stated in Schedule A.
(b) The Company will pay, in addition to any loss
insured, against by this policy. all costs imposed upon an
in!>lIred in litigation carried on by the Company for such
inwred, and all costs, attorneys' fees and expenses in
litigation carried on by such insured with the written
au thorization of the Company.
ee) When liability has been definitely fixed in accord-
ance with the conditions of this policy, the loss or damage
shall be payable within 30 days thereafter.
7. LIMITATION OF LIABILITY
No claim shall arise or be maintainable under this
policy (al if the Company, after having received notice of
an alleged defect, lien or encumbrance insured against
hereunder, by I itigation or othe(wise, removes such defect,
lienor encumbrance or establishes the title, as insured,
within a reasonable time after receipt of such notice; {b} in
the event of litigation until there has been a final
determination by a court of competent jurisdiction, and
disposition of all appeals therefrom, adverse to the title, as
insured, as provided in paragraph 3 hereof; or (c) for
liability voluntarily assumed by an insured in settling any
claim or suit without prior written consent of the Com-
pany.
8. REDUCTION OF LIABILITY
All payments under this policy, except payments made
for costs, attorneys' fees and expenses, shall reduce the
amount of the insurance pro tanto. No payment shall be
made without producing this policy for endorsement of
such payment unless the policy be lost or destroyed, in
which case proof of such loss or destruction shall be
furnished to the satisfaction of the Company.
9. LIABILITY NONCUMULATIVE
It is expressly understood that the amount of insurance
under this policy shall be reduced by any amount the
Company may pay under any policy insuring either (a) a
mortgage shown or referred to in Schedule B hereof which
is a lien on the estate or interest covered by this policy, or
(b) a mortgage hereafter executed by an insured which is a
charge or lien on the estate or interest described or referred
to in Schedule A, and the amount so paid shall be deemed a
payment under this pOlicy. The Company shall have the
option to c,pply to the payment of any such mortgages any
amount that otherwise would be payable hereu nder to the
insured owner of the estate or interest covered by this
policy and the amount so paid shall be deemed a payment
under this policy to said insured owner.
10. APPORTIONMENT
If the land described in Schedule A consists of two or
more parcels which are not used as a single site, and a loss is
established affecting one or more of said parcels but not alt,
the loss shall be computed and settled on a pro rata basis as
Valid Only If Schedules A and B are Attached.
if the amount of insurance under this policy was divided
pro rata as to the value on Date of Policy of each separate
parcel to the whole, exclusive of any improvements made
subsequent to Date of Policy, unless a liability or value haS
otherwise been agreed upon as to each such parcel by the
Company and the insured at the time of the issuance of this
policy and shown by an express statement herein or by an
endorsement attached hereto.
11. SUBROGATION UPON PAYMENT OR SETTLE-
MENT
Whenever the Company shall have settled a claim under
this policy, all right of subrogation shall vest in the
Company unaffected by any act of the insured claimant.
The Companv shall be subrogated to and be entitled to ell
rights and remedies which such insured claimant would
have had against any person or property in respect to such
claim had this policy not been issued, and if requ"ested by
the Company, such insured claimant shall transfer to the
Company all rights and remedies against any person or
property necessary in order to perfect such right of
subrogation and shall permit the Company to use the name
of such insured claimant in any transaction or litigation
involving such rights or remedies, If the payment does not
cover the loss of such insured claimant, the Company shall
be subrogated to such rights and remedies in the proportion
which said payment bears to the amount of said loss. If loss
should result from any act of such insured claimant such
act shalt not void this policy, but the Company, i~ that
event, shall be required to pay only that part of any losses
insured against hereunder which shall exceed the amount if
any. lost to the Company by reason of the impairment'of
the right of subrogation.
12. LIABILITY LIMITED TO THIS POLICY
This instrument together with all endorsements and
other instruments, if any, attached hereto by the Company
is the entire policy and contract between the insured and
the Company.
Any claim of loss or damage, whether or not based on
negligence, and which arises out of the status of the title to
the estate or interest covered hereby or any action asserting
such claim, shall be restricted to the provisions and
conditions and stipulations of this policy.
No amendment of or endorsement to this policy can be
made except by writing endorsed hereon or attached hereto
signed by either the President, a Vice President, the
Secretary, an Assistant Secretary, or validating officer or
authorized signatory of the Company,
13. NOTICES, WHERE SENT
All notices required to be given the Company and any
statement in writing required to be furnished the Company
shall be addressed to it at its main office, P. O. Box 2029,
Houston, Texas 77001.
14. The premium specified in Schedule A is the entire
charge for acceptance of risk. It includes charges for
title search and examination jf same is customary or
required to be shown in the state in which the policy is
issued.
STE'\\'ART TITLE
GUARA:'IJTY COMPAXY
PEN
130 s
MEMORANDUM
TO:
Jolene Vrchota, Planning Office
$5
FROM:
Fritz Bruggemeier, Engineering Department
RE: Aspen Ski Lodge Subdivision Exception
DATE: November 7, 1980
After reviewing the site plan and construction plans submitted by the
Aspen Ski Lodge for Subdivision Exception, the Engineering Department
finds the site plan missing a designated area for trash collection
and removal.
The plan is also missing identification of the zoning district in which
the structure is located. The Engineering Department feels these items
should be included on the site plan.
December 3, 1980
To: Aspen City Council
From: Perry Harvey
Re: provision for two pillows of employee housing until
April 15, 1981.
Ladies and Gentlemen:
As you are aware the Aspen Ski Lodge is requesting Condo-
miniumization approval under Ordinance 14 (Series of 1980).
As a requirement of the Ordinance, the Lodge must provide
two pillows of employee housing. We agree to deed re-
strict Unit #10 of the Ski Lodge for employee use.
Due to timing of the Application, Unit 10 has been rented
for this winter season. In coordination with Jim Reents
the Ski Lodge has entered into an agreement to subsidize
the rent of two of the Lodge employees to the amount
o~$200 monthly for each. These payments shall be made
to the employees directly. In the event the employees
are fired or voluntarily quit, the subsidy shall be paid
to a different employee at the discretion of the management
of the Lodge.
This agreement shall remain in force until April 15, 1981.
Perry Harvey
PH:rb
cc: Sunny Vann
Jim Reents
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LAW OFFICES
OATES, AUSTIN, MCGRATH & ..JORDAN
600 EAST HOPKINS AVENUE
LEONARO M. OATES
RONALD D. AUSTIN
..I. NICHOLAS MCGRATH, ,JR.
WIl..LIAM R. JORDAN ill
ROBERT W. HUGHES
ASPEN. COLORADO 81611
December 2, 1980
AREA CODE 303
TELEPHONE 925-2600
RICHARD A. I<NEZEVICH
DEBORAH QUINN
The Honorable Herman Edel
and Aspen City council Members
130 S. Galena street
Aspen, CO 81611
Re: Condominiumization of The Aspen Ski Lodge
Ladies and Gentlemen:
As you know by your package with respect to the Aspen Ski Lodge
condominiumization, the Planning and zoning Commission unanimously
approved the application for subdivision exception on November 18,
1980, subject to two conditions. Those conditions are:
1. That a trash collection area be designated on the site
pursuant to recommendation of the Engineering Department;
2. The obtaining of two pillows of employee housing off-site
for this winter season, inasmuch as the rooms have been re-
served and rented for this winter.
With respect to trash collection the Applicant is working with
the City Engineering Department and an application has been made for
an encroachment agreement with the City allowing the trash receptacle
to remain where it has always been, subject to the right of the city
to require it to be moved onto the site. The Applicant has agreed
to enclose the receptacle.
With respect to the employee housing requirement, the Applicant
has been working with Jim Reents for an alternative method of supply-
ing two pillows of employee housing during this winter season. The
Applicant has agreed and the condominium plat will designate a deed
restricted unit for future employee housing. The solution that has
been arrived at and that we request the Council to approve, is that the
Applicant be allowed to subsidize the rent of two existing employees
of the Aspen Ski Lodge (see the letter in your package). This would
seem to be a most practical way to provide the employee housing during
this winter season and following this winter on-site employee housing
of two pillows will be provided.
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OATES, AUSTIN, MCGRATH a JORDAN
December 2, 1980
Page Two
As we believe is clear, The Aspen Ski Lodge represents the very
essence of the Lodge Condominium Conversion Ordinance and we urge
your approval.
Sincerely,
OATES, AUSTIN, McGRATH & JORDAN
By~Id~-
Attorneys for Applicant
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RECORD OF PROCEEDINGS
100 Leaves
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-g;;ec-:Ca-.c-r:feetlng----Aspen-noard'of -i\dJu~}?:'1int Apr i ITa,-19;79---
The Aspen Board of Adjustment held a special mc,eting on April 10, 1979, at
3: 00 PM in the City Council Chambers. !1embcrs present ,~ere Remo Lavagnino,
Charles Paterson, Fred Smith and Josephine Mann: Also present were Ci~y
Building Inspector Clayton Heyring, City Attorney Ronald Stock and City Planning
Director Karen Smith.
Case No. 79-3,
Russell pielstick
7~/ifler toJ6e.
This case was tabled from April 5, 1979. Lavagnino read
the case. Application is made for a building permit to
remodel an existir.g nonconforming lodge. The proposed
remodeling will exceed 10% of the current replacement
cost of the nonconforming structure. Section 24-12.5(a)
of the Zonin'g Ordinance permits ordinary repair and
maintenance on a nonconforming structure containing a
nonconforming use provided the repair and maintenance
does not exceed 10% of the current replacement costs
of the nonconforming structure in any period of twelve
(12) consecutive months.
Lavagnino noted a letter from Russell Pielstick explaining
the case.
Pielstick asked if they could delay the meeting for the
fifth member. Lavagnino said yes, they would continue
with the hearing but delay the decision until the fifth
member could be present. '
Pielstick explained the series of meetings with the
Building Inspector, the Planning Director, the City Attor-
ne~ and other city staff to discuss the remodeling of
the Smuggler Lodge. He noted that the building predates
both ,the building code and the zoning code of Aspen. He
noted a letter from the City Attorney dated Harch 28
that states that this application does not fall under
Section 24-12.5 since they are not doing repair and
maintenance, they are remodeling. He noted that the
stair problem must be dealt with by the Board of Appeals
since they are nonconforming. He also noted that two
rooms have a nonconforming ceiling height that will also
be resolved by the Board of Appeals.
City Attorney Ronald Stock.noted that he interpreted the
application on the basis of the information submitted
from the applicant stating that this is for repair of
the lodge. He noted that if this application falls under
Section 24-12.4 instead of 24-12.5, they will need to
renotice the adjacent property owners. He felt the
Board needed to determine whether this is "repair" or
llremodel"..
The meeting recessed into an informal conference.
Stock felt he needed more time to research the case but
did not feel this fell under 24-12.5. He also noted that
the Board djd not have to take his opinion and could
continue with the case as submitted. City Planner Karen
Smith stated that if the Board finds that this falls "nde
Section 24-12.5, she would argue against the granting of
a variance since she feels it would undermine the intent
of the nonconforming use and structure section. She
felt they wish to remodel, not repair. She noted that
the planning Office's initial proposal was to zone the
existing lodges to lodge but Council felt it WdS sp0L-
zoning. 'I'he Office zoning was proposed too maintain the
single farnily residential appearance with a mix of urb"tn
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April 10, 1979
Spec.ial !1ceting
Aspen Boa.rd,~)~clj us t_n1.ent
uses including lodges. She felt it more appropriate for
Council to reconsider its nonconforming use provisions.
David Jones, owner of the lodge, noted that he also owns
the Molly Gibson lodge. He has alot of pride in Aspl'n
and his lodges. He noted that the Smuggler lodge has
a bad reputation in town and with the tourists. He said
it is in need of repair and remodel and he wishes to
rename it the Aspen Ski Lodge. He felt to deny him to
take 33 rooms and reduce it to 32 rooms, reduc.e the beds
from 112 to 70, too paint the walls and generally renovate
the building would be shameful. He noted that his lodge
was as full as any other lodge in Aspen this winter. The
lodge is not decaying but'needs repair.
Pielstick asked that they continue with the consideration
of this variance as it was submitted and if it is found
that they need to resubmit an application because they
do not fall under that section, they will renotify and
rehear the case. He submitted that the part of this
application that makes it a special condition and cir-
cumstance is that they must comply with the UEC, the
UPC, the Housing Code, the City Thermal Code, the Uniform
Mechanical Code and the National Electrical Code outside
of the Zoning Code. None of these codes existed when
the building was built. He felt it was compliance with
these codes that puts them over the 10% maximum.
Lavagnino asked Meyring if the applicant must comply
with the code in all areas if he goes into the building
to upgrade it. Meyring said that the present wiring, ete
may stay as is if it is not unsafe. If they exceed
50% of the value of the existing structure for repairs,
then. they must bring the whole building up to code.
Lavagnino asked if the applicant could do the necessary
repairs without going over the maximum and stay within
the ordinance. pielstick stated that they have elected
to bring it up to code. They could do it in 27 months
by staying within the 12 month provision. If they just
did what would be allowable within the code, they would
not exceed the maximum.
Stock felt there are three levels of construction that
they wish to complete. The first is things such as
replacing the carpeting which does not require a buildinc
permit. The second is bringing certain things up to
code, which he was willing to argue are repair. The
third level is remodeling the exterior, changing interiol
walls and items that are not necessary to bring the
building up to code.
F. Smith felt that the proper way to resolve this issue
is to have the Council change the code to allow existing
lodges to substantially upgrade their buildings. Jones
noted that the Nugget was recently painted and remodeled
inside. Paterson noted that they did not need a buildin<
permit for this and they did not move any interior walls,
Paterson felt this is a physical hardship since the
building was built in 1954 bef~re the codes were written
He noted that they are not adding anything, in fact they
are losing a few units to make the building more
functional and up to code.
Pielstick noted that if the lodge burned down, they
could rebuild it to the 1979 standaids. If they dis-
continued the use for nine months, they could use it
again as a lodge as long as they began ,wibhin one year.
_ for,u :-'---:::-~_~~(.~~~_~::':C~:"-:
p,pecial }ieeting
John Herz
Greg Stein
Lary Groen
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RECORD OF PROCEEDINGS
100 Leaves
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April 10, 1979 ~
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Aspen Board of Adjustment
They wish to
They wish to
windows with
replace the 1954 toilets with 1979 toilets.
insulate the walls, replace the single pane
double pane windows.
K. Smith said her interpretation of the nonconforming
use section of the code was to prevent improvements to
nonconforming uses and structures that would extend or
prolong the life of that structure. The incentive was
to change to a conforming use. She felt that Council's
intent may cOnflict with this since they wish to see
lodges preserved.
Lavagnino asked for comments from the audience.
Herz asked what the question was here.
Lavagnino said first they have to determine if this
case is under the jurisdiction of the Board of Adjustment,
is it repairs or remodeling and whether they have a
hardship or practical difficulty which is the only
grounds on which the board may grant a variance.
Stein felt that if the Building Inspector could state
that there are no structural changes, the Board could
interpret this as remodel and grant the variance.
Stock said there are three sections in the nonconforming
use code. One talks about a nonconforming structure,
the second talks about a nonconforming use and the third
is a nonconforming use and structure. pielstick said
they are both a nonconforming use and structure.
Groen is a neighbor of the Smuggler Lodge and a member
of the Historic Preservation Committee. He said one of
the purposes of historic zoning on Main Street was to
preserve the historic mix of structures and character of
Main Street. He asked that the Board keep this in mind
when revie\ving cases of this sort. He felt that the
Aspen lodges have been a part of the mix and character
of Main Street for many years. He also felt this type
of lodge serves an important purpose for the skier since
not all can afford a condominium.
Lavagnino said they do not wish to tear down the lodge
but they are stuck with a written ordinance and guideline~
that they must follow in granting a variance.
Lavagnino closed the public portion of the meeting.
Smith said he would like to see this lodge remodeled and
brought up to acceptable standards but felt it was
Council's responsibility to amend the code instead of
this board granting a variance.
Paterson agreed with Smith but feit they have a hardship.
He did not feel they should wait for Council to amend
the code as it may be years before they pass the ordinanCE
He felt that repair and maintenance should include
remodel and reconstruction should be another category.
He felt the proposed remodeling is much mo:ce functional
and desirable.
Mann supported Paterson and felt this is an ide~l time
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Apri'l 10, 1979
~eeial ilceting
Asnen Board' ofAdj ti,s'tmcn t
~--_.-_..._.-._---_._-~_..~
for the Board of Adjustment to see themselvl's as a body
for the, relief of difficulties. She felt there were alot
of grey areas with the words they were throwing around
and because of the grey areas, she would be willing to
grant the variance. She did not understand the reason
for a time limit on the repair(lO%/calendar year). She
felt the biggest grey area is the word "repair" which
they must define. She was willing to grant the variance
today with a statement about the confusion created in
the wording of the code.
Lavagnino agreed that there is a hards'hip but not one
that could be resolved by the code. He had difficulty
with the word "repair". He also questioned what "ordinary
repair" means; where can they draw the line?
Lavagnino reopened the meeting.
Hughes read the powers of the board and felt they had
the power to grant this variance. Jones also felt they
had the power to grant the variance and asked them not
to wait for Council to amend the section.
Lavagnino asked if the"applicant would like the board
to table the application until the fifth member is
present for the vote. Stock noted that it will take
at least 3 months to amend the code with the most
favorable conditions.
Paterson moved to table the application to April 19, 1979
Mann seconded. All in favor, motion approved.
Paterson moved to adjourn the meeting, Mann seconded.
All in favor, motion approved. Meeting adjourned at
5:00 PH.
~e
Shery
e~J
Deputy City Clerk
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BR"'UrOl>D J't11.U!JHING CQ., Ur:NVI:R
RECORD OF PROCEEDlhlGS
poard of l\djus!:ment, Regular Meeting.' April 19, .1979, Ci-ty ~:ounG~.~ Chaiul?ers, 4: 00 P!.'!.,--~~-
The Aspen Board of Adjustment held a regular meeting on April 19, 1979, in the city Counci.l
Chambers at 4:00 PM. Members present were Remo Lavagnino, Charles Paterson, Josphinc Mann,
and Francis Whitaker. St.aff rcpresent_atives were city Building Inspector, Clayton t>1cyring,
and city Attorney, Ron Stock.
APPROVAL OJ!' MINUTES:
Lavagnino fisked the members if all of them have read the minutes
from the meetin'Js of February 1, February 6, and February 22.
Lavagnino asked for a motion to approve the minutes of February
1 and February 6 meetings. Paterson made a motion to approve the
minutes as presented. Ms. Mann seconded. All in favor. The minutes
from February 1 and February 6 meetings were approved. Ms. Mann
moved to approve the February 22 meeting. Whitaker seconded. All
in favor. The mintues from the February 22 meeting y,!cre approved
as presented.
CASE #79-3
RUSSEL PIELSTICK
Lavagnino stated that at their last meeting they had a quorum but,
they did not have a fifth member which would have 'Jiven the applicant
an advantage. They decided to table until this meeting in which
again they do not have a fifth member. Lavagnino stated that the
applicant has an option to table again or to continue and bring it
to a vote.
Whitaker stated that he had heard the tapes from the last meetin'J.
Stock stated that at this time the staff is recommending a change
from their earlier position. Stock stated that they were willing
to grant a variance reason being that they had talked to the
attorney and the architect in ~~ that they went over the plans
very carefully, step by step. They did this for a reason to see
if everything that the applicant would do could be code related.
city Environmental Health Officer, Tom Dunlop, was consult,ed ror
his opinions. Dunlop felt that it was a 'Jood idea for one of the
proposed changes which is the changing of the front office to
over look the pool. He felt that it would provide supervision of
the pool.
Stock stated that with these reasons, under Section 12.5, that the
staff would recommend granting the variance. This would mean that
the Smug'Jler Ladge could do all their repairs at once instead of
10% of the property value in one year.
Stock stated that they could prove the necessary hardship thilt is
sufficient. For example, if all of their wiring is not up to code
standards, and they are only allowed to do some of their wiring;
then the cost factor (which would be 'Jrea~) and the code factor
would not be fulfilled.
f'lo1-
Lavagnino stated that the cost shouluAbe a factor to the board.
Lavagnino asked stock what he meant by "code related". stock replied
that was either a building code, fire code, or some other code that
has been adopted for the public health, welfare and safety by the
city.
Lavagnino asked Stock what the defination of IIstaff" was. Stock
replied that it consisted of the Buildin'J Department and the City
Attorney's Office.
Whitaker stated that he had listened to the tapes and that it was
a very difficult and complex case to consider. lie felt that they
have gl:-ounds to grant the variance but he would like to do it on
a condition that they v.'rite a recommendation to the City Council
like the one that they wrote on the trash area. Since the Planning
Office, the Building Department, and t::.he city Attorney are 'dilling
to IDuke recommendations, he \olOuId be willing to grant the variance.
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Lavagnino stated t,hat \-lhat v'''a~:; not clear to him was the intent of
the lO<ci cu_t:"rent replacement cost limitation. To imply intent as
a discouragement for continuance of non-comforminq strucLures and
uses, appears to undermine the codes not abating provision.
But at this time, Lavagnino stated that he would vote affiknativc.
Lavagnino told the applicant t.hat they could continue if they wanted
to.
Pielst.ick stated that they would like to continue.
Lavagnino closed the meeting to the public.
Whitaker asked Lavagnino if they could have the City Attorney draw
up a motion on the Smuggler Lodge variance request.
Paterson read the City Environmental Health Offic~r's memo to the
committee on granting the Smuggler Lodge variance. This memo can
be located in the City Clerk's Office.
Ms. Mann felt that they needed to include that letter in the variance,
for health, safety and welfare.
Lavagnino opened the meeting to the public.
Lavagnino wanted the motion into the record, them they would make
any changes. Stock read the proposed motion to the committee.
WHEREAS, the applicant has submitted a request for the issuance
of a building permit to repair the Smuggler Lodge, and
WHEREAS, such repair includes repair and replacement of
non-bearing walls, fixtures, wiring, or plumbing to the an extent
exceeding 10% of the current replacement costs of the structure, and
WHEREAS, Section 24-12.5 of the Code of the City of Aspen
Colorado restricts and prohibits repair in excess of 10'6 of the
current replacement costs of the structure in expenditure of an
amount for repair in any 12 consecutive months, and
WHEREAS, the repairs are for the purpose of modifying the
structure to conform to current fire, building and other codes
adopted by the City of Aspen Colorado and to provide security for
the occupants for the lodge and to allow for safety supervision of
the use of the swimming pool located on the property, and
WHEREAS, the Board of Adjustment of the City of Aspen Colorado,
finds that the conditions of Section 2-22 of the Code of the City of
Aspen Colorado are satisfied, and
WHEREAS, the health, safety and welfare of citizens which would
be protected by such repairs create special conditions and
circumstances, and the Board finds that such special conditions and
circumstances exist and that the conditions to be relieved by
said repairs were not caused as a result of the actions of the
applicant, and
WHEREAS, the granting of a variance is essential to the
enjoyment of a substantial property of the applicant, and
MIEIlliAS, the granting of the variance will not adversely
effect the general purpose of the comprehensive plan,
NOW THEREFORE, BE IT RESOLVED by the Board of Adjustment of the
City of Aspen Colorado, that a variance is hereby granted from the
strict provisions of Section 24-12.5 of the Code of the City of
Aspen Colorado, that such the applicant will be allowed to expend
in 12 consecutive calendar months an amount exceeding 10% of the
current replac~lent costs of the structure for said repairs.
Paterson would li.ke to change "for health, safety, and welfare of
the citizensll to state "for the health, safety and welfare of the
public". He feels that it has nothing to do with the citizens and it
is the'public that they are talking about.
Paterson moved to approve the motion that Stock
modification on the motion. Ms. Mann seconded.
The Smuggler Lodge variance was granted.
wrote with the
All in favor.
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CONDOMINIUM DECLARATION
FOR
THE ASPEN SKI LODGE CONDOMINIUMS
(A Condominium)
KNOW ALL MEN BY THESE PRESENTS, THAT:
WHEREAS, THE ASPEN SKI LODGE ASSOCIATES, a Colorado
Limited Partnership, hereinafter called "Declarant," is the
owner of that real property situated in the County of Pitkin,
State of Colorado, more fully described in Exhibit A attached
hereto and made a part hereof; and
WHEREAS, Declarant desires to establish a condominimum
project under the Condominium Ownership Act of the State of
Colorado; and
WHEREAS, there is currently constructed on said real
property improvements consisting of separately designated
residential condominium units and other improvements; and
WHEREAS, Declarant does hereby establish a plan for the
ownership in fee simple of the real property estates con-
sisting of the area or space contained in each of the air
space units in the building improvements and the coownership
by the individual and separate owners thereof, as tenants in
common, of all of the remaining property hereinafter defined
and referred to as the General Common Elements; ,
WHEREAS, Declarant desires to establish this condominium
project as a "Condominiumized Lodge" pursuant to the pro-
visions of Ordinance No. 14 (Series of 1980), and specifically
Section 20-23 adopted by amendment to Chapter 20 of the Munici-
pal 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 a benefit
to Declarant, its successors or assigns, and any person or
entity acquiring or owning an interest in the real property
and improvements, and their devisees or assigns.
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1. Definitions.
provide otherwise:
Unless the context shall expressly
1.1 "Unit" means an individual air space unit which is
contained within the unfinished perimeter walls, floors, and
ceilings of such unit in the building as shown on the Condo-
Ii minium Map to be filed for record, together with all fixtures
:1'1 and improvements therein contained but not including any of
the structural components of the building, or the general
Ii common elements.
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1.2
title in
interest
unit.
"Condominium Unit" means the fee simple interest and
and to a unit, together with the undivided percentage
in the general common elements appurtenant to such
t~.~;,,~~...., '~""'rr"--"-"<"~<'<"'-----"'--""'- .._- ,-,,_....
1.3 "General Common Elements" means and includes all
portions of the land described in Exhibit A hereto (except the
units), and including the structural components of the build-
ings; the balconies and parking spaces; and all other parts of
such land and the improvements thereon necessary or convenient
to its existence, maintenance and safety, which are normally
and reasonably in common use, including the air above such
land, all of which shall be owned, as tenants in common, by
the owners of the separate units, each owner of a unit having
an undivided percentage interest in such general common ele-
ments as is provided hereinafter.
1.4 "Limited Common Elements" means those parts of the
general common elements which are either limited to or
reserved for the exclusive use of the owners of one or more,
but less than all, of the condominium units.
1. 5 "Condominium Project" means all of the land and
improvements initially and subsequently submitted by this
Declaration or any supplements or amendments hereto.
1. 6 "Common Expenses" means and includes expenses for
maintenance, repair, operation, management and administration,
expenses declared common expenses by the provisions of this
Declaration and the By-Laws of the Association , and all sums
lawfully assessed against the general common elements by the
Board of Managers of the Association.
1.7 "Association of Unit Owners" or "Association" means
THE ASPEN SKI LODGE CONDOMINIUM ASSOCIATION, A Nonprofit
Colorado corporation, its successors and assigns, the Articles
of Incorporation and By-Laws of which shall govern the admin-
istration of this condominium property, and the members of
which shall be all of the owners of the condominium units.
1.8 "Building" means one of the building improvements
containing units as shown on the Map or amendments and supple-
ments thereto.
1.9 "Map" or "Supplemental Map" means and includes the
engineering survey of the land locating thereon all of the
improvements, the floor and elevation plans and any other
drawing or diagrammatic plan depicting a part of or all of the
improvements and land.
2. Condominium Map. The Map shall depict and show at
least the following:
The legal description of the land and a survey thereof;
the location of the buildings; the floor and elevation plans;
the location of the units within the buildings, both horizon-
tally and vertically; the thickness of the common walls
between or separating the units; the location of any struc-
tural components or supporting elements of a unit located
within a building; and the building and unit designations.
The Map shall contain the certificate of a registered
Colorado land surveyor or licensed architect, or both, certi-
fying that the Map substantially depicts the location and the
horizontal and vertical measurements of the buildings, the
units, the unit designations, the dimensions of the units, the
elevations of the unfinished floors and ceilings as con-
structed, the building number or symbol, and that such Map was
prepared subsequent to substantial completion of the improve-
ments. Any amendment to the Map shall set forth a like
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certificate when appropriate. In interpreting the Map the .
existing physical boundaries of each separate unit as con-
structed shall be conclusively presumed to be its boundaries.
Declarant reserves the right to amend the Map, from time to
time, to conform the same according to the actual location of
any of the constructed improvements, and to establish, vacate
and relocate easements, access road easements and on-site
parking areas.
3. Division of Property Into Condominium Units. The
real property is hereby divided into the following fee simple
estates, each such estate consisting of the separately desig-
nated units and the undivided interest in and to the general
common elements appurtenant to each unit as is set forth on
the attached Exhibit B, which by this reference is made a part
hereof. Each such unit shall be identified on the Map by
number and building symbol as shown on Exhibit B.
3.1 Declarant reserves the right to themselves, their
successors, heirs, personal representatives, and grantees, to:
3.2 Physically combine the space within one unit with
the space within one or more adjoining units, and
3.3 Combine a part of or combination of parts of the
space within one unit with part or parts of the space within
one or more adjoining units, and
3.4 Divide into separate units the space of one unit.
3.5 The aggregate or divided undivided interests in the
general common elements resulting from any of the provisions
of paragraphs 3.2, 3.3 and 3.4 shall be reflected by an amend-
ment to Exhibit B hereof and to the Map, consistent with the
I requirements set forth in this Declaration.
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3.6 Declarant acknowledges that this Declaration is
subject to the provisions and requirements 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.
Pursuant to Section 20-23 thereof, the following is made
I a part of this Declaration:
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(a) An owner's personal use of his unit
shall be restricted to fourteen (14)
days or less during the seasonal period
of December 18 through March ,20. This
seasonal period is hereinafter referred
to as "high season". "Owner's personal
use" shall be defined as owner occupancy
of a unit or nonpaying guest of the
owner or taking the unit off the rental
market during the seasonal periods
referred herein for any reason other
than necessary repairs which cannot be
postponed or which make the unit unrent-
able. Occupancy of a unit by a lodge
manager or staff employed by the lodge,
however, shall not be restricted by this
section.
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..._--_.--.,...:..-....~~._._.,,-,....:...__..-......_......._.~_., ..---~....._.......--.."~""'<...,,.~~~....--->--'-.......-"'""'-,..~.....,...,...-
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(b) A violation of the owner's personal
use restriction by a unit owner shall
subject the owner to a daily assessment
by the condominium association of three
(3) times the daily rental rate for the
unit, at the time of the violation,
which assessment, when paid, shall be
deposited in the general funds of the
condominium association for use in
upgrading and repairing the common
elements of the condominium. All sums
assessed agains't an owner for violation
of the owner's personal use restriction
and unpaid shall constitute a lien for
the benefit of the condominium associa-
tion on that owner's unit, which lien
shall be evidenced by written notice
placed on record in the office of the
clerk and recorder of pitkin County,
Colorado, and may be collected by fore-
closure on an owner's condominium unit
by the association in like manner as a
mortgage or deed of trust on real pro-
perty. The condominium association's
failure to enforce the owner's personal
use restriction shall give the City of
Aspen the right to enforce the restric-
tion by the assessment and the lien
provided for hereunder. If the City of
Aspen enforces the restriction, the City
of Aspen shall receive the funds col-
lected as a result of the assessment for
the violation. In the event litigation
results from the enforcement of the
restriction, as part of its reward to
the prevailing party, the court shall
award such party its court costs
together with reasonable attorney's fees
incurred.
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(c) The City of Aspen shall have the
right to require from the condominium
association an annual report of owner's
personal use during high season for all
the condominium units.
4. Limited Common Elements. A portion of the general
common elements is reserved for the exclusive use of the
individual owners of the respective units, and such areas are
I, referred to as "limited common elements." The limited common
Ii elements so reserved shall be identified on the Map. (Any
Ii balcony or balconies which are accessible only from within,
il associated only with and which adjoin a single unit shall,
'i without further reference thereto, be used in connection with
such unit to the exclusion of the use thereof by the other
owners of the general common elements, except by invitation.)
All of the owners of condominium units in this condominium
project shall have a nonexclusive right in common with all of
the other owners to use of sidewalks, pathways, roads and
streets located within the entire condominium project, if any.
No reference thereto, whether such limited common elements are
exclusive or nonexclusive, need be made in any deed, instru-
ment of conveyance, or other instrument.
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". ~'....- ~. "".. "'-"~'I-- > ..--.......,' ,.
.>;.~'"'..-"~_.>....'~_.....,.,........"',~_.""-,..:,~..
.-C~..._,..._.._,."._ .~._.....'_,~...._,_.__..,..._.__._______,~~""',,_......"-.'"'..---"'-........._.:.~..,,'~""'___ _,_
5. Inseparability of a Condominium Unit. Each unit, the
appurtenant undivided interest in the general common elements
and the appurtenant limited common elements, shall together
comprise one condominium unit, shall be inseparable and may be
conveyed, leased, devised or encumbered only as a condominium
uni t.
6. Method of Description. Every contract for the sale
of a condominium unit and every other instrument affecting
title to a condominium unit may describe that condominium unit
by the unit number and building designation shown on the
Condominium Map appearing in the records of the County Clerk
and Recorder of Pitkin County, Colorado, in the following
fashion:
Condominium Unit , THE ASPEN SKI LODGE
CONDOMINIUMS, according to the Condominium
Map appearing in the records of the County Clerk
amd Recorder of pitkin County, Colorado, in
Book , at Page .
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Such description will be construed to describe the unit,
together with the appurtenant undivided interest in the common
elements, and to incorporate all the rights incident to owner-
ship of a condominium unit and all the limitations on such
ownership as described in this Declaration and any amendments
hereto.
7. Separate Assessment and Taxation Notice to Assessor.
Declarant shall give written notice to the Assessor of the
County of Pitkin, Colorado, of the creation of condominium
ownership in this property, as is provided by law, so that
each unit and the undivided interest in the general common
elements appurtenant thereto shall be deemed a parcel and
subject to separate assessment and taxation. In the event
that for a period of time any taxes or assessments are not
separately assessed to each unit owner, but are assessed on
the property as a whole, then each unit owner shall pay his
proportionate share thereof in accordance with his percentage
ownership of the general common elements.
8. Ownership Title. A condominium unit may be held and
owned by more than one person as joint tenants or as tenants
in common, or in any real property tenancy relationship recog-
nized under the laws of the State of Colorado.
9. Non-Partitionability of General Common Elements. The
general common elements shall be owned in common by all of the
owners of the units and shall remain undivided, and no owner
shall bring any action for partition or division of the
general common elements.
10. The Use of General and Limited Common Elements.Each
owner shall be entitled to exclusive ownership and possession
of his unit. Each owner may use the general and limited
common elements in accordance with the purpose for which they
are intended, without hindering or encroaching upon the lawful
rights of the other owners, subject to such reasonable rules
and regulations as may, from time to time, be established
pursuant to the By-Laws of the Association.
11. Use and Occupancy. All condominium units shall be
used and occupied solely for lodging and residential purposes
by the owner, by the owner's family or the owner's guests and
tenants. Leasing and renting of the units for residential
purposes shall not be considered a violation of this covenant.
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.;,.;"._".....,.'"'...-.>._....~.~.~.__~ _...-,~.'"'-.~.........,.."._,...__.~_,..;.._......_-..-....'-"-...-_-..o-..."""' ~
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12. Easements for Encroachments. If any portion of the
general common elements encroaches upon a unit or units, a
valid easement for the encroachment and for the maintenance of
same, so long as it stands, shall and does exist. If any
portion of a unit, as shown on the map, encroaches upon the
general common elements, or upon an adjoining unit or units, a
valid easement for the encroachment and for the maintenance of
same, so long as it stands, shall and does exist. In the
event that anyone or more of the units or buildings or other
improvements comprising part of the general common elements
are partially or totally destroyed and are then rebuilt or
reconstructed in substantially the same location and as a
result of such rebuilding any portion thereof shall encroach
as provided in the preceding sentence, a valid easement for
such encroachment shall and does exist. Such encroachments
and easements shall not be considered or determined to be
encumbrances either on the general common elements or on the
units.
13. Termination of Mechanic's Lien Rights and Indemni-
fication. Subsequent to the completion of the improvements
described on the Map, no labor performed or materials furn-
ished and incorporated in a unit with the consent or at the
request of the unit owner or his agent or his contractor or
subcontractor shall be the basis for filing of a lien against
the unit of any other unit owner not expressly consenting to
or requesting the same, or against the general common ele-
ments. Each owner shall indemnify and hold harmless each of
the other owners from and against all liability arising from
the claim of any lien against the unit of any other owner or
against the general common elements for construction performed
or for labor, materials, services or other products incor-
porated in the owner's unit at such owner's request. The
provisions herein contained are subject to the rights of the
Managing Agent or Board of Managers of the Association as is
set forth in paragraph 16. Notwithstanding the foregoing, any
mortgagee of a condominium unit who shall become an owner of a
condominium unit pursuant to lawful foreclosure sale or the
taking of a deed in lieu of foreclosure shall not be under any
obligation to indemnify and hold harmless any other owner
against liability for claims arising prior to the date such
mortgagee becomes an owner.
14. Administration and Management; Managing Agent. The
administration and management of this condominium property
shall be governed by the Articles of Incorporation and By-Laws
of the Association. An owner of a condominium unit, upon
becoming an owner, shall be a member of the Association and
shall remain a member for the period of his ownership. The
Association shall be initially governed by a Board of Managers
as is provided in the By-Laws of the Association. The Associ-
ation may delegate by written agreement any of its duties,
powers and functions to any person or firm to act as Managing
Agent at an agreed compensation; provided however, that no
such delegation shall relieve the Association or the Board of
Managers of their responsibilities under this Declaration.
15. Certificate of Identity. There shall be recorded
from time to time a certificate of identity which shall
include the addresses of the persons then comprising the
management body (Managers 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.
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16. Reservation for Access for Maintenance, Repair and
Emergencies. The owners shall have the irrevocable right, to
be exercised by the Managing Agent or Board of Managers of the
Association, to have access to each unit from time to time
during reasonable hours under the particular circumstances as
may be necessary for the maintenance, repair or replacement of
any of the general common elements therein or accessible
therefrom or for making emergency repairs therein necessary to
prevent damage to the general common elements or to another
unit or units. Damage to the interior or any part of a unit
or units resulting from the maintenance, repair, emergency
repair or replacement of any of the common elements or as a
result of emergency repairs within another unit at the instance
of the Association shall be a common expense of all of the
other owners; provided, however, that if such damage is the
result of the misuse or negligence of a unit owner, then such
owner shall be responsible and liable for all of such damage.
All damaged improvements shall be restored to substantially
the same condition of such improvements prior to damage. All
maintenance, repairs and replacements as to the common ele-
ments, whether located inside or outside of units (unless
necessitated by the negligence or misuse of a unit owner, in
which case such expense shall be charged to such unit owner),
shall be the common expense of all of the owners.
17. Owner's Maintenance Responsibility of Unit, Balconies,
Parking and Storage Areas. For purposes of maintenance,
repair, alteration and remodeling, an owner shall be deemed to
own the interior non-supporting walls, the materials (such as,
but not limited to, plaster, gypsum dry wall, paneling, wallpaper,
paint, wall and floor tile and flooring, but not including the
sub-flooring) making up the finished surfaces of the perimeter
walls, ceilings and floors within the unit, including the unit
doors and windows. The owner shall not be deemed to own
lines, pipes, wires, conduits, or systems (which for brevity
are herein and hereafter referred to as utilities) running
through his unit which serve one or more other units except as
a tenant in common with the other owners. Such utilities
shall not be disturbed or relocated by an owner without the
written consent and approval of the Board of Managers. Such
right to repair, alter and remodel is coupled with the obligation
to replace any finishing or other materials removed with
similar or other types or kinds of materials. An owner shall
maintain and keep in repair the interior of his own unit,
including the fixtures thereof. All fixtures and equipment
installed within the unit commencing at a point where the
utilities enter the unit shall be maintained and kept in
repair by the owner thereof. An owner shall do no act nor any
work that will or may impair the structural soundness or
integrity of the building or impair any easement or hereditament
without the written consent of the Board of Managers of the
Association, after first proving to the satisfaction of the
Board of Managers that such structural soundness or integrity
, will be maintained during and after any such act or work shall
be done or performed. Any expense to the Board of Managers
for investigation under this Paragraph 17 shall be borne by
the owner. However, nothing herein contained shall be construed
to permit structural modification and any decision relating
thereto shall be in the absolute discretion of the Board of
Managers, including, but not limited to the engaging of a
structural engineer at the owner's expense for the purpose of
obtaining his opinion. An owner shall also keep the balcony
area and patio area, if any, appurtenant to his unit in a
clean and sanitary condition and free and clear of snow, ice
and any accumulation of water. All other maintenance or
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repairs to any limited common elements, except as caused or
permitted by the owner shall be at the expense of all of the
owners.
18. Compliance With Provisions of Declaration,
Articles and By-Laws of the Association. Each owner shall
comply strictly with the provisions of this Declaration, the
Articles of Incorporation and By-Laws of the Association, and
the decisions and resolutions of the Association 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, for damages or
injunctive relief or both, and for reimbursement of all costs
and attorneys' fees incurred in connection therewith, which
action shall be maintainable by the Managing Agent or Board of
Managers in the name of the Association in behalf of the
owners or, in a proper case by an aggrieved owner.
19. Revocation or Amendment to Declaration. This Decla-
ration shall not be revoked unless all of the owners and all
of the holders of any recorded first mortgage or deed of trust
covering or affecting any or all of the condominium units
unanimously consent and agree to such revocation by instru-
mentIs) duly recorded. This Declaration shall not be amended
unless the owners representing an aggregate ownership interest
of seventy-five percent (75%), or more, of the general common
elements, unless a different percentage for the amendment of a
specific provision hereof is herein provided, in which case
that provision shall govern, and all of the holders of any
recorded first mortgage or deed of trust covering or affecting
any or all condominium units consent and agree to such amend-
ment by instrument(s) duly recorded; provided, however, that
the percentage of the undivided interest in the general common
elements appurtenant to each unit, as expressed in this Decla-
ration (or in any supplements hereto) shall have a permanent
character and shall not be altered, except as a result of
expansion of the Project if otherwise permitted herein, in
which event the percentage of the undivided interest in the
general common elements shall be computed in the same manner
as originally computed in this Declaration, and shall be set
forth in a Supplemental Declaration without the consent of all
of the unit owners expressed in an amended Declaration duly
recorded. Nothing contained in this paragraph 19 shall be
construed to preclude or in any way limit the right of
Declarant to supplement this Declaration and/or the Condo-
minium Map if otherwise permitted herein.
20. Additions, Alterations, and Improvements of General
ans Limited Common Elements. There shall be no additions,
alterations or improvements by the Board of Managers or the
Managing Agent of or to the general and limited common ele-
ments requiring an expenditure in excess of Five Thousand
Dollars ($5000.00) in anyone calendar year without prior
approval of a majority of the owners in writing or as reflec-
ted in the minutes of a regular or special meeting of the
owners. Such limitation shall not be applicable to the
replacement, repair, maintenance or obsolescence of any
general common element or common property. An individual unit
owner shall do no alterations, additions, or improvements (for
his individual benefit or for the benefit of his Unit) to the
general common elements or the limited common elements without
the approval of the Board of Managers or the approval of a
majority of the owners in writing or as reflected in the
minutes of a regular or special meeting of the owners. In the
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event that any such approved alterations, additions or improve-
ments create encroachments by a Unit upon the common elements
or by the common elements upon a Unit, a valid easement for
such encroachment and for the maintenance of same, so long as
it stands, shall and does exist.
The assessments made for common expenses shall be based
upon the cash requirements of the Condominium Project as the
Managing Agent, or if there is no Managing Agent, then the
Board of Managers of the Association shall from time to time
determine. The assessments shall provide for the payment of
all estimated expenses growing out of or connected with the
maintenance, repair, operation, additions, alterations, and
improvements of and to the general common elements, which sum
may include, but shall not be limited to, expenses of manage-
ment; taxes and special assessments until separately assessed;
premiums for fire insurance with extended coverage and van-
dalism and malicious mischief with endorsements attached
issued in the amount of the maximum replacement value of all
of the condominium units (including all fixtures; interior
walls and partitions; decorated and finished surfaces of
, perimeter walls, floors and ceilings; doors, windows and other
I elements or materials comprising a part of the units) casualty
I and public liability and other insurance premiums; landscaping
,I and care of grounds; snow removal; common electricity, water,
II sewer, lighting and heating; repairs and renovations; trash
I collections; legal and accounting fees; management and rental
fees; expenses and liabilities incurred by the Managing Agent
and Board of Managers on behalf of the unit owners under or by
I reason of this Declaration and the By-Laws of the Association;
for any deficit arising or any deficit remaining from a pre-
vious period; the creation of reasonable contingency,
reserves, working capital, and sinking funds as well as other
costs and expenses relating to the general common elements.
The omission or failure of the Board of Managers to fix the
The cost of any additions, alterations or improvements to
the general and limited common elements undertaken by the
Board of Managers shall be assessed as common expenses. Any
such additions, alterations or improvements, regardless of by
whom undertaken, shall be owned by the unit owners in the same
proportion as their ownership interest in existing general and
limited common elements and shall not affect any unit owner in
reference to his voting power in the Association.
II 21. Assessment for Common Expenses. All owners shall be
! obligated to pay the assessments, either estimated or actual,
II imposed by the Board of Managers of the Association to meet
the common expenses. The assessments shall be made according
to each owner's percentage interest in the general common
I elements as is set forth in Exhibit B. Except as otherwise
I herein provided, the limited common elements shall be main-
I tained as general common elements, and owners having exclusive
I use thereof shall not be subject to any special charges or
assessments for the repair or maintenance thereof. Assess-
I ments for the estimated common expenses shall be made at least
semiannually and shall be due immediately upon receipt. The
I Managing Agent or Board of Managers shall prepare and deliver
II, or mail to each owner a statement for the estimated or actual
I' common expenses.
II
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In the event the ownership of a condominium unit by grant
from the Declarant commences on a day other than the first of
the month, the assessment for that month shall be prorated.
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assessment for any period shall not be deemed a waiver, modi-
fication or a release of the owners from their obligation to
pay the same.
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22. Insurance.
22.1 The Board of Managers of the Association shall
obtain and maintain at all times, to the extent obtainable,
policies involving standard premium rates, written with com-
panies licensed to do business in Colorado, covering the risks
set forth below. To the extent possible, the Board of the
Association shall not obtain any policy where: (i) under the
terms of the insurance company's charter, by-laws or policy,
contributions or assessments may be made against any mort-
gagee, the Association or the Unit owners; or (ii) by the
terms of the carrier's charter, by-laws or policy, loss pay-
ments are contingent upon action by the company's Board of
Directors, policyholders or members; or (iii) the policy
includes any limiting clauses (other than insurance condi-
tions) which could prevent mortgagees, the Association or the
Unit owners or the mortgagor from collecting insurance pro-
ceeds. The types of coverages to be obtained and risks to be
covered are as follows, to wit:
,
i
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22.1.1 Fire insurance with extended coverage and
all risk endorsements, which endorsements shall include
endorsements for vandalism, malicious mischief, boiler explo-
sion and machinery if appropriate. Said casualty insurance
shall insure the entire condominium project and any property,
the nature of which is a common element (including all of the
Units, fixtures therein initially installed by the Declarant
but not including furniture, furnishings or other personal
property supplied by or installed by Unit Owners) together
with all service equipment contained therein in an amount
equal to the full replacement value, without deduction for
depreciation. All policies shall contain a standard non-
contributory mortgage clause in favor of each mortgagee of a
Condominium Unit, which shall provide that the loss, if any,
thereunder, shall be payable to the Association, for the use
and benefit of mortgagees as their interest may appear.
22.1.2 If the condominium project is located in an
area identified by the Secretary of Housing and Urban Develop-
ment as an area having special flood hazards and the sale of
Flood Insurance has been made available under the National
Flood Insurance Act of 1968 or any successor acts, a "blanket"
policy of flood insurance on the Condominium Project in an
amount equal to the full replacement value of the insurable
improvements, if available in that amount.
22.1.3 Public liability and property damage insur-
ance in such limits as the Board of Directors of the Associa-
tion may from time to time determine, but not in an amount
less than $100,000.00 per person, and $300,000.00 per occur-
rence, covering all claims for bodily injury or property
damage. Coverage shall include, without limitation, liability
for personal injuries, operation of automobiles on behalf of
the Association, and activities in connection with the owner-
ship, operation, maintenance and other use of the project.
22.1.4 Workmen's Compensation and employer's lia-
bility insurance and all other similar insurance with respect
to employees of the Association in the amounts and in the
forms now or hereafter required by law.
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22.1.5 The Association may obtain insurance against
such other risks, of a similar or dissimilar nature, as it
shall deem appropriate with respect to the Condominium Pro-
ject, including plate or other glass insurance and any
personal property of the Association located thereon.
22.2 All policies of insurance to the extent obtainable
shall contain waivers of subrogation and waivers of any
defense based on invalidity arising from any acts of a Condo-
minium Unit owner and shall provide that such policies may not
be cancelled or modified without at least ten (10) days prior
written notice to all of the insureds, including mortgagees.
Duplicate originals of all policies and renewals thereof,
together with proof of payments of premiums, shall be
delivered to all mortgagees requesting same at least ten (10)
days prior to expiration of the then current policies. The
insurance shall be carried in blanket form naming the Associ-
ation as the insured, as attorney-in-fact for all of the
Condominium Unit owners, which policy or policies shall
identify the interest of each Condominium Unit owner (owner's
name and Unit number designation) and first mortgagee.
22.3 Prior to obtaining any policy of fire insurance or
renewal thereof, the Board of Managers of the Association
shall obtain an appraisal from a duly qualified real estate or
insurance appraiser, which appraiser shall reasonably estimate
the full replacement value of the entire Condominium Project,
without deduction for depreciation, for the purpose of deter-
mining the amount of the insurance to be effected pursuant to
the provisions of this insurance paragraph. In no event shall
the insurance policy contain a co-insurance clause for less
than ninety percent (90%) of the full replacement cost.
Determination of maximum replacement value shall be made
annually by one or more written appraisals to be furnished by
a person knowledgeable of replacement cost, and each mortgagee
requesting a copy shall be furnished with a copy thereof,
within thirty (30) days after receipt of such written
appraisals. Such amounts of insurance shall be contemporized
annually in accordance with their currently determined maximum
replacement value.
22.4 Unit owners may carry other insurance for their
benefit and at their expense, provided that all such policies
shall contain waivers of subrogation, and provided further
that the liability of the carriers issuing insurance obtained
by the Board of Managers shall not be affected or diminished
by reason of any such additional insurance carried by any Unit
owner.
22.5 Insurance coverage on furnishings, including carpet,
draperies, oven, range, refrigerator, wallpaper, disposal 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 Managers, the Association and/or the Managing
Agent shall have no responsibility therefor.
22.6 In the event that there shall be any damage or
destruction to, or loss to a Unit which exceeds $1,000.00 or
any damage or destruction to, or loss to the common elements
which exceeds $10,000.00, then notice of such damage or loss
shall be given by the Association to each first mortgagee of
said Condominium Unit within ten (10) days after the occur-
rence of such event.
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23. OWner's Personal Obligation for Payment of
Assessments. The amount of the common expenses assessed
against each condominium unit shall be the personal and indi-
vidual debt of the owner thereof. No owner may exempt himself
from liability for his contribution towards the common
expenses by waiver of the use or enjoyment of any of the
common elements or by abandonment of his unit. Both the Board
of Managers and Managing Agent shall have the responsibility
to take prompt action to collect any unpaid assessment, which
remains unpaid more than fifteen (15) days from the due date
for payment thereof. In the event of default in the payment
of the assessment, the unit owner shall be obligated to pay
interest at the rate of eighteen percent (18%) per annum on
the amount of the assessment from the due date thereof,
together with all expenses, including attorney's fees
incurred, together with such late charges as provided by the
By-Laws of the Association. Suit to recover a money judgment
for unpaid common expenses shall be maintainable without
foreclosing or waiving the lien securing same.
24. Assessment Lien and Foreclosure. All sums assessed
but unpaid for the share of common expenses chargeable to any
condominium unit shall constitute a lien on such unit superior
to all other liens and encumbrances, except only for tax and
special assessment liens on the unit in favor of any assessing
unit, and all sums unpaid on a first mortgage or first deed of
trust of record, including all unpaid obligatory sums as may
be provided by such encumbrance. To evidence such lien, the
Board of Managers or the Managing Agent shall prepare a
written notice of lien assessment setting forth the amount of
such unpaid indebtedness, the name of the owner of the condo-
minium unit and a description of the condominium unit. Such a
notice shall be signed by one of the Board of Managers or by
one of the officers of the Association or by the Managing
Agent and shall be recorded in the office of the Clerk and
Recorder of pitkin County, Colorado. Such lien for the common
expenses shall attach from the date of the failure of payment
of the assessment. Such lien may be enforced for the fore-
closure of the defaulting owner's condominium unit by the
Association in like manner as a mortgage or deed of trust on
real property subsequent to the recording of a notice or claim
thereof. In any such proceedings the owner shall be required
to pay the Association the assessments for the condominium
unit during the period of foreclosure, and the Association
shall be entitled to a receiver to collect the same. The
Association shall have the power to bid in the condominium
unit at foreclosure or other legal sale and to acquire and
hold, lease, mortgage, vote the votes appurtenant to, convey
or otherwise deal with the same. Any encumbrancer 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 unit, and upon such payment such encumbrancer shall have
a lien on such unit for the amounts paid of the same rank as
the lien of his encumbrance. Upon request of a mortgagee, the
Association shall report to the mortgagee of a condominium
unit any unpaid assessments remaining unpaid for longer than
twenty-five days after the same are due; provided, however,
that a mortgagee shall have furnished to the Managing Agent or
the Board of Managers notice of such encumbrance.
25. Liability for Common Expenses Upon Transfer of
Condominium Unit is Joint. Upon payment to the Managing
Agent, or if there is no Managing Agent, then to the Associa-
tion of a reasonable fee not to exceed Twenty-Five Dollars
($25.00), and upon the written request of any owner or any
-12-
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mortgagee or prospective mortgagee of a condominium unit, the
Association, by its Managing Agent, or if there is no Managing
Agent then by the financial officer of the Association shall
issue a written statement setting forth the amount of the
unpaid common expenses, if any, with respect to the subject
unit, the amount of the current assessment and the date that
such assessment becomes due, credit for any advanced payments
of common assessments, for prepaid items, such as insurance
premiums, but not including accumulated amounts for reserves
or sinking funds, if any, which statement shall be conclusive
upon the Association in favor of all persons who rely thereon
in good faith. Unless such request for a statement of
indebtedness shall be 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 rights of the
person requesting such statement. The grantee of a condo-
minium unit, except for any first mortgagee who comes into
possession of a condominium unit pursuant to the remedies
provided in its mortgage or becomes an owner of a condominium
unit pursuant to foreclosure of its mortgage or by the taking
of a deed in lieu thereof, shall be jointly and severally
liable with the grantor for all unpaid assessments against the
latter for the unpaid common assessments 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 upon payment of a reasonable
fee not to exceed Twenty-Five Dollars ($25.00), as is here-
inabove provided, and upon written request, any such prospec-
tive grantee shall be entitled to a statement from the Manag-
ing Agent, or if there is no Managing Agent, then from the
Association, setting forth the amount of the unpaid assess-
ments, if any, with respect to the subject unit, the amount of
the current assessment, the date that such assessment becomes
due, and credits for any advanced payments of common assess-
ments, prepaid items, such as insurance premiums, which state-
ments shall be conclusive UDon the Association. Unless such
request for such a statement shall be complied with within ten
(10) days of such request, then such requesting grantee shall
not be liable for, nor shall the unit conveyed be subject to a
lien for any unpaid assessments against the subject unit. The
provisions set forth in this paragraph shall not apply to the
initial sales and conveyances of the condominium units made by
Declarant, and such sales shall be free from common expenses
to the date of conveyance made or to a date as agreed upon by
Declarant and Declarant's grantee.
26. Mortgaging a Condominium Unit - Priority. An owner
shall have the right from time to time to mortgage or encumber
his interest by deed of trust, mortgage or other security
instrument. A first mortgage shall be one which has first and
paramount priority under applicable law. The owner of a
condominium unit may create junior mortgages, liens or encum-
brances on the following conditions:
26.1 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 of Incorporation and the By-Laws for the Associa-
tion.
26.2
release,
upon the
interest
That the mortgagee under any junior mortgage shall
for the purpose of restoration of any improvements
mortgaged premises, all of his right, title and
in and to the proceeds under all insurance policies
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upon said premises by the Association. Such release shall be
furnished forthwith by a junior mortgagee upon written request
of one or more of the members of the Board of Managers of the
Association.
27. Association as Attorney-in-fact.
does hereby make mandatory the irrevocable
attorney-in-fact to deal with the property
destruction or obsolescence.
This Declaration
appointment of an
upon its damage,
Title to any condominium unit is declared and expressly
made subject to the terms and conditions hereof, and accep-
tance by any grantee of a deed or other instrument of con-
veyance from the Declarant or from any owner or grantor shall
constitute appointment of the attorney-in-fact herein pro-
vided. All of the owners irrevocably constitute and appoint
the Association their true and lawful attorney in their name,
place and stead for the purpose of dealing with the property
upon its damage, destruction or obsolescence as is hereinafter
provided. As attorney-in-fact, the Association, by its Presi-
dent and Secretary or Assistant 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 a condominium unit owner which are
necessary 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 they
existed prior to the damage, with each unit and the general
and limited common elements having substantially the same
vertical and horizontal boundaries as before. The proceeds of
any insurance collected shall be available to the Association
for the purpose of repair, restoration or replacements unless
the owners and all first mortgagees agree not to rebuild in
accordance with the provisions set forth hereinafter.
27.1 In the event of damage or destruction due to fire or
other disaster, the insurance proceeds, if sufficient to
reconstruct the improvements, shall be applied by the Associ-
ation, as attorney-in-fact, to cause the repair and restora-
tion of the improvements.
27.2 If the insurance proceeds are insufficient to repair
and reconstruct the improvements, such damage or destruction
shall be promptly repaired and reconstructed by the Associ-
ation, as attorney-in-fact, using the proceeds of insurance
and the proceeds of an assessment, if the insurance proceeds
are insufficient, 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
percentage 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 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 condo-
minium unit and may be enforced and collected as is provided
in paragraph 24. 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
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I be required to pay the Association the costs and expenses for
filing the notices, interest on the amount of the assessment
at the rate of eighteen percent (18%) and all reasonable
attorneys' fees and costs incident to a sale. 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:
27.2.1 For payment of taxes and special assessments
liens in favor of any assessment entity and customary expense
, of sale;
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27.2.2 For payment of the balance of the lien of
any first mortgage;
27.2.3 For payment of unpaid common expenses and
all costs, expenses and fees incurred by the Association;
27.2.4 For payment of junior liens and encumbrances
in the order of and to the extent of their priority; and
27.2.5
unit owner.
The balance, if any, shall be paid to the
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27.3 Notwithstanding Section 27.2, supra, if the insur-
ance proceeds are insufficient to repair and reconstruct the
improvement(s), all of the owners and the first mortgagees of
record may agree not to repair or reconstruct the improve-
ments; and in such event, the Association shall forthwith
record a notice setting forth such fact or facts, and upon the
recording of such notice by the Association's President and
Secretary or Assistant Secretary, the entire Condominium
Project shall be sold by the Association pursuant to the
provisions of this paragraph, as attorney-in-fact for all of
the owners, free and clear of the provisions contained in this
Declaration, the Map, Articles of Incorporation and By-Laws.
Assessments for common expenses shall not be abated during the
period prior to sale. 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
in the common elements, and such divided proceeds shall be
paid into separate accounts, each such account representing
one 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.
From each separate account the Association, as attorney-in-
fact shall forthwith use and disburse the total amount of each
of such accounts, without contribution from one account to
another, toward the partial or full payment of the lien of any
first mortgagee encumbering the Condominium Unit represented
by such separate account. Thereafter, each such account shall
be supplemented by the apportioned amount of the proceeds
obtained from the sale of the entire property. Such appor-
tionment shall be based upon each Condominium Unit owner's
interest in the common elements. The total funds of each
account shall be used and disbursed, without contribution,
from one account to another by the Association, as attorney~
in-fact, for the same purposes and in the same order as is
provided in subparagraphs (27.2.1) through (27.2.5) of this
paragraph.
27.4 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, which plan has the unanimous approval of all
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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 common expenses; provided, however, that an owner
not a party to such a plan for renewal or reconstruction may
give written notice to the Association within fifteen (15)
days after the date of adoption of such plan that such unit
shall be purchased by the Association for the fair market
value thereof. The Association shall then have thirty (30)
days (thereafter) within which to cancel such plan. If such
plan is not cancelled, the condominium unit of the requesting
owner shall be purchased according to the following pro-
cedures. If such owner and the Association can agree on the
fair market value thereof, then such sale shall be consummated
within thirty (30) days thereafter. If the parties are unable
to agree, the date when either party notifies the other that
he or it is unable to agree with the other shall be the
"commencement daten from which all periods of time mentioned
herein shall be measured. Within ten (10) days following the
commencement date, each party shall nominate in writing (and
give notice of such nomination to the other party) an appraiser.
If either party fails to make such a nomination, the appraiser
nominated shall, within five (5) days after default by the
other party, appoint and associate with him another appraiser.
If the two designated or selected appraisers are unable to
agree, they shall appoint another appraiser to be umpire
between them, if they can agree on such person. If they are
unable to agree upon such umpire, each appraiser previously
appointed shall nominate two appraisers, and from the names of
the four appraisers so nominated one shall be drawn by lot by
the appraiser appointed by the owner in the presence of the
other appraiser, and the person whose name was so drawn shall
be the umpire. The nominations from whom the umpire is to be
drawn by lot shall be submitted within ten (10) days of the
failure of the two appraisers to agree, which, in any event,
shall not be later than twenty (20) days following the appoint-
ment of the second appraiser, The decision of the appraisers
as to the fair market value, or in the case of their disagree-
ment, then the decision of the umpire, shall be final and
binding. The expenses and fees of such appraisers shall be
borne equally by the Association and the owner. The sale'
shall be consummated within fifteen (15) days thereafter, and
the Association, as Attorney-in-fact, shall disburse the
proceeds for the same purposes and in the same order as is
provided in subparagraph 27.2.1 through 27.2.5 of this para-
graph, except as modified herein. '
27.5 The owners representing an aggregate ownership
interest of seventy-five (75%), or more, of the general common
elements, with the consent of all first mortgagees of record
at that time, may agree that the condominium units are
obsolete and that the same should be sold. In such instance,
the Association shall forthwith record a notice setting forth
such fact or facts, and upon the recording of such notice by
the Association's President and Secretary or Assistant Secre-
tary, the entire premises 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
By-Laws. 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 and each such account shall be in the
name of the Association and shall be further identified by the
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Condominium unit 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 account to another,
for the same purposes and in the same order as is provided in
subparagraph 27.2.1 through 27.2.5 of this paragraph.
28. Personal Property for Common Use. The Association,
as Attorney-in-fact for all of the owners, may acquire and
hold for the use and benefit of all of the condominium unit
owners, real, tangible and intangible personal property and
may dispose of the same by sale or otherwise. The beneficial
interest in any such property shall be owned by all of the
condominium unit owners in the same proportion as their respec-
tive interests in the general common elements, and such inter-
est therein shall not be transferable except with a transfer
of a condominium unit. 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 purpose for which it is intended without hindering or
encroaching upon 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
personal property associated with the foreclosed condominium
unit.
29. Registration of Mailing Address. Each owner shall
register his mailing address with the Association, and all
notices or demands, except routine statements and notices,
intended to be served upon an owner shall be sent by 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 upon the Board of Managers
of the Association or the Association shall be sent certified
mail, postage prepaid, to the mailing address of the Asso-
ciation in Pitkin County, Colorado.
30. Period of Condominium Ownership.
minium estates created by this Declaration
continue until this Declaration is revoked
the manner provided in this Declaration.
The separate condo-
and the Map shall
or terminated in
31. General Reservations. Declarant reserves the right
to establish easements, reservations, exceptions and exclu-
sions consistent with the condominium ownership of the condo-
minium project and for the best interests of the condominium
unit owners and the Association in order to serve the entire
condominium project.
32, Recreational Facilities. The major recreational
facilities which are currently common elements are as follows:
swimming pool and jacuzzi.
33. General.
33.1 If any of the provlslons of this Declaration or any
paragraph, sentence, clause, phrase or word, or the appli-
cation thereof in any circumstance be invalidated, such
invalidity shall not affect the validity of the remainder of
the Declaration, and the application of any such provision,
paragraph, sentence, clause, phrase or word in any other
circumstances shall not be affected thereby.
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33.2 The provisions of this Declaration shall be in
addition to and supplemental to the Condominium Ownership Act
of the State of Colorado and to all other provisions of law.
33.3 Whenever used herein, unless the context shall
otherwise provide, the singular number shall include the
plural, the plural the singular, and the use of any gender
shall include all genders.
33.4 The provisions of this Declaration shall be liber-
ally construed to effectuate its purpose.
IN WITNESS WHEREOF, Declarant has duly executed this
Declaration this day of , 198
Declarant:
THE ASPEN SKI LODGE ASSOCIATES,
a Colorado Limited Partnership
By:
PERRY A. HARVEY,
a General Partner
By:
FARRELL KAHN,
a General Partner
BEING ALL OF THE
GENERAL PARTNERS
STATE OF COLORADO
)
) ss.
)
COUNTY OF PITKIN
The foregoing
day of
FARRELL KAHN as all
LODGE ASSOCIATES, a
instrument was acknowledged before me this
, 1980, by PERRY A. HARVEY and
of the General Partners of THE ASPEN SKI
Colorado Limited Partnership.
Witness my hand and official seal.
My co~mission expires:
Notary Public
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EXHIBIT A
Condominium Declaration for
THE ASPEN SKI LODGE CONDOMINIUMS
Lots E, F, G, H and I, Block 59, City and
Townsite of Aspen, Pitkin County, Colorado
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ARTICLES OF INCORPORATION
OF
THE ASPEN SKI LODGE CONDOMINIUM ASSOCIATION
The undersigned, acting as Incorporator of a corpor-
ation under the Colorado Non-Profit Corporation Act, signs and
acknowledges the following Articles of Incorporation for such
corporation.
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ARTICLE I
NAME
The name of the corporation shall be THE ASPEN SKI
LODGE CONDOMINIUM ASSOCIATION, hereinafter called the
"Association".
ARTICLE II
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~., as from time to time it is amended, supplemented or
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PURPOSE
The purpose for which the Association is organized
is to provide an entity pursuant to C.R.S. 1973, 38-33-101 et
succeeded, (hereinafter called the "Condominium Act") and
pursuant to C.R.S. 1973, 7-20-101, et ~, as from time to
time it is amended, supplemented or succeeded (hereinafter
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called "the Nonprofit Corporations Act"), for the
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operation of THE ASPEN SKI LODGE CONDOMINIUMS, (hereinafter
called "the property") a condominium located on Lots E, F, G,
H and I, Block 59, City and Townsite of Aspen, pitkin County,
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Colorado.
ARTICLE III
POWERS
1.
The Association shall have all of the common law
and statutory powers of a non-profit corporation which are not
II in conflict with the terms of these Articles.
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2. The Association shall have all of the powers and
duties set forth in the Condominium Act except as limited by
these Articles and the Condominium Declaration (hereinafter
called the "Declaration") for the property and all of the
powers and duties reasonably necessary to operate the Associa-
tion as set forth in the Declaration and as it may be amended
from time to time, including but not limited to the following:
2.1 To make and collect assessments against members
to defray the costs, expenses and losses of the Association.
2.2 To use the proceeds of assessments in the
exercise of its powers and duties.
2.3 To maintain, care for, repair, replace, and
operate the condominium property.
2.4 To purchase insurance upon the condominium
property and to provide protection for the Association and its
members as provided by the Declaration.
2.5 To reconstruct improvements after casualty
and to further improve the property.
2.6 To make and amend reasonable rules and regu-
lations respecting the use of the Association's property.
2.7 To enforce by legal means the provisions of the
Condominium Act, the Nonprofit Corporation Act, the Decla-
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ration, these Articles, the By-Laws of the Association, and
the rules and regulations for the use of the condominium
property.
2.8 To contract for the management of the condo-
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minium property and to delegate to such manager all powers and
duties of the Association except as such are specifically
required by the Declaration to have approval of the Board of
Managers or the membership of the Association.
2.9 To contract for the management or operation of
portions of the common elements susceptible to separate
management or operation and to lease such portions.
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2.10 To employ personnel to perform the services
required for proper operation of the Association and of the
condominium property.
2.11 To collect delinquent assessments by suit or
otherwise and to enjoin or seek damages from an owner as is
provided in the Declaration and By-Laws.
2.12 To protect and defend in the name of the
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Association any part or all of the condominium project from
loss and damages by suit or otherwise.
2.13 To borrow funds in order to pay for any expen-
diture or outlays required pursuant to authority granted by
provisions of the Declaration and By-Laws, and to execute all
such instruments (evidencing such indebtedness) deemed neces-
sary.
2.15 To execute contracts to carry out the duties
and powers of the Association.
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:, hereafter be allowed or permitted by law for a non-profit
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To engage in activities which may now or
corporation to actively foster, promote and advance the common
,j interests of the condominium unit owners.
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3.
All funds and the titles of all properties
acquired by the Association and the proceeds thereof shall be
held in trust for the members of the Association in accordance
Ii with the provisions of the Declaration, these Articles, and
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the ByLaws of the Association.
4.
The powers of the Association shall be subject
to and shall be exercised in accordance with the provisions of
the Declaration and the By-Laws of the Association.
ARTICLE IV
MEMBERS
1.
The members of the Association shall consist
solely of all record owners of condominium units of the Asso-
ciation.
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2. Change of membership of the Association shall be
effected and established by the recording in the public
records of Pitkin County, Colorado, of a deed or other instru-
ment establishing a change in record title to a condominium
unit and the delivery to the Association of a certified or
machine copy of such instrument. The membership of the prior
owner shall thereby be terminated.
3. The share of a member in the funds and assets of
the Association cannot be assigned, hypothecated, or trans-
ferred in any manner except as an appurtenance to his condo-
minium unit.
4. The members of the Association shall be entitled
to vote for each condominium unit owned by them. The exact
number of votes to be cast by owners of a condominium unit and
the manner of exercising voters' rights shall be determined by
the By-Laws of the Association.
ARTICLE V
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more than seven (7) Managers, and in the absence of such
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BOARD OF 11ANAGERS
1.
The affairs of the Association will be managed
by a Board consisting of the number of Managers as shall be
determined by the By-Laws, but not less than three (3) nor
determination shall consist of three (3) Managers.
2.
Managers of the Association shall be elected at
the annual meeting of the members in the manner determined by
the By-Laws.
Managers may be removed and vacancies on the
Board of Managers shall be filled in the manner provided by
the By-Laws.
3. The Managers herein named shall serve until the
first election of Managers and any vacancies in their number
occurring before the first election shall be filled by the
remaining Managers.
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4. The names and addresses of the members of the
first Board of Managers who shall hold office until their
successors are elected and have qualified, or until removed,
are as follows:
1. Perry A. Harvey
710 E. Durant
Aspen, Colorado 81611
2. David Jones
120 W. Hopkins
Aspen, Colorado 81611
3. Danielle Longet
310 S. 7th
Aspen, Colorado 81611
ARTICLE VI
OFFICERS
The affairs of the Association shall be administered
by officers elected by the Board of Managers at its first
meeting following the annual meeting of the members of the
Association, which officers shall serve at the pleasure of the
Board of Managers. The names and addresses of the officers
who shall serve until their successors are designated by the
Board of Managers are as follows:
President:
Perry A. Harvey
710 E. Durant
Aspen, Colorado 81611
Secretary:
Danielle Longet
310 S. 7th
Aspen, Colorado 81611
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ARTICLE III
REGISTERED OFFICE
The registered office of the Association shall be
710 E. Durant, Aspen, Colorado 81611, and the Registered Agent
of the Association, whose address is identical to that of the
Registered Office of the Association, shall be PERRY A.
HARVEY.
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ARTICLE VIII
INDEMNIFICATION
Every Manager and every officer of the Association
shall be indemnified by the Association against all liabili-
ties, including counsel fees, reasonably incurred or imposed
upon him in connection with any proceeding, or any settlement
thereof, to which he may be a party, or in which he may become
involved, by reason of his being or having been a Manager or
officer of the Association, whether or not he is a Manager or
officer at the time such expenses are incurred, except in such
cases wherein the Manager or officer is adjudged guilty of
willful misfeasance or malfeasance in the performance of his
duties; provided that in the event of a settlement, the
indemnification herein shall apply only when the Board of
Managers approves such settlement and reimbursement as being
for the best interests of the Association. The foregoing
right of indemnification shall be in addition to and not
exclusive of all other rights to which such Manager or officer
may be entitled.
ARTICLE IX
BY-LAWS
The first By-Laws of the Association shall be
adopted by the Board of Managers, and may be altered, amended
or revoked in the manner provided by the By-Laws.
ARTICLE X
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AMENDMENTS
Amendments to the Articles of Incorporation shall be
of the Nonprofit Corporation Act, as amended from time to
time.
ARTICLE XI
TERM
The term of the Association shall be perpetual,
unless the Association is terminated sooner by the unanimous
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action of its members. The Association shall be terminated by
the termination of the condominium in accordance with the
provisions of the Declaration.
ARTICLE XII
NONPROFIT ASSOCIATION
This Association is not organized for profit. No
member, member of the Board of Managers, officer or person
from whom the Association may receive any property or funds
shall receive or shall 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, or distributed to, or inure
to the benefit of any member of the Board of Managers, officer
or member, provided, however, always (a) that reasonable
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compensation may be paid to any member, Manager, or officer
while acting as an agent or employee of the Association for
services rendered in effecting one or more of the purposes of
the Association, and (b) that any member, Manager, or officer
may, from time to time, be reimbursed for his actual and
reasonable expenses incurred in connection with the admini-
stration of the affairs of the Association.
ARTICLE XIII
INCORPORATOR
The name and address of the incorporator of these
Articles of Incorporation is: RONALD D. AUSTIN, 600 E. Hopkins,
Aspen, Colorado 81611.
IN WITNESS WHEREOF, the Incorporator has hereunto
affixed his signature on this
day of
,
198 .
RONALD D. AUSTIN
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ARTICLES OF INCORPORATION
OF
THE ASPEN SKI LODGE CONDOMINIUM ASSOCIATION
STATE OF COLORADO
)
) ss.
)
County of Pitkin
I, , a Notary Public in
and for said County, in the State aforesaid, do hereby certify
that, RONALD D. AUSTIN, whose name is subscribed and annexed
to the foregoing Articles of Incorporation, appeared before me
this day in person and acknowledged that he signed, sealed and
delivered the said instrument in writing as his free and
voluntary act, for the uses and purposes therein set forth.
day of
Given under my hand and notarial seal this
, 198 .
My commission expires:
Witness my hand and official seal.
Notary Public
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CASELOAD SUMMARY SHEET
. City of Aspen
1. DATE SUBMITTED: STAFF: <;ilt1(\Y \!tli1n
2. APPLICANT: ,Jv\J 1?fu'~~ IJ~ As~\CI.~f.S
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No. C)cr 80
3. REPRESENTATIVE: ~tvry ~ ! [and' l<ihV\
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4. PROJECT NAME:~!'\. 5kJ Lo~f SL,()dl'JiC,IOh &CCphDh
5. LOCATION:
6. TYPE OF APPLICATION:
Rezoning
P.U.D.
Special Review
Growth Management
HPC
( C~)JJ,\\\\I~I \^i\\\l!~:h6,j
V Subdivi sion
''f... Excepti on
Exemption
70:30
Residential Bonus
____Stream Margin
____8040 Greenline
View Plane
Conditional Use
____Other
7. REFERRALS:
'I-. Attorney
~Engineering Dept.
~ousing
Water
____City Electric
Sanitation District ____School District
Fire Marshal ____Rocky Mtn. Nat. Gas
Parks ____State Highway Dept.
Holy Cross Electric ____Other
Mountai n Be 11
8. REVIEW REQUIREMENTS: f'x(pr-n'ik.-
p+ -:&
LL
Uk C12 P -/va I
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9. DISPOSITION:
p & z /'
Approved V
Denied
Date JJ() tj, /8, /7150
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At its regular meeting on November 18, 1980,
the Aspen Planning and Zoning Commission
recommended subdivision exception (wajve
conceptual approval before City Council and
-preliminary before P&Z) for condominiumj.zation
of the Aspen Ski Lodge (formerly SmuRb1er
-Lodge) located on Lots E,F,G,H,I; Block 59,
Aspen Townsite, conditioned on:
(l)Designation of a trash collection and removal
area on the site plan, to meet Engineering
Office approval.
(2)Identification on the site plan of the
zoning district in which the structure
is located.
(3)Provision of proof of ownership.
Counci 1 J
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10. ROUTING:
J Attorney
.I Buil di ng
~ Engineering
Other
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AGREEMEN'r
THIS AGREEMENT made and entered into this
8th
day of
December
, 1980, by and between the
City of Aspen" Pitkin County, Colorado, hereinafter referred to as
"Aspen" and The Aspen Ski Lodge Condominiums
hereinafter referred to as "Licensee".
,
WHEREAS, Licensee is the [owner/lessee] of the following
described property located in the City of Aspen, Pitkin County,
Colorado:
The Aspen Ski Lodge Condominiums
Lots E, F, G, H, I, Block 59
City and Townsite of Aspen
WHEREAS, said property abuts the following described public
right(s)-of-way: Garmisch Street
WHEREAS, Licensee desires to encroach upon said right(s)-of-
way
feet parallel and adjacent to the property
above described for the following purpose:
To place an enclosed and screened trash pick-up
area at the SE corner of Lot I on the city right
of way.
WHEREAS, Aspen agrees to the grant of a private license of
encroachment subject to certain conditions.
THEREFORE, in consideration of the mutual agreement herein-
after contained, Aspen and licensee covenant and agree as fol-
lows:
1. A private license is hereby granted to Licensee to
occupy, maintain and utilize the above-described portion of public
right-of-way for the sole purpose described.
.
2. This license is granted for a perpetual term subject to
being terminated at any time and for any reason at the sole dis-
cretion of the City Council of the City of Aspen.
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3. This license is made subordinate ,to the riyht of Aspen to i
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use said area for any public purpose. ;.
4. Licensee is respon~ible for the lI\aintenance and repair of
the public right-of-way, together with improvements constructed
therein, which Aspen, in the exercise of its discretion, shall
determine to be necessary to keep the same in a safe and clean
condition.
5. Licensee shall at all times during the term hereof, carry
public liability insurance against personal injury and property
damage protectiny Aspen against any and all claims as a result of
or arising out of the use and maintenance by Licensee of said
property.
6, Licensee shall hold Aspen whole and harmless against any
and all claims for damages, costs and expenses, to persons or
property that may arise out of, or be occasioned by the use,
occupancy and maintenance of said property by Licensee, or from
any act or omission of any representative, agent, customer and/or
employee of Licensee.
7. This license may be terminated by Licensee at any time
and for any reason on thirty (30) days' written notice of [its,
her, his, their] intent to cancel.
This license may be terminated
by Aspen at any time and for any reason by resolution duly passed
by the City Council of the City of Aspen.
Upon termination
License~ shall, at [its, his, her, their] expense, remove any
improvements or encroachments from said property. The property
shall be restored to a condition satisfactory to Aspen.
8. This license is subject to all state law, the provisions
of the Charter of the City of Aspen as it now exists, or as may
hereafter be adopted or amended, and the ordinances of the City of
Aspen now in effect or those which may hereafter be passed and
adopted.
9. Nothin;j herein. shall be construed so as to prevent Aspen
from grantiny to anyone such additional licenses or property
interests in or affecting said property as it deems necessary.
10. The conditions hereof imposed o~ the granted license of
encroachment shall constltute covenants running with the land, and
binding upon Licensee, [its,' his, her, their] heirs, successors
and assigns.
IN WITNESS ImEREOF, the parties executed this agreement at
Aspen the day and year first written.
THE CITY OF ASPEN, COLORADO
By
Herman Edel
Mayor
ATTEST:
Kathryn S. Koch
City Clerk
Licensee
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MEMORANDUM
TO: Aspen Planning & Zoning Commission
Aspen City Council
FROM: Jolene Vrchota/Sunny Vann, Planning Office
RE: Aspen Ski Lodge (formerly Smuggler Lodge) Condominiumization
DATE: November 12, 1980
Zoning:
Location:
Lot Size:
Hi story:
Application
Request:
Engineering
Comments:
Attorney's
Comments:
Housing
~irector's
Comments:
Planning Office
Recommendation:
Lot E, F, G, H,
(101 W. Main St.)
'~.A.L/
O-Office with Hi
15,000 sq. ft.
On April 10, 1979 the Board of Adjustment granted a variance
from the provisions of Section 24-12.5 so Smuggler Lodge
would be able to make repairs to meet code requirements in
an amount greater than 10 percent of current replacement
costs per year. The attached resolution approving variance
shows no conditions were attached to the approval.
The current application (made by potential new buyers) is
for condominiumization of the renovated Aspen Ski Lodge
(34 units). Ordinance No. 14 (Series of 1980) amends
Section 20-23 of the Municipal Code to allow lodge condomi-
niumization when specific requirements are met. The appli-
cant has carefully laid out his application to address the
requirements. (See attached copies of application and Ordi-
nance 14.)
See attached memo for two conditions to be met prior to City
Council's final approval consideration.
See attached memo from Robert Edmondson dated November 11, 1980.
Except for providing proof of ownership, the applicant has
provided documents complying with requirements of Section 20-23.
No comments received. Note that the affidavit of David E. Jones
assures that the lodge will provide two (2) pillows of employee
housing following condominiumization, as supplied prior to
condominiumization. See Section 20-23(a)(2).
The Planning Office has determined that the applicant has met
the intent and requirements for lodge condominiumization,
as amended in Section 20-23 of the Aspen Code. The Planning
Office recommends subdivision exception (waiving conceptual
approval before City Council and preliminary before P&Z)
for condominiumization of the Aspen Ski Lodge. Based on the
written documents which have been reviewed, approval should
be conditioned on:
(1) Designation of a trash collection and removal area on the
sitev to meet Engineering Office approval.
pia....)
(2) Identification of the zoning district in which the structure
is located (also on the site plan).
(3) Provision of proof of ownership.
P & Z
Recommendation:
Council Action:
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At its regular meeting on November 18, 1980,
the Aspen Planning and Zoning Commission
recommended subdivision exception (waive
conceptual approval before City Council and
preliminary before P8oZ) for condominiumization
of the Aspen Ski Lodge (formerly Smuggler
Lodge) located on Lots E,F,G,H,I; Block 59,
Aspen Townsite, conditioned on:
(l)Designation of a trash collection and removal
area on the site plan, to meet Engineering
Office approval.
(2)Identification on the site plan of the
zoning district in which the structure
is located.
(3)Provision of proof of ownership.
(4)Provision of off-site employee housing for two employees
for the winter of 1981.
In response to the, conditions recommended by P & Z
at its November 18, 1980 meeting, the applicant
has provided the Planning Office with proof of
ownership and a letter of agreement that they
will subsidize the rent of two of the lodge employees
for the winter of 1981. In addition, they have met
with the Engineering Department with respect to
the provision of trash collection and removal
facilities and an encroachment agreement for the
location of same is included in your packet.
Should Council concur with the Planning Office
and P & Z's recommendation, the appropriate motion
is as follows:
"I move to except the Aspen Ski Lodge from full
compliance with the subdivision regulations for
purposes of condominiumization subject to the
following conditions:
1. The execution of the attached encroachment
agreement for the Lodge's trash facilty.
2. The execution of a letter of agreement with
respect to the provision of employee housing.
3. Revision of the applicant's site plan consis-
tent with the Engineering Department's
memorandum dated November 7, 1980."
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ASPEN CITY COUNCIL AND ASPEN PLANNING AND ZONING COMMISSION
1. Purpose:
Application for condominiumization of THE ASPEN SKI LODGE.
2. Code Provision:
This application is made pursuant to S20-23 of the
Municipal Code of the City of Aspen.
3. Applicant:
The Aspen Ski Lodge Associates, a Colorado limited partner-
ship.
4. Introduction:
The Aspen Ski Lodge was formerly the Smuggler Lodge. In 1978
the Smuggler Lodge was purchased by JPW Partners and through
application to the City an extensive remodel and upgrading
was approved and carried out. There is no question that the
lodge is of the highest quality in every respect. It was
during the renovation of the lodge that the lodge condominium
conversion ordinance was conceived and passed. The Applicant
has contracted to purchase the lodge from JPW Partners,
and a condition of the contract is approval of condominium-
ization by the City of Aspen.
5.
Services and Amenities:
The three year performance level of services and amenities
is set forth in the attached Affidavit of David F. Jones,
the managing partner of JPW Partners, the existing owners,
as to the services provided. The Applicant agrees to
provide services consistant with that, which are substantially
greater services, management, maintenance and the like than
provided prior to the Aspen Ski Lodge.
Tourist Market:
By virtue of the rental restrictions required in S20-23
of the Municipal Code, which have been included in the
draft of the Condominium Declaration, attached hereto,
and which will be recorded in the records of Pitkin
County, Colorado, the Applicant has committed to tourist
market rentals. This commitment is restated here.
, 7
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Common Areas:
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Submitted with this application is a plan showing the common
areas and elements. These areas shall remain the same and
shall not be diminished.
8. Upgrading of the Lodge:
JPW Partners purchased the Smuggler Lodge in 1978 for
$850,000.00 and expended $1,550,000.00 in the remodel and
upgrading of the Lodge, creating the finest quality lodge
in Aspen. The lodge facility that has been created is
of a much better quality than the pre-existing lodge. The
upgrading of the lodge far surpasses the requirements of
the ordinance and completely complies with the spirit of
improving the lodge.
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The resulting condominiumized lodge will be managed in the
same style and atmosphere as the Aspen Ski Lodge has been
managed during the past year.
9. Binding Effect:
The Applicant agrees to the binding conditions as set forth
in the Ordinance in ~20-23(b).
10. Information and Documentation Required:
(a) Proof of Ownership. JPW Partners is the record owner
of the property (deed attached). A contract of sale to
The Aspen Ski Lodge Associates has been entered into and if
condominiumization is approved that limited partnership
(Perry Harvey is one of the general partners) will purchase
the lodge.
(b) An improvement survey accompanies this application.
(c) A site inventory accompanies this application.
(d) Drafts of the
this application.
be made to conform
proposed condominium documents accompany
Some changes and additions will likely
to this new form of condominiumization.
(e) The Affidavit of David F. Jones concerning services
accompanies this application.
I
! (f) One employee unit with two pillows is designated on
I the site inventory.
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'I hereof.
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Ii This application is submitted by Counsel for Applicant,
!I Oates, Austin, McGrath & Jordan.
"
Dated: October 27, 1980.
OATES, AUSTIN, McGRATH & JORDAN
Ronald D. Austin
William R. Jordan, III
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STATE OF COLORADO )
) ss.
COUNTY OF PITKIN )
AFFIDAVIT OF DAVID F. JONES
CONCERNING SERVICES A
THE ASPEN SKI LODGE
The affiant, DAVID F. JONES, being first duly sworn,
upon his oath states:
1. I am the managing partner of JPW Partners, and
have been managing the Smuggler Lodge since December 15, 1978,
when we purchased it and The Aspen Ski Lodge since it opened
on December 15, 1979;
2. Prior to December 15, 1978, the lodge was known
as the Smuggler Lodge and was owned by another party and
operated in a fashion much different than The Aspen Ski Lodge;
3. The past year has set the standard by which we
would operate the lodge and The Aspen Ski Lodge Associates is
bound by our agreement to continue this type of operation;
4. In response to the specific provisions of the
I ordinance, we have provided and agree to provide in the future
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the following:
(a)
On-site management from 8:00 a.m. to 8:00 p,m.
seven (7) days a week during the high season;
(b) Twenty-four (24) hour services on call
during high season;
(c) A continental breakfast;
(d) An eight (8) passenger van providing trans-
portation to and from the airport;
(f)
Check-in time is published to be 3:00 p.m.
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desk, sign the registration form, and are advised of amenities
and information to enchance their visit.
Late arrivals, after
the desk is closed, are signed in and given a room key by the
Aspen Security or similar entity.
(g) Amenities available to the guests are:
continental breakfast, wine and cheese (during the winter only)
several times per week, swimming pool, jacuzzi and cable and
HBO television;
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(h) On-site management exists in a very high
standard of excellence and on a year-around basis, with reduced
I hours
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during the off-season.
5. Prior to the current ownership, I know of my own
knowledge that the Smuggler Lodge provided one manager's unit
for two employees.
Subscribed and sworn to before
,f.~
this J'1 day of
~
, 1980, by DAVID F. JONES.
WITNESS my hand and official seal.
My commission expires: /C:J/.;)..(j/gif
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M E MaR AND U M
TO:
Sunny Vann
FROM:
Robert B. Edmondson, Acting City Attorney
RE:
The Aspen Ski Lodge Condo
DATE:
November 11, 1980
------------------------------------------------------------
Comments - The Aspen Ski Lodge Condo
The Condominium Declaration complies with the
provisions of said section for (a) use during the high
season (b) assessment for violations.
Also, according to the affidavit of David E. Jones,
the lodge will provide (2) pillows of employee housing and
prior to condominiumization two pillows had been provided.
The affiant also states that the on-site management
will be provided in accordance with the applicable statute.
The application states that proof of ownership has been
provided. At this time, I do not have that information.
The applicant, according to the documents, have complied
with the remaining requirements of Section 20-23 of the
Code.
"
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BY-LAWS
OF
THE ASPEN SKI LODGE CONDOMINIUM ASSOCIATION
ARTICLE I
OBJECT
1. The purpose for which this non-profit Association is
formed is to govern the condominium property which has been or
will be submitted to the provisions of the Condom~nium Owner-
ship Act of the State of Colorado by the recording of the
declaration and supplements thereto and maps and supplements
thereto bearing the name associated with this Association.
2. All present or future owners, tenants, future tenants,
or any other person that might use or have an interest in any
manner in the faciliti~s of the project located on the property
therein described are subject to the regulations set forth in
these By-Laws. The mere acquisition or rental of any of the
condominium units (hereinafter referred to as "units") or the,
mere act of occupancy of any of said units will signify that
these By-Laws are accepted, ratified, and will be complied
with.
ARTICLE II
MEMBERSHIP, VOTING, MAJORITY OF OWNERS, QUORUM, PROXIES
1. Membership: Except as is otherwise provided in these
By-Laws, ownership of a condominium unit is required in order
to qualify for membership in this Association. Any person on
becoming an owner of a condominium unit shall automatically
become a member of this Association and be subject to these
By-Laws. Membership shall terminate without any formal
Association action whenever a person ceases to own a condo-
minium unit. Provided, however, such termination shall not
relieve or release any such former owner from any liability or
obligation incurred under or in any way connected with this
Association during the period of such ownership and membership
in the Association. Termination shall not impair any rights
or remedies which the unit owners have, either through the
Board of Managers or the Association or directly, against such
former owner and member arising out of or in any way connected
with ownership and membership and the covenants and obli-
gations incident thereto.
2. Voting: Voting shall be based upon the percentage of
the undivided interest owned by each unit owner in all of the
general common elements. The ownership interest allocable to
each unit shall be set forth in the Condominium Declaration.
The aggregate of all of the undivided interests in the general
common elements shall be considered one hundred (100%) percent
for voting purposes. cumulative voting is prohibited. Unless
specifically set forth herein to the contrary, when a vote of
the members requires that a certain percentage of votes be
cast for approval, it shall be a percentage of the undivided
interests in the general common elements, not a percentage of
the total members in the Association.
3. Majority of Unit Owners: As used in these By-Laws
the term "majority of unit owners" shall mean more than fifty
(50%) percent of the undivided ownership of the general common
elements.
4. Quorum: Except as otherwise provided in these
By-Laws, the presence in person or by proxy of a majority of
unit owners shall constitute a quorum. Unless otherwise
specifically set forth herein to the contrary, an affirmative
vote of a majority of the unit owners present, either in
person or by proxy, shall be required to transact the business
of the meeting, and the acts or decisions thereby undertaken
shall be binding on all unit owners.
-2-
5. Proxies: votes may be cast in person or by proxy.
Proxies must be filed with the Secretary before the appointed
time of each meeting.
ARTICLE III
ADMINISTRATION
1. Association Responsibilities: The owners of the
units will constitute the Association of unit owners, herein-
after referred to as "Association", who will have the respon-
sibility of administering the project through a Board of
Managers.
2. Place of Meeting: Meetings of the Association shall
be held at such place within the State of Colorado as the
Board of Managers may determine.
3. Annual Meetings: The first meeting of the Association
shall be held on the first Friday during the month of March in
the year following the incorporation of this Association.
\
Thereafter, the annual ~eetings of the Association shall be
held on the first Friday during the month of March of each
succeeding year, or on a more convenient date as determined by
the Board of Managers. At such meeting there shall be elected,
by ballot of the owners, a Board of Managers in accordance
with the requirements of Section 5 of Article IV of these
By-Laws. The owners may also transact such other business of
the Association as may properly come before them.
4. Special Meetings: The President may call a special
meeting of the owners upon his own initiative or as directed
by resolution of the Board of Managers or upon receipt of a
petition signed by at least one-third (1/3) of the owners.
The notice of any special meetings shall state the time and
place of such meeting and the purpose thereof. No business
except as stated in the notice shall be transacted at a special
meeting unless by consent of two-thirds (2/3) of the owners
present, either in person or by proxy. Any such meeting shall
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be held at such place and time as the President determines
within thirty (30) days after receipt by the President of such
resolution or petition.
5. Notice of Meetings: The Secretary shall mail or
deliver a notice of each annual or special meeting, stating
the purpose thereof as well as the time and place it is to be
held, to each owner of record, at least ten (10) but not more
than thirty (30) days prior to such meeting. The mailing of a
notice in the manner provided in this paragraph or the delivery
of such notice shall be considered notice served.
6. Adjourned Meetings: 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, from time to time, until a quorum is obtained.
7. Order of Business: The order of business at the
annual meetings of the owners of units shall be as follows:
(a) Roll call and certifying proxies.
(b) Proof of notice of meeting or waiver of notice.
(c) Reading and/or disposal of unapproved minutes.
(d) Reports of officers.
(e) Reports of committees.
(f) Election of managers.
(g) Unfinished business.
(h) New business
(i) Adjournment.
8. Performance of Functions ~ Declarant: Notwithstanding
the provisions of paragraph 3 of Article III, the rights,
duties and functions of the Board of Managers shall, at the
Declarant's option, be exercised by the Declarant until three-
fourths (3/4) of all condominium units have been sold and
conveyed.
-4-
ARTICLE IV
BOARD OF MANAGERS
1. Number and Qualification: At the first meeting there
shall be elected from among the unit owners three (3) members
of the Association to the Board of Managers who shall thereafter
govern the affairs of this Association until their successors
have been duly elected and qualified. The number of Managers
on the Board may be changed from time to time by vote of the
members, but the Board shall never consist of more than seven
(7) or less than three (3) members.
2. Powers and Duties: The Board of Managers shall have
the powers and duties necessary for the administration of the
affairs of the Association and for the operation and maintenance
of the condominium project as a first class residential condomin~
ium property. The Board of Managers may do all such acts and
things except as by law or by these By-Laws or by the Condominium
\
Declaration may not be delegated to the Board of Managers.
3. Other Powers and Duties: Such powers and duties of
the Board of Managers shall include, but shall not be limited
to, the following, all of which shall be done for and in
behalf of the owners of the condominium units:
(a) To administer and enforce the covenants, condi-
tions, restrictions, easements, uses, limitations, obligations
and all other provisions set forth in the Condominium Decla-
ration submitting the property to the provisions of the Condo-
minium Ownership Act of the State of Colorado, the By-Laws of
the Association and supplements and amendments thereto.
(b) To establish, make and enforce compliance with
such rules and regulations as may be necessary for the operation
of the condominium complex and for the operation, rental, use
and occupancy of all of the condominium units with the right
to amend same from time to time. A copy of such rules and
regulations shall be delivered or mailed to each member upon
the adoption thereof.
-5-
(c) To incur such costs, and expenses as may be
necessary to keep in good order, condition and repair all of
the general and limited common elements and all items of
common personal property.
(d) To insure and keep insured all of the insurable
common elements of the property in an amount equal to the
maximum replacement value. To insure and keep insured all of
the common fixtures, common equipment and common personal
property for the benefit of the owners of the condominium
units and their first mortgagees. Further, to obtain and
maintain comprehensive liability insurance covering the entire
premises in amounts not less than $100,000.00 per person and
$300,000.00 per accident and $50,000.00 property damages.
(e) To prepare, according to generally accepted
accounting principles, a budget for the condominium at least
annually, in order to determine the amount of the common
assessments payable by~he unit owners to meet the common
expenses of the condominium project. To allocate and assess
such common charges among the unit owners according to their
respective common ownership interests in and to the general
common elements. To cause the Association to provide for,
among other things, the following services to be paid for out
of the regular assessments (or special assessments if neces-
sary): the maintenance, repair, operation, additions, altera-
tions and improvements of and to the common elements, includ-
ing expenses of management; insurance relative to the common
elements; common electricity, common heating, common water,
and common sewer; trash collections; legal and accounting
relative to the common elements and the Association; snow
removal; and other services deemed necessary by the Board of
Managers for the maintenance of the common elements and opera-
tion of the Association. By majority vote of the Board to
adjust, decrease or increase the amount of the quarterly or
-6-
monthly assessments, and remit or return any excess of assess-
ments over expenses, working capital, sinking funds and reserve
(for deferred maintenance and for replacement) to the owners
at the end of each operating year. 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.
(f) 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 By-Laws. To enforce a
late charge of not more than $20.00 per month. To collect
interest at the rate of eighteen (18%) percent per annum in
connection with assessments remaining unpaid more than fifteen
(15) days from due date for the payment thereof, together with
all expenses, including attorney's fees incurred. The Board
of Managers shall have" the duty, right, power and authority to
prohibit use of the limited and general common elements by an
owner, his guests, tenants, lessees and invitees in the event
that any assessment made remains unpaid more than thirty (30)
days from the due date for payment thereof.
(g) To protect and defend in the name of the Asso-
ciation any part or all of the condominium project from loss
and damage by suit or otherwise.
(h) To borrow funds in order to pay for any expend-
iture or outlay required pursuant to the authority granted by
the provisions of the recorded Declaration and these By-Laws,
and to execute all such instruments evidencing such indebted-
ness as the Board of Managers may deem necessary and give
security therefor (including security which may be liens upon
the common elements). Such indebtedness shall be the several
obligation of all of the owners in the same proportion as
their interest in the general common elements.
-7-
(i) To enter into contracts to carry out their
duties and powers.
(j) To establish a bank account or accounts for the
common treasury and for all separate funds which are required
or may be deemed advisable.
(k) To maintain the general and limited common
elements; to make or cause to be made repairs, replacements,
additions, alterations and improvements to the general and
limited common elements consistent with managing the
condominium project in a first class manner and consistent
with the best interest of the unit owners. However, there
shall be no additions, alterations or improvements by the
Board of Managers or the Managing Agent of or to the general
and limited common elements requiring an expenditure in the
excess of Five Thousand Dollars ($5,000.00) in anyone
calendar year without prior approval of a majority of the
owners in writing or a~ reflected in the minutes of a regular
or special meeting of the owners. Such limitation shall not
be applicable to the replacement, repair, maintenance or
obsolescence of any general or limited common element or
common property.
(1) To keep and maintain full and accurate books
and records showing all of the receipts, expenses or disburse-
ments and to permit examination thereof at convenient weekday
business hours by each of the owners, or their mortgagees, if
applicable.
(m) To prepare and deliver annually to each owner a
statement showing receipts, expenses or disbursements since
the last such statement.
(n) To meet at least semi-annually.
(0) To designate and remove the personnel necessary
for the maintenance, operation, repair or replacement of the
common elements.
-8-
.
(p) In general, to carryon the administration of
this Association and to do all of those things necessary and
reasonable in order to carry out the governing and the opera-
tion of this condominium property.
(q) To control and manage the use of all parking
areas.
(r) To employ for the Association a Managing Agent
who shall have and exercise all of those powers granted to the
Board of Managers from time to time by the Declaration and
By-Laws which may be delegated to such Managing Agent by the
Board of Managers; provided, however, that no such delegation
shall relieve the Board of Managers of its responsibility
under the Declaration.
4. No Waiver of Riqhts: The ommission or failure
of the Association or any condominium unit owner to enforce
the covenants, conditions, restrictions, easements, uses,
limitations, obligations or other provisions of the Condominium
Declaration, the By-Laws or the house rules and regulations
adopted pursuant thereto, shall not constitute or be deemed a
waiver, modification or release thereof, and the Board of
Managers or the Managing Agent shall have the right to enforce
the same thereafter.
5.
Election and Term of Office:
At the first meeting of
the Association the term of office of one Manager shall be
fixed for three (3) years; the term of office of one Manager
shall be fixed for two (2) years; and the term of office of
one Manager shall be fixed at one (1) year; provided, however,
that the terms of office for not less than 1/3 of the members
of the board shall expire annually. At the expiration of the
initial term of office of each respective Manager, he shall
serve until his successor shall have been elected and the
Board of Managers shall hold their first meeting thereafter,
except as is otherwise provided.
-9-
6. Vacancies: Vacancies in the Board of Managers caus~d
by any reason other than the removal of a Manager by a vote of
the Association shall be filled by vote of the majority of the
remaining Managers, even though they may constitute less than
a quorum 1 and each person so elected shall be a Manager until
a successor is elected at the next annual meeting of the
Association.
7. Removal of Managers: At any regular or special
meeting duly called, anyone or more of the Managers may be
removed with or without cause by a two-thirds (2/3) majority
of the owners present in person or by proxy. Thereupon a
successor may then and there be elected to fill the vacancy
thus created. Any Manager whose removal has been proposed by
the owners shall be given an opportunity to be heard at the
meeting.
8. Organization Meeting: The first meeting of a newly
\
elected Board of Managefs following the annual meeting of the
unit owners shall be held immediately following the annual
meeting at such place as shall be fixed by the Managers at the
meeting at which such Managers were elected. No notice shall
be necessary to the newly elected Managers in order legally to
constitute such meeting, providing a majority of the whole
Board be present.
9. Regular Meetings: Regular meetings of the Board of
Managers may be held at such time and place as shall be deter-
mined, from time to time, by a majority of the Managers, but
at least one such meeting shall be held every six months. One
such meeting per annum may be held by telephone. Notice of
regular meetings of the Board of Managers shall be given to
each Manager, personally or by mail, telephone or telegraph,
at least seven (7) days prior to the day named for such meeting.
10. Special Meetings: Special meetings of the Board of
Managers may be called by the President on three (3) days
-10-
notice to each Manager, 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 Managers shall be called by the
President or Secretary in like manner and on like notice on
the written request of two or more Managers. Special meetings
may be held by telephone.
11. waiver of Notice: Before or at any meeting of the
Board of Managers, any Manager may, in writing, waive notice
of such meeting and such waiver shall be deemed equivalent to
the giving of such notice. Attendance by a Manager at any
meeting of the Board shall be a waiver of notice by him of the
time and place thereof. If all of the Managers are present at
any meeting of the Board, no notice shall be required and any
business may be transacted at such meeting.
12. Board of Manaqers' Quorum: At all meetings of the
Board of Managers, a majority of the Managers shall constitute
a quorum for the transaction of business, and the acts of the
majority of the Managers present at a meeting at which a
quorum is present shall be the acts of the Board of Managers.
If, at any meeting of the Board of Managers, there be less
than a quorum present, the majority of those present may
adjourn the meeting from time to time. At any such adjourned
meeting, any business which might have been transacted at the
meeting as originally called may be transacted without further
notice.
13. Fidelity Bonds: The Board of Managers may require
that all officers and employees of the Association and the
Managing Agent handling or responsible for Association funds
shall furnish adequate fidelity bonds. The premiums on such
bonds shall be a common expense.
14. Compensation: No member of the Board of Managers
shall receive any compensation for acting as such, but shall
-11-
be entitled to reimbursement for any actual outofpocket expenses
incurred in the performance of his duties.
ARTICLE V
FISCAL MANAGEMENT
The provision for fiscal management of the condominium
units for and on behalf of all of the unit owners as set forth
in the Condominium Declaration shall be supplemented by the
following provisions contained in this Article V.
The funds and ,expenditures of the unit owners by and
through the Association shall be credited and charged to
accounts under the following classifications as shall be
appropriate, all of which expenditures shall be common expenses:
(a) Current expenses: shall include all funds and
expenditures within the year for which the funds are budgeted,
including a reasonable allowance for contingencies and working
funds, except expenditures chargeable to reserves or to addi-
tional improvements.
(b) Reserve for deferred maintenance: shall include
funds for maintenance items which occur less frequently than
annually.
(c) Reserve for replacement: shall include funds
for repair or replacement required because of damage, wear or
obsolescence.
ARTICLE VI
OFFICERS
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 the Board of Managers, and
such assistant officers as the Board of Managers shall, from
time to time, elect. Except for the President who shall be,
such officers need not be, members of the Board of Managers,
but each shall be an owner of a condominium unit in this
,',
-12-
condominium project, or the Declarant(s) or their representa-
tive(s). The office of President and/or Vice-President shall
not be combined with the offices of Treasurer and/or Secretary
or held by the same person, but the offices of Treasurer and
Secretary may be combined and held by the same person.
2. Election of Officers: The officers of the Association
shall be elected annually by the Board of Managers at the
organization meeting of each new Board and shall hold office
at the pleasure of the Board.
3. Removal of Officers: Upon an affirmative vote of a
majority of the members of the Board of Managers or a two-thirds
(2/3) majority vote of the members, any officer may be removed,
either with or without cause. His successor may be elected at
any regular meeting of the Board of Managers, or at any special
meeting of the Board called for such purpose.
4. President: The President shall be the chief executive
officer of the Association. He shall preside at all meetings
of the Association and of the Board of Managers. He shall
have all of the general powers and duties which are usually
vested in the office of president of an association, including
but 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 or as may be established by the Board or by
the members of the Association at any regular or special
meetings.
5. vice President: The Vice President shall have all
the powers and authority and perform all the functions and
duties of the President in the absence of the President or his
inability for any reason to exercise such powers and functions
or perform such duties.
6. Secretary: The Secretary shall keep all the minutes
of the meetings of the Board of Managers and the minutes of
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all meetings of the Association; he shall have charge of such
books and papers as the Board of Managers may direct; and he
shall, in general, perform all the duties incident to the
office of Secretary and as is provided in the Declaration and
the By-Laws.
The Secretary shall compile and keep up to date at the
principal office of the Association a complete list of members
and their last known addresses as shown on the records of the
Association. Such list shall also show opposite each member's
name the number or other appropriate designation of the unit
owned by such member and the undivided interest in the general
common elements. 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.
7. Treasurer: The Treasurer shall have responsibility
for Association funds and shall be responsible for keeping
,
full and accurate accourts 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 deposi-
tories as may from time to time be designated by the Board of
Managers. In the event a Managing Agent has the responsibility
of collecting and disbursing funds, the Treasurer shall review
the accounts of the Managing Agent not less often than once
each calendar quarter.
ARTICLE VII
INDEMNIFICATION OF OFFICERS, MANAGERS AND MANAGING AGENT
1. Indemnification: The Association shall indemnify
every Manager, officer, Managing Agent, their respective
successors, personal representatives and heirs, against all
loss, costs and expenses, including counsel fees, reasonably
incurred by him in connection with any action, suit or proceeding
arising out of his or their conduct on behalf of the Association,
-14-
except that the indemnification shall not apply if the Court
determines such person was guilty of gross negligence or
willful misconduct. In the event the Court determines such
gross negligence or malfeasance to have occurred, the person
shall reimburse the Association for all sums advanced to
defend the suit or proceeding. 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 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 Manager, officer or Managing
Agent in relation to the matter involved. The foregoing
rights shall not be exclusive of other rights to which such
Manager, officer or Managing Agent may be entitled. All
liability, loss, damage, cost and expense incurred or suffered
by the Association by reason or arising out of or in connection
with the foregoing ind~~nification provisions shall be treated
and handled by the Association as common expenses; provided,
however, that nothing in this Article VII contained shall be
deemed to obligate the Association to indemnify any member or
owner of a condominium unit, who is or has been a Manager or
officer of the Association, with respect to any duties or
obligations assumed or liabilities incurred by him as a member
or owner under and by virtue of the Condominium Declaration.
2. Other: Contracts or other commitments made by the
Board of Managers, officers or the Managing Agent shall be
made as agent for the unit owners, and they shall have no
personal responsibility on any such contract or commitment
(except as unit owners), and the liability of any unit owner
on any such contract or commitment shall be limited to such
proportionate share of the total liability thereof as the
common interest of each unit owner bears to the aggregate
common interest of all of the unit owners, except that any
-15-
losses incurred because of an inability to collect such propor-
tionate amount of the total liability owed by an owner shall
be shared proportionately by the other owners in the same
ratio as the common interest of each unit owner from whom such
proportionate amount was collected bears to the aggregate
common interest of all unit owners from whom such proportionate
amount was collected.
ARTICLE VIII
AMENDMENTS TO BY-LAWS AND ARTICLES
1. Amendments to By-Laws: These By-Laws may be amended
by the Association at an annual meeting or at a duly constituted
special meeting for such purpose; provided, however, that the
particulars set forth in Section 38-33-106, C.R.S. 1973, and
as the same may be amended, shall always be embodied in the
By-Laws. The vote of a two-thirds (2/3) majority of the
owners present in person or by proxy shall be required for
amendment.
2. Amendments to Articles of Incorporation. The Board
of Managers shall adopt a resolution setting forth the proposed
amendment to the Articles of Incorporation and directing that
it be submitted to a vote at either the annual, or a special,
meeting of the members. Written notice setting forth the
proposed amendment or amendments shall be given to each member
entitled to vote at such meeting in person or by proxy. No
amendment prohibited' by applicable laws; including but not
limited to, federal tax laws, the Colorado Nonprofit Corporation
Act, or the Colorado Condominium Act, may be adopted. The
proposed amendment shall be adopted upon receiving at least
two-thirds of the votes which members present at such meeting
or represented by proxy are entitled to cast.
ARTICLE IX
MORTGAGES
1. Notice to Association: An owner who mortgages his
unit shall notify the Association through the Managing Agent,
-16-
if any, or the Secretary of the Board of Managers, giving the
name and address of his mortgagee.
2. Notice of Unpaid Common Assessments: The Board of
Managers, upon ten days written notice of request and payment
of the required fee (in a reasonable amount as established by
the Board of Managers) by a unit owner or his mortgagee shall
promptly prepare a statement of account setting forth the
amount of any unpaid assessments or other charges due and
owing from such unit owner.
3. Notice of Default: The Board of Managers, when
giving notice to a unit owner of a default in paying common
assessments or other default, shall send a copy of such notice
to each holder of a mortgage covering such condominium unit
whose name and address has theretofore been furnished to the
Board of Managers.
4. Examination of Books: Each unit owner and each
mortgagee of a condominium unit shall be permitted to examine
the books of account of the condominium at reasonable times,
on business days, but not more often than once each month.
ARTICLE X
EVIDENCE OF OWNERSHIP, REGISTRATION OF MAILING ADDRESS
AND DESIGNATION OF VOTING REPRESENTATIVE
1. Proof of Ownership: Except for those owners who
initially purchase a condominium unit from Declarant, any
person on becoming an owner of a condominium unit shall furnish
to the Managing Agent or Board of Managers a machine or a
certified copy of the recorded instrument vesting that person
with an interest or ownership in the condominium unit, which
copy shall remain in the files of the Association.
2. Registration of Mailing Address: The owners or
several owners of an individual condominium unit shall have
one and the same registered mailing address to be used by the
.:-";,_')1-::
Association for mailing of monthly statements, notices, demands,
-"~.::Hi'/
.OJ;'''
"',,"
-17-
and all other communications. 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 Managing Agent or Board of
Managers within fifteen (15) days after transfer of title, or
after a change of address, and 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 interest of all of the owners thereof.
3. Designation of Voting Representative - Proxy: If a
condominium unit is owned by one person, his right to vote
shall be established by the record title thereto. If title to
a condominium unit is held by more than one 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 person or alternate
persons to attend all annual and special meetings of members
and thereat to cast whatever 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 owners shall reappoint and authorize one
person or alternate persons to attend all annual and special
meetings as provided by this paragraph 3.
4. Delinquency: No owner shall have the right to vote
in person or by proxy at an annual or special meeting of the
members of the Association who is delinquent in the payment of
an assessment made against him.
5. Good Standing to Vote: The requirements herein
contained in this Article X shall be first met before an owner
-18-
of a condominium unit shall be deemed in good standing and
entitled to vote at any annual or special meeting of members.
ARTICLE XI
OBLIGATIONS OF THE OWNERS
1. Assessments: All owners shall be obligated to pay
the monthly or quarterly assessments imposed by the Association
to meet the common expense. The assessments shall be made
pro-rata according to percentage or fractional interest in and
to the general common elements, and shall be due in advance.
2. Notice of Lien 2E Suit: An owner shall give notice
to the Association of every lien or encumbrance upon his
condominium unit, other than for taxes and special assessments,
and notice of every suit or other proceeding which may affect
the title to his condominium unit, and such notice shall be
given in writing within five (5) days after the owner has
knowledge thereof.
3. Maintenance ~ Repair:
(a) Every owner must perform promptly, at his own
expense, all maintenance and repair work within his own unit
which, if omitted, would affect the appearance of or the
aesthetic integrity of part or all of the condominium project.
(b) All the repairs of internal installations of
the unit (non-common element installations) such as water
fixtures, light fixtures, gas fixtures, power fixtures, toilet
and bath fixtures, telephones, sanitary installations, electrical
fixtures and all other accessories, equipment and fixtures
shall be at the owner's expense. Repairs to doors and windows
shall be at owner's expense, utilizing materials approved by
the Association.
(c) An owner shall be obligated to reimburse the
Association promptly upon receipt of its statement for any
expenditures incurred by it in repairing or replacing any
general or limited common element damaged by his negligence or
by the negligence of his tenants or agents or guestS.
-19-
4. Mechanic's Lien: Each owner agrees to indemnify and
to 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 such a lien is filed and/or a suit for foreclosure
of mechanic's lien is commenced, then within ten (10) days
thereafter such owner shall be required to deposit with the
Association cash or negotiable securities equal to one and
one-half of the amount of such claim plus interest at the rate
of eighteen percent (18%) per annum for one year plus a sum
equal to ten (10%) percent of the amount of such claim but not
less than One Hundred Fifty ($150.00) Dollars, which latter
sum may be used by the Association for any costs and expenses
incurred, including attorney's fees incurred for legal advice
and counsel. Except as is otherwise provided, such sum or
securities shall be held by the Association pending final
adjudication or settlement of the claim or litigation. Dis-
bursement of such funds or proceeds shall be made by the
Association to insure payment of or on account of such final
judgment or settlement. Any deficiency, including attorney's
fees incurred by the Association, 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 hereof shall
be a debt of the owner and a lien against his condominium unit
which may be foreclosed as is provided in the Condominium
Declaration. All advancements, payments, costs and expenses,
including attorney's fees, incurred by the Association shall
be forthwith reimbursed to it by such owner(s), and the owner
shall be liable to the Association for the payment of interest
at the rate of eighteen (18%) percent per annum on all such
sums paid or incurred by the Association.
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-^~."-".~-'<----"- --------
5. General:
(a) Each owner shall comply strictly with the
provisions of the recorded Condominium Declaration and these
ByLaws and amendments thereto.
(b) Each owner shall always endeavor to observe and
promote the cooperative purposes for the accomplishment of
which this condominium project was built.
6. Use of Units; Internal Changes:
(a) All units shall be utilized only for residential
purposes as is provided in the Condominium Declaration.
(b) An owner shall not make structural modifi-
cations or alterations to his unit or installations located
therein without the written approval of the Board of Managers,
and then only in accordance with the provisions of the Condo-
minium Declaration. The Board of Managers shall be notified
in writing of the intended modifications through the Managing
Agent, or, if no Managing Agent is employed, then through the
President of the Board of Managers. The Association shall
have the obligation to answer an owner's request within fifteen
(15) days after such notice, and failure to do so within such
time shall mean that there is no objection to the proposed
modifications or alterations.
7. Use of General Common Elements and Limited Common
Elements: Each owner may use the general common elements,
those limited common elements which he is entitled to use,
sidewalks, pathways, roads and streets and other common elements
located within the entire condominium project in accordance
with the purpose for which they were intended without hindering
or encroaching upon the lawful rights of the other owners, and
subject to the rules and regulations contained in these ByLaws
and established by the Board of Managers as is provided in
paragraph 9 of this Article.
-21-
8. Right of Entry:
(a) An owner shall and does grant the right of
entry to the Managing Agent or to any other person authorized
by the Board of Managers 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 other owners, or their
representatives, to enter his unit for the purpose of performing
installations, alterations or repairs to the mechanical,
electrical or utility services which, if not performed, would
affect the use of other unit(s), provided that requests for
entry are made in advance and that such entry is at a time
convenient to the owner. In case of emergency, such right of
entry shall be immediate.
Managers, are annexed hereto and made a part hereof as Schedule
"A'l.
(b) The Board of Managers reserves the power to
establish, make and enforce compliance with such additional
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.
10. Destruction and Obsolescence: Each owner, upon
becoming an owner of a condominium unit, thereby grants his
power of attorney in favor of the Association, irrevocably
appointing the Associaton his attorneyinfact to deal with the
owner's condominium unit upon its damage, destruction or
obsolescence, all as is provided in the Condominium Declaration.
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ARTICLE XII
COMMITTEES
1. Designation: The President may, but shall not be
required to, appoint an executive committee.
2. Executive Committee: The executive committee shall
consist of three (3) persons who are members of the Board of
Managers and who shall be appointed by the President from the
members of the Board. The President shall be one (1) member.
The executive committee shall supervise the affairs of the
Association and shall regulate its internal economy, approve
expenditures and commitments, act and carry out the established
policies of the Association and report to the Managers at each
meeting of the Board. The executive committee may hold regular
meetings, monthly or as it may in its discretion determine.
Special meetings may be called at any time by the chairman of
the committee or by any of its members, either personally or
\
by mail, telephone or t~legraph, and a special meeting may be
held by telephone.
3. Nominating Committee: Before each annual meeting,
the President shall appoint a committee of three members who
shall nominate candidates for the Board. The names of the
candidates shall be submitted on or before thirty (30) days
before the election. Members may submit names of candidates
other than those submitted by the nominating committee at
least ten (10) days prior to the election. Unless such names
are submitted, either by the nominating committee or by the
members, no person shall be elected whose name is not so
submitted unless no nominations are made, in which event the
names of candidates shall be submitted at the election by the
members.
4. Vacancies: A vacancy in any committee shall be
filled by the President.
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ARTICLE XIII
ASSOCIATION - NOT FOR PROFIT
1. Association ~ for Profit: This Association is not
organized for profit. No members, member of the Board of
Managers, officer or person from whom the Association may
receive any property or funds or shall receive or shall 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, or distributed to, or inure to the benefit of any member
of the Board of Managers, officer or member; provided, however,
always (1) that reasonable compensation may be paid to any
member, Manager or officer while acting as an agent or employee
of the Association for services rendered in effecting one or
more of the purposes of the Association, and (2) that any
for his actual and
officer may, from time to time, be reimbursed
\
rea~onable expenses incurred in connection
member, Manager or
with the administration of the affairs of the Association.
Rent receipts received by the Managing Agent shall be deemed
the property of the owner, and deposits to the Association
bank account shall be deemed only as a convenience to owners.
ARTICLE XIV
MORTGAGEES AS PROXIES
1. Mortgagees as Proxies: Condominium unit owners shall
have the right to irrevocably constitute and appoint a mortgagee
or the beneficiary of a trust deed their true and lawful
attorney to vote their unit membership in this Association at
any and all meetings of the Association and to vest in such
mortgagee or beneficiary or his nominee any and all rights,
privileges and powers that they have as unit owners under the
Certificate of Incorporation and By-Laws of this Association
or by virtue of the recorded Condominium Declaration. Such
proxy shall become effective upon the filing of a notice by
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the mortgagee or beneficiary with the Secretary of the Associa-
tion at such time or times as the mortgagee or beneficiary
shall deem its security in jeopardy by reason of the failure,
neglect or refusal of the Association, the Managing Agent or
the unit owners to carry out their duties as set forth in the
Condominium Declaration. A release of the mortgage or deed of
trust shall operate to revoke such proxy. Nothing herein
contained shall be construed to relieve condominium unit
owners, as mortgagors, of their duties and obligations as
condominium unit owners or to impose upon the mortgagee or
beneficiary of the deed of trust the duties and obligations of
a unit owner.
ARTICLE XY
VOTING BY MAIL
The Board of Managers may determine that an election for
a member or for members of the Board, for an amendment or
amendments to the Articles, or for a proposed plan of merger,
consolidation, or dissolution be by votes of members by mail.
In the event such election be held by mail for a member of the
Board of Managers, it shall require for a valid election an
affirmative vote of a majority of the votes members are entitled
to cast, as defined in Article II, paragraphs 2, 3 and 4.
Election by mail for proposed amendments to the Articles or
for a proposed plan of merger, consolidation, or dissolution
shall require to be valid the affirmative votes of two-thirds
of the votes that members are entitled to cast in such an
election, as defined in Article II, paragraphs 2, 3 and 4.
ARTICLE XYI
COMMON ELEMENTS AND RECREATIONAL FACILITIES
1. The major recreational facilities which are
common elements are:
swimming pool and jacuzzi.
2. New additions of general and limited common
elements may be ~ade by the Declarant (as defined by the
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,r""
'.
Condominium Declaration) or by the Declarant's successors, if
permitted by the recorded Condominium Declaration and if the
expense for installation of such additions are paid for by the
Declarant or the Declarant's successors. New additions of
general and limited common elements may be made by the Associa-
tion subject to the provisions of Articles IV, paragraph 3(k).
A unit owner's ownership interest in any new or existing
common elements shall be appurtenant to such unit. In the
event of the addition of new common elements, a unit owner's
voting power in the Association will not be changed other than
to reflect additional unit owners in the event that additional
units are added to the condominium complex. In the event of
the addition of units, the number of votes which the owners of
existing units are entitled to cast shall not be reduced and
the number of votes which the owners of the new units shall be
entitled to cast shall be computed on the same basis as was
\
the number of votes to which the existing unit owners are
entitled (as designated in the Condominium Declaration).
IN WITNESS WHEREOF, the undersigned initial Board of
Managers have hereunto set their hands this
day of
, 198 .
BOARD OF MANAGERS:
PERRY A. HARVEY
DAVID JONES
DANIELLE LONGET
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The undersigned Secretary of this Association does hereby
certify that the above and foregoing By-Laws were duly adopted
by the Managers as the By-Laws of said Association on
, 198 .
(CORPORATE SEAL)
ATTEST:
Secretary
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SCHEDULE "An
RULES AND REGULATIONS
1. Any common sidewalks, driveways, entrances, halls,
stairways and passageways shall not be obstructed or used by
any unit owner for any other purpose than ingress to and
egress from the units.
2. Except as to the areas termed limited common elements,
no article shall be placed on or in any of the general common
elements except for those articles of personal property which
are the common property of all of the unit owners.
3. Unit owners, members of their families, their guests,
residents, tenants or lessees shall not use sidewalks, driveways,
entrances, halls, stairways and passageways as play area(s).
4. No vehicle belonging to or under the control of a
unit owner or a member of the family or a guest, tenant,
lessee or employee of \~ unit owner shall be parked in such
manner as to impede or prevent ready access to any entrance to
or exit from a building. Vehicles shall be parked within
designated parking areas. Any traffic flow markings and signs
regulating traffic on the premises shall be strictly observed.
Vehicles parked on common elements shall be moved by the
vehicle owners whenever necessary in order to permit main-
tenance and snow removal. No unused, abandoned or damaged
vehicles shall be left on common elements. No car, truck,
motorcycle or any other motor vehicle shall be repaired any-
where on the condominium property. No person shall live or
sleep in any recreational vehicle of any size on the common
elements.
5. No work of any kind shall be done upon the exterior
building walls or upon the general or limited common elements
by any unit owner. Such work is the responsibility of the
Association.
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6. No owner, resident or lessee shall install wiring for
electrical or telephone installations or for any other purpose,
nor shall any television or radio antennae, machines or air
conditioning units be installed on the exterior of the project,
including any part of any balcony or patio, or that protrude
through the walls or the roof of the condominium improvements
except as may be expressly authorized by the Association.
7. Owners and occupants shall exercise reasonable care
to avoid making or permitting to be made loud, disturbing 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 occupants of other units.
8. Disposition of garbage and trash shall be only by the
use of garbage disposal units or by use of common trash and
garbage facilities.
9. The balconies, terraces, decks or patios, if any,
shall be used only for the purposes intended and shall not be
used for hanging garments or other articles or for cleaning
rugs, household articles or other items. No rugs or other
materials shall be dusted from windows, balconies, decks or
patios by beating or shaking. Patios and balconies shall be
kept free of garbage, debris, trash, bicycles, tires, animal
droppings, laundry, or other unsightly storage.
10. The Association assumes no liability for nor shall
it be liable for any loss or damage to articles stored in any
common or other storage area.
11. Any damage to the general common elements or common
personal property caused by the owner or a child.or children
of a unit owner or their guests or the guests of a unit owner
shall be repaired at the expense of that unit owner.
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