HomeMy WebLinkAboutcoa.lu.ec.Butera Duplex
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DATE RECE IVED :c1b!&-R5
DATE RECEIVED COMPLETE:
""".-
PROJ Ecr N
APPL ICANT:
Applicant Addreso/!Phone:
REPRESENTATIVE: I Ad ;c
Representative Address~fione:
Type of Appli cation:
1. GMP/SUBDIV IS ION/PUD (4 step)
Conceptual Submission
_ Preliminary Plat
~ _ Final Plat
($2,730.00)
($1,640.00)
( $ 820 .00)
II. SUBDIVISION/PUD (4 step)
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-.JL II 1.
Conceptual Submission
Preliminary Plat
Final Plat
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EXCEPTION/EXEMPTION/REZONING
(2 step)
($1,900.00)
($1,220.00)
($ 820.00)
($~-.40-t- $(080. dJ
IV. SPECIAL REV'IEW (1 step)
($ 680.00)
Special Review.
Use Determination
Conditional Use
Oth e r :
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'" ~ MEETING "'TE, ""'''\ 0-" 7' "'BLIC HEARl' YES ~
DATE REFERRED: ~ i:ik'5 IN IT IALS:
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REFERRALS:
~i ty Atty
~ City Engineer
Housing Dir.
Aspen ~Iater
City Electric
Envir. Hlth.
_ Aspen Consolo S.D.
_ Mtn. Bell
_ Par ks Dept.
_ Holy Cross Electric
_ Fire Marshall
_ Fire Chief
_ School District
_ Rocky Mtn. Nat. Gas
_ StateHwy Dept (Glenwd)
_ StateHwy Dept (Gr.Jtn)
Bldg: Zoning/Inspectn
Other:
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Other: ~ _ Other:
FILE STATUS AND LOCATION:_~.J
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INITIAL:~
Buil di ng Dept.
CAS E DISPOS IT ION :
Reviewed by:
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Asp.... P&Z
,./~ '.~
I,Ci ty Counci~
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grant subdivision exception to the
its condominiumization,~ subject to _ .
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RECOMMENDED MOTION: "I move to
Butera Duplex for the purposes of
the following conditions:
1. The applicant will comply ~Iith the requests made by Chuck V~""-'"
Roth of the Engineering Department in his memo dated April
29, 1985 prior to the recordation of the subdivision exception
plat. l ,\\\;l,\,,-~ 'j
P.evie\~ed By:
Aspen P&Z
Ci ty Council
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GAlRfHIElD & HIECHT, r.c.
RONALD GARFIELD
ANDREW V, HECHT
AITORNEYS AT LAW
TELEPHONE
(303) 925-1936
TELECOPIER
(303) 925-3008
CABLE ADDRESS
"GARHEC"
WILLIAM K. GUEST, P.e.
JEREMY M. BERNSTEIN
CLIFTON D. BURDICK
VICTORIAN SQUARE BUILDING
601 EAST HYMAN AVENUE
ASPEN, COLORADO 81611
April 9, 1985
VIA HAND DELIVERY
Planning and Zoning Commission
130 South Galena Street
Aspen, Colorado 81611
Re: Lot 10, Callahan Subdivision
Dear Commission Members:
Section
Duplex.
that:
This is an application for the condominiumization under
20-22 of the Aspen Municipal Code ("Code") of the Butera
In support of such application the undersigned states
(a) There are no existing tenants nor have there ever
been any tenants occupying this property.
(b) The applicant requests an exception from the
requirement that the units shall be restricted to six (6) month
minimum leases with no more than two (2) shorter tenancies per
year, because this is part of the Planned Unit Development that
has already been approved for short-term occupancy, and as such,
that requirement would be unduly burdensome and an exception from
it wiI1 not negatively impact the surrounding property.
The applicant would also like to apply for an exception
from the strict application of the provisions of the subdivision
chapter of the Code pursuant to Section 20-19 of the Code.
Further, in support of the application, applicant states that
strict application of the provisions of the subdivision
regulations would be unduly burdensome and deprive the applicant
of the reasonable use of its land.
The exception is necessary for the preservation and
enjoyment of a substantial property right as the Code permits the
use of property as a condominium and the granting of an exception
would not be detrimental to the public welfare or injurious to
other property in the area in which the subject property is
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GARfIELD & HECHT. P.C.
Planning & Zoning Commission
April 9, 1985
Page 2
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situated as the condominiumization of duplexes is permitted by
the Code in such zones.
AVH/mp
Sincerely,
GARFIELD & HECHT, P.C.
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By <./ ~ '--ZL- {,.{"...-&-t./;> . -
Andrew V. Hecht
For T. Richard Butera
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MEMORANDUM
FROM:
City Attorney
City Engineer
Janet Raczak, Planning Office
TO:
RE:
tlutera Duplex Condominiumization
City Case No. 009A-85
April 10, 1985
DATE:
======================================================================
Attached for your review is an application submitted by Andy Hecht on
behalf of Dick Butera, requesting approval for condomini umiz ation of
the Butera Duplex (Lot 10, Callahan Subdivision) out at the ~spen Club
property.
.
Please review this material and return your referral comments to the
Planning Office no later than April 29th, in order for this office to
have adequate time to prepare for its presentation before City Council
on May 13th.
Thank you.
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SPEN
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MEMORANDUM
TO:
Janet Raczak,
Office
FROM:
Barry D. Edwa
April 22, 1985
DATE"
RE:
Butera Duplex Condominiumization
city Case No. 009A-85
We have reviewed the application of Andy Hecht on behalf of
the applicant, dated April 9, 1985, together with the Butera
duplex - a condominium map, submitted therewith.
We agree that there have been no tenants in the property, as
it is of new construction.
Whether or not the P & Z wishes to grant an exception from
the 6 month minimum leases requirements provisions is up to the
commission. It does appear, however, that an exception from
full subdivision would not be objectionable, should the P & Z
deem it appropriate. Of course, an appropriate subdivision
exception statement will need to be provided in a form
acceptable to the attorney's office should an exception be
granted.
We defer to engineering as to whether the proposed
condominium map is in compliance with the code requirements.
We are concerned that the new proposed bike trail alignment may
not be within the control Mr. Butera. It would be his
obligation, of course, to arrange appropriate easements from the
adjoining property holders (if they aren't Butera) should the
proposed new trail alignment be agreed upon. Any such easements
will be required to be in form acceptable to the city Attorney.
If you have any questions, please notify us prior to the May
13 meeting of City Council.
HEHORAllDUl-l
.. 30 I9lfl
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To: Planning Office
Prom: Chuck Roth, Engineering Depnrtment t'12-
Date: April 29, 1985
Re: Butera Duple~ Condominiumization
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Daving reviewed the above referenced application and having made
a site inspection, the Engineering Depart;aent has the following
COnlj';]ents:
1. All of the property corners tlllst be Donumented and labeled on
the plat. The property corners Hhich separate the limited comrllOn
elel1ents of the two yards should also be monuDented.
2. The plat must shO\~ the three rail split rail fence I'lhich
borders the path. The path should be labeled "multi-purpose
trail alignment and bike path" as on original platting at Book 5,
Pages 7-10. Some of the fencing has been taken dOlm in relocating
the path. This fencing should be put back up again and the new
path needs to be surfaced \1ith asphalt. 'i'his should either
happen prior to plat approvals or be conditioned in the agreements.
3. The path realignnent leaves the applicant's property. There
should be a statement by the OHner of Lot 13A (and title statement)
accepting this relocation. '
4. The Salvation Ditch easement should be identiified as Book
147, page 238. There is a waterline easement ("B") which is not
shown which must be. See Book 6, Page 16.
5. ShOH location of gas meters.
6. Include a note on the plat \~hich states that this plat amends
portions of the other three Callahan Subd. plats, \'lith their books
and pages.
7. The applicant should be required to join improvement districts
per the standard language available from the city attorney. This
will appear in the subdivision exenption agreement.
8. The zone district must be indicated on the face of the
dra~ling.
9. A title statement is needed and a mortgagee's statement is
suggested.
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Page 2
Butera Duplex Condominiumization
April 29, 1985
10. There is a portion of deck for Unit 2 which is not shown on
the plat.
11. There is a reference to Book 93, Page 404. It is not clear
what the item is. An easement? The plat should reflect whit the
reference is for.
12. For a condominium plat, ceiling elevations must also be shown.
13. At the site visit, this reviewer was surprised by how large
the structure is. It appears that it may not conform with
Section 24-3,4 of the Municipal Code. The builders reported that
the floor area is 7,000 square feet. It appears from my calcula-
tions that the maximum permissible floor area would be about
5,532 square feet. Prior to approvinCj the condOJ:liniumization of
this structure, the building department should be consulted to
verify if the structure falls within the area and bulk guidelines.
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cc: Jay HaHunond, City Engineer
Jim Nilson, Building Department litem 13)
CR/cr/butera
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MEMORANDUM
FROM:
Aspen City council
Hal Schilling, City Manag~
Alan Richman, Planning Office ~
TO:
THRU:
SUBJEcr :
Butera Duplex Condominiumization
DATE:
May 13, 1985
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SOMMARY: The Planning Office recommends approval of the Butera Duplex
Condominiumization request.
PREVIOUS COUNCIL AC'.rION: None
BACKGROUND: The Butera Duplex is a new residential structure on which
construction is presently being completed. The structure sits on Lot
10 of the Callahan Subdivision, within the Aspen Club PUD, and is
zoned R-15 POD.
PROBLEM DISCUSSION: Section 20-19 (c) of the Code permits City
Council to grant exceptions to the requirements of Chapter 20 when
these are redundant, serve no public purpose and are unnecessary in
relation to our land use policies. The Planning Office recommends
that Council follow this so-called "expedited" review procedure due to
the facts and circumstances associated with this case.
Review of condominiumization is regulated by Section 20-22 of the
Code. Since this is a new structure and no tenants are being displaced
by its sale, there are no employee housing impacts associated with this
request. P&z recommendation is only required on condomini umiz ation
requests where employee housing impacts are created. Therefore,
expedited review is appropriate.
The principal issue associated with this application is the applicant's
request for exemption from the City's six month lease provisions. The
applicant states that these units are part of a Planned Unit Development
that has already been approved for short term occupancy.
The Callahan Subdivision was approved by the City in 1976, prior to
the date of adoption of our condominiumization regulations in 1977 and
1978. According to the applicant's representative, Andy Hecht, to the
best of his recollection, the question of short term use of the units
was not an issue during that review process. Andy also represents
that a majority of the owners of the 20 units in the PUD actually have
their units in the short term market at the present time.
AL'l'ERNA'I'IVES: There are two alternatives available to Council as
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regards this application. On the one hand, the Council could determine
that the character of this area has already been established by its
prior approval and the use of the Aspen Club Condominiums. Therefore,
to apply the six month minimum lease provision would be "unduly
burdensome and deprive the applicant of the reasonable use of its land".
On the other hand, the Council could find that the new units have been
built subsequent to the adoption of the City's condominiumization
regulations and that they should be required to conform to these
provisions. It is the Planning Office's position that this is a
reasonable position for Council to take. Many residential areas of
the community include condominium units built prior to 1977 which are
able to be rented on a short-term basis. This has not prevented the
City, in other cases, from applying its newer Code provisions to
recently condominiumized units. Were we to grant this exception from
the six month minimum lease provision due to surrounding uses, we
could expect similar requests to be made throughout the City of Aspen.
The only case in which the Planning Office could support an exception
from these provisions is when the property is question is located in
our L-2 zone district, whose specific intent is "to allow construction
of tourist-oriented single-family, duplex and multi-family units".
The location of these units in the R-15 POD zone renders this distinction
moot. The Planning Office, therefore, recommends that the six month
minimum lease provision be applied to the condominiumization of the
Butera Duplex.
FINANCIAL IMPLICATION/ADVISORY COIUIITTEE VO"I'E: Not applicable.
RBCOMMENDED MOTION: "I move to grant subdivision exception to the
Butera Duplex for the purposes of its condominiumization, subject to
the following conditions:
1. The appl icant will comply with the requests made by Chuck
Roth of the Engineering Department in his memo dated April
29, 1985 prior to the recordation of the subdivision exception
pI at.
2. The applicant will submit a statement of subdivision exception
conforming to the requirements of the City Attorney's
Office. Included within this statement will be an agreement
that both units be restricted to six month minimum leases,
with no more than two shorter tenancies per year."
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BOOK 491 rAliE~1J
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STATEMENT OF EXCEPTION FROM THE FULL SUBDIVISIO~S
PROCESS FOR THE PURPOSE OF CONDOMINIUMIZ~ON:-<>
FOR THE BUTERA DUPLEX AND EXCEPTION FROM ~HE 22 c"
REQUIREMENT THAT THE UNITS SHALL BE RESTR~EDg~
TO SIX (6) MONTH MINIMUM LEASES WITH NO MO~TH~
TWO (2) SHORTER TENANCIES PER YEAR c::O ~::o
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WHEREAS, T. RICHARD BUTEFA (hereinafter "Applicant") is
the owner of a parcel of real property described as Parcel A and
Parcel B situate in the City of Aspen, Pitkin County, Colorado,
more particularly described as follows:
Lot lo,!~allahan Subdiv~sion, according
to and as mor 1CU ar y escribed on
the recorded plats thereof.
WHEREAS, Applicant has requested an exception from the
full subdivision process for the purpose of condominiumizing the
building on the subject property (said building commonly known as
the Butera Duplex), and for an exception from the requirement
that the units shall be restricted to six (6) month minimum
leases with no more than two (2) shorter tenancies per year on
the subject property; and
WHEREAS, the City Council at its meeting of June 3,
1985, determined that the owner's request for such exceptions was
appropriate and granted the same, subject, however, to the
conditions described hereinafter;
NOW, THEREFORE, the City Council of Aspen, Colorado,
does determine that the owner's application for exception from
the full subdivision process for the purpose of condominiumiza-
tion of the Butera Duplex and for an exception from the
requirement that the units shall be restricted to six (6) month
minimum leases with no more than two (2) shorter tenancies per
year, on the above described property is proper and hereby grants
an exception from the full subdivision process and an exception
from the requirement that the units shall be restricted to six
(6) month minimum leases with no more than two (2) shorter
tenancies per year, for such condominiumization.
PROVIDED, HOWEVER, that the foregoing exceptions are
expressly conditioned upon:
(1) the Applicant's immediate
recording with the Pitkin County Clerk and Recorder that
Declaration of Covenants, Restrictions and Conditions for the
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of the perimeter waIls, floors, ceilings, windows and doors of
the Dwelling Units in the building as shown on the Map and any
amended Map to be fiIed for record, together with all fixtures
and improvements therein contained but not including any of the
structural components of the building, if any, within a Unit.
(b) "Condominium unit" means an apartment
together with the undivided interest in the General and Limited
Common Elements appurtenant to such apartment.
(c) "Owner" means a person, firm, corporation,
partnership, association or other legaI entity, or any
combination thereof, owning one or more Condominium Units; the
term "Owner" shall not refer to any Mortgagee, as herein defined,
unless such Mortgagee has acquired title pursuant to forecIosure
or any proceeding in lieu of foreclosure.
(d) "Mortgage" means any mortgage, deed of trust,
or other security instrument by which a Condominium Unit or any
part thereof is encumbered.
(e) "Mortgagee" means any person named as the
Mortgagee or beneficiary under any mortgage which encumbers the
interest of any Owner.
(f) "Common Elements" means:
(1) The real property upon which the
building is located.
(2) The foundation, columns, girders, beams,
supports, main walls, roofs, crawlspaces, exterior building
surfaces and any "party wall" as shown on the Map.
(3) The installations consisting of the
equipment and materials making up the central services such as
tanks, pumps, motors, fans, compressors, ducts, power, sewer,
light, gas, hot and cold water, heating, ventilating and air
conditioning and, in general, all apparatus and installations
existing for common use;
(4) Such partly or entirely enclosed air
spaces as are provided for community or common use;
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(5)
All other parts of the property
necessary or convenient to its existence, maintenance and safety
or normally in common use.
(g) "General Common Elements" means those parts
of the Common Elements which are not designated as "Limited
Common Elements".
(h) "Limited Common Elements" means those parts
of the Common Elements reserved for the exclusive use of the
Owners of less than all of the Condominium units in the building.
The surface and airspace above the portions of the ground
designated "Exclusive Use Area" for the respective Units are
Limited Common Elements.
(i) "Entire Premises", "Premises", "Project" or
"Property" means and includes the Iand, the building, all
improvements and structures thereon, and all rights, easements
and appurtenances belonging thereto.
(j) "Common Expenses" means and includes:
(1) All sums lawfully assessed against the
General Common Elements;
(2) Expenses of administration and
management, maintenance, repair or replacement of the GeneraI
Common Elements;
(3) Expenses declared common expenses by the
Unit OWners.
(k) "Map" means the Condominium Map referred to
in Paragraph 2 below.
(1) "BuiIding" means the building
improvement comprising a part of the property.
(m) The title "Managing Agent" shall refer
to the person, firm, or entity which mayor shall be selected and
appointed by the Owners of the Condominium Units in accordance
with the provisions of Section 14 of this Declaration.
2. CONDOMINIUM MAP. Declarant shall cause to be filed
for record a Map. The Map shall depict and show at least the
following: The legal description of the land and a survey
thereof; the building and the location of the Units within the
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building; the perimeter boundary of each Unit; the Unit numbers
or other designation. The Map shall contain the certificate of a
registered Colorado Iand surveyor certifying that the Map
substantially depicts the layout, measurements and location of
the Building, the Units, the Unit designation, the dimensions of
such Units and that the Map was prepared subsequent to
substantial completion of the improvements depicted.
In interpreting the Condominium Map the existing
physical boundaries of each Unit as constructed shall be
conclusively presumed to be its boundaries. Declarant reserves
the right to amend the Map from time to time, to conform the same
to the actual physical location of the constructed improvements
and to any changes, modifications, or alterations.
3. DIVISION OF PROPERTY INTO CONDOMINIUM UNITS. The
real property is hereby divided into two (2) separate fee simple
estates, each such estate consisting of the separately designated
Units and the undivided interest in and to the General Common
Elements appurtenant to each Unit as is set forth on the attached
Exhibit A, which by this reference is made a part hereof. Each
Unit shall be identified on the Map by number and building symbol
as shown on Exhibit A.
4. LIMITED COMMON ELEMENTS. A portion of the General
Common Elements is set aside and reserved for the exclusive use
of the Owners of each Unit respectively, such areas being the
Limited Common Elements.
The Limited Common EIements reserved for the
exclusive use of the individual Owners shall be identified on the
Map, and shall, without further reference, be the Limited Common
Elements associated and used with the Apartment Unit to which
each such element is assigned on the Map. All Limited Common
Elements shall be used in connection with the particuIar
Apartment Unit to which it is assigned on the Map, to the
exclusion of the use thereof by the Owner(s) of other Unit except
by invitation. All of the Owners of Condominium Units in this
condominium project shall have a non-exclusive right in common
with all of the other Owners to use of sidewalks; pathways, roads
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and streets ,located within the entire condominium project, if
any. No reference thereto, whether such Limited Common Elements
are exclusive or non-exclusive, need be made in any deed,
instrument of conveyance, or other instrument, and reference is
made to the provision of Paragraph 6 of this Declaration.
5. INSEPARABILITY OF A UNIT. Each Unit and the
undivided interest in the General Common Elements and the Limited
Common Elements, if any, appurtenant thereto shall be inseparable
and non-partitionable and may be conveyed, leased, encumbered,
devised or inherited only as a Condominium Unit.
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 the Condominium Unit by the
unit number 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 , Butera Condominiums, according
to the Condominium Map thereof recorded
, in Plat Book at Page
, and as defined and described in the Condominium
Declaration recorded , in Book
at Page , County of Pitkin, State of
Colorado.
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 ownership of a
Condominium Unit and all the limitations on such ownership as
described in this Declaration.
7. SEPARATE ASSESSMENT AND TAXATION-NOTICE TO
ASSESSOR. Declarant shall give written notice to the Assessor of
Pitkin County, Colorado, of the creation of condominium ownership
of this property, as is provided by law, so that each Unit and
the interest appurtenant thereto shall be deemed a separate
parcel and subject to separate assessments 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 such Unit Owner shall pay his
proportionate share thereof in accordance with his percentage
ownership of the General Common Elements.
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8. TITLE. A Condominium Unit may be held and owned by
more than one (1) person as joint tenants, as tenants in common,
by any legal entity, or in any real property tenancy relationship
recognized under the laws of Colorado.
9. NONPARTITIONABILITY OF GENERAL COMMON ELEMENTS.
The General Common Elements shall be owned in common by all of
the OWners of the Apartment Units and shall remain undivided, and
no OWner shall bring any action for partition or division of the
General Common Elements. Nothing contained herein shall be
construed as a limitation of the right of equitable partition of
a Condominium Unit between the Owners thereof, but such partition
shalI not affect any other Condominium Unit.
10. USE OF UNITS; 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
it is intended, without hindering or encroaching upon the lawful
rights of the other Unit Owner(s).
11. USE AND OCCUPANCY. Each Unit shall be used and
occupied solely for residential purposes, and except as provided
in this Paragraph, no trade or business of any kind may be
carried on therein. Subject to applicable governmental land use
reguIations, lease or rental of a Unit for lodging or residential
purposes shall not be considered to be a violation of this
covenant.
12. EASEMENTS FOR ENCROACHMENTS. If any portion of the
General Common Elements now or hereafter encroaches upon the
other Unit, 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 now or hereafter encroaches upon the
General Common Elements or upon the adjoining Unit, a valid
easement for the encroachment and for the maintenance of same, so
long as it stands, shall and does exist. For title or other
purposes, such encroachment and easements shall not be considered
or determined to be encumbrances either on the General Common
Elements or the Units. The foregoing shall apply, as well, in
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the event of the partial or total destruction of the building,
either of the Units or other improvements comprising all or a
part of the General Common Elements and the subsequent rebuilding
or reconstruction thereof.
13. TERMINATION OF MECHANIC'S LIEN RIGHTS AND
INDEMNIFICATION. No labor performed or materials furnished and
incorporated in a Unit with the consent or at the request of the
Owner thereof or his agent or his contractor or sUDcontractor
shall be the basis for filing a lien against the Apartment of any
other Owner not expressly consenting to or requesting the same,
or against the General Common Elements owned by such other
OWners. 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 Apartment of any other Owner or
against the General Common Elements for construction performed or
for labor, materials, services, or other products incorporated in
or otherwise attributable to the Owner's Unit at such Owner's
request. Notwithstanding the foregoing, the Owner of any
Condominium Unit who acquired title thereto by 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. Each Owner shall
manage his own Unit and share management of the General Common
Elements equally with the other Owner, unless the Owners of both
Units agree in writing upon the appointment of a Managing Agent
to administer both Units and the Common Elements.
15. RESERVATION FOR ACCESS-MAINTENANCE, REPAIR AND
EMERGENCIES. The Owners shall have the irrevocable right to have
access to each Unit or the Limited Common Elements appurtenant
thereto from time to time during reasonable hours as may be
necessary for the inspection, maintenance, repair or replacement
of any of the General Common Elements thereon or accessible
therefrom or for making emergency repairs therein necessary to
prevent damage to the General or Limited Common Elements or to
another Unit.
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Damage to the interior of any part of a unit
resulting from maintenance, repair, emergency repair or
replacement of any of the General Common Elements or as a result
of emergency repairs within another Unit of an Owner at the
instance of another Owner shall be a Common Expense of all of the
Owner; provided, however, that if such damage is the result of
the negligence of a Unit Owner, then such Unit Owner shall be
responsible for all of such damage.
16. OWNERS' MAINTENANCE RESPONSIBILITY. For purposes
of maintenance, repair, alteration and remodeling, an Owner shall
be deemed to own and shall be solely responsible for the interior
surfaces of such Owner's Unit, the Limited Common Elements
assigned thereto, and windows, doors, interior nonsupporting
walls, the materials (such as but not limited to plaster, gypsum
dry walls, paneling, wallpaper, brick, stone, paint, wall and
floor tile, and flooring, but not including the subflooringl
making up the finished surfaces of the perimeter walls, ceilings
and floors within the Unit and the Unit doors and windows;
provided, however, that in exercising such responsibility or any
right granted under this Paragraph no repair, alteration,
remodeling or maintenance thereof shall modify the appearance or
color scheme of the exterior improvements as they may exist from
time to time by agreement of all of the Owners, without the
written consent of all of the Owners. The Owner shall not be
deemed to own any utilities running through his Unit which serve
more than one Unit except as a tenant in common with the other
Owners. Such right to repair, alter and remodel shall carry the
obligation to replace any finishing materials removed with
similar or other types or kinds of finishing materiaIs of equal
or better quality, and to maintain the exclusive use area in neat
and cIean condition.
An Owner shall maintain and keep the areas for
which he is responsible as provided above in this Paragraph 16 of
his own Unit and the Limited Common Elements appurtenant thereto
in good taste and repair, including the fixtures thereof. All
fixtures and equipment installed within the Unit commencing at a
point where the utility lines, pipes, wires, conduits or systems
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(which for brevity are hereafter referred to as "utilities")
depart an area of common usage shall be maintained and kept in
repair by the Owner of the Unit for whose benefit the utilities
depart an area of common usage.
17. COMPLIANCE WITH PROVISIONS OF DECLARATION. Each
Unit Owner shall comply strictly with the provisions of this
Declaration and as the same may be lawfully amended from time to
time. Failure to so comply shall be grounds for an action to
recover sums due and for damages or injunctive relief or both,
maintainable by the Managing Agent, by an aggrieved OWner, or
assessable as though Common Expenses; in the event of any such
action, the prevaiIing party shall be entitled to reasonable
attorneys' fees.
18. REVOCATION OR AMENDMENT TO DECLARATION. This
Declaration shall not revoked nor shall any of the provisions
herein be amended unless the Owners of both Units, 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 revocation or amendment by instrument(s) which shall be duly
recorded.
19. ASSESSMENT FOR COMMON EXPENSES. All Owners shall
be obligated to pay the assessments imposed by the Declaration by
the Owners or Managing Agent to meet the Common Expenses which
shall be necessary to keep the Project in good and attractive
condition. The assessments shall be made pro rata according to
each Owner's fractional interest in and to the General Common
Elements. Assessments for the estimated Common Expenses,
including insurance shall be due monthly in advance on the first
day of each month. The Managing Agent or other Owner incurring
the cost shall prepare and deliver or mail to each Owner an
itemized monthIy statement showing the various estimated or
actual expenses for which the assessments are made. Contribution
for monthly assessments shall be prorated if the ownership of a
Condominium Unit commences on a day other than the first day of a
month.
Assessments for the reasonable actual common
expenses may be made, by the Managing Agent, or Owner incurring
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the same, among other things, for the following: expenses of
management; taxes and special assessments, until separately
assessed; fire insurance with extended coverage and vandalism and
malicious mischief insurance with endorsements attached issued in
the amount of the maximum replacement value of all of the
Condominium Units; casualty and pubIic liability and other
insurance premiums; landscaping and care of grounds which are
General Common Elements; common Iighting and heating; repairs and
renovations; garbage collections; wages, water and trash removal
charges; legal and accounting fees; expenses and liabilities
incurred by the Managing Agent or other Owner under or by reason
of this Declaration; the payment of any deficit remaining from a
previous period; the creation of a reasonable contingency or
other reserve or surplus fund as well as other costs and expenses
relating to the General Common Elements. The omission or failure
of the Owners or Managing Agent to fix the assessment for any
month shall not be deemed a waiver, modification or a release of
the Owners from their obligation to pay. No improvements shall
be made to the Common Elements without the prior written consent
of both of the Owners.
In all cases, excepting a bona fide emergency, no
OWner shall incur a common expense in excess of $2,000.00 for
which an assessment of the other Unit or Owner is to be made,
without first giving the other Owner fifteen (15) days' written
notice of the proposed expenditure.
20. INSURANCE. The Managing Agent or Owners shall
obtain and maintain at all times insurance of the type and kind
provided hereinabove, and including for such other risks of a
simiIar or dissimilar nature, as are or shall hereafter
customarily be covered with respect to other Apartment or
Condominium Buildings, fixtures, equipment and personal property
similar in construction, design and use, issued by responsibIe
insurance companies authorized to do business in the State of
Colorado. The insurance shall be carried in blanket policy form
naming the Owners as the insureds, which policy or policies shall
identify the interest of each Condominium Unit Owner (Owner's
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name, unit number, the appurtenant undivided interest in the
General Common Elements), and which shall provide for a standard,
noncontributory Mortgagee clause in favor of each first
Mortgagee, and shall, if possible, further provide that it cannot
be cancelled by either the insured or the insurance company until
after ten (10) days' prior written notice to each first
Mortgagee. The Managing Agent or Owners, upon request of any
first Mortgagee, shall furnish a certified copy of such blanket
policy and the separate certificate identifying the interest of
the mortgagor.
AIl policies of insurance shall, if possible,
provide that the insurance thereunder shall be invalidated or
suspended onIy with respect to the interest of any particular
Owner guilty of a breach of warranty, act, omission, negligence
or noncompliance with any provision of such policy, including
interest, or who permits or fails to prevent the happening of any
event, whether occuring before or after a loss, which under the
provisions of such policy would otherwise invalidate or suspend
the entire policy, but the insurance under any such policy, as to
the interests of all other insured Owners not guilty of any such
act or omission, shall not be invalidated or suspended and shall
remain in full force and effect. Unless the Owners otherwise
agree, determination of maximum replacement value of all
Condominium Units for insurance purposes shall be made annually
by one or more written insurance appraisals, copies of which
shall be furnished forthwith to each Mortgagee of a Condominium
Unit. In addition, each Owner shall be notified of such
appraisals.
Insurance coverage of the furnishings, additions
and improvements incorporated into a Unit and all items of
personaI property belonging to an Owner and casualty and public
liability insurance coverage within each individual Unit shalI be
the responsibility of the Owner thereof.
21. OWNERS' PERSONAL OBLIGATION FOR PAYMENT OF
ASSESSMENTS. The amount of the Common Expenses assessed
against or incurred on account of each Condominium Unit shall be
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the personaI and individuaI debt of the Owner thereof. Suit to
recover a money judgment for unpaid common expenses shall be
maintainable by the Managing Agent, or any aggrieved Owner
without foreclosure or waiving the lien securing ,same. 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.
22. LIEN FOR NONPAYMENT OF CO~~ON EXPENSES. All sums
due but unpaid for the share of Common Expenses chargeable to any
Condominium Unit, including interest thereon at twelve percent
(12%) per annum, from a date thirty (30) days after said sums
have been assessed, shall constitute a lien on such Unit superior
(prior) to all other liens and encumbrances except:
(a) Tax and speciaI assessment liens on the Unit
in favor of any governmental assessing entity; and
(b) 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, including additional
advances, refinance or extension of these obligations made
thereon prior to the arising of such a lien.
To evidence such lien the aggrieved OWner or
Managing Agent may, but shall not be required to, prepare a
written notice setting forth the amount of such unpaid
indebtedness, the name of the defaulting Owner of the Condominium
Unit and a description of the Condominium Unit. Such a notice
shall be signed by the aggrieved Owner or the Managing Agent, as
appropriate, and may be recorded in the Office of the Clerk and
Recorder of the County of Pitkin, State of Colorado. Such lien
for the Common Expenses shaII attach from the date of the failure
of payment of the debt, and may be enforced by foreclosure on the
defaulting Owner's Condominium Unit by the aggrieved Owner or the
Managing Agent in Iike manner as a mortgage or deed of trust on
real property upon recording of a notice or claim thereof. In
any such foreclosure the defaulting Owner shall be required to
pay the costs and expenses of such proceedings, the cost and
expenses for filing the notice or claim of lien and all
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reasonabIe attorneys' fees incurred in enforcement of the Iien
claim. The defaulting Owner shall also be required to pay to the
foreclosing party a reasonable rental for the Condominium Unit
during the period of foreclosure, and the for~closing party shall
be entitled to a receiver to collect the same. The foreclosing
party shall have the power to bid in the Condominium Unit at
foreclosure sale and to acquire and hold, lease, mortgage and
convey same.
The amount of the Common Expenses chargeable
against each Condominium Unit and the costs and expenses,
including attorneys' fees, of collecting the same shall also be a
debt of the OWner thereof at the time the same is due. Suit to
recover a money judgment for unpaid Common Expenses shall be
maintainable without foreclosing or waiving the lien securing
same.
Any mortgagee holding a lien on a Condominium Unit
may pay any unpaid Common Expense payable with respect to such
Unit, and upon such payment such mortgagee shall have a lien on
such Unit for the amounts paid of the same priority as the lien
of his encumbrance.'
23. LIABILITY FOR COMMON EXPENSE UPON TRANSFER OF
CONDOMINIUM UNIT. Upon payment of a reasonable fee not to exceed
ten dollars ($10.00) and upon the written request of any Owner or
of any Mortgagee or prospective Mortgagee of a Condominium Unit,
the Managing Agent or the Owner of the other Unit shall issue a
written statement of facts known to him, expressly or
constructively setting forth the amount of the unpaid Comnlon
Expenses, if any, with respect to the subject Unit, the amount of
the current monthly assessment and the date such assessment
becomes due, credit for advance payments or from prepaid it~n,s,
including but not Iimited to insurance premiums, which shalI be
conclusive upon the issuer of such statement in favor of all
persons who rely thereon in good faith. Unless such r~quest for
a statement of indebtedness is furnished within fifteen (15)
days, alI unpaid Common Expenses which become due prior to the
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date of making such request shalI be subordinate to the lien of
the mortgagee requesting such statement.
The grantee of a unit shall be jointIy and
severally liable with the grantor for all unpaid assessments
against the latter for his proportionate share of the Cornmon
Expenses up to the time of the grant or conveyance, without
prejudice to the grantee's right to recover from the grantor the
amounts paid by the grantee therefor; provided, however, that
upon payment of a reasonable fee not to exceed ten dolIars
($10.00), and upon written request, any prospective grantee shalI
be entitled to a statement from the Managing Agent or Owner of
the other Unit of facts known to him, expressly or
constructively, setting forth the amount of the unpaid
assessments, if any, with respect to the subject Unit, the amount
of the current monthly assessment and the date that such
assessment becomes due, credit for advanced payments or for
prepaid items, including but not limited to insurance premiums,
which shall be conclusive upon the issuer of such statements.
Unless such request for a statement of indebtedness shall be
complied with within fifteen (15) days of such request, then such
grantee shall not be liable for, nor shall the Unit conveyed be
subject to a lien for, any unpaid assessments against the subject
Unit.
24. MORTGAGING A CONDOMINIUM UNIT - PRIORITY. Any
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 on the following
conditions:
(1) any such junior mortgages shall always be
subordinate to all of the terms, conditions, covenants,
restrictions, uses, limitations, obligations, lien for cornmon
expenses, and other obligations created by this Declaration; (2)
the Mortgagee under any junior mortgage shall release, for the
purpose of restoration of any improvements upon the mortgaged
premises, all of his right, title and interest in and to the
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proceeds under all insurance policies upon said premises which
insurance policies were effected and placed upon the mortgaged
premises by a Managing Agent or other Owner. Such release shall
be furnished forthwith by a junior mortgagee upon written request
of the Managing Agent or the Owner or either of them.
25. PARKING SPACES. Parking areas other than the
garages and the two off-street parking spaces shown on the Map as
Limited Common Elements shall be under the joint control of the
Owners of the Apartments.
26. ATTORNEY-IN-FACT IN CASE OF DESTRUCTION,
OBSOLESCENCE, OR CONDEMNATION. This Declaration hereby makes
mandatory the irrevocable appointment of an Attorney-in-Fact to
deal with Condominium Unit upon their destruction, obsolescence,
or condemnation. Title to both of such Condominium Units is
declared and expressly made subject to the terms and conditions
hereof, and acceptance by any grantee of a deed from the
Declarant(s) or from any Owner shall constitute appointment of
the Attorney-in-Fact herein provided. The Owners irrevocably
constitute and appoint the Managing Agent, from time to time
appointed pursuant to this Declaration, their true and lawful
attorney in their name, place and stead for the purpose of
dealing with the property upon its destruction, obsolescence, or
condemnation as is hereafter provided. Said Attorney-in-Fact
shall have full and complete authorization, right and power to
make, execute and deliver any contract, deed or any other
instrument with respect to the interest of a Condominium Unit
OWner which are necessary or appropriate to the exercise of the
powers herein granted. Repair and reconstruction of the
improvements as used in the succeeding subparagraphs means
restoring the improvements to substantially the same condition in
which they existed prior to the damage, with each Unit and the
Limited Common Elements appurtenant thereto having the same
vertical and horizontal boundaries as before. The proceeds of
any insurance collected or condemnation award shall be available
to the Attorney-in-Fact for the purpose of repair, restoration,
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replacement or disbursement in accordance with the provisions set
forth hereinafter.
27. DESTRUCTION.
(a) In the event of damage or destruction due to
fire or other disaster, the insurance proceeds, if sufficient to
reconstruct the improvements, shall be applied by the Attorney-
in-Fact to such reconstruction, and the improvements shall be
promptly repaired and reconstructed. The Attorney-in-Fact shall
have full authority, right and power, as Attorney-in-Fact, to
cause the repair and restoration of the improvements.
(b) If the insurance proceeds are insufficient to
repair and reconstruct the improvements, such damage or
destruction shall be promptly repaired and reconstructed by the
Attorney-in-Fact, using the proceeds of insurance and the
proceeds of an assessment to be made against the Owners and their
Condominium Units. Such deficiency assessments shall be a Common
Expense and made pro rata according to each Owner's financial
I
interest in the Common Elements, and shaIl be due and payable
within thirty (30) days after written notice thereof. The
Attorney-in-Fact shall have the authority 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 Condominium Unit may be
enforced and collected as is provided in Paragraphs 19 though 22.
In addition thereto, the 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 Attorney-in-Fact shall
cause to be recorded a notice that the Condominium Unit of the
delinquent Owner shall be sold by the Attorney-in-Fact. The
proceeds derived from the sale of such Condominium Unit shall be
used and disbursed by the Attorney-in-Fact, in the following
order:
(i) For payment of the balance of the lien
of any first mortgage;
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(ii) For payment of taxes and special
assessment liens in favor of any
assessing entity;
(iii) For payment of unpaid Common Expenses;
(iv) For payment of junior liens and
encumbrances in the order of and to the
extent of their priority, and
(v) The balance remaining, if any, shall be
paid to the Condominium Unit Owner.
(c) Notwithstanding the foregoing, if all of the
Owners and all of the first mortgagees shalI agree in writing not
to rebuild and restore the improvements, then the Attorney-in-
Fact shaIl sell the Project and the sale proceeds, together with
the insurance proceeds, shall be apportioned between the Owners
of the Condominium units on the basis of each Owner's fractionaI
interest in the Common Elements and such apportioned amounts
shall be paid into separate accounts representing each such
Condominium Unit. Each such account shall be in the name of the
Attorney-in-Fact and shall be identified by the appropriate
Condominium Unit letter and the name of the Owner. The Attorney-
in-Fact shall apply each separate account, without contribution
from one account to the other, for the same purposes and in the
same order of priority as provided for in subparagraphs (1)
through (5) of subparagraph (b) of this Paragraph 27.
28. OBSOLESCENCE. All of the Owners and all of the
first mortgagees may agree that the Project has become obsolete
and should be sold. In such event, the Attorney-in-Fact shall
sell the Project and the sale proceeds shall be administered and
disbursed by the Attorney-in-Fact in the same manner as set forth
in subparagraph (c) of Paragraph 27 above.
29. CONDEMNATION. If alI or any portion of the Project
shall be taken under the exercise of the right of eminent domain
or sold or otherwise disposed of in avoidance and settlement
thereof (such taking or sale being hereinafter referred to as
"condemnation"), then all matters with respect thereto,
including, but not by way of limitation, the reconstruction or
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repair of any improvements damaged or otherwise affected thereby,
the sale of the Project in lieu of such reconstruction or repair,
and the application of the proceeds received by reason of the
condemnation or by reason of the sale of the Project in lieu of
reconstruction or repair, shall be governed by the provisions in
subparagraphs (a), (b) and (c) of Paragraph 27 above and shall be
administered as set forth therein, to the same extent as if the
loss, destruction or damage resulting from the condemnation had
been caused by fire or other disaster and the proceeds received
by reason of the condemnation had been the insurance proceeds
received by reason of such fire or other disaster.
30. PERSONAL PROPERTY FOR COMMON USE. The Managing
Agent or any Owner may, with the prior written consent of all
Owners, acquire and hold for the use and benefit of all the
Condominium Owners, real, tangible and intangible personal
property and may dispose of the same by sale or otherwise, and
shall be owned by the Condominium Owners in the same proportion
as their respective interests in the General Common Elements and
shall not be transferrable except in connection with a transfer
of the condominium unit itself (or the transfer of an Owner's
interest therein), in which case no reference to the personal
property being transferred need be made. 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.
31. MAILING OF NOTICES. Each Owner shall register his
mailing address with the other Owner or Managing Agent and all
notices or demands intended to be served upon any Owner shalI be
sent by either registered or certified mail, postage prepaid,
addressed in the name of the Owner at such registered mailing
address. All notices or demands intended to be served upon the
Owners or the Managing Agent shall be given by registered or
certified mail, postage prepaid, to the registered address
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thereof. All notices or demands to be served on Mortgagees
pursuant hereto shall be sent by either registered or certified
mail, postage prepaid, addressed in the name of the Mortgagee at
such address as the Mortgagee may have furnished to the Owners or
Managing Agent in writing. Unless the Mortgagee so furnishes
such address, the Mortgagee shall be entitled to receive none of
the notices provided for in this Declaration. Any notice
referred to in this section shall be deemed given when deposited
in the united States mail in the form provided for in this
Section.
32. PERIOD OF CONDOMINIUM OWNERSHIP. The separate
condominium estates created by the Declaration and the Map shall
continue until this Declaration is revoked in the manner and as
is provided in Paragraph 18 of this Declaration.
33. GENERAL.
(al If any of the provisions of this Declaration
or any paragraph, sentence, clause, phrase, or word or the
application thereof in any circumstances be invalidated, such
invalidity shall not affect the validity of the remainder of this
Declaration.
(bl The provisions of this Declaration shall be
in addition and supplemental to the Condominium Ownership Act of
the State of Colorado and to all other provisions of law.
(cl Whenever used herein, unless the context
shall otherwise provide, the singular nurr~er shall include the
plural, the plural the singular, and the use of any gender shall
include all genders.
IN WITNESS WHEREOF, Declarant has duly executed this
Declaration this
day of
, 1985.
COpy
T. RICHARD BUTERA
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STATE OF COLORADO )
)
COUNTY OF PIKTIN )
ss.
The foregoing Condominium Declaration for The Butera
Condominium was acknowledged to before me by T. RICHARD BUTERA on
this day of , 1985.
WITNESS my hand and official seal.
My commission expires:
Notary Public
Address:
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EXHIBIT "A" TO
CONDOMINIUM DECLARATION FOR
THE BUTERA CONDOMINIUM
Undivided Interest in and
to the General Common Elements
Unit No.
1
50%
2
50%
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