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00-3 —Durant Mall Condominiumzation q �El I ff M M CASELOAD SUMMARY SHEET City of Aspen ���'•� i a PROJECT NAME: ?4,E //1.AtLl 6eX)aOWY41-2,1mZ-A1Z46W�� APPLICANT: I�OrJ�'f ��%l>-��� Phone: REPRESENTATIVE: l�/`G� 'L ---� Phone: /`%�ir-% TYPE OF APPLICATION: �� (Fee) I. GMP/SUBDIVISION/PUD (4 step) 1. Conceptual Submission 2. Preliminary Pl-at 3. Final Plat II. SUBDIVISION/PUD (4 step) 1. Conceptual Submission 2. Preliminary Plat 3. Final Plat III.EXCEPTION/EXEMPTION/REZONING (2 step) IV. SPECIAL REVIEW (1 step) 1. Special Review 2. Use Determination 3. Conditional Use REFERRALS: Attorney Engineering Dept. +� Housing Water City Electric FINAL ROUTING: Attorney Building ($1,840) ($1 ,120) ($ 560) ($1,290) ($ 830) ($ 560) ($1,010) ($ 465) Date Referred: f-x8- -� Sanitation District Mountain Bell Parks Holy Cross Electric Fire Marshall/Building Dept. Engineering Other Date Routed: School District Rocky Mtn. Nat.Gas State Hgwy. Dept. Fire Chief Other DISPOSITION: CITY P&Z REVIEW: r \ V1 All CITY COUNCIL REVIEW: / Ordinance No. N0, � ` 0 • MEMORANDUM TO: Bill Drueding FROM: Kim Johnson, Planning Office RE: Durant Mall Condominium Insubstantial Plat Amendment DATE: February 9, 1990 SUMMARY: The applicant wishes to amend the 1984 Durant Mall plat to reflect the consolidation of three residential units (D,E, and F) into one larger unit (D.) This plat amendment process follows direction from Cindy Houben, see Attachment "A". FINDINGS: In 1984, 8 residential condominium units (A-H) were subdivided from Unit R. A Second Supplemental Condominium Map for the Durant Mall was filed at that time. The proposed map amendment (Attachment "B") does not affect the original condominium's declaration of covenants. Pursuant to Sec. 7-804.E., this project qualifies for insubstantial amendment: a) The combination of units does not change the use or character of the Project. b) The combination does not result in an increase in the overall coverage of structures on the land. c) The combination does not increase trip generation rates for the Project or the demand for public facilities. d) The combination will not reduce any of the approved open space for this Project. e) The combination will not reduce off-street parking and loading spaces. f) The combination will not reduce required pavement widths or rights -of -way for streets and easements for the Project. g) The combination will not result in an increase of approved gross leasable floor area of commercial buildings in the Project. h) The combination will not result in an increase by greater than one percent in the approved residential density of the Project. REFERRALS: Elyse Elliott in Engineering has reviewed the revised plat dated 1/18/90 and is satisfied with its contents. ATTACHMENTS: "A" - 8/11/88 letter from Arthur Daily to Cindy Houben "B" - Plat amendment dated 1/18/90 06 0 • RECOMMENDATION: Staff recommends that the Planning Director approve the Insubstantial Plat Amendment for the Durant Mall residential condominiums. I hereby approve the above Insubstantial Plat Amendment for the Durant Mall ResiAtntial Condominiums. &,)4 //�,x/,-- -- Amy Mai^' er`%m', P,/l,hnning Director a� � U Dat 2 E 0 3/28/90 MEMO TO FILE RE: Durant Mall Condominiumization - Close of File From: Kim Johnson, Planner The Amended Plat for the Durant Mall Condominiums was filed on 3/20/90 by the County Clerk on page 6, book 24. That's All Folks! __ ; • August 11,_988 Cindy Houben City/County Planning Dept. 130 South Galena Aspen, Colorado 81611 Re: Combination of Our--rit Mall Condo Units D, F and F Dear Cindy: As you and I have several times discussed, Gerald Seay pro-. poses to combine Residential Condominiums Units D, F and F, The Durant Mall (a Condominium), each of which is a one -bedroom unit, into a single three -bedroom Residential Condominium Unit. The necessary written consent of the Board of Managers of The Durant Mall Condominium Association, Ltd. was obtained on December 17, 1987. You will recall that on November 16, 1987 you advised me that the Durant Mall Condominium Map dues not have to be formally amended until the remodeling is completed. In this way, the amendment can reflect as -built dimensions and features. You reconfirmed this position to me this :*corning. You also informed me this morning that under Section 7- 1007(A) of the City's new Land Use Regulations, Mr. Seay must obtain the Planning Director's authorization to the effect that such map amendment will constitute an "insubstantial amendment ... which has no effect on the conditions and represen- tations limiting the approved plat". Please consider this letter a reouest that Alan Richman issue such authorization. As'you pointed out, the only pertinent condition or repre- sentation appears to be that the subject units are "restricted to 6 month minimum leases with no more than 2 shorter tenancies per calendar year". The proposed map amendnent will obviously have no effect on this restriction. Cindy Houben August 11, 1988 Page 2 If you or Alan encounter any obstacles to issuing the neces- sary authorization, please get in touch with me immediately. Sincerely, Arthur C. Daily of HOLLAND & HART cc: Mr. Gerald Sc-�y i CONSENT OF BOARD OF MANAGERS OF THE DURANT MALL CONDOMINIUM ASSOCIATION, LTD. The undersigned hereby certify as follows: 1. They are two of the three members of the Board of Man- agers of The Durant Mall Condominium Association, Ltd., a Colorado nonprofit corporation, entitled to vote with respect to the subject matter hereof (the third Board member, Gerald Seav, abstaining because of his personal interest in said subject mat- ter) . 2. The following resolutions are consented to by the • undersigned as such Managers as and for their act and the act of the corporation: RESOLVED, that the proposed combination of Residential Condominium Units D, E and F, The Durant Mall (a Condominium), into a single Residential Condominium Unit to be known as Unit D (thereby eliminating Units E and F entirely), and the proposed reallocation to new Unit D of all of the undivided interests in the General Common Elements which are presently appurtenant to Units D, E and F, are hereby consented to and approved; and FURTHER RESOLVED, that any alteration of the General Common Elements within or contiguous to Units D, E and F whicn may result from such combination is hereby permitted and approved, provided (i) that the structural integrity of the building is not impaired thereby, (ii) that the work be done at the sole cost and expense of the Unit owner and in full compliance with all applicable laws, and (iii) that the actual architectural plans for the combination be delivered to the Board for its review prior to the start of con- struction; and FINALLY RESOLVED, that the Board has no objection to the installation of a wood - burning fireplace in combined Unit D. 3. The undersigned have executed this Consent this day or December, 1987. C i/7hn C . Ginn Thomas Iacono • Aspen/Pi1 130 aspe Thomas J. Todd Holland and Hart 600 E. Main St. Aspen, CO. 81611 ing Of f ice treet 81611 RE: Durant Mall Insubstantial Plat Amendment Dear Mr. Todd, December 29, 1989 Thank you for your Dec. 26 letter and payment for the Durant Mall application. I had asked for comments on the plat from the City's Engineering Department and received a memo from Elyse Elliot. According to Elyse, the following items must be included on the plat: 1. The new plat must show how Units D, E and F became the new Unit D. All units should be shown, with a note stating that Units D,E and F were combined to make the new Unit D. All limited and general common elements should be shown also. 2. There must be dimensions and a north arrow. 3. There must be a signature block for the City Engineer. If you have questions on Elyse's comments, please call her at 920-5080. Please submit 1 blueline copy of the updated plat to the Planning Office. We can then finish processing the plat amendment. Sincerely, ii m hnson Planner dur.let/kj HOLLAND & HART ATTORNEYS AT LAW DENVER 600 EAST MAIN STREET DENVER TECH CENTER ASPEN, COLORADO 81611 COLORADO SPRINGS ASPEN BILLINGS BOISE CHEYENNE WASHINGTON, D.C. January 19, 1990 Kim Johnson, Planner Aspen/Pitkin Planning Office 130 South Galena Street Aspen, Colorado 81611 TELEPHONE (303) 925-3476 TELECOPIER (303) 9259367 THOMAS J. TODD Re: Durant Mall Insubstantial Plat Amendment Dear Ms. Johnson: We have revised the Third Supplemental Condominium Map of. the Durant Mall (A Condominium) to show the changes requested in your letter of December 29, 1989. Enclosed is a blue -line copy of the revised map. If you find it acceptable, please contact me and I will coordinate on obtaining the necessary signatures. Very truly yours, Thomas J. Todd for HOLLAND & HART TJT/sm Enclosure cc: Gerald R. Seay James F. Reser rI L • DENVER DENVER TECH CENTER COLORADO SPRINGS ASPEN BILLINGS BOISE CHEYENNE WASHINGTON, D.C. HOLLAND & HART ATTORNEYS AI'LAW 600 EAST MAIN STREET ASPEN, COLORADO 81611 March 9, 1990 Ms. Kim Johnson, Planner Aspen/Pitkin County Planning Office 130 South Galena Aspen, Colorado 81611 TELEPHONE (303) 925-3476 TELECOPIER (303) 925-9367 THOMAS J. TODD Re: Durant Mall Insubstantial Plat Amendment Dear Ms. Johnson: Enclosed are two mylars of the Insubstantial Plat Amendment for the Durant Mall which have been signed by the surveyor, the owner and the mortgagee. It is now ready for the various city and county signatures. Also enclosed is our firm's check in the amount of $10.00 payable to Pitkin County Clerk Recorder to cover the recording fees. If you have any questions or need additional information, please call. Very truly yours, Thomas J. Todd for HOLLAND & HART TJT/sm Enclosures cc: Gerald R. Seay Iqp/D- jT u'"1 E • DENVER DENVER TECH CENTER COLORADO SPRINGS ASPEN BILLINGS BOISE CHEYENNE WASHINGTON, D.C. Hand Delivered HOLLAND & HART ATTORNEYS AT LAW 600 EAST MAIN STREET ASPEN, COLORADO 81611 November 20, 1989 Amy Margerum, Planning Director Aspen/Pitkin County Planning Office 130 South Galena Aspen, Colorado 81611 Dear Amy: Re: Insubstantial Plat Amendment TELEPHONE (303) 925-3476 TELECOPIER (303) 925-9367 ARTHUR C. DAILY I am delivering to you herewith for your review the draft Third Supplemental Condominium Map of The Durant Mall (a Condominium), the effect of which is to amend the Second Supplemental Condominium Map to reflect the physical combination of Residential Condominium Units D, E and F into a single Unit D. Also enclosed for your information are copies of (i) the recorded Second Supplemental Condominium Map, and (ii) the consent of the Board of Managers of the Condominium Association to this unit combination dated December 17, 1987. I expect you'll conclude that this is the very sort of "insubstantial plat amendment" that Code Section 7-804(E) was designed to address. In fact, I believe Alan Richman already made that determination before Mr. Seay was issued a Building Permit for the work. See my letter to Cindy Houben of August 11, 1988 on the subject (copy enclosed). If you require additional information of any kind, or if you'd like to meet with me on the matter, please give me a call. As soon as you are satisfied with the approach, I'll have the Map finalized and present it to you for your signature. Thanks for your cooperation. S i/n/c/(T�_ rely , Arthur C. Daily for Holland & Hart ACD/jg Enclosure cc: Gerald R. Seay (w/copy of map) John C. Ginn (w/copy of map) • F' DENVER DENVER TECH CENTER COLORADO SPRINGS ASPEN BILLINGS BOISE CHEYENNE WASHINGTON, D.C. Ms. Kim Johnson Aspen/Pitkin County 130 South Galena HOLLAND & HART ATTORNEYS AT LAW 600 EAST MAIN STREET ASPEN, COLORADO 81611 December 26, 1989 Planning Office Aspen, Colorado 81611 TELEPHONE (303) 925-3476 TELECOPIER (303) 925-9367 THOMAS J. TODD Re: Insubstantial Plat Amendment for the Durant Mall (A Condominium) Dear Ms. Johnson: This letter is a follow-up to the telephone conversation you had with Art Daily of this law firm during which you requested that we provide you with an analysis of how the Third Supplemental Condominium Map of the Durant Mall (A Condominium) is in compliance with Section 7-804(E) of the Land Use Regulations of the City of Aspen. The proposed Third Supplemental Condominium Map for the Durant Mall project (the "Project") previously sent to your office is essentially a corrective instrument which will serve to reflect the combination of three residential condominium units (Units D, E and F) into one larger residential unit to be described as Unit D. The combination of these three residential condominium units into one residential condominium unit should be classified as an insubstantial amendment for the following reasons: a) The combination does not result in a change in the use or character of the Project. b) The combination does not result in an increase in the overall coverage of structures on the land. c) The combination does not increase trip generation rates for the Project or the demand for public facilities. In fact, the combination of three residential units into one will result in substantial decreases in trip generation rates as well as substantial decreases in the demand for public facilities. d) The combination will not reduce any of the approved open space for this Project; • • 4 Ms. Kim Johnson Aspen/Pitkin County December 26, 1989 Page 2 HOLLAND & HART ATTORNEYS AT LAW Planning Office e) The combination will not reduce off-street parking and loading spaces; f) The combination will not reduce required pavement widths or rights of way for streets and easements for the Project; g) The combination will not result in an increase of approved gross leasable floor area of commercial buildings in the Project; h) The combination will not result in an increase by greater than one percent in the approved residential density of the Project: Also enclosed is Holland & Hart check no. 3215 in the amount of $50.00 payable to the Aspen/Pitkin County Planning office, which I understand is the filing fee for the approval procedures associated with this matter. I trust this letter will assist you in your evaluation of our request for the Planning Department's approval of this Insubstantial Plat Amendment. If you require any additional information or have any questions, please give me a call. TJT/sm Enclosure cc: Gerald R. Seay Very truly yours, ��2 Thomas"J. Todd for HOLLAND & HART • • MEMORANDUM To: Kim Johnson, Planning Office From: Elyse Elliott, Engineering Department Date: December 26, 1989 Re: Durant Mall Insubstantial Plat Amendment The Engineering department has the following comments on the submitted plat: 1. The new plat must show how Units D, E and F became the new Unit D. All units should be shown, with a note stating that Units D, E and F were combined to make the new Unit D. All limited and general common elements should be shown also. 2. There must be dimensions and a north arrow. 3. Site with improve must be depicted such as sidewalk, streets, parking spaces, easements, utility sources and meter ions, 'acent lots. 4. There must be signature block for the City Engineer. ';�� ' dL&W--0- 6OX,�, �7�' / 7,-IZ- �/ 3'7 26023 6 BOOK 467 SECOND AMENDMENT TO CONDOMINIUM DECLARATION LORETTA BANNER PITKIN QTY. RECORDER FOR THE DURANT MALL (a Condominium) JUN C4 NH 'By THIS SECOND AMENDMENT to the Condominium Declaration for the Durant Mall (a Condominium) made by BLOCK 106 ASSOCIATES, a Colorado limited partnership, hereinafter referred 1 to as "Declarant" W I T N E S ,S E T H: WHEREAS, the Declarant did make and record that certain Condominium Declaration for the Durant Mall (a Condominium) recorded in Book 308 at Page 518 of the records of Pitkin County, Colorado, and amended the same by the First Amendment thereto recorded in Book 453 at Page 848 of those records. WHEREAS, the Declarant made and filed for record the Condominium Map for the Durant Mall (a Condominium), in Plat Book 4 at Page 565 of the records of Pitkin County, Colorado, and a First Amended Map in Plat Book 15 at Page 48 of those records, and WHEREAS, the Declarant is the owner of Condominium Unit R and as described in said Condominium Declaration and shown on Condominium Map, both above referred to, and WHEREAS, the Declarant said Condominium Unit R into ei units to be known as Units A-H, approval therefor from the City record a Second Supplemental Con (a Condominium), in Plat Book of Pitkin County, Colorado, and desires to re -subdivide the ght (8) separate condominium inclusive, and has received of Aspen; and, has filed for 3ominium Map for the Durant Mall 16 at Page /p of the records WHEREAS, the Declarant desires to amend, by this instrument, the recorded Condominium Declaration above -referred to, as amended, to reflect the resubdivision of said Condominium Unit R, and WHEREAS, the Declarant is authorized to resubdivide Condominium Unit R by virtue of the provisions of paragraph 3(b) of the above -referenced recorded Condominium Declaration, as amended. NOW, THEREFORE, Declarant does hereby publish and declare the following terms, covenants, conditions, easements, restrictions, uses, limitations and obligations which shall -be deemed to run with the land described in the above -referred to Condominium Declaration and shall be a burden and a benefit to the Declarant, its successors and assigns, and any person 467 F v{ E 877 acquiring or owning an interest in the subject property, and improvements, their grantees, mortgagees, successors, heirs, personal representatives, devisees or assigns. 1. The Declarant hereby subdivides Condominium Unit R into Units A-H, inclusive, as shown on the Second Supplemental Condominium Map for the Durant Mall (a Condominium) filed for record in Plat Book at Page of the records of Pitkin County, Colorado, thereby eliminating Condominium Unit R entirely, and therefrom creating eight (8) separate Condominium Units. 2. The undivided interest of the former separate Condominium Unit R in and to the General Common Elements of 15.00o is hereby reallocated equally to Condominium Units A-H inclusive, as follows: Undivided A 1.875 B 1.875 C 1.875 D 1.875 E 1.875 F 1.875 G 1.875 H 1.875 3. In all other respects, the Declarant hereby ratifies and confirms the recorded Condominium Declaration, and First Amendment thereto, above -referred to. IN WITNESS WHEREOF, the Declarant, BLOCK 106 ASSOCIATES, a limited partnership, by a general partner thereof, has duly executed this Second Amendment to the Declaration for the Durant Mall (a condominium) this I J2 day of 198 If BLOCK 106 ASSOCIATES, a Colorado limited partnership By ohn C. Ginn General Partner -2- 0 • bOR 467 F,.�,L-878 STATE OF COLORADO ) ) ss. COUNTY OF PITKIN ) The foregoin instrument was ackn wledged before me this ntli day of � 1987w, by JOHN C. GINN, as a general partner of BLOCK 106 ASSOCIATES, a Colorado limited partnership. WITNESS my hand and official seal. My commission expires: 1/ 31 /<F,)q (SEAL) —� Notary Public Address:"7(p t. 0 CONSENT OF FIRST MORTGAGEE TO SECOND AMENDMENT TO CONDOMINIUM DECLARATION FOR THE DURANT MALL (A Condominium) The undersigned, as urn G-- , of the beneficiary of the deed of trust recorded in Book 328 at Page 627 of the records of Pitkin County, Colorado, hereby consents to and confirms the foregoing Second Amendment to the Condominium Declaration for Durant Mall (a Condominium). Dated: April 23 , 1984 THE EMPIRE SAVINGS, BUILDING AND LOAN ASSOCIATION —3— 0 STATE OF COLORADO ) ss. COUNTY OF PITKIN ) The foregoing instrument was acknowledged before me this 23rd day of April , 1984 , by Janet M. Bleakley —, as Vice President of THE EMPIRE SAVINGS, BUILDING AND LOAN ASSOCIATION. Witness my hand and official seal. My commission expires: April 1, 1987 (SEAL) Notary P. bl ,c v Address: 1654 California Street Denver- Colorado =2 —4— 0 0 soon 467 rr:;_871 DECLARATION OF COVENANTS, RESTRICTIONS AND CONDITIONS FOR UNIT R, ALSO KNOWN AS APARTMENTS A-H, INCLUSIVE OF THE DURANT 11ALL (A CONDOMINIUM) BLOCK 106 ASSOCIATES, a Colorado Limited Partnership, (Hereinafter "Covenantor") for itself individually and for its grantees, successors and assigns, in consideration of the granting of an exception from the full subdivision process for the purpose of re-condominiumization of the following described property, hereby covenants with the City of Aspen, Pitkin County, Colorado, to restrict said property, and hereby does restrict said property as follows: t4� 1. Covenantor represents that it is the record title owner of the following described - _n Q g e property situate in the City of .� Aspen, County of Pitkin, State of Colorado, together with the o improvements thereto: Condominium Unit R, also known as Apart- ments A-H, inclusive, of The Durant Mall (a Condominium), according to the Condominium Map thereof recorded in Plat Book 4 at L Page 565 of the records of Pitkin County, Colorado V situate at 710 E. Durant Street, Aspen, Colorado 81611. 2. The sale of any of the dwelling units located on the above described property shall be in strict compliance with the provisions of Section 20-22(a), Aspen Municipal Code as follows: (a) Existing tenants shall be given written notice when their unit is offered for sale, which notice shall specify the sale price. Each tenant shall have a Q- r © ninety -day nonassignable option to purchase their unit w cn : e at this preliminary market value. In addition, each N e to o tenant shall have a ninety -day exclusive nonassignable �v right of first refusal to purchase their unit which cti shall commence when a bona fide offer thereforis made by a third person, and accepted by the owner. In the event that such offer is made while the ninety -day option is still in effect, the tenant may purchase the U Bou 467 PIGE87? unit for the amount of the initial sale price or the amount of the acceptable bona fide offer, whichever is less. 3. The rental of any of the dwelling units specified shall be and hereby is restricted to six (6) month minimum leases with no more than two (2) shorter tenancies per calendar year, all as required by Section 20-22(b), Aspen Municipal Code, as amended. 4. In the event that any municipal improvement or improvements of a kind contemplated in Section 20-16 of the Municipal Code of the City of Aspen, as amended, became, in the sole judgment or discretion of the City Council of the City of Aspen, necessary or desirable to the area of the above described property, covenantor will make no objection to any special assessment or special tax or proceeding therefor on the basis that the property is adequately served by existing improvements and/or on the basis that the premises will not be served or benefited by the improvement or improvements proposed. Covenantor further agrees to join, upon the demand therefor by the City, any special improvement district, urban renewal district, or downtown development district formed for construction of such improvements (including, without limitation, signage, drainage, underground utilities, paved streets and alleys, planting, curbs, gutters, sidewalks, street lights, traffic circulation, trails, recreation facilities, berms, open space lands, public transportation facilities, parking, etc.) in the area of the above -described property or to reimburse the City of Aspen directly upon demand therefor if the City should choose to construct these improvements without the formation of such a district. 5. The covenants contained herein shall run with the land and shall be binding on all parties having any right, title or interest in the above -described property or any part thereof, and their heirs, representatives, successors and assigns, for a period of fifty (50) years from the date these covenants are recorded. • U bong 467 F,�E873 6. None of the covenants contained herein shall be released or waived in any respect or modified or amended during the period they are binding without the prior consent of the City of Aspen reflected by Resolution of the City Council of the City of Aspen. IN WITNESS WHEREOF, �. �z� executed this 6 3 day of STATE OF COLORADO ) ss. COUNTY OF PITKIN ) this declaration has been duly 1984. BLOCK 106 ASSOCIATES, a Colorado Limited Partnership Y ohn C. Ginn, General Partner he forego'ng document was acknowledged to before me this 2 3, day of , 1984, by JOHN C. GINN, as a General Partner o B OCK 106 ASSOCIATES, a Colorado Limited Partnership. WITNESS my hand and official seal. My commission expires: son 0 0 BON 467 m,-, 874 26'023 5 STATEMENT OF EXCEPTION FRON, THE FULL SUBDIVISION LORETTA BANNER PROCESS FOR THE PURCHASE OF CONDOMINIUMIZATION PITKIN CTY. RECORDER FOR THE DURANT MALL (A CONDOMINIUM) Jui I I I 04 aH BUY WHEREAS, BLOCK 106 ASSOCIATES, a Colorado Limited Partnership (hereinafter "Applicant"), is the owner of the real property (and the improvements thereto) situate in the City of Aspen, Pitkin County, Colorado, more particularly described as follows: Unit R, The Durant Mall (a Condominium) according to the Condominium Plat thereof recorded in Plat Book 4 at Page 565 of the records of Pitkin County, Colorado, also known as Apartments A-H, inclusive, 710 E. Durant, Aspen, Colorado 81611. WHEREAS, Applicant has requested an exception from the full subdivision process for the purpose of re-condominiumizing the said Unit R into eight (8) separate condominium units; and WHEREAS, the Aspen Planning and Zoning Commission, at its meeting of October 4, 1983, determined that such exception would be appropriate and recommended that the same be granted, subject, however, to certain conditions; and WHEREAS, the City Council determined at its meeting of October 24, 1983, that such exception was appropriate and granted the same, subject, however, to certain conditions; 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 re- condominiumization of Unit R, The Durant Mall (a Condominium) is proper and hereby grants an exception from the full subdivision process for such condominiumization; PROVIDED, IiOWEVER, that the foregoing exception is expressly conditioned upon: (1) the Applicant's recording (contemporaneously herewith) with the Pitkin County Clerk and Recorder that "Declaration of Covenants, Restrictions and Conditions for Unit R, also known as Apartments A-H, inclusive, The Durant Mall (a Condominium) , datedT' �- 1983, and (2) the Applicant's strict compliance for itself, its Boa 467 F;GE875 successors, grantees and assigns, with the provisions contained therein and all other binding conditions of approval on this matter set by the Planning and Zoning Commission and/or the City Council. DATED THIS Z�— `lay of9:f---Z, 198)(-. i�• Mayor APPROVED AS TO FORM: Paul J. Taddune, City Attorney I, KATHRYN S. KOCH, do hereby certify that the foregoing Statement of Exception from the Full Subdivision Process for the Purposes of Condominiumization of UNIT R, also known as Apartments A-H, The Durant Mall (a Condominium), was considered and approved by the Aspen City Council at its regular meeting held , 198�-, at which time the Mayor, William L. Stirling, was authorized to execute the sar. q� r�.,,�ehalf of the City of Aspen. �`_? Kathryn S. ch, City .3.erk - 2 - 0 • �o It JUA 2 REM MEMORANDUM TO: Paul Taddune, City Attorney FROM: Jim Wilson, Chief Building Officia DATE: June 20, 1984. RE: Durant Mall Condominiumization The deficiencies noted in my memo dated September 28, 1983, have been corrected to the satisfaction of this department. The Durant Mall Condominiumization proposal has now met the requirements of Section 20-22(e) of the Aspen Municipal Code. cc: Colette Penne, Planning JW j a r ASPEN *PITKIFOREGIONAL BUILDIlJG DEPARTMENT MEMORANDUM TO: Colette Penne, Planning Office FROM: Jim Wilson, Chief Building Official ?IA___I DATE: September 28, 1983 RE: Durant Mall Condominiumization, I have inspected the eight residential units on the third floor of the Countryside Building, the westerly of the two Durant Mall buildings. Before tl.is department will approve condominization under Sec. 20-22(e) of the Aspen Code, the following work must be completed: 1) The lofts in units D,E and H must be removed or extensively remodeled for life -safety compliance. Units E and H, which are currently being used for sleeping and unit D, that may potentially be used for sleeping, must be provided with egress windows and legal stairways for use to continue. 2) The existing smoke detection system in all units must be altered to comply with NFPA Standard 72E; this involves the addition of smoke detectors in the high -peaked ceiling area. 3) The existing alarm system must comply with Section 9-3(z) of the Aspen Municipal Code. offices: mail address: 110 East Hallam Street 506 East Main Street Aspen, Colorado 81611 303/925-5973 Aspen, Colorado 81611 CITY OF ASPEN 130 south galena street aspen, colorado 81611 303-925 -2020 MEMORANDUM TO: Planning Department City Engineer FROM: City Attorney ; T DATE: April 27, 1984 RE: Durant Mall (Unit R) Forwarded herewith for your review and approval in connection with the Durant Mall (Unit R) recondominiumization application, are the Declaration of Covenants and Statements of Exception from the Full Subdivision Process, which we find acceptable as to form. Should you also find the enclosed documents acceptable, please forward them to the City Clerk for execution by the Mayor. PJT/mp Attachments P.S. Bill Stirling and Chuck Roth have raised questions concerning the 180-day filing and recording requirement of the approval. Please continent prior to sending the documents Cathr n. I suggest, to eep e ocumen with the approval, that the Council approve an extension to the 180-day requirement. This can be easily accomplished through the consent agenda at the May 14 meeting. /- cc: Mayor City Clerk APR 2 71%4 {, ASPEN / PIrKIN CO. PLANNING OFFICE • DECLARATION OF COVENANTS, RESTRICTIONS AND CONDITIONS FOR UNIT R, ALSO KNOWN AS APARTMENTS A-H, INCLUSIVE OF THE DURANT MALL (A CONDOMINIUM) BLOCK 106 ASSOCIATES, a Colorado Limited Partnership, (Hereinafter "Covenantor") for itself individually and for its grantees, successors and assigns, in consideration of the granting of an exception from the full subdivision process for the purpose of re-condominiumization of the following described property, hereby covenants with the City of Aspen, Pitkin County, Colorado, to restrict said property, and hereby does restrict said property as follows: 1. Covenantor represents that it is the record title owner of the following described property situate in the City of Aspen, County of Pitkin, State of Colorado, together with the improvements thereto: Condominium Unit R, also known as Apart- ments A-H, inclusive, of The Durant Mall (a Condominium), according to the Condominium Map thereof recorded in Plat Book 4 at Page 565 of the records of Pitkin County, Colorado situate at 710 E. Durant Street, Aspen, Colorado 81611. 2. The sale of any of the dwelling units located on the above described property shall be in strict compliance with the provisions of Section 20-22(a), Aspen Municipal Code as follows: (a) Existing tenants shall be given written notice when their unit is offered for sale, which notice shall specify the sale price. Each tenant shall have a ninety -day nonassignable option to purchase their unit at this preliminary market value. In addition, each tenant shall have a ninety -day exclusive nonassignable right of first refusal to purchase their unit which shall commence when a bona fide offer thereforis made by a third person, and accepted by the owner. In the event that such offer is made while the ninety -day option is still in effect, the tenant may purchase the C� i unit for the amount of the initial sale price or the amount of the acceptable bona fide offer, whichever is less. 3. The rental of any of the dwelling units specified shall be and hereby is restricted to six (6) month minimum leases with no more than two (2) shorter tenancies per calendar year, all as required by Section 20-22(b), Aspen Municipal Code, as amended. 4. In the event that any municipal improvement or improvements of a kind contemplated in Section 20-16 of the Municipal Code of the City of Aspen, as amended, became, in the sole judgment or discretion of the City Council of the City of Aspen, necessary or desirable to the area of the above described property, covenantor will make no objection to any special assessment or special tax or proceeding therefor on the basis that the property is adequately served by existing improvements and/or on the basis that the premises will not be served or benefited by the improvement or improvements proposed. Covenantor further agrees to join, upon the demand therefor by the City, any special improvement district, urban renewal district, or downtown development district formed for construction of such improvements (including, without limitation, signage, drainage, underground utilities, paved streets and alleys, planting, curbs, gutters, sidewalks, street lights, traffic circulation, trails, recreation facilities, berms, open space lands, public transportation facilities, parking, etc.) in the area of the above -described property or to reimburse the City of Aspen directly upon demand therefor if the City should choose to construct these improvements without the formation of such a district. 5. The covenants contained herein shall run with the land and shall be binding on all parties having any right, title or interest in the above -described property or any part thereof, and their heirs, representatives, successors and assigns, for a period of fifty (50) years from the date these covenants are recorded. -2- 6. None of the covenants contained herein shall be released or waived in any respect or modified or amended during the period they are binding without the prior consent of the City of Aspen reflected by Resolution of the City Council of the City of Aspen. IN WITNESS WHEREOF, this declaration has been duly executed this 23(Z 0 day of 1984. BLOCK 106 ASSOCIATES, a Colorado Limited Partnership BY 4�� ohn C. Ginn, General Partner STATE OF COLORADO ) ss. COUNTY OF PITKIN ) he forego'ng document was acknowledged to before me this 2 3, day of lin. 0 , 1984, by JOHN C. GINN, as a General Partner o B OCK 106 ASSOCIATES, a Colorado Limited Partnership. WITNESS my hand and official seal. My commission expires: /`. / . _ ry Public '••.' •�� 1. �_�0 • -3- STATEMENT OF EXCEPTION FROM THE FULL SUBDIVISION PROCESS FOR THE PURCHASE OF CONDOMINIUMIZATION FOR THE DURANT MALL (A CONDOMINIUM) WHEREAS, BLOCK 106 ASSOCIATES, a Colorado Limited Partnership (hereinafter "Applicant"), is the owner of the real property (and the improvements thereto) situate in the City of Aspen, Pitkin County, Colorado, more particularly described as follows: Unit R, The Durant Mall (a Condominium) according to the Condominium Plat thereof recorded in Plat Book 4 at Page 565 of the records of Pitkin County, Colorado, also known as Apartments A-H, inclusive, 710 E. Durant, Aspen, Colorado 81611. WHEREAS, Applicant has requested an exception from the full subdivision process for the purpose of re-condominiumizing the said Unit R into eight (8) separate condominium units; and WHEREAS, the Aspen Planning and Zoning Commission, at its meeting of October 4, 1983, determined that such exception would be appropriate and recommended that the same be granted, subject, however, to certain conditions; and WHEREAS, the City Council determined at its meeting of October 24, 1983, that such exception was appropriate and granted the same, subject, however, to certain conditions; 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 re- condominiumization of Unit R, The Durant Mall (a Condominium) is proper and hereby grants an exception from the full subdivision process for such condominiumization; PROVIDED, HOWEVER, that the foregoing exception is expressly conditioned upon: (1) the Applicant's recording (contemporaneously herewith) with the Pitkin County Clerk and Recorder that "Declaration of Covenants, Restrictions and Conditions for Unit R, also known as Apartments A-H, inclusive, The Durant Mall (a Condominium) , dated /\PC---," 11 1983, and (2) the Applicant's strict compliance for itself, its successors, grantees and assigns, with the provisions contained therein and all other binding conditions of approval on this matter set by the Planning and Zoning Commission and/or the City Council. DATED THIS day of , 1983. Mayor APPROVED AS TO FORM: Paul J. Tadd ne, City Attorney I, KATHRYN S. KOCH, do hereby certify that the foregoing Statement of Exception from the Full Subdivision Process for the Purposes of Condominiumization of UNIT R, also known as Apartments A-H, The Durant Mall (a Condominium), was considered and approved by the Aspen City Council at its regular meeting held , 1983, at which time the Mayor, William L. Stirling, was authorized to execute the same on behalf of the City of Aspen. Kathryn S. Koch, City Clerk -2- SECOND AMENDMENT TO CONDOMINIUM DECLARATION FOR THE DURANT MALL (a Condominium) THIS SECOND AMENDMENT to the Condominium Declaration for the Durant Mall (a Condominium) made by BLOCK 106 ASSOCIATES, a Colorado limited partnership, hereinafter referred to as "Declarant". W I T N E S S E T H: WHEREAS, the Declarant did make and record that certain Condominium Declaration for the Durant Mall (a Condominium) recorded in Book 308 at Page 518 of the records of Pitkin County, Colorado, and amended the same by the First Amendment thereto recorded in Book 453 at Page 848 of those records. WHEREAS, the Declarant made and filed for record the Condominium Map for the Durant Mall (a Condominium), in Plat Book 4 at Page 565 of the records of Pitkin County, Colorado, and a First Amended Map in Plat Book 15 at Page 48 of those records, and WHEREAS, the Declarant is the owner of Condominium Unit R and as described in said Condominium Declaration and shown on Condominium Map, both above referred to, and WHEREAS, the Declarant desires to re -subdivide the said Condominium Unit R into eight (8) separate condominium units to be known as Units A-H, inclusive, and has received approval therefor from the City of Aspen; and, has filed for record aSecond Supplemental Condominium Map for the Durant Mall (a Condominium), in Plat Book at Page of the records of Pitkin County, Colorado, and WHEREAS, the Declarant desires to amend, by this instrument, the recorded Condominium Declaration above -referred to, as amended, to reflect the resubdivision of said Condominium Unit R, and WHEREAS, the Declarant is authorized to resubdivide Condominium Unit R by virtue of the provisions of paragraph 3(b) of the above -referenced recorded Condominium Declaration, as amended. NOW, THEREFORE, Declarant does hereby publish and declare the following terms, covenants, conditions, easements, restrictions, uses, limitations and obligations which shall be deemed to run with the land described in the above -referred to Condominium Declaration and shall be a burden and a benefit to the Declarant, its successors and assigns, and any person acquiring or owning an interest in the subject property, and improvements, their grantees, mortgagees, successors, heirs, personal representatives, devisees or assigns. 1. The Declarant hereby subdivides Condominium Unit into Units A-H, inclusive, as shown on the Second Supplemental Condominium Map for the Durant Mall (a Condominium) filed for record in Plat Book at Page of the records of Pitkin County, Colorado, thereby eliminating Condominium Unit R entirely, and therefrom creating eight (8) separate Condominium Units. 2. The undivided interest of Condominium Unit R in and to the General 15.00% is hereby reallocated equally to inclusive, as follows: A B C D E F G H the former separate Common Elements of Condominium Units A-H Undivided Interest 1.875 1.875 1.875 1.875 1.875 1.875 1.875 1.875 3. In all other respects, the Declarant hereby ratifies and confirms the recorded Condominium Declaration, and First Amendment thereto, above -referred to. I RI IN WITNESS WHEREOF, the Declarant, BLOCK 106 ASSOCIATES, a limited partnership, by a general partner thereof, has duly executed this Second Amendment to the Declaration for the Durant Mall (a condominium) this f-i day of 198 AF . BLOCK 106 ASSOCIATES, a Colorado limited partnership By 4;L' ____ ohn C. Ginn General Partner -2- STATE OF COLORADO ) ss. COUNTY OF PITKIN ) The foregoinc instrument was ackn wledged before me this n--f' day of 198, by JOHN C. GINN, as a general partner of BLOCK 106 ASSOCIATES, a Colorado limited partnership. WITNESS my hand and official seal. My commission expires: 1/3)/:z,;'q 1 (SEAL) Notary Public Address:=(p �r_+n Co SC1�l► CONSENT OF FIRST MORTGAGEE TO SECOND AMENDMENT TO CONDOMINIUM DECLARATION FOR THE DURANT MALL (A Condominium) The undersigned, as U t-' �Ry�l A. I , of the beneficiary of the deed of trust recorded in Book 328 at Page 627 of the records of Pitkin County, Colorado, hereby consents to and confirms the foregoing Second Amendment to the Condominium Declaration for Durant Mall (a Condominium). Dated: April 23 , 1984 THE EMPIRE SAVINGS, BUILDING AND LOAN ASSOCIATION =10 STATE OF COLORADO ss. COUNTY OF PITKIN ) i The foregoing instrument was acknowledged before me this 23rd day of April , 1984 , by Janet M. Bleakley —, as Vice President of THE EMPIRE SAVINGS, BUILDING AND LOAN ASSOCIATION. Witness my hand and official seal. My commission expires: April 1, 1987 (SEAL) Notary P bl, Address: 1654 California Street Denver, Colorado =2 —4— MEMORANDUM s j TO: Paul Taddune, City Attorney FROM: Jim Wilson, Chief Building Officia DATE: June 20, 1984 RE: Durant Mall Condominiumization The deficiencies noted in my memo dated September 28, 1983, have been corrected to the satisfaction of this department. The Durant Mall Condominiumization proposal has now met the requirements of Section 20-22(e) of the Aspen Municipal Code. cc: Colette Penne, Planning JW/ar TT 771 I Iq JUN 22 1984 -A ASPEN / PITKIN CO r PLANNING OFFI(-F ASPEN*PITKOJ REGIONAL BUILbING DEPARTMENT MEMORANDUM TO: Colette Penne, Planning Office FROM: Jim Wilson, Chief Building Official DATE: September 28, 1983 RE: Durant Mall Condominiumization I have inspected the eight residential units on the third floor of the Countryside Building, the westerly of the two Durant Mall buildings. Before this department will approve condominization tinder Sec. 20-22(e) of the Aspen Code, the following work must be completed: 1) The lofts in units D,E and H must be removed or extensively remodeled for life -safety compliance. Units E and H, which are currently being used for sleeping and unit D, that may potentially be used for sleeping, must be provided with egzess windows and legal stairways for use to continue. 2) The existing smoke detection system in all units must be altered to comply with NFPA Standard 72E; this involves the addition of smoke detectors in the high -peaked ceiling area. 3) The existing alarm system must comply with Section 9-3(z) of the Aspen Municipal Code. offices: mail address: 110 East Hallam Street 506 East Main Street Aspen, Colorado 81611 303/925-5973 Aspen, Colorado 131611 CITY OF ASPEN MEMO FROM GARY S. ESARY Oct. 31 Lennie: Here's the stuff. We need a "Statement of Exception..... for the purpose of Re-condominiumization On the legal description, please reference the original plat and condo decs and leave blanks for the new plat and decs, if necessary Please have someone call if there are questions. I'm assuming the 20-22(e) inspection has been completed satisfactorily and our files so indicate. cc: Planning -- Engineering Building u is MEMORANDUM TO: Aspen City Council FROM: Colette Penne, Planning Office RE: Durant Mall - Subdivision Exception DATE: October 24, 1983 Location: Corner of Spring and Durant Zoning: NC Applicant's Request: Approval of subdivision exception for the purpose of recondominiumizaion of the Durant Mall such that Residential Unit R (which contains 8 rental units) will be separately condominiumized as 8 individual condominium units. Referral Comments: The Engineering Department requests that the proposed resubdivision be contingent on the recordation of an amended plat indicating the changes and clearly delineating the new units as well as any common elements associated with them. The amended plat should reference the prior platting and have approval certificates for the City Engineer and Council. The Housing Authority recommends that based on the evidence submitted by the applicant that the eight Durant Mall apartments have not been rented over the last eighteen months within employee housing price guidelines, that approval be contingent on the notice requirements and six-month rental restrictions of Section 20-22. The City Attorney's Office recommends that this application be processed as an exception from the full subdivision process pursuant to Section 20-19(c) and (d). They point out that the Building Department must inspect, as required in Section 20-22(e). In the condominiumization of the "Little Victorians", the P&Z asked questions regarding the separate metering of, or commonly provided utilities. The following conditions were recommended: 1. The applicant should draft (in a form acceptable to the City Attorney) and record a Statement of Subdivision Exception. 2. The applicant should draft (in a form acceptable to the City Attorney) and record a deed restriction to satisfy the requirements of 20-22(b), Section 20-22(a) for existing tenant provisions, and if Engineering so recommends, join in any special improvement district. 3. The recondominiumization plat be filed within 180 days of the final Council approval. The Building Department requires the following work to be completed before this condominiumization can be finally approved: MEMO: Durant Mall October 24, 1983 Page Two "l. The lofts in Units D, E and H must be removed or extensively remodeled for life - safety compliance. Units E and H, which are currently being used for sleeping and Unit D, that may potentially be used for sleeping must be provided with egress windows and legal stairways for use to continue. 2. The existing smoke detection system in all units must be altered to comply with NFPA Standard 72E; this involves the addition of smoke detectors in the high -peaked ceiling area. 3. The existing alarm system must comply with Section 9-3(z) of the Aspen Municipal Code." Planning Office Review: All eight of the dwelling units have rented outside (above) low, moderate and middle income guidelines as presently adopted. The upper limit of the price restrictions is a rental rate of 82� per sq. ft. The lowest price of any of these eight units was $1.04 per sq. ft. In the past, there has been concern about the separate metering of utilities. In the case of the Durant Mall residential units, each apartment is separately metered for electric, phone and cable service. Common utilities includes elevator service, water and gas heat. A print-out of the common utility costs was supplied for the past eighteen -month period and the average per -month cost was calculated at 3.2G per sq. ft., thereby reducing the cost of the lowest priced unit to $1.01 per sq. ft. (still above the guidelines). This evidence satisfies the requirement of Section 20-22 that the supply of low and moderate income housing will not be reduced by this approval. "&Z Action and Planning Office recom- mendation: All provisions of Section 20-22 will be required of the applicants in this condominiumization, specifically six-month minimum leases, tenant notification, no substantial increases in rental prices following condominiumization. The Planning and Zoning Commission and the Planning Office recommend approval of subdivision exception for the purpose of recondominiumization of Unit R of the Durant Mall into eight units (A-H) with the following conditions: 1. Recordation of an amended plat within 180 days of this approval which indicates the changes and clearly delineates the new units as well as any common element. The amended plat should reference the prior platting and have approval certificates. • • MEMO: Durant Mall October 24, 1983 Page Three 2. The new units are subject to all provisions of Section 20-22 and a deed restriction should be drafted by the applicant (in a form acceptable to the City Attorney) assuring compliance. 3. The applicant draft (in a form acceptable to the City Attorney) and record a Statement of Subdivision Exception. 4. The work required by the Building Department (and listed in this memorandum) must be com- pleted prior to the sale of any unit. 5. Applicant be required to join any future improvement district according to the standard Engineering Department requirements. Council Action: If Council concurs with the recommendation of the Planning and Zoning Commission and the Planning Office, the appropriate motion is: "I move to approve subdivision exception for the purpose of recondominiumization of Unit R of the Durant Mall into eight units (A-H) with the following conditions: 1. Recordation of an amended plat within 180 days of this approval which indicates the changes and clearly delineates the new units as well as any common elements. The amended plat should reference the prior platting and have approval certificates. 2. The new units are subject to all provisions of Section 20-22 and a deed restriction should be drafted by the applicant (in a form acceptable to the City Attorney) assuring compliance. 3. The applicant draft (in a form acceptable to the City Attorney) and record a Statement of Subdivision Exception. 4. The work required by the Building Department (and listed in this memorandum) must be completed prior to the sale of any Unit. 5. Applicant be required to join any future improvement district according to the standard Engineering Department requirements." AFFIDAVIT OF LARRY YAW The undersigned, LARRY YAW, a general partner of Block 106 Associates, being first duly sworn upon his oath, avers and states as follows: 1. That I am a general partner of Block 106 Associates, declarant in the Condominium Declaration for the Durant Mall (a condominium), and presently the fee simple owner of residential condominium Unit R situate therein. 2. That for a period of at least eighteen (18) months prior to the date of this affidavit, that none of the eight (8) apartment units within the said condominium Unit R have been rented within the low, moderate or middle income employee housing guidelines as set forth in the official code of the City of Aspen. 3. The following is an accurate statement of the rents charged for each of the eight apartment units within the said condominium unit R for the period of eighteen months last preceding the date of this Affidavit: Unit Designation Square Footage in Unit Monthly Rental A 670 $ 775.00 B 670 715.00 1. C 670 700.00 1.04 D 555 725.00 1.31 E 565 700.00 F 670 70$:0-0- 77 S- 1.14 G 670 800.00 /• 1j I 837 775.00 J 1,250 1,200.00 K 837 775.00 „` I 4. Further affiant sayeth not. 3,2-f Dated: August �S , 1983 9 , State of Colorado ) ss. County of Pitkin ) Subscribed and sworn to before me this day of August, 1983, by Larry Yaw. WITNESS my hand and official seal. My commission expires: CGI¢Zui W, /9B61 (SEAL) U C—M eU6U NOTARY PUBLIC Address: 1�al 5,jeU"a_" L� e'0a'C �/b5� AFFIDAVIT OF LARRY YAW The undersigned, LARRY YAW, a general partner of Block 106 Associates, being first duly sworn upon his oath, avers and states as follows: 1. That I am a general partner of Block 106 Associates, declarant in the Condominium Declaration for the Durant Mall (a condominium), and presently the fee simple owner of residential condominium Unit R situate therein. 2. That for a period of at least eighteen (18) months prior to the date of this affidavit, that none of the eight (8) apartment units within the said condominium Unit R have been rented within the low or moderate price employee housing guidelines as set forth in the official code of the City of Aspen. 3. Further affiant sayeth not. Dated: August 3 , 1983 State of Colorado ) ss. County of Pitkin ) Subscribed and sworn to before me this 3 Wday of August, 1983, by Larry Yaw. (SEAL) WITNESS my hand and official seal. My commission expires: e- IS &f NARY PUBLIC Address: 6 k 4'1" Cam, fy�,r, L MEMORANDUM TO: Aspen Planning and Zoning Commission FROM: Colette Penne, Planning Office RE: Durant Mall - Condominiumization DATE: October 4, 1983 Location: Corner of Spring and Durant Zoning: NC Applicant's Request: Approval of subdivision exception for the purpose of recondominiumization of the Durant Mall such that Residential Unit R (which contains 8 rental units) will be separately condominiumized as 8 individual condominium units. Referral Comments: The Engineering Department requests that the proposed resubdivision be contingent on the recordation of an amended plat indicating the changes and clearly de- lineating the new units as well as any common elements associated with them. The amended plat should reference the prior platting and have approval certificates for the City Engineer and Council. The Housing Authority recommends that based on the evidence submitted by the applicant that the eight Durant Mall apartments have not been rented over the last eighteen months within employee housing price guidelines, that approval be contingent on the notice requirements and six-month rental restrictions of Section 20-22. The City Attorney's Office recommends that this application be processed as an exception from the full subdivision process pursuant to Section 20- 19(c) and (d). They point out that the Builidng Department must inspect, as required in Section 20- 22(e). In the condominiumization of the "Little Victorians", the P&Z asked questions regarding the separate metering of, or commonly provided utilities. The following conditions were recommended: 1. The applicant should draft (in a form acceptable to the City Attorney) and record a Statement of Subdivision Exception. 2. The applicant should draft (in a form acceptable to the City Attorney) and record a deed restriction to satisfy the requirements of 20-22(b), Section 20-22(a) for existing tenant provisions, and if Engineering so recommends, join in any special improvement district. 3. The recondominiumization plat be filed within 180 days of the final Council approval. The Building Department requires the following work to be completed before this condominiumization can be finally approved: - MEMO: Duri-.nt Mall October 4, 1983 Page Two "l. The lofts in Units D, E and H must be removed or extensively remodeled for life - safety compliance. Units E and H, which are currently being used for sleeping and Unit D, that may potentially be used for sleeping must be provided with egress windows and legal stairways for use to continue. 2. The existing smoke detection system in all units must be altered to comply with NFPA Standard 72E; this involves the addition of smoke detectors in the high -peaked ceiling area. 3. The existing alarm system must comply with Section 9-3(z) of the Aspen Municipal Code." Planning Office Review: All eight of the dwelling units have rented outside (above) low, moderate and middle income guidelines as presently adopted. The upper limit of the price restrictions is a rental rate of 82� per sq. ft. The lowest price of any of these eight units was $1.04 per sq. ft. In the past, there has been concern about the separate metering of utilities. In the case of the Durant Mall residential units, each apartment is separately metered for electric, phone and cable service. Common utilities includes elevator service, water and gas heat. A print-out of the common utility costs was supplied for the past eighteen -month period and the average per -month cost was calculated at 3.2(� per sq. ft., thereby reducing the cost of the lowest priced unit to $1.01 per sq. ft. (still above the guidelines). This evidence satisfies the requirement of Section 20-22 that the supply of low and moderate income housing will not be reduced by this approval. All provisions of Section 20-22 will be required of the applicants in this condominiumization, specifically six-month minimum leases, tenant notification, no substantial increases in rental prices following condominiumization. Plannin Office Recom: cation: The Planning Office recommends approval of subdivision exception for the purpose of recondominiumization of Unit R of the Durant Mall into eight Units (A-H) with the following conditions: 1. Recordation of an amended plat within 180 days of this approval which indicates the changes and clearly delineates the new units as well as any common element. The amended plat should reference the prior platting and have approval certificates. Ip 0 MEMO: Durant Mal October 4, 1983 Page Three 2. The new units are subject to all provisions of Section 20-22 and a deed restriction should be drafted by the applicant (in a form acceptable to the City Attorney) assuring compliance. 3. The applicant draft (in a form acceptable to the City Attorney) and record a Statement of Subdivision Exception. 4. The work required by the Building Department (and listed in this memorandum) must be com- pleted prior to the sale of any unit. 5. Applicant be required to join any future improvement district according to the standard Engineering Department requirements. 0 0 LAW OFFICES OATES, HUGHES & KNEZEVICH PROFESSIONAL CORPORATION THIRD FLOOR, ASPEN PLAZA BUILDING 533 EAST HOPKINS AVENUE LEONARD M.OATES ASPEN, COLORADO 81611 ROBERT W.HUGHES RICHARD A. KNEZEVICH DEBORAH QUINN July 29, 1983 BRADLEY S. ABRAMSON Ms. Alice Davis Staff Planner City of Aspen Planning Dept. 130 S. Galena Aspen, Colorado 81611 AREA CODE 303 TELEPHONE 920-1700 TELECOPIER 920-1121 Re: Resubdivision of Eight Condominium Units Situate within the Durant Mall (a Condominium) Aspen, Colorado Dear Alice: This letter shall serve as an application made by Block 106 Associates, a limited partnership, for the resubdivision of residential Unit R situate within the Durant Mall (a condominium) as described in the Condominium Declaration for that project recorded in Book 308 at Page 513 of the records of Pitkin County, Colorado. I have enclosed herewith a copy of the Condominium Declaration for that project. You attention is called to Para- graph 3(b) as contained on Page 6 of the Declaration setting forth the right of the owner of said unit to resubdivide the same. For your information, Block 106 Associates was the declarant in the Declaration and has been the owner at all times since 1976. The apartments are described on the Condominium Map for the Durant Mall recorded in Plat Book 4 at Page 565 of the records of Pitkin County, Colorado. I have enclosed a copy of that map as a part of this application. The applicant is applying for an exemption from subdi- vision pursuant to Section 20-19 of the Municipal Code of the City of Aspen recognizing that any approval granted for the exemption shall, nonetheless, be subject to Section 20-22 of that Code relating to condominium conversions. we feel that the exemption would be appropriate under this application inasmuch as the types of issues normally discussed in subdivision applica- tions were addressed at the time that this project was developed pursuant to the provisions of the City's Ordinance 19, Series of 1973, regulating subdivisions. As I indicated to you in our recent telephone conversation, the eight condominium apartments • • OATES, HUGHES & KNEZEVICH, P. G. Ms. Alice Davis City of Aspen Planning Dept. July 29, 1983 Page Two for which subdivision exemption is requested have not ever been rented within the low and moderate income housing guidelines and therefore full compliance can be shown with Section 20-22(c). Please advise as to what evidence you will require in this regard. Please contact me to request any additional information which you may feel you may require in order for staff, the Planning and Zoning Commission and City Council to consider this application. $1,010.00. Finally, I have enclosed a check in the amount of Very truly yours, OATES, HUGHES & KNEZEVICH, P.C. Y C�t-- LEONARD M. OATES LMO/mlp Enclosures cc: Mr. Larry Yaw, General Partner, Block 106 Associates • • • • • • • • • • • • • • • • • • • • • • E • u1 .7 n O1, .t Ln %C Cl"? 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I Q.N N NNNNN N NN M M M MM MMMrI P' N NNN NNN NN N MMMMMM M Mr3 N NNNNN N N I C' I r• 00 00 00 00 00 00 00 00 00 00 00 00 00 m 00 00 0O 00 Q w o0 00 00 oc 00 00 00 00 00 00 00 00 o0 00 00 07 00 00 Q 00 00 00 00 00 00 00 oc V: I ►i (n �7 Vy 10 r� 00 a1 O r+ N rr N M � Vy 1.0 r` 00 O Q M �T Vy �0 f\ 00 a1 O .-+ N .-a N M -:rLn10 r--coO d M �T tf'y \D f- 00 01 C 611* 1 W .4 1-4 .a E-, -4 -4 -4 1-4 C9 .-4 0 9 0 0 0 9 0 0 9 0 0 0 0 0 0 0 0 0 9 0 0 0 • MEMORANDUM TO: Building Department FROM: Colette Penne, Planning Office RE: Durant Mall Condominiumization DATE: September 13, 1983 Attached is an application for subdivision exception in order to conominimize eight (8) units situate in the Durant Mall (Unit R). Please review the material and plats attached, and return your comments to the Planning Office by September 23, 1983. This item was on the agenda for September 20 and was tabled in order to obtain comments from your office. Therefore, it has been rescheduled for the October 4 meeting before City P&Z. Please inspect and return the results to me by September 23. Thanks. MEMORANDUM TO: -City Attorney City Engineer Housing Office PLANNER: Colette Penne RE: Durant Mall Condominiumization DATE: August 18, 1983 Attached is an application for subdivision exception in order to condominiumize eight units situate in the Durant Mall (Unit R). Please review the material and plats attached, and return your comments to the Planning Office by September 5 so that we may prepare for its presentation on the September 20 City P&Z. Thank you. i ASPEN*PITKIN F&GIONAL BUILDINO DEPARTMENT MEMORANDUM TO: Colette Penne, Planning Office FROM: Jim Wilson, Chief Building Official DATE: September 28, 1983 RE: Durant Mall Condominiumization I have inspected the eight residential units on the third floor of the Countryside Building, the westerly of the two Durant Mall buildings. Before this department will approve condominization under Sec. 20-22(e) of the Aspen Code, the following work must be completed: 1) The lofts in units D,E and H must be removed or extensively remodeled for life -safety compliance. Units E and H, which are currently being used for sleeping and unit D, that may potentially be used for sleeping, must be provided with egress windows and legal stairways for use to continue. 2) The existing smoke detection system in all units must be altered to comply with NFPA Standard 72E; this involves the addition of smoke detectors in the high -peaked ceiling area. 3) The existing alarm system must comply with Section 9-3(z) of the Aspen Municipal Code. offices: mail address: 110 East Hallam Street 506 East Main Street Aspen, Colorado 81611 303/925-5973 Aspen, Colorado 81611 LAW OFFICES Hut;iu.s & KNEZEViCII PROFESSIONAL CORPORATION THIRD FLOOR, ASPEN PLAZA BUILDING 533 EAST HOPKINS AVENUE LEONARD M.OATES ASPEN, COLORADO 81611 ROBERT W. HUGHES RICHARD A. KNEZEVICH DEBORAH OUINN August 3, 1983 BRADLEY 5• ABRAMSON Alice Davis Staff Planner Aspen/Pitkin Planning Office 130 S. Galena Street Aspen, Colorado 81611 HAND DELIVERY AREA CODE 303 TELEPHONE 920-1700 TELECOPIER 920-1121 Re: Block 106 Associates - Durant Mall Subdivision Application Dear Alice: Enclosed you will please find the Affidavit of Larry Yaw which Lennie asked that I hand deliver to you today. Sincerely, OATES, HUGHES & KNEZEVICH, P.C. By La�� Ja t L. Weinstein Se retary to Leonard M. Oates JLW:slf Enclosure '1 - I REcorded AL 11:50 MI February 6, 1976 RFccptiun no 1i�`��, Julie it,,, RFcorder CONDOMINIUM Dr.CLARATION FOR THE DURANT MALL (A Condominium) THIS DECLARATION, mzde anal entered into by BLOCK 106 ASSOCIATE;,, a Coler ' '`-•' ^d partnership, hereind:L_r refer_ed to as "Declarant"; W I T H F. S S E T H: WHEREAS, the De(-.lar.nt is the owner of uc.Lain rc,l property situate in the City of Aspen, County of Pitkin, State of Colorado, described as follows: ' The easterly one-h-ilf (1/2) of Lot L and Lots M, N. u, I• dnu u, in Block i0A, rI':Y AND TOWNSl E Oi ASPEN, and ; WHEREAS, the Declarant has improved and is improving the above -described real property with a r..ulti-level condo- minium project in the form of twu (2) buildinas to he nc:;n as the West P lding and the East Building constructed over a -beluw y.a'. ,^.arkina level, which s71d condominium. nroli-ct will originally consist of one (1) resiclu„Lial ccn,ioniniuri unit beill,' eight (S) apartment dwelllna units situate on the third level above the parking level ir, the West Ruildinn, twenty-three (23) enclosed commercial con('.orinium units and three (3) unenclnsod commercial units all above the uarkina level of both of the buildinct al-ove named, and nineteen (19) comm•.-icial ^nd^r,inium units situate in the said parking evel, all of which units will be treated as in+.•u_r.al parts f a single condominium o:anership project: and WHEREAS, each of said two (2) multi-SLur; b i _di.^.n� till] ontain three (3) levels plus one (1) levnl in the basemen' �hich will be devoted primarily to parl:inn at least as long as the same shall he reauired for the prc;_-cI under the laws of the City of Aspen, all as more full,., provrrlyd for in paragraph 17 hereof; two (2) levels abu•ty the p::rkir- 1ovel in the west Buildina and three (3) levels above tie park- ing level in the East Building which will be devoted to commercial and/or professional purposes; and one (1) level on the third level above the parking level.in the West Building which will be devoted to the residential condominium unit; and WHEREAS, the Declarant desires to establish certain rights and easements in, over and upon said real property for the benefit of itself and all future owners of any part of said real property, and any air space unit or units thereof or therein contained, and to provide for the harmonious, beneficial and proper use and conduct c`. the -,rorr�rty and all air space units; and WHEREAS, the Declarant desires and intends that the several unit owners, nortaagces and trust deed holders, c�US ME J L occupants, and other persons hereafter acquiring any interest in the property shall at all times enjoy the benefits of, and shall hold their interests subject to the rights, easements, privileges, restrictions and obligations hereinafter set forth, all of which are declared to be in furtherance of a plan to promote and protect the cooperative aspect of the property and are established for the purrese of enhancing and perfecting the value, desirability and attractiveness of the property. NOW, THEREFOR.F, Declarant does )trri:by p-.;tlish and declare that the following temes, c_ on arts, conditions, easements, restrictions, uses icm.`_*ions and obligations shall be �• deemed to run with the ianu above described, shall be a burden and a benefit to Declarant, its successors and assigns, and any person acquiring or owning an interest in the subject property and improvements, their grantees, mortgagees, succes- sors, neizs, execuivis, a'-i-ic_ra'^r=: devisees or assigns. 1. Definitions. Unless the context clearly indicates a different meaning therefor: i (a) "Declaration" means this instri- ent by which The Durant Mall (a Condominium) is established. i(bj Rebiucr,ec"arthe "rT-iApntiai unit" means I the individual air space units consisting of enciost�d roc-.s forming eight (8) apartment dwelling unity occupying the third level above the parking structure of the P7est Building and bounded by the interior surfaces of each of eight (8) respec- tive apartr*ent dwelling units, i.e., the interior perimeter walls, flcor-, ceilings, windows, and doors t':ereof and the It f;r� l,res, if any, all as sho•.:n interior s��rfaces o� bui�..-:.. , and numbered on the Condominium Flap filed for record, togcth^r with all fixtures and improvements therein contained, but not j including hallways on the said third lvv�l, w1hici, 31� 111 to a limited common element appurtenant to the said residential unit, and not including any of the structural cc-r:nents of a building, if any, within the said residential unit. Said residential unit shall be subdi-vidable as hcreii.,`_`_cr :'rc• i 1'"'1 in paragraph 3(b). (c) "Enclosed eora-.crcial _nit" -.-ans an individual air space unit, consisting of an enclosed room or rooms occupying part of or all of the first, second, and third levels above the parking level in the East E�Aldir.g, and part of or all of the first and second levels above the par .King level in the West Building, and bounded by the interior sur- faces of the perimeter walls, floors, ceilings, windows and doors thereof, as shorn on the Condominium Map filed for rec-rd, together with all fixtures and improvements therein containec, but not including any of the structural components of a building, if any, within such unit. (d) "Unenclosed commercial unit" means an indi- vidual air space unit consisting, except for floors or other bottorithorizontal surfaces which shall be a part of the unit of horizontally anJ vertically Physically uner.closcd area located by hypothetical horizontal and vertical planes measured �• in relation to a point or points on a boundary of the property, as shown on the Condominium Map filed for record, the upper boundary horizontal plane of which shall be, insofar as Unit M-1 is concerned, seven and one-half (7 1/2) feet above the lower horizontal plane thereof and, insofar as Units M-2 and M-3 are concerned, twelve (12)`eet above the lower horizontal boundary plane thereof, together with all fixtures and improve- ments thereon and therein contL;-ed. but not including any of the structural components or exterior s;,ri, a of -� building, if any, within such unit. r,i r j'r. 1• ' (e) "Parking level commercial unit" means an indi- vidual air space unit, consisting of areas forming a part or all of the parking level underlving the buildings above named i which are presently open, unenclosed and devoted to parking for the project, but which may subscgticntly be bounded by such interior or perimeter walls, floors, ceilings, windows, and door: thereof as may hereafter be constructed in conformance with `he *condominium map and terms and conditions of this Declaration. (f) "Unit" means an enclosed ^, -nenclosed commer- cial unit on any level or a residential unit, together with its unlivided gin` 'n the General common elements as set forth on Exhibit "A", and the limited common elements appur- tenant thereto. (g) "Owner" means any person, firm, partnership, association or other leqal entity, or any combination thereof, at any timo owning a unit; the term "u.:^Pr" shall not refer to and Mortgagee or Trust Deed holder as herein defined, unless such Mortgagee or Trust Deed holder has acquired title pursuant to foreclosure or any proceeding in lieu of foreclosure. (h) "Mortgagee" or "Deed of Trust" lucai:o zry 7", t- gage, deed of trust, or other security insLrliment by which a unit or any part thereof is encumbered. (i) "Mortgagee" means any person named as the mortgagee or beneficiary under any Mortgage or Deed of Trust under which the interest ui any C_%:ner is encumbered. "Occupant" means any person in possession of a unit. (k) "Entire premises" or "Property" or "Cc.ndcminium Project" means the hereinalovc described real property, all improvements and structures constructed or contained therein, including the buildings, parking level, and all easements, rights and appurtenances belunging thereto, and all fixtures and property intended for the mutual use, benefit or en3oymcnt of the unit owners. (1) "Building" or "Buildings" means the West Building, the East Building, parking level or any other b:.i1-1;na- mcnt comprising a part of the Property and containing the units, except the unenclosed commercial units or any improvements thereon. (m) "Majority" or "Majority of the Unit Owners" the owners of more than 50% in the aggregate in interest *Note - Because of the requirements of the City of Aspen Zoning, the entire parking level shall remain ou_en, unenclosed and unobstructed, and be de —t ed to parking, until such time as parking shall be no longer required for the Cunuva,in_4= prni�ct. If and at such time as narking shall be no longer required, physical divisions may be made respectinq parking level commer- cial units as "proposed and allowed" and delineated by dotted lines shown on the portion of the condominium map depicting the said parking level, or as may otherwise be permitted by this Declaration. z l of the undivided ownership of the general common elements - Except as otherwise herein provided, any specified percentage of the unit owners, whether majority or otherwise, for pur- poses of voting and for all purposes and whenever provided in this Declaration, shall mean such percentage in the aggregate in interest of the undivided ownership of the general common elements. (n) "General common elements" means and includes all portions of the nrnpert! �xccpL tii! units, including but not limited to, the following: I M The foundations, columns, girders, beams, supports, perimeter and :supporting walls, roofs, balconies, hall; (ii) The yard, malls and gardens, except those areas thereon designated as unenclosed cc.7nercial units; (iii) Any installations consisting of eguinr+ont and materials -aking up any central utility systems; (iv) Any elevator and/or conveyor system (except those designated -on the Condominium :lap for use as a limited common element) and, in general, all apparatus and installations existing for co.-Lmon use; (v) All pipes, wires, ducts, flues, chutes, conduits, public utility lines (to the outlets) and structural comoonPnts running thiouuh a unit and serving more.than one unit or scrving, or extending into, ::he general ror:non slemez,ts, or ally part thereof; (vi) All other parts of the property and improvements necessary or convenient to its existence, maintenance and safety, of normally in common use. (o) "Limitel common elements" means those Darts of the general common elements which are reserved by the terms hereof for the exclusive use of the owner(s) of one or more, but less than all, units, and which may be identi- fied on the Condominium Map. ` (p) "Common expenses" means and includes: ,. . (i) Expenses declared common expenses by S provisions of this Declaration and the By -Laws of the Association; .;: (ii) Expenses of administration, operation and management, maintenance, repair, replacement or improvement9f_-_the general common elements; „ (iii) All sums lawfully assessed against the general rornr._�n e1_^cntz by the As5veiation; and (iv) Expenses agreed upon as common expe.ses by the members of the Association in accordance with the terms and provisions hereof. - ' I -4 - W ice. 1 •lL�ss`�8 rat. 55Z2 (q) "Association" means a nonprofit Colorado corporation, its successors and assigns, the Certificate of Incorporation and By -Laws of which shall govern the adminis- tration of this condominium property and the members of which RI -ill be all of the owners of the units. The name of such corporation shall be The Durant Mall Condominium Association, Ltd., or a similar name. (r) "Board" means the Board of Manaqer of the Association. (s) "Condominium Map" means a plat or survey of the surface of the ground of the property, showing a survey and legal description thereof, the location of the buildings with respect to the boundaries of the property, together with a diagrammatic floor plan of the buildings showing the boundaries or each unit within the buildings, including ;.Zrizontal and vertical locations and dimensions of all boundaries of each unit, unit numbers identifying the units, together with such other information as may be included thereon in the discretion of the Declarant. The Condominium Map, and any necessary supplements thereto, shall be filed " for record in the Pitkin County real property records. �. uivision of Property Into Condominium Units; Recreational Facilities. (a) Subject tc.subsequent right to subdivide as hereinafter contained, the real property hereinabcve des- cribed it hereby divided into the following fee simple estates* twenty-three (23) separately designated enclosed commercial units above the parking level, nineteen (19) comme;.:ial units on the parking level, the use and enclosure - of whic:& are hereii:before and hVLeafLer provided for, three (3) separately designated unenclosed commercial units, and one (t) separately designated residential unit, and the un- divided interest in and to the general common elements appur- tenant to each unit as is set forth on Exhibit A attached - hereto and by this reference made a part hereof. (b) The Durant Mall, being principally for com- mercial purpose, contains no major recreational facilities. 3.. Combination and Division of Units. �f 'tr (a) Declarant hereby reserves the right for it- <,f..;��= self, its successors and assigns, to physically combine the area or space of a co.;.mercial unit (enclosed or unenclosed, on the parking level or any level above the parking level) with the area or space of one or more adjoining commercial units, and the aggregate of the undivided interests in and to the general common elements appurt.enant to such combined units snall be appurtenanL Lu the une enlaryed cwwuetc;ial unit which shall result from such combination. In the event of such a combination, ueclarant shall cause to be filed for record an amendment to Exhibit A and to the Condominium Map describing and depicting any such combination. Declarant hereby reserves the right -for itself, its successors and assions, to designate portions of the general common elements contained within the perimeter walls, floors, ceilings, win- dows and doors of any unit which shall result from a combina- tion as aforesaid, as limited common elements reserved exclusively for use by the owners of such unit resulting from •;� a combination and to convey appurtenant interests therein to any such owners. n "r. 7 I �D r_ � eooa3iiS ��;UG3 ,(b) The owner of the one (1) residential unit shall have he right at -any time, subject to compliance with the land use regulations of the Cityy-of Aspen, Colorado, to subdivide said residential unit into the eight-48).,.separate `tosidentlal dwelling apartments in the configuration'as-&.-- `bhown o%n�the Condominium Map upon the filing for record of Land/or recording of: W A written statement, signed and ac- f knowlcd-�,J i -wner making such subdivision, uea- '+cribing such subdivision and the number of separate residential units into which said residential unit is being divided; An amendment to Exhibit A setting fortis he undivided L,iLCL<�.L in 11hc gcncral nv!%-nn P1--Pntr. hich shall be appurtenant to each subdivided residen- tial unit; PROVIDED, HOXIVER, that 'the total aggregate undivided interests in the general common elements - appurtenant to all such residential units after and resulting .from the subdivision shall is the aggregate Aqurl the undivided interest... -in the general common elements 'which were appurtenant to t),e single rest--,,_entiai unit pilui "to such subd_._ _., . �(iii). An amendment to the Condominium Map - describing' and -depicting such subdivision and each iesidential unit resulting therefrom. Such -documents bhali each set forth the identifying number by which each such subdivided unit will thereafter"be des-' c,ibed, each number t; be different frnm the identi- fying number of all other units in the building. (c) In the event that the parking requirment shall be removed so that narking shall no longer be required for the project the owner(s) of parking level commercial units numbered PS-16 through PS-1�, shall have the right, at any time thereafter to subdivide said numbered units into additional separate parking level commercial units, none of which units shall be smaller than one hundred sixty-two (162) square feet in size, upur, the filing for record or recording ot: U) A written statement, signed and ac- knowledged by the owner making sncn Sund,vitiic,n, .11.1- cribirg such subdivision and the number of separate parking level commercial units into which said cort- r..rrcial unit is being divided; (ii) An amendment to Exhibit A setting forth the undivided interest in the general common elements which shall be appurtenant to each such subdivided parking level corriercial unit; PROVIDED, HOWEV)x, that the total aggregate undivided interests in the general common ele- ments appurtenant to all such parking level com- mercial units after and resulting from the sub- division shall eaual the undivided interest in the general ccrrsron a?ements which were aopurte- iiar,t to the ;:arhing lcrel commercial Unit prior to such subdivision. (iii) An amendment to the Condominium Map describing and depicting such subdivision and each parking level conanerc' vr't resulting therefrom; Such document(s) shall eacri set forth the identifying number by which u-ch such subdi ided parking level commercial'unit will thereafter be -6- � _ _ Y. -...mat •-` � ":.a.: y1' Lr ..�.i_......, _�.a-":.3.._-��a......�. �._..t:_..-. _,n::v.:..'..-..�.L... .r.. �.a ......... ......_�.......I . �..._._n....o..»cvi �d�:+il�%L�7��-F described ch number to be different from t�iden- tifying n er of all other units in the buil ngs. (d) Any combinations or subdivision made under subparagraphs (a), (b), and (c) immediately last preceding shall require the unanimous written consent of the holders of all first deeds of trust and mortgages affecting all or any part of the units so combined or unit or units so subdivided. (e) The Owner(s) shall have the right to construct such partition walls and other improvements as such Owner(s) shall deem necessary to create accessible, usable and functional parking level commercial units in the t-went of any subdivision under the provisions of subparagraph (c) above preceding pro- vided that the same are consistent with the preambles hereto; PROVIDED, :MWEVER, _-ch subdivisiunt u1 auy other subdivision or combination under this paragraph of this Declaration, all of the terms, conditions and provisions of this Declaration, including definitions contained in paragraph 1 hereof shall apply to such subdivided units; and PROVIDED, FflbT!TER, that arrnca to all such subdivided or combined units shall be established in the documentation creating the same. 4. Limited Common Elements. Any balcony or balconies which adjoin a residential unit and which are accessible therefrom shall be a limited common element reserved exclu- sively for use by the Owner(s) of such unit, to t;ie exclusion of all other owners, except by the _v^_^t of subdivisi-_ , „f the rp,,ianntial unit, the same may be further limited so as to provide for the logical use thereof by the owners of the residential units, or some of them. Other areas designated on the CondominiLM Map as limited common elements for the benefit of a commercial unit or units shall be reserved exclusively for the benefit of such unit or units, to the exclu- sion of all other unit owners, except by invitation, and the same nr•Pd net aAioin the said commercial unit for the benefit of which it _xists. The portion of the corridor shown on the Condominium MD on the third level of the East Buildinq and labeled as a limited common element may, at its northerly extremity, be partitioned by mutual written agreement of the owners of Units E-11, E-12 and E-13. In addition, the floor of said corridor, being a limited common element, may, by mutual written agreement and consent of the owners of Units E-11, E-12 and E-13, be raised no more than eight (8) inches above its present height in the event that it shall be nc,ces- sary to use said corridor to install utilities to and in the units on the third level of the East Building in order to use the said units for residential'purposes. S. Inseparability of a C,=-_;-,minium Un;t Except as provided in paragraphs 3 a„d 17 herccirespecting the modifi- cation of percentage interests by virtue of subdivision, each unit owner shall at all times be entitled to the percentage of ownership in the general common elements appurtenant to such unit as set forth in Exhibit A. Each ownt:L small own such undivided interest in the general common elements as a tenant in common with all the other owners of the property. The percentages of own cr: hip in the 7encral common elements as ant forth in Exhibit A shall; except as otherwise provided in the case of further subdivision, remain constant unless thereafter changed by written agreement of all of the owners with the written consent of all of the holders of first deeds of trust anJ mortgages. Each unit and the undivided interest in the general common elements appurtenant thereto shall together comprise one unit which shall, except as otherwise provided herein respecting the parking level, commercial units and residential unit, be inseparable and non-partitionable, and may be conveyed, leased, devised or encumbered only as a complete unit and subject to the term. cur,ditions, and obligations hereof. Every gift, devise, bequc , :.::;tc nc:rmbrarce, conveyance or other ". sposit;an of a unit .,r any pa t ''�ereof shall be presumed to be a gift, de,�risr, bequest, transfer, encumbrance, or conveyance, respectively, of the entire unit, together with all appurtenant rights created by law or by this Declaration. " J8 6. Non-Partitionabilitv of General Common Elements. The general common elements shall be owned in common y a 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. j� 7. Dezcription of Condominium Unit. Every deed, lease, mortgage, trust deed, will or other instrument may legally describe a unit by its identifying unit number and symbol w followed by the words "The Durant Mall" (a Condominium) with ~' further reference to the Condominium Map Lhe;cif fil=d -`cr record and the recorde,l Decla.-atica. Every stir-Fh descrip- tion shall be deemea -—A --a sufficient for all purposes, and shall be deemed to convey, transfer, encumber or other- wise affect not only the unit but also the general common elements and the limited common elements appurtenant thereto. Each such description shall be construed to include, subject to all uC LYRE ter-= and ^-isi-ns of this Declaration, a non-exclusive easement for ingress and egress and use of the general common elements, together with the right to the exclusive use of the appurtenant limited common elements. B. Encroachments and Eesen:ents. (a) In the event that by reason of the construc- tion, -ettlenert nr shiftina of the building, or the design or constrection of any unit, any part of the general coTaion elements encroaches or shall hereafter en- croach upon any part of any unit, or any part of any unit encroaches or shall hereafter encroach upon any part of the general co. -iron elements, or any portion of any unit en- croaches upin any part of any other unit, valid easements for such and the mainteranre thereof are hereby established and shall exist for the benefit of such unit and the genera_ corunun ele-ments so encroaching so long as all ui any part cf the building containing such unit and the general common elements so encroaching shall remain standing; provided, however, that in no event shall a valid easement for any en- croacFLment be cicated in favor of the owner of any unit or in favor of the owners of the yc :oral elemc -- � f such encroachment occurred due to the willful conduct of said owner or owners. Sucn encroachments and easements snall not be considered or deLermined to be encumbrances either on the general common elements or the units. (b) Easements are hereby declared and granted for utility purposes, incluui::4 the right to .n.stall, 1•-ly, maintain, repair and replace water mains and pipes, sewer lines, gas mains, television cables and antennae, telephone wires and equipment, and elecLrical conduits, wires, and equipment over, under, along and on any part of the general common elements. (c) All easements and rights described herein are easements appurtenant, running with the land, and shall inure to the benefit of and be b:.nding on the undersigned, its successors and assigns, and any owner, purchaser, mozYg-&— and-Ox-her perspr,-;m -.-ng -an-�+terust in_saicLlaLnd, _ or any part or portion thereof. (d) Reference in the respective deeds of con- veyance, 3r in any mortgage or trust deed or other eVluel,t:C of obligation, to the easements and rights described in this Declaration, shall be sufficient to create and reserve such easements and rights to the respective grantees, mortgagees and trustees of such parcels as fully and completely as though such easements and rights wire recited fully and seL forth in their ent: -etv in such ,,.,cument:s e : 'IDL'D • HOWEVER, that each such deed, mortgage, trust deeu or otnzi c.'.-ionce -B- ,' tl " ,l fl hc%uLl-, -c:14v of obligation L *be deemed to creato and reserve �h easements and rights a3 aforesaid notwithstanding th absence therein of any reference thereto. (a) Easements may be reserved and granted by the Declarant and any subsequent owner of a parking level commer- cial unit so as to provide for the construction and maintenance of partition walls and the installation, repair and maintenance within perimeter walls of utility services therein. t 9. Separate Assessment and Taxation - Notice to Assessor. Declarant shall give writter, notice to the Assessor o t e County of Pitkin, Colorado, of the creation of condominium subdivision of the property (or any subsequent resubdivision thereof consistent with this Declaration) 'as is provided by law, setting forth the description of the units, so that each unit and the undivided interest in the general common elements appurtena '— -rn shall be separately assessed thereafter for all taxes, assessments and other charges of the State of Colorado or of any political subdivision or of ...._ . ..�Str1Ct+Cf any .:.o- nr any Lpccial assessing authority.^ In the event thatfor any period of tiu,z, any tares, assessments or other charges of any taxing or assessincy authority are not separately assessed to each unit owner, but are assessed on the property as a whole, then each unit owner shall pay a proportionate share thereof in accordanrn with that owner's respective perrentage of ownership interest in the general common elements. 10. Title. A 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 or ownership form recognized under the laws of the State of Colorado 11. UEe of General and Limited Common Elements. Each owner shall' ue ei)LlLled and. pn, ct cinn of that owner's unit. Each owner may use the general and limited cammon elements subject to L),v Lermis and prov__i^ns of this Declaration in accordance with the purpose for which they are Intended, without hindering or encroaching upon the lawful rights of the other owners. 12. Use and, Oucu aiiu . (a) The residential unit shall be used and occu- pied solely for residential putpusus by Lhe owner, or by the owner's family, guests, invitees and tenants, subject to the provisions of this Declaration. (1,) Edel._ Ei,closeQ'ccmrner a3 ;-Unit' above •t?m park:, (level may be used and occupied for such business` or comilerciaik• t purpose or purposes as may. be lawful and allowable under all "applicable laws, ordinances or the rules of any lawful puhlidf authority; PROVIDED that the enclosed commercial units s:tuat�e on the third level of the East Building many be used for rest- dential,purposes as defined in paragraph 12(a) hereof upon the ;. condition 'thatisuch Nse is agreed to in writing all- of the owners ttf units on the'said third level of the'East Buildinq, and further that provision is made for the installation of q adequate utilities in said units (or those of them which shall hq used _fnr_ricsidential'purposes) inr__rhe use of the same For residential pur•pos_es,,_pnd upon the further condition,that I. =use shall'.comply with ali land use and building residential regulations applicabltrto the projgcti (c) Each parking level commercial unit shall be used for parking so long as parking shall be required as hereinbefore elaborated upon, and thereafter the same may be used as provided in subparagraph (b) immediately preceding, after enclosure, subject to all of the other terms, conditions and obligations of this Declaration. (d) Each incnclogrd commercia' unii- ._r/ used and occupied for such business or commercial purpose or * 0333 iR«c 527 purposes as may be lawful and allowable under all applicable laws, ordinances or the rules of any lawful public auf-fin-ity, and then only with the approval of the Board of Managers and membership of the Association as provided in Paragraph 12(o) of this Declaration. (e) No industry, business, trade, occupation or profession of any kind, commercial, religious, educational, or otherwise, designated for profit, altruism, exploration, :.r otherwise shall be conducted, maintained, or permitted 'in or on any residential, unit. Lease or rental of a residential unit for lodging or residential purposes shall not be cun- sidered to be a violation of this covenant. No "For Sale" or "For Rent" siyzis, adve using or 2izr_: ys rhall I: — maintained or permtted on any part of the property except at such location and in such form as shall be approved by the board or the. ,— —g.,ig agent. The right is reserved by the Declarant, or its agent or agents, to place "For Sale" or "For Rant" lions on any unsold or unoccupied units, and on any part of the general common elements, and the right is hereby given to any mortgagee, who may become the owner of any unit, to place such signs on any unit owned by such mortgagee. So long as any unit is owned by it, the Declarant shall be entitled to access, ingress and egress to the building and the property as it shall deem .-.ccczzary in C-n- nection with the construction or sale of the buildings or any „nit. The Declarant shall have the right to use anv unsold unit or units as a model or for sales or. display purpose. (f) Each business or commercial establishment operated in a commercial unit, or any part thereof, shall be entitled to place one (1) sign of reasonable size anI in dignified manner containing the business name of such establi.;"�-Ient ypon the entranced. i...,e ,-f shah establisYment,or at such vt;,cr place as shall be Permitted by the Board of Managers or Managing Agent. Additional signs i may be placed only as permitted by the Board of Managers, which permission may be granted cr withheld in the sole discretion of the Board of Managers. (g) There shall be no cbctru,.ton. of the general common elements nor shall anything be stored in the general common elements without the prior consent cf the Ecard except as lietein expressly provided. For purposcs of main- tenance, repair, alteration and remodeling, an owner: (i) Ot a residential or enclus,�:c] cc-.-crcial unit shall be deemed to own the interior non -supporting walls, the materials (such a:, but not limited to, plaster, drywall, paneling, walln_arer, paint, wall and floor the and flooring, but not includinq the sub - flooring) making up the finished surfaces of the peri- meter walls, ceiling and floors within the unit, and (ii) Of an unenclosed commercial unit, that unit owner shall be deemed to own all improvements situate therein constructed by that unit owner, but not the floor or bottom surface of that unit as the same existed prior to the construction of such improve- - � -- -menus.— -- - - -- - ---- -- -- - - ----- -- --- ;- (iii) Of a parking level commercial unit, that unit owner- shall be deemed to own all of these improve- ments therein or thereon constructed by that unit owner described in subparagraph 12(g)(i) hereinabove set forth. The remainder of the improvement constructed by the owner of a parking level commercial unit shall, upon completion, become a limited common element appur- tenant to that unit, subject to the rights reserved by t• or granted to the Declarant or abutting owner(s) to -10- Mao r utilize the exterior thereof for common wall purposes, and to interconnect with utility services which can logically serve the needs of more than one (1) suc.. unit, all as provided in subparagraph 8(e) hereof, and subject further to dll of the other terms, conditions and obliga- tions of this Declaration not inconsistent herewith. (h) Each unit owner shall be obligated to maintain avid keep that owner's own unit, its windows and doors, includinq exterior and interior surfaces thereof, and the balcony or bal- conies whicy may be a limited common element with respect to such unit, in good, clean order and repair. The use of the covering of the interior surfaces of windows, whether by draperies, shades or other items visible on the exterior of the building, shall be sMhjFt^t to the rules and regulations of the roard of Managers. Each owner shall keep the balcony or balconies and other improve- ments --hich me- .'•+ t-d common element r:ith respect to such unit, free and clear of snow, ice and any accumulation of water and debris. (i) Nnth ch al l ho ri nnn nr Ynn t- _n 12n1 t n•- in or upon the general common elements which will increase the rate of insurance on the building, or contents thereof (subject to the provisions of paragraph 20(g)(i), infra) without the orior written consent of the Board of Maranpra. No owner shall permit anything to be done or kept in that owner's unit or in or upon the general co-mmon elements which will result in the cancellation of or increase premiums for insurance on the building, or contents therevf, or mhnlnof nny log,. No ...aste shall be committed in the general common elements. (j) Owners shall not cause or permit anything to be hung or displayed on the outside of windows or placed on the outside wails of the building and no sion, awning, canopy, s^utter, radio or television antenna si-all be affixed to or placed upon the exterior 'walls or roof UL dtl}' wait tiii:ic•%i, wit`�J ut ..i,c i..i :.:.. writte:. consent of the Board of Managers. (k) No animals, rabbits, livestock., fowl or poultry of any kind shall be raised, bred, or kept in anv unit or in the general common elements, unless the Bc;3rd of Managers, bv rule or regulation, protid,�,othcrt.isc. (1) No noxious or offensive activity shall be carried on in any unit or in the general conmon elements, nor shall any- thing be done therein, eit.hpr wilfully or neyliyently, which :tiay be or become an annoyance or nuisance to the other owners or occupants. (m) Nothing shall be done in any unit or in, on or to the gene -al common elements which will impair the structural integrity of the building or which would structurally change the buildiijy, excc-pL as DLhiii,ise Ffcv1L1vL1 htoreln, nar sh:11 _ 'hiing be altered or constructed in or be renoved from the general common elements except as otherwise herein provided or other -wise permitted by the Board of Managers. Notwithstanding anything to the contrary herein contained, it is noted and declared that initially the interior partitions shall not be installed by the Declarant creating physical separations between Condominium Unit E-2 and E-3, E-3 and E-4, E-10 and E-11, E-11 and E-12, W-1 and W-2, W-2 and W-3, W-7 and 11-8, 11-8 and 14-9, and W-9 and W-10, and that no partitions of any nature or individual utility services shall be installed by the Declarant respecting or servicing any of the parking level c-T-nTPrrial !:nits. 7n addition. the Declarant shall not construct entry doorways to Units E-3, E-10, E-11, w-2, W-8 and W-10 and there exists an opening in the ceiling of Unit E-1 and the floor of Unit E-6, thereby connecting E-1. Such partitions (including those for closure of the opening above referred to) and doorways respecting said units and partitions, doorways, windows, and utilities services respecting parking level units PS-16 through PS-19 shall be shown as "propc-1 ?-1 allowed" on the Condominium Map and may, sub=.^ct to easements and riot._. -11- inafter be granted and reserved�he respective which may Me the Declar- owners of units, be installed at any ti ant or any subsequent owners) of the said units, provided, that any such installation shall be at the expense of the owner(s) thereof, shall be at least of the quality equal to and shall be of dimension equal to similar partitions and doors within theproject, and aesthetically compatible with the remainder of the project, and shall be approved by the Board of Managers, which approval shall not be unreasonably withheld. SubAivisions of parking level Units PS-16 through PS-19 shall '1 likf-wise be approved by the Board of ?Managers, which approval shall not be unreasonably withheld, PROVIDED proposed subdivi- sloe meets the criteria as contained in this Declaration. The „�. improvements shall be both aesthetically compatible and consis- tent throughout the said units on the parr. illy __.el and with the remainder of The Durant Mall Condominium project and there shall exist, or provie*.,-. for, adequate access, ventilation, plumbing and similar facilities for the improvements intended. ;- The conditions of sub-suLparagraph (n)(i) through (iv) irmed- =?! iately following shall be met for improvements constructed under this —,hnaragraph of this Declaration. The designation of rr,'vposed and allowed partition and duuL .ay i-••rro'.c^e^ts nn the Condominium Map are reflected as dotted lines representing the tea:: centerline of proposed and allowed i7m rovements. Upon the constructive acid -7 lction of such improvcm.ents thereon and therein as permitted herein, the definitions as contained in paragraph 1 hereof shall apply to the compictcd improvements. With respect to the floor and ceiling oxning hereinUcfore �., descr;hnA. the unit boundaries for the area of the opening shall be, for Unit E-1, the surface rubuiL*ng from cx ten ns of the nearest adjacent unfinished surfaces of the ceiling thereof, and for Unit E-6, the surface resulting from exten- sions of the nearest unfinished surfaces of the floor thereof. (n) The owner of any enclosed commercial unit, and ' parking level condominium unit after the„u sa�',aE. t�...ccn . e.n.clnq-1. 3 -a al f r•r quc^h shall to permitted to construct, lcu�io.-e, ,.-..r.7_ , or unit (ar%; any portion of the general cc=.on elements contiguous to, and serving exclusively, such unit, if the same is not visible on the exterior of the building) in ar.y manner, provided that: •-:�.- (i) The structural integrity of the building 71 will not thereby be impaired; (ii) Such work will be done at the sole cost and expense of such o'::ner and in full compliance with all applicable laws, ordinances and reyulaLions and the provisions of. this Declaration; (iii) Except with respect to the subdivi=inn of e , .,... parking level commercial units numbered P-iG Lhrough 1'-19, the boundaries of such unit, as shown on the Condominium Map, will not thereby be chanyed or altered; and (iv) Such owner shall indcranify all other owners of units from any and all claims, liens, liabilities, suits or demands whatsoever relating to or arising out of such work (except insofar as any claim is waived and rcleascd as provided in sub -section (r) of this paragraph 12). (o) Improvements, changes and alterations made within unenclosed commercial units shall be such that the same shall permit the restoration of the unit to its original open sLaLa. Any im ro;rnm-n" madP to and/or use made of unenclosed commercial units shall be made with the written approval of the Board of Managers of the Association and the affirmative vote of the majority of the membership thereof, which approval shall not be withheld if the proposed use and improvements are consistent with and appropriate to the design of the buildings and for which adequate access, ventilation, plumbing and similar facilit' - r'•'st for the improvements and uses intena_.i. All such improver-- nt_. -hi^ ; _s and -12- ; kv-338 i.wE JJV b {� alterations will be done at the sole cost and expense of the unit owner and iri full compliance with all applicable law, ordinances and regulations, and such owner shall indemnify all other owners of units from any and all claims, liens, liabilities, suits or demands whatsoever relating to or arising out of such work. (except insofar as any claim is waived and released as provided in sub-see-tinn W of this paragraph 12). (p) ?• - .--, sheets, blankets, laundry of any kind or other articles or merchanidse shall be hung out or exposed on any part of the general common elements. The common elements shall be kept free and clear of rubbish, debris and other unsightly materials. (q) There shall be no playing, lounging, parking of baby carriages or playpens, bicycles, wagons, toys, vehicles, benches, chairs, tethered dogs or oats or other personal property on any part of the general common elements without the prior consent of, and subject to the regulations of, the Board of Managers. (r) Each owner hereby waives and releases any and all claims which that owner may ha -ye against any otti=r owner, the Association, the officers, and members of the Board of Managers, the Declarant, the managing agent, and their respective officers, employees and agents, for damages to the general common elements, the units, or to any personal properly lc,cdted in the units or general common elements, caused by fire or other form of casualty which is fully coverer: by insurance. (s) If, due to the act or neglect of an owner, or of a m:,mber of an owner's family or of a guest, tenant, invitee, or ot:,er authorized occupant or visitor of such owner, da^ace s:,all be caused tv Lhv yenerdi co;:�mon elements or to a unit or units owned by others, or to any furnace or utility room, heating unit, pives, ducts, apparatus or equipment referred to in paragraph 20(j) hereof, or maintenance, repairs or replace- ments shall be reauired which would otherwise be at the common expense, then such owner shall pay for such damage and such maintenance, repairs and replacements, as may be determined by the Board of Managers, to the extent not covered by insuran--#,. (t) No owner shall overload the electric wiring in the building, or operate any machines, appliances, acces- sories or equipment in such manner as to cause, in the judgment of the Beard of Managers, constitute a hazard to the safety of owners and occupants of and invitees upon the Condominium Project. 13. Ter.minaticn of Mechanic's Lien Richts and Indemni- fication. Subsequent to the completion of the improvements ---_—_-- d err hurl nn rhP ['nnan>Jiaiva Man --no labor —performed -or mat•--- erials furnished and incorporated in a unit with the consent or at the request of the unit owner or such owner's agent or such owner's contractor or subcontractor shall be the basis for riling of a lien against the unit of any other owner not expressly consenting to or requesting the same, or against the general co -anon elements. 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 X. unit of any other owne- or against the general common elements -13- for construction performed or for labor, materials, services or other products incorporated in that owner's unit at such owner's request or with such owner's consent. The provisions herein contained are subject to the rights of the Managing Agent or Board of Managers as are set forth in paragraph 15. i 14. Administration and Management. (a) The administration and management of this condominium property shall be governed by th- Articles of 1 Incorporation and By -Laws of t)le Association. Each unit owner shall of such association, which membership shall terminate upon the sale or other disposition by Ruch member of that member's unit, at which time the new unit owner shall automatically become a member hereof. ! (b) The Articles of I,lcorper=ti^n and By -Laws of the Association shall not contain any terms or provisions inconsistent with this Declaration and anj such terms or provisions which may be inconsistent with this Declaration shall be null and void and of no forcf- and effect. (c) The association shall be governed by a Board wf _ers as is provided in the By -Laws of the Association. The Association shall have ti,e p,,:.er to e^�!aoe the services of a manager or managing agent, who may be any person, term. or corporation, upon such terms and renpensation as the Board of Managers deems fit and to delegate to such manager or managing agent any of its duties, powers and functions. (d) The Board of Managers shall consist of five (5) persons who shall be eiecteu IT, the m ^-r provided in the By -Laws of the Association; PROVIDED, HOWEV_?R, that at least one (1) member of the Board of Managers shall at ?11 tim.:s be elected by the owner or owners of the residential unit (or units if it shall be subsequently resubdI ided) by vote of the owners of more than fifty percent (50f) in the aggregdLe interest of the undivided ownership of the general common elements owned by all of the owners o_ the residential unit (or t,nits if it shall be subscauently re- sul,dividcd), and PROVIDED, further, that in L:c oven` that parking shall no longer be required in the lernl, then there- after at least one (1) member of the Board of Managers st.all at all times be elected by the owner(s) of the parking level corvrer^_ial units by vote of the owners of more titan fifty (50%) percent in the aggreyate interest of the individual ownership of the general common elements owned by all of the owners of the parking level commercial units. (e) If any unit is owned by more than one (1) person, the voting rights with respect to such unit shall not be divided, but shall be exercised as if t)ie unit owners consisted of only one (1) person in accordance with the proxy or other designation made by the persons constituting such unit owner. (f) The Board of -Iola-nagers--say,- from tine to time, adopt or amend such reasonable rules and regulations governing the operation, maintenance, beautification and use of the general common clement- and the units, not inconsistent with the terms of this Declaration, as it sees fiL, and the owners shall conform to, and abide by, such reasonable rules and regulations. written notice of such rules and regulations E... shall be given to all owners. A violation of such rules or regulations shall be deemed a violation of the terms of this Declaration. (g) The members of the Board of Managers and the Officers thereof shall not be liable to the owners for any mistake of judgment, or any acts or omissions made in good faith as such members or officers. The owners shall inde:a- nify and hold harmless each of such memmbers or officers against all contractual liability to others arising out of contracts :sane by serrh members or officers on beh-rf of the owners unless any such contract shall have been mad* in bdd faith or contr-r•, — he provisions of this Declaration. The liability of any owner arising out of any contract made by such members or officers or out of the aforesaid indem- nity shall be limited to such proportion of the total lia- bility thereunaer as that uwlrei's peLce,rLdye intercat in the general common elements bears to the total percentage interest of all the owners ir, the general cor--ion elements. Each agreement made by such members or officers shall be executed by such mernhPrs or officers, as agents for the Association. (h) In the event of any dispute or disagreement between any owners relating to the property, or any question of interpretation or appiicdLiun ui tire Pcuvi5ila.5 V-f `hic Declaration, the determination thereof by the Board of� Managers shall be final and binding on each and all of such owners. 15. Reservation for Access - Maintenance, Repair and Erur.tQi i.GicS. Th_ v• --re shall have the irrevocable right, to be exercised by the managing AyenL or Eoara c :i•+r >, to have access to each unit from time to time during such reasonpble hours as may be necessary for the painting, main- tenance, repair, reconstruction, or replacement of_any of the :,eneral common elements thcrnin or accessible therefrom, or at anytime for making emergency repairs therein necessary to preven* damage to the general common elements or to another unit or units, or when such access in t,:as3nahj calculated to protect the health, safety or property of any owner or ucc:upant. Damages to the interior or any part of a uaiL or units resulting from the painting, maintenance, repair, emergency repair., reconstruction or replacement of any of the general common elements or as a result of emergency repairs :fibrin another unit at the instance of the Association shall Le a common expense of all of the owners, subject, however, to the provisions of sub -paragraphs) of paragraph 12 hereof. Restoration of the damaged improvements shall be substan- tially the same as the condition of such improvements prior to the damage. Subject to the provisionz of sub-parenranh (s) of para- graph 12 hereof, and except as herein otherwise specifically provided, all maintenance, _epairs, reconstruction and re- ---iliac rrnts -as-to--the general common elements, whether located inside or outside of the. units, shall be the common -expense- -- of all of the owners. 16. Grantees. Each grantee of the UeclardrrL, by acceptance of a deed of conveyance, accepts the same to all terms, provisions, easements, restrictions, co covenants, reservations, liens and charges, and the jurisdic- tion, rights, and powers created or reserved by this Declara- tion and the Articles of Incorporation and By -Laws of the Association, and the provisions of the Colorado Condc�ninium Ownership Act, as at any time amended, and all easements, rights, benefits and privileges of every character hereby granted, created, reserved or declared, and all impositio:hs and obligations hereby imposed shall be deemed and taken to be covenants running with the land, and shall bind any person having at any time any interest or estate in said land, and shall inure to the benefit of such-1--rcnn in like manner as though the provisions of this Declaration were recited and -_ stipulated at length in Pw.�h and every deed of conveyance. 17. Parking. (a) Subject to the provisions of subparagraph ib) u: this paragraph, the basement or parking level of the buildings shall, until such parkina for the project shall be no longer required, be used for parking purcoses in accord- ance with the parking require-men%i ui L;ie land uzc regulatinns ' of the City of Aspen governing the project as cunDlemented by ' any rules or regulations at any time adopted by the Board of Manager_: per;r?n�. however: U) There shall at all times as such parking shall be required be at least 28 parking spaces con- tained in such parking level; (ii) The Declarant shall have the right, subject to compliance r:i?-- _V...-___nts ac imposed by the City of Aspen, by assign-cnt,agreement, or the like, ana upon, such terns as it shall deem apprcpriate, to make provi- sic,n (either with or without ccnsideration), to set apart perking spaces in such carking level for the exclusive or non-exclusive us^ c= the owners alai/Of tenants (and thciz guests, tenants and invitees) of the commercial units and residential units making up the project. Any a;:c: assignment(s) naae by the Declarant of parking rpace(s) shall be subject to the imposition thereon by the Board of Managers of reasonable rules and regulations not inconsistent herewith tc d1minister the use thereof, including the posting of i.naentifyir.g signs. Any parking level cc::hmercial units which shall be sold and conveyed shall be sub;cct to all prior agreements made with restect to parking wit -in the project, and the owner of the sale shall ba required to comply with parking requirements of the City of :aspen so long as the same shall exist. (iii) No vehicle belonging to an owner or to a member cf that c:Jner's :artily or guest, invitee, tenant or employee of an owner shall be parked in such a manner as tj ir;-_.-de or • rever.t ready access to other parking spaces. The owners and/or tenants, their employees, invitees, servants, agents, visitors, licensees, an9 the owner's and/or tenant's family will _bo ey any -parking regulations posted at the parking areas and ramps and any other reasonable traffic regulations promulgated in the future for the safety, comfort, and convenience of the uwners and others "sing +� the premises; i� h Gg MEW (iv) No owner shall cause or permit the blowing of any horn or emanation of loud noises from any vehicle in which that owner's guests, family, tenants, invitees, or employees shall be occupants, approaching or upon any of the driveways or parking ► structures serving the project, except as may be M„ necessary for the safe operation thereof. (v) No vehicles shall be left standing in a parking stall in a nonoperative condition, nor shall there be any repairs to vehicles done in a parking space; f�<t inard of Managers and owners of parking level commercial units shall have the right to : remove an vehicles parked in an unauthorized lace or Y P P •,,• manner at the expense of the respective owners thereof; a;..•' (vii) The Board of Managers shall have the further right to promulgate and enforce such other and further reasonable rules and regulations, not incon- :j" aister,t with this Declaration, as shall proinote the efficient use of the said parking spaces. J (b) Regardless of fact that ownership of all parking level a- inirs may be vested in other than con.....-�^:_^ the users thereof, so long as and only sn long as parking P shall be reouired for the project, easements for unobstructed access to and quiet enjoyment of all parking spaces in the parking level are hereby created and deemedto exist for the benefit of the lawful users thereof as such users are determined under sul;paragraph (a) immediately preceding. 18. 'nsurance. (a) The Board of Managers, or the Managing Aqent on behalf of the Board, shall obtain and maintain at all r` times the following insurance coverage provided by compa„ies duly authorized to do business in Colorado: v�••;-•%-�_. :.y (i) Insurance for the property against loss or damage by fire and such other hazards as are covered under standard extended coverage, vandalism and malic- ious mischief en"orsements for the full insuranle re- placement cost of the common elements and the uni*s and such other casualty insurance as the Board of Managers deems advisable for the protection of the general common elements anthe units. The adequacy of such insurance in relation to "full replacement value" , shall be reviewed at least annually by the Board. The insurance shall be carried in blanket policy form naming the Association the insured, as attorney -in -fact for each of the owners in the percentagco established in Exhihit "A" hereto, or as the same may be ^.dified under this Declaration, by further subs➢ivisicn per- mitted herein. Each owner, other than the Declarant, shall notify the Managing Agent and the Board of Managers in writing of any additions, alterations, or improve- ments to that owner's unit and that owner shall bo re- sponsible for any deficiency in any insurance loss re- covery resultiny"fie,-m that ,..,ner's failure so to notify the managing employee and the Board of Managers. The Board of Managers or the Managing Agent shall use reason- able efforts to obtain insurance on any such additions, -17- 41 df i •1tY.� alterations or improvements if such owner requests it to do so and if such owner small make arrang-Ments satis- factory to the ".anaging Aaent and the Bcard of Managers to reimburse such owner for any additional preniums attri- butable thereto; and in the absence of insurance on such additions, alterations or improvements, the Board of Managers shall not be obligated to apply any insur- ance proceeds to restore the affected unit to a con- dition better than the concitio:: enisti—J �=io: to th= making of such additions, alterations or inizrovements. All s : ` ci-s or insurance shall insure a .�- alterations oz improvements made by the Declarant. All such policics Of insurance s^all contain standard mort- gage clause endorsc.7er.ts in favor of the mortgagee or trust deed holder of each unit and that such policy shall not be terminated, cancelled or substantially modified withuuL aL _east ..:nt% '-•• --J- notice to the mortgagee of each unit and to each owner. (ii) Cnmprehensive public liability and property dariage insurance in such limits as the Board of Managers shall deer desirable insuring the Association, the members of the Bcard of %:a-scers,. the Managing %cent, and their respective acents and r- la,ri\ r• ;.. ,-n.,- employees. nection with the generalJco-.-.on elements. (iii) workmen's ccnper.sation insurance an employer's liability insurance as -.ay Le necessary comply with applicable laws, and such other Perms insurance as Lire Board of :.anagers shall elPet to W �r 1 1 ( low- ✓s —711 4"a z 1a.3�LalA 6LIIwuj �K. 004 it (b) Except as otherwise provided in this Declara- tion, premiums for all insurance obtained or maintained by the Board of Manaqers shall be common expenses. (c) The Board of Managers may (but shall not be required to), in its sole discretion, secure insurance pol- icies that will provide for one or more of the following: (i) With respect to the insurance provided for in (a)(ii) of this sub -paragraph, for coverage of cross liability claims of one insured against another; ' i) With respect to t1he insurance proviacd for.-*:. ( c` this suo-paragraph, a wdivcr of sub- rogation by the insurer as to any claims against the managing agent, the owners and their respective agents, employees and guests; (iii) With respect to the insurance provided for 1n (a) ti) of this that the ^^I `^+ cannot be cancelled, invalidated or suspended on account of the conduct of any ene or more individual owners, or on account of the con:i•ict of any officer or rnluiSwee ui Liie Assoc I` at .1 or `^�••7 g "7 � aent .gi.l nor in the latter case, a prior demand in writing that the Association or managing agent cure the defect; (iv) Witii respect Lu _:Ic iT.5urGLCC rrc::_ea fc•r in (a)(i) of this sub -paragraph, that the insurer shall not have the option to restore the premises, if the Property is sold as provided in Paragraph 25(c) hereof. (v) With respe:.t to the insurance rrovided for in (a) (1) of this Suv-Udtdvtvii, that any other insurance" clause in such policy exclude policies of insurance maintai.,-d by any owner or his morteacee from consideration and that no such insurance policy coverage under (a)(i) of this sub -paragraph be brought into contribution with insurance purchased by any owner or his mortgagee. (d) Any owner may obtain additional insurance at his own expense; provided that: (i) A copy of each such policy (except for a policy with coverage only as provided in (f) of this sub-pdtdyrII:)I) is furnished tc the Board of Managers within thirty (30) ddys after it is purchased; (ii) No such insurance may be maintained which would adversely affect or invalidate any insur- ance (or any recovery thereunder) carried by the Board of Managers or decrease the amount which the Board of Managers would realize under any insurance policy the board of Manaycrs is mainLaining; (iii) Such insurance policy shall contain a ----waiver of subrogation in like manner as is provided for in (c)(ii) of this sub-Faragraph. -ls- �L �� *,xK30S PA:,554 Level 3 ' Commercial Units I E-10 1.85 j E-11 2.51 E-12 1.96 E-13 4.64 Unenclosed Commercial Units f M-1 0.39 M-2 0.39 M-a 0.39 Parking Level Commercial Units P-1 0.14 P-2 0.14 P-3 0.14 P-4 0.14 P-5 0.13 P-6 0.13 P-7 0.13 P-8 0.13 P-,; 0.13 P-10 U• 13 P-11 0.13 P-12 0.13 P-13 0.13 P-14 0.13 P-15 0.14 io-iri 2.00 PS-17 2.00 PS-lfp, 2.00 PS-1_9 2.00 TOTAL ------------------- 100.00% (e) The Board of Managers may engage the services of any bank or trust company authorized to do business in Colorado to act as trustee or agent on behalf of the Board of Managers for the purpose of receiving and disbursing the insurance proceeds under any policy provided for in (a) W Of this sub -paragraph and resulting from any loss, upon such terms as the Board of Managers shall determine consis- tent with the provisions of this Declaration. In the event of any loss resulting in the destruction of the major portion Of one or more units, the Board of Managers shall engage a corporate trustee as aforesaid upon the written demand of the mortgagee or owner of any unit so destrc,ycd. -he fees of such corporate trustee stall be com:.on expenses. (f) Insurance cuveraye on the furnishings and contents, insurance covering other items of personal property within each individual unit belonging to an owner and casualty and public liability insurance coverage within each indivi- dual --,nit shall be the responsibility of the owner thereof. 19. ReDairs, Maintenance. Renlice--eats, Additions, Alterations and Incrove^ents of t-e !"--�r._iten�a s. There shall be no alterations, ad6iticns to, or is rnve.-,ents on, the limited or general common elements (other than for purposes vi rep''"_ g _ �r.,rinn nnrtions thereof) requiring an ex- penditure in excess of Five Thousand Dollars without the priur approval by affirmative vote of sixty-six and two-thirds per- cent of the membership of the Tt,are shall be no such approval of or limitation upon expenditures required for the repair, maintenance and replacement of such common elements. Assessment for Common Exr;enscs. (a) Declarant, for each unit owned by it within the buildings, and for and as t:c c...._r of the real property and evcry part thereof, hereby covenants, and each owner of any unit by the acceptance of a deed therefor, whether or not it be so expressed in the deed, shall be deemed to covenant and agree with each other and with the Association to pay to the Association quarterly assessments rade by the Association for the purposes prcvidled in this Declaration, and special assessments for capital inprovenents and other matters as provided in this Declaration. Such assessments shall be fixed, established and collected from time to tine in the manner provided in this Article, and by the Articles of Incorporation and By -Laws of the Association. (b) ;he total quarterly assessments against all units shall be based upon advance estimates of cash re- quirements by the Association to provide for the payment of all estimated expenses crowing our of or connected with the maintenance and operation of the General coc7on elements or furnishing such utility services as shall not be separately furnished and metered to the units, which estimates may in- clude, among other things, taxes and special assessments, until the units are separately assessc3 as provided herein; premiums for all insurance which :he Association is required or permitted to maintain pursuant hereto; common lighting and heating, common water charges; trash collection; sewer service charges; repairs and maintenance; wages for Asscciation employees; legal and accounting fees; any deficit remaining from a previous period; the creation of a reasonable coritin- gency reserve, surflus srd/cr sinking fund: and any other expenses and liabilities which may be incurred by the Assoc- iation for the benefit of the owners under or by reason of this Declaration. (c) At least once each year, the Board of Managers shall estimate the annual budget of common expenses (the "annual budget") including the total amount required for the cost of wages, materials, insurance, services and supplies which will be required during the ensuing calendar year for the rendering of all services in connection with the general common elements, together with a reasonable amount considered by the Board of Managers to be necessary for a reserve for contingencies and replacements, and shall notify each unit owner in writing as to the amount of such estimate wit-;, reasonable itemi•ation thcraof. Said annual budget shall be assessed to .1- owners according to each unit owner's percentage of ownership in the general common elements as set forth in Exhibit "A", or as may be modified in accordance with tl-:e provisions of this Declaration. On or before January 1st of the ensuing year, and on or before the 1st days of A...:l .T._l., and r.rtnhn of said year, each ch:ner shall be obligated to pay to the Board of ManagQr,.or to the mar.aling agent, 1/4 of the assessment made pursuant to this paragraph. On or before the lst day of :January of each calendar year com- mencing 1977, the Board of Managers or managing anent shall supply to all unit owners an itemized accounting of the co=. cn expenses for the preceding calendar year actually incurred and Vdid togcthE: with d tabuintiun ui the a:noun:.s cuiiec_ed rur-, want tc the estim-*os nrnvidod. acid showing the net amount over or short of the actual expenditures plus reserves. Any amount accumulated in excess of the a:hount required for actual expenses and reserves shall be credited according to each owner's percentage of ownership in the oeneral co:-=� on elements Lo the next quartcrly installments due from owners under the current year's estimate, until exhausted, and any net sho-t g.. gh.ill be added accordinc to each unit owner's percentage of ownership in the'gencral commcn elements to the installments due in the succeeding six months after ram.^.O^_r 1::7 of the accounting. The a+vua of -• hail build up and maintain a reasonable reserve for contin::encies and • eplacements. Extraordinary expenditures not on^finally included in the annual budget which may bece-e necessary during the year shall be charged first against s::ch reserve. If said annual. bud::et Yrc.'cc _naderuate for +shy reason, in- cluding non-payment of any owner's regular or sp^_cial assess- ment, the Poard of Managers may at any tir..e levy a further assessment, which shall be assessed to the unit owners according to each unit owner's percentage of ownership in the general ca:r:un elements. The Board of :lanayars or, managing -.1iy11 serve notice of such further assessment on all unit owners by a statement in writing giving- -,he amount and reasons therefor, and such further assessment shall becorc effective with the next quarterly maintenance payment w;.ich is due more than ten (10) days after the delivery or mailing of such notice of further assessment. All unit owners shall be obligated to pay the adjusted quarterly amount. (d) The failure or delay of the Board of Managers to prepare c;: serve the annual or adjusted budget on the owners shall a,ot constitute a waiver or release in any r:.anner -- -- of tha nz.nQ, '� ��ligatioa to--pay-thee ri�it. nenance__acld other - - costs andncc•assary reserves, as herein provided, whenever the sane shall be determined, and in the absence of any annual budcat or adiustcd budget, the owners shill continue to pay•thc quartorly assessment charejes at tho then existing quarterly rate established for the previous period until the next quarterly assessment payment which is due more than ten (10) days after such new annual or adjusted budget shall have been Trailed or delivered. -20- ` The Board of Managers (or the managing agent acting for and on behalf of the Board of Managers) shall deliver copies of the budget, and accurate books and records of receipt, !� expenditures, assets and liabilities of the Association, and {{i the vc,ligations of each and all owners thereto and the same shall be open for inspection by any owner or any representative of an owner duly authorized in writing, at such reasonable time or times during normal business hours as may be requested by any owner. All funds collected hereunder shall be held and expended solely for the purposes designated herein, and : - (except for such s; cial assessments as may be levied 'hereunder agai::ot less t' • unit a::ncrs and for s'!ch adiustr.ents as may be required to reflect delinquent or prepaid assessments) shall be deemed to be held in trust for the benefit, use and account of all the owners in the percentages set forth in Exhibit "A", or as such percentages may be modified as provided � ueLcuu�121'. (e) Until such time as the Board of Managers shall cave provided its first annual Lu3aet to the owners, or for such other period as the Board of tanagers determines, the Board of Managers shall have the right to assess the common expenses, as hereinabove provided, on a quarterly basis and all owners shall pay such quarterly as advised (f) The following expenses or chances incurred by the Board of Managers (and/or unit owners) shall be specially assessed to the individual owner to which such er.:ense or charge is applicable (in addition to any other costs, charges or expenses which by law or the terms of this Declaration are payable ry an individual uw4-,er): (i) The amount by which any premium for in- :. ance mainr»inpd by the Board of :•Tanagers and/or any unit at.ner is increased es a result of any business or etner activity or act of such owner, cr of any c'.;cst, inv:tom_ or tenant of such owner, or the amount of any pre-.iu:-1 on new insurance which is purchased by the Board of .Tanagers solely as a result of any business or other activity or act of such owner, or of any guest, invitee or tenant of Y_ such owner. If such increased premium or new insurance premium is necessit,nted by the usual and c. stcmar.., bus- - iness activity carried on in accordance with the terns of this Declaration in any commercial unit, then, upon the pdynont of auch an:,unt ty the owner G- 0.- h mercial unit, such owner shall nct be d•:er•ed in violation of the terms or provisions of this Declaration. (ii) The monthly or other fee or compensation and any other cost or su-. which the Beard of :1ar.acers or Association is obligated to pay to the r.anagir.g i agent with respect to a unit =3cr the terms of any agreement with such managing agent. r (g) In addition to the remedies or liens provided by law, or by this Declaration, if an owner is in de`ault in -- - the quarterly payment of any aforesaid charge cr assess;i,ent for thirty (30) days, the Board of ;Managers may bring suit for and on behalf of itself and as representative of all owners,. to enforce colln.•rion thereof or to foreclose the lien therefor as provided by law or by this Dcclaraticn; and there shall be added to the amount due the costs of said suit, together with interest at the rate of 12% per ar.num -21- from the due date thereof, plus a late charge not to exceed $20.00 and reasonable attorneys fees. No owner may waive or otherwise escape liability for the assessments or other charges provided for hereby by non -user of the general :ommon elements or any portion thereof or abandonment of that owner's unit. (h) Assessments or other charges assessed against: a unit shall be the personal and individual debt of the owner or owners thereof and such owners shall be jointly and severally liable therefor. p (i) (i) 'he mechanical rooms and heating units end equip=-% t1 in enclosed c:�-crcial units (including the parking level commercial units, either before or after enclosure or subdivision thereof, and, in addition thereto, the common lighting equipment in said parking level commercial units.) and residential unites and all pi -es An a,irta, nr nther apparatus or equipment in connection therewith (to the extent to which the same are not part cf the general common ele- ments), shall be deemed owned in common and to the extent to which the same are part of the general common elements, they shall be limited common elements reserved exclusively for use by tho owners within whose units the came are situated by the respective ownuia of the .,..id enclosed - r-nrn+worria.'• finite any thr residential units and by the owners of any enclosed commercial and residential units which may result from a subdivision of said units pur- suant to the terns hereof perr..itting such subdivision in the sr•n,e proportion that the undivided interest in the general common elements appurtenant to such unit bears to such undivided interest in the general common elements appurtenant Lu such unit Vicars to such undlVidCd inter. ct i.i the general common elc:ntrits appurtenant to all of s.ucn units. The owners of all of such units shall have equal rights to the use of, and shall share i,i all costs of the maintenance, repair, replacement and reconstruc- tion of such mechanical rooms, heating units, pipes, ducts, apparatus died equipment, and the fuel used in the opera- tion thereof, in the sane proportions a- their ownership in common thereof. (ii) In the event of any dispute or difference of opinion among the owners of the units referred to in this subparagraph (i) at any time, with respect to their rights or obligations under the terms of this subnara- graph (i), the decision of the Managing agent, or of the Board of Managers if there be no Managing Agent, shall be final, conclusive and binding on all parties affected thereby. In the event any such owner shall fail to refuse to pay any sum which, in the opinion of the Managing Agent or Board of Managers is due and payable under tiie terns of this s=.b, aragrap.h U) , t.h,: ~'.k, such sum shall become a lien on the unit of such owner `} which may be perfected and foreclosed or sued for in the manner provided in this Declaration with respect to ' liens for failure to pay a share of the common expenses. Any sums collected ps a result of legal or other actions - taken -as a result of the refusal -of an owner to -pay as - herein provided shall, after payment of all costs of collection thereof, be paid and applied for the purpose for which such sums were due and payable. 21. Lien for Non -Payment of Common Expenses and Other Oblications. A 1 sums assessed but unsaid for the share of comm n expenses chargeable to any unit and all sums specially assessed hereunder to any uni !v inpoid. and any and all -22- .uJ_•._- t �iSwa'�L��tr. 'i all. -- rmo _ cA4 I of un on ex in de pa br un re, be he: in mai th, of a� a i ani of. Sul mei fai moI of ce4 fi: ne, As: un: s h: Asi cic mol but or unj lic the lic a t ha prc fur bra pai sha ann of for 22. Liabilltv for Common Exoense and Other Char es Upon Transfer of a Unit is Joint. Upon payment of a reasonable fee not to exceed twenty-five dollars ($25.00) and upon the written request of any owner or any encumbrancer or pros- pective encumbrancer of a unit, the Association, by its Managing Agent or if there is none, then by the financial officer of the Association, shall issue quarterly a written statement setting forth the amount of the unpaid special assessments and common expenses, and other charges due here- under, if any, with -aspect to the subject unit, the amount of the current assessments and the date that such assessment becc:ncs and credit for advanced payments of common assessments, which statement shall be conclusive upon the %ssociation in favor of all persons who rely thereon in good faith. Unless such request for a statement of indebted- ness shall be complied with within ten (10) days after receipt thereof, all unpaid common expenses and other charges due hprome due prior to the date of making such request shall be subordinate to the lien ui Lhe porccn or entity requesting such statement. The grantee of a unit shall be jointly and severally liable with the grantor for all un--aid assessments against the latter for that anit's prnpertionate share of the coma%on expenses and for the special assessments and oti.er c::ar s --uc the time of the rant or conveyance, without hereu,,::a: ::Y g i prejudice to the grantee's right to recover fru,a L;;e gr=n1cr the amounts paid by the grantee therefor; provided, however, that upo!i payment of a reasonable fee not to exceed Twenty - Five Dollars ($25.00), and ujon written request, any such prospe•:ti•ie grantee shall be entitled to a statement frc:.i the M-nrging Agent or the Association setting forth the gmount of tte -aid-,larterly and special assessments, and any other charges due hereunder, if any, with res!:e:4_:. Lhe- _ ^h,ect unit, the amount of the current quarterly assessment, the date that such assessment becomes due, and credits iUL advanced pay-.en`s, which statement shall be conclusive upon the Association. Unless such recuest for such a statement shall be complied with within ten (10) days after receipt 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 or other charges due hereunder against the sub act unit, but shall not relieve the gra..tor of personal responsibility therefor. The provisions con- tained in this paragraph shall not apply to the initial sales and ccn•n;••-inces of the units by Declarant, and such sales shall be free from any liens for co -anon or special assessments to the date of conveyance thereof by Declarant. 23. MArto?ping a Condc-ninium Unit - Priority. Any owner shall hak-c the r:3: from ti-me to time to ;%ortgage or encumber that owner's interest by deed of trust, mortgage or other security instrumo ;t. A first mortgage or deed of trust shall hP one which has first ind paramount priority under ap- plicable law. The owner of a unit :::ay create junior encum- brances on the fallowing conditions: (1) That any such junior encumbrance shall always be subordinate to all of the terms, condition:;, covenants, restrictions, uses, li..itations, obligations, liens for cc, -non expenses, and other obligations created by this Declaration., the articles of Incorporation and the By -Laws of the A—ciation; (2) That the mortgagee under any junior mortgage shall release, for the purpose: of restoration of any improvements uFon the mortgaged premises, all of that mortgagee's right, title and interest in an% to the proceeds under all insurance policies upon said premises, which insurance policies were effected and placed urJn the mortgaged premises by the Association. Such release jrLll be furnished forthwith by a junior mortgagee upon wri*cen request of one or more of the members of the Board of Mangers of the Asscciation. 2 , ale or Lea n Right of First Refusai for Plaza Level Commercia Units. (a) In t rn%, owner of a r.onunercial unit on the Plaza Level (that level being the firs'. level above the parking level) of either the West or East Buildings other than declarant shall wish to sell or lease the same, and shall have received a bona fide offer therefor from a pros- pective purchaser or tenant, including an offer from another owner, the selling or leasing owner shall simul_aneously give written notice thereor to the ueclarant and ell lCi:,"-_-_- .y owners of commercial units, and the De=larant shall have the first right to purchase or lease the subject unit u;,on the same terms and conditions as set forth in the offer therefor, PROVIDED, written notice of such election to pur- chase or lease is given to the selling or leasing owner, or the selling owners agent, together with a matching down pay- ment or deposit during the twenty (20) day period immediately following the receipt or the notice of the offer to �,ut�i,abt or lease. If the Declarant shall not exercise its rights of first refusal as hercinabove provided, the remaining commer- cial owners, irdididually or collectively, shall have the second right to purchase or lease the subject unit upon the same terms and conditions as set forth in the offer therefor, provided written notice of such election to purchase or lease is given t;, t:,e selling or leasing owner, or his ajent, together wit-, a matching down payment or deposit during the twenty (20) day period immediately following the receipt of the notice of the offer to purchase or lease. The said notice to the remaining commercial owners as herein provided for shall run simultaneously with that of the Declarant, the twenty (20) day period for exercise being the sam? period for both the Declarant and the remaining owners. In the event the Declarant shall not have exercised its right of first refusal as above contained and two or more remaining owners shall have given their notice to the sellin- or leasing owner as provided above, the detornination of whom amony the co-=eting remaining co-mercisl o•::ners shall have the right to purchase or lease the unit shall be rodde as follows: The selling owner shall notify, by notice given on the same day, all owners who submitted their notice of elec- tion to purchase or lease and provided the down payment or deposit as required here'_r.above, to submit sealed bids to the Board of Manaaers to the attention of the Chairman of the Board of Managers within twenty (20) days from the receipt of such notice. The Chairman shall open all such bids upon the twenty-first (21st) day following the day the selling owner mailed said notice to the competing owners and the owner sub- _mitting_.the-bid.offering the highest purchase_ price or rental for the subject unit shall have the right to purchase or-Ibase the same. In the event duy Owner shall attempt to sell or lease a com.-nercial unit without affording to the other owners the right of first refusal herein provided, such sale er lease shall be voidable and may be voided by a certificate • • of noncompliance of the Association duly recorded in the recording office where the Declaration is recorded. However, in the event the Association has not recorded such a certifi- cate of noncompliance within one (1) year from the date of recording in the case of a deed or contract delivered in violation of this paragraph and within six (6) months from t.tle� date of possession under a lease executed in violation of this paragraph, such a conveyance or lease shall be conclusively deemed to have been made in compliance with this paragraph and no longer voidable. The suL easing or subrenting of any interest shall be aubject t:. t.- _ '__mitations as are applicable to the leasing or renting thereof. The liability of the owner under these covenants snall continue notwithstanding the fact that the owner may have based or rented said interest as pro- s vided herein. In no case shall the right of first refusdi L�servcd herein affect the right of an owner of a commercial unit to subject that owner's unit to a trust deed, mortgage or other security instrument. . The failure of or refusal by the Declarant or owners to exercise the right to so purciase or ivabu s:iall not ccnsti- tute ^r he rippmud to be a waiver of such right to purchase or lease when an owner receives any suoseauent bona ride u;iri from a prospective purchaser or tenant. The right of first refusal for the benefit of the Declarant herein shall extend and run for the term of its limited partnership (and any exten- sion thereof) or twenty-one (21) years, whichever shall be the shorter period. The same shall be personal to it and not a3signatie or trancfprable by it. Any party in interest to the foregoing right of first refusal may, by written signed instrument, waive the same and notice thereunder for a specifir- sale or lease proposed. (b) In the =vent of any default on the part of any owner under any first mortgage which entitles the holder .t?.«., thereof to foreclose same, any sale under such forccic:urc, ' including dClivCry of a deed to the first mortgagce in lieu of such foreclosure, shall be made free and clear of ti,•: provisions of this Paragraph 24, and the purchaser, or grants" i under such deed in lieu of foreclosure of such unit shah be thereupon and thereafter subject to the provisions of this ' Declaration. If the purchaser, following such foreclosure sale, or grantee under deed given in lieu of such `oro cio- ='', sure, shall be the then holder of the first mortgage, cr such encumbrancer's nominee, the said holder or nominee may tn-re- after sell and cunvcy the unit free and clear of the provisicn_ !`. of this Paragraph 24, but said encumbrancer's grantee shall thereupon and thereafter be subject to all of the provisions t' hereof. The following transfers of Plaza Level commercial units are also exempt from the provisions of this Paragrapn 24: _ ----- - - -- - - - (i) The Lransftr_ or_convcyance by operation by of law or otherwise of the interest of any unit owner -- - to any other co-owner of the same unit, where such co -owners previously held title to such unit as tenants >>.r in. common or as juinL Lei -.ants; v Ks _ -26- 1[' 1 K _tih... .. \. r,-yr{.. �i •e�.w'.� _�N, �.�v. H' ..! i...���._4-"�®�.:.it1_�a1�'Y:de. ti•�51.4 .�A9{� !1 1 " E.V..; 0J < 545 (ii) The transfer of a deceased's to a devisee or devisees by will or heirs at intestacy lawsr (iii) The transfer of an owner's interest by treasurer's deed pursuant to a sale for delinquent taxes; (iv) The transfer of all or any part of a partner's _ Merest as a result of withdrawal, death, or _c the remaining partners carrying on the partnership business and/or to a person or persons becoming partners; a transfer of all or dart of a partner's or partners' interests between one or more partners and/or to persons becoming partners; (v) The transfer of a corporation's interest to the persons formerly owning the stock of the corpor- ation as the result of, a liquidation u2cn dissolution, or transfer to the resulting entity following a corporate merger or consolidation; vrovide:i, rowever, that at least fifty (901 percent of rh, stnr-k of th, rPenitirc entity is oarned by the stockholders of the corporation iOLu ,Lly Uwlllllg the unit; Otherwise, if the owner of a Plaza Level co7%7tercial unit can establish to the satisfaction of the Board of Managers that a proposed transfer is not a sale or lease, then such a transfer snail not be subject to the nrovisions of this Para- graph 24. (c) Upon written recuest of any prospective trans- felee, purchaser, tenant, or an existing or prospective mortgagee of any unit, the Board of Manacars shall fortnwith, or where time is specified, at tho e-Id of the time, issue a written and ackn, .:1cccd ccr...atc rcccrdal lc form, � M With respect to a proposed lease or sale under this Paragraph 24, that proper Notice was given by the selling or leasing owner and that the Declarant and/or remaining owners entitlef to such ..o g ee did not elect to exercise their option to purc::ase or lease, or waivers in lieu thereof have been obtainei; (ii) With respect to a deed to a first mort- gagee or holder of a first trust deed or its nominee in lieu of foreclosure, and a deed from such first mort- gagee or its nominee, pursuant to this Paragraph 24, thatthe deeds were in fact given in lieu of foreclosure and were not subject to the ^-,,. i..�_ f r 24. cO3yr.ap. (iii) With respect to any conte-plated trans- -- --- fer which is not in fact a sale or leas_, t.`,at the transfer will not be subject to the provisions of this Paragraph 24. Such a certificate shall be conclusive evidence of the facts contained therein. s' P 25. Association as Attorney -in -Fact, Damave Destruction, Obsolescsace and sale. 'I'hiz Declaration oes hereby make man- �+�' ' amatory the rrevocanle appointment of an attorney -in -fact to ft deal with the property upon its destruction or obsolescence. !'Sti Title to any unit is declared and expressly made subject to the terms and conditions hereof, and acceptance by any grantee of a deed from the Declarant or from any owner shall constitute appointment of the attorney -in -fact herein pro- vided. All of the owners irrevocably constitute and appuinL the AssociaLion their t.-e and ]awful attorney in their name, place and stead fc. t. -i-=e of dealing with the property upon its destruction or obsolescence as is hereinafter pro- vided. As attorney -in -fact, the Association, by its president and secretary, shall have full and complete authorization, right and power to make, execute and deliver any contract, deed or any other instrument with i&spcct to the intrfrst of an owner which are necessary and appropriate to exercise the powers herein granted. The term "improvements" means any improvements forminq a part of the property, or any portion thereof, including any unit. Repair and reconstruction of Lhe improvements as used in the succeeding subparagraphs means restoring the same to substantially t:,c conditic;n in which it existed prior to the damage, with each unit and the general and limitea common ei�..�e::ts ha ;ng s„f,-rantially 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 re- placements unless the owners and all first mortgagees agree not to rebuild in accordance with the provisions set forth hcrc:rafter_ (a) In the event of damaye or dcstructinn due to fire or ;)t`.er disaster, the insurance proceeds, it sufficient to reconstruct the improvem,.enLs, shall be applied by the Association, as attorney -in -fact, to such reconstruction, 4k and the improvements shall be pro:rptly repaired and recon- structed. The Association shall have full authority, right and power, as attorney -in -fact, to cause the .,.pair and res- toration of the improvements. (b) If the insurance proceeds are insufficient to repair and reconstruct the improvements, and if such damaae is not more than fifty (50) percent of the square foot area of the buildings, such damage or destrucLion shall he pro::7-t1v repaired and reconstructed by the Association, as attorr.e�- in -fact, using the proceeds of insurance and the proceeds of an assessment to be made against all of the owners and their u, units. Such deficiency assessment shall he a co. -,non and made oro rata according to each owner's percentage in- terest in the general common elements an-i shall due and payable within sixty (60) days after written notice thereof. The Association shall have full authority, right and po%.:er, as r�. 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 assessmen t The -assessment provided for herein shall be a i debt of each owner and a lien on each owner's unit may be enforced and collected as is provided in Paragraph 21. In addition thereto, the Association, as attorney -in -fact, shall have the absolute right and power to sell the unit of any owner refusing or failing to pay such deficiency assessr.:ent within the time provided, and if not so paid, the Association -28- e308 5 17 by and through its Board of Managers shall cause to be recorded a written statement that the unit of the delinquent owner shall be sold by the Association. Tho proceeds derived from the sale of nuch unit shall be used and disbursed by the Association, as attorney -in -fact, in the following order: (1) For payment of taxes and special assess- ments liens in favor of any assessing entity and cos- tomary expenses of sale; (21, - •:T-nt of the balance of the lien of any first nortgage or rirnd of trust; (3) For payment of unpaid charges including attorney's fees and costs of collection due hereunder and common expenses, including all sums due under the terms of this Pa:aaraph 25; (4) For payment of junior liens and encum- brances in the order of and to the extent of their priority; and (S) The balance remaining, if any, shall be paid to the unit owner whose unit is sold. (c) If more than fifty (50) percent of the square foot area of the buildings is destroyed or damaged, and if the owners reF.•�senting an aggregate ownership interest of seventy-fi:e (75) percent, or more, of the general common elements, do not voluntarily, within one hundred and eighty days (180) thereafter, make provisions for reconstruction ia. acCC:, L:.ncewith .. plan, which plan meat have the unanimous approval cr consent of every first mortgagee, the Associatiun shall fcrthwith record a notice setting forth such fact or facts, and upon the recording of such notice by the Associa- tion's president and secretary, the entire remaining premises shall be sold by the Association, as attornpy-?n-fact for all =of the owners, free and clear of the provisions contained in this Declaration, the Cu„ 3uminiurl flap and the By-r aus, The insurance settlement proceeds shall be collected by the Assoc- iation, and such procec::s shall be divided by the Associaticn according to each owner's percentage interest in the general common elements, and such divided proceeds shall be paid into separate accounts, each such account representing one of the units. Each such account shall be in the of thn. Assoc- iation, and shall be further identified by the unit•designa- tion and the name of the owner. Thereafter, each such ac- count shall be supplemented by the apportioned amount of the proceeds derived from the sale of the entire property. Such apportionment shall be based upon each unit owner's percentage interest in the general common elements. 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 cnc y ccount to another, toward the partial or full payment of thelien of any first mortgage and deed of trust against the unit represented by such separate account. 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 p:rrnnses and in the same order as is provided in sub- paragraphs (b) (1) through (5) of this paragraph. Y:ic provi- sions contained in this subparagrdph shall not hinder the protection given to a first mortgagee or first deed of trust holder under a mortgage or deed of trust endorsement. -29- F •%303 W 15113 � c If the owners representing an aggregate ownership Y interert of seventy-five (75) percent, or more, of the general common elements adopt a plan for reconstruction, which plan has the unanimous approval of all first mortgagees and holders �- Of deeds of trust, then all of the owners shall be bound by the terms and other provisions of such plan. Any assessment made in connection with such plan shall be a common expense and made pro rata according to each owner's percentage interest in the general common elements and shall be due and payable as provided by the terms _•f such plan, but not sooner than sixty (60) dais after wri.-...t%,L.Lce 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 fai_ure of do owner to pay the assessment. The assessment provided for herein shall be a debt of each owner and a lien cn tl•-f owner's unit and may be enforced and collected as is -. r_-vided in Paragraph 21. In addition thereto, tiic Associaticn, as attorney -in -fact, shall have th- absolute right and power to sell t-he unit of any owner refusing or failing to pay such assessment within the time provided, and if not so paid, the -A Association Association. shall cause to be recorded a notice that the unit of the delineuent owner shall be sold by the Association. The ' proceeds derived from the sale of such unit shall be used and dis),- cFd by the Association, as attorney -in -fact, for the same purposes and in the same order as is provided in ,uulo.ay.'Gr { (b)(1) through (5) of this paragraph. �a (d; The owners representing an aggregate ownership interest of eighty-five (85) percent, or more, of the general common elements may agree that the units are obsolete and == adopf a plan for the renewal and reconstruction thc_cnf which plan mu•;t have the unanimous approval of all ` and holders of first deeds of trust. If a plan for the rene::al of reconstruction is adopted, *hen the expense thereof shall ba payable ty all of the owners as co:r:mon expenses; .`3'.-�•; provid�•d, however, that an owner not a party to (if not approv- r'S'=^r ing) such plan for renewal or reconstruction may give written .: notice to the :,ssociation within thirty (30) gays of adoption of such plan that such unit shall be purchased by the Assoc- iation for the fair market value thereof. The Association n shall then have fifteen (15) days after the expiration of F thirty (30) days from the adoption of such plan within which r-rf to cancel such plan. If such plan is not cancelled, they. the unit shall he purchased according to the following proced- ures. If such owner and the Association can agree on the ;,. fair r.arket value thereof, then such sale �nall be consur,mated within thirty (30) days after the expiration of forty-five (45) days from the adoption of the plan. If the parties r� are unable to agree, the date when either party notifies the oth-_r that he, she or it is unable to agree with the ' other shall be t;.e "commencing date" from which all periods of time mentioned herein shall be measured. Within ten (10) ' days following the co.;.mencing date, each party shall no,inate F<.''• in writing (and give notice of such nomination to the other party) an appraiser who shall be a licens^_d Colorado real estate broke_ and regular.member of the Aspen Board of Realtors. If either party fails to make such a nomination, the appraiser nominated snail, within five (5) days after default by the other party, dppoint and acccciat_ with such r+_rplalser another appraiser (to be selected by the Aspen Board of Realtors. -30- P Ai ` J• 1,.' 17 V'AV If the two appraisers designated by the parties, or selected pursuant hereto in the event of the default of one party, are unable to agree as to the fair market value of the unit, they shall appoint another appraiser (to be selected from the Aspen Board of Realtors) to be umpire between them, if they can agree on such person. If they are unable to agree upon such umpire, then each appraiser previously appointed shall nominate two (2) persons (each of whom shall be a regular member of the Aspen Board of Realtors), and from the Damns of the four persons so nominated one shall be drawn by lot by any judge of any -ourt of record in Pitkin County, Colorado, and the name to u,.-. s.jall be such ur.:pire. 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 nut be later than twenty (20) days following the appointment of the second appraiser. The decision of the appraisers as to the fair market value, or in the case of their disagreement, then such uc:c,ision of the umpire, shall be final and binding. The expenses and fees of such appraisers shall be borne equally by the Assoc- iation and the owner. The sale shall be coat-u-mated within fifteen (15) days thereafter, and .the Association, as attorney - in -fact, shall disburse such proceeds as is provided in sub- paragraphs (b)(1) through (5) of this paragraph. (e) The owners representing an a0lJLeyaLe .: wr.ct ship interest of ninety (90) percent or more of the general common elements may agree that the units are obsolete and that the property should be sold. Such agreement must have the unanimous ap?roval of every first mortgagee and first trust deed holder. In such instance, the Association by and through its Doard of Managers shall forthwith reword a state- ment setting forth suchtact or :acts, and upon the Lu,_ording of such statement by the Association's president and secretary, the entire premises shall be sold by the Association, as attorney -in -fact for all of the own; rs, free and clear of the provi%ions contained in this Declaration, the Condominium Map and thr By -Laos. The sales proceeds shall be apporticned bct- ween t:,e owners on the basis of each owner's percentage interest in the general common ele-tints, and such apportioned proceeds shall be paid i::Lo upaxaLe aucVui.Lb, ea-_h such accuuuL senting one unit. _Each such account shall be in the name of the Association, and shall be further identified by Lhe unit designation and the name of the owner. From each separate account, the Association, as attorney -in -fact, shall use and disburse the total ar^ount of each of such accounts, without contribution from one account to another, for the same Fur�Oses and in the same order as is provided in sub -paragraphs ib)(1) through (5) of this paragraph. 26. Aca,.iisition of nro,�erty for C cn Use. The Assoc- iation may ar.+1uire and hold :or the ,. c and- benefit of all of the owners, real, tangible and intangible ceisonal prop- s sale or _1• "wl se erLy and may disYosc of t!:c rime by s___ the and the beneficial interest in anv such property shall be owned by the owners in the same proportion as their respective - - - -- intermits-i-n- the general comman_ eLnmunts_ and _shall not be transferable except with a transfer of a unit. A transfer of a unit small transfer to the transferee o,.nership of the transferor's beneficial interest in such property without any reference thereto. Each owner r.+ay ube suci, pr,,; arty inac- cordance with the purpose for which it is intended, without hindering or encroaching upon the lawful rights of the other -31- _'r•�.r.�a+.i':: r �YSi sd ✓.•.�/ �..,� ..•. O'A�Li a _. _ -,.5. - •� ,. apt. t.�'..e r owners. The transfer of title to a unit under foreclosure shall entitle the purchaser to the beneficial interest in such property associated with the foreclosed unit. 27. Re iQ stration by Owner of Mailing Address. Each owner :,hall -register that owIier's ma Ting aaJress with Cie Association, and except for budget statements and other routine notices, all other notices or demands intended to be served upon an owner shall be sent by either registered or certified mail, postage prepaid, addressed in the name of the owner at such registered mailing address. All notices, acmands - or other notices ir._•nded to be served upon the Beard of Managers of 6,e -. ._'_.,n or •h;: Association shall b^ -,Ant by certified mail, postage prepaid, return receipt requested, to 710 East Durant, Aspen, Colorado 81611, until such address is changed by a notice of address change duly recorded in the office of the Clerk and Recorder, Pitkin County, Colorado. All notices, demands or other instruments intended to be served upon the Declarant shall be sent to it in tine 5ctwc manner -- - P. O. Box 256 , Aspen, Colorado 81613, until such addressis changed by recorded notice. All notices so mailed shall be deemed given when deposited in the U.S. Mails. 28. Period of Condominium Ownership. .The s,�r•aratc condo- minium estates created by this Declaration and the Condominium Man shall continue until this Declaration is revoked in the manner and as is provided in Paragraph 29 of this L�eip�a�:ca or until terminated in the manner and as is provided in Para- graph 25 of this Declaration. 79. Revoeaticn. This Declaration shall not be revoked unless ill of the owners and all of the holders of all recorded =rtv -ems anal/nr deed of trust covering or affecting all of the units unanimiousiy cunst:nt and agree tc 15ut_'i• i' tion by instrument(s) duly recorded. 30. ComDliance_ with Provisions of Declaration, Bv-1,a•.as of the Association. E ci O::nc- r slna l cor^ply strictly with toe provisions of this Declaration, the Articles of Incorporation and By -Laws of the Association, and the reasonable rules and regulations of the Association, all as the same may be lawfully amended from time to tir..c. The violation of any restriction or condition or regula- tion adopted by the Board of Managers or the breach of any covenant or provision herein contained, shall give the Board of Managers (in the name of the Association on behalf of the owners) the right, in addition to any other rights provided for in this Declaration: .(a) to -Inter upon the unit, or any portion of the property upon which, or as to which, such viola- tion or breach exists and to surmarily abate and remove, at the expense of the defaulting oe:ner, any structure, thing or condition that may exist thereon contrary to the intent and meaning of the provisions hereof, and the Board, or its employees or agents, shall not thereby be deemed guilty in any manner of trespass; or (b) to enjoin, abate or remedy by appropriate legal proceedings, either at law or in equity, the continuance of any or (c) to recover sums due for damages. Such remedies shall be cumulative and not -exclusive of one another and-shal-1-- be in addition to any other remedies available to the Board of Managers by law. Furthermore, if any owner (either by that owner's own conduct or by the conduct of any other occupant of that owner's unit) shall violate any of the terms, conditions, K .� ,. 4. covenants and obligations of this Declaration or the re- gulations adopted by the Board of Managers and such viola- - tion -hall not be cured within thirty (30) days after notice x in writing from the Board of Managers or shall re -occur more than once thereafter, then the Board of Managers shall have the power to issue to the defaulting unit owner a ten (10) day notice in writing to terminate the right of the said defaulting owner to continue as an owner and to continue to . �. '•�",, occupy, use or control his unit and thereupon an action in equity may be filed by the Board of ;Managers against the . ." owner and/or occupants, or in the alternative a decree declaring the termination of the defaulting owner's right to occupy, use or cc..`rol the unit owned by said defaulting owner un accou„, ._ - r__�ach of covenant and ordering that all the right, title and interest of the owner in the property shall be sold (subject to the lien of any existing mortgage) at a judicial sale upon such notice and terms as the court sk:a'_i esta.`.li�::, exc^p t _ t►„t the court shall enjoin and restrain the defaulting owner from re -acquiring the de- '" faulting owner's interest at such judicial sale or by virtue of the exercise of any right of redemption which may be v established. The proceeds of any such judicial sale shall first be paid to discharge court costs, court reporter charges, rcaccnabl attorney fees and all other expenses of the proceeding and sale, and all such items shall be taxed ;-r- against Lhe uufeulti.ng ,....__ in sairi Prree. Anv balance of proceeds after satisfaction of such charges shall be applied r. and paid in the same order as is provided in sub-paragrapi�s (b)(1) through (5) of Paragraph 25. Upon the confirmation of such sale, the purchaser thereof shall thereupon be entitled to a deed to the unit and, subject to the rights of " S eixa the Board of Managers as provided herein, to immediate pvbsessie: of the unit roi(! ti,,d jay y'_'. _ - to thn rnurt for a writ of assistance for the purpose of acquiring such possession, and it shall be a condition of any si:ch sale, sk h3: and th. decree shall so provide that the purchaser shall take :he interest in the property sold subject to the terms, ' conditions and obligations of this Declaration. 31. Failure to Enforce. No terms, obligations, #' covenants, conditions, restrictions or provisions imposed hereby or contained herein shall be abiogz;ted •,r waived by any failure to enforce some, no matter hew many viola- tions or breaches thereof may occur. 32. Amendments. The provisions of Paragraphs 1, 2, 3, 4, 5, 6, 7, e, 11, 12(a), 12(b), 12(c), 12C ), 14(b;, 14(c), 14(d), 16, 17, 20, 21, -"• (with the written consent of the Declarant for so long as its right thereunder small survive) and this Paragraph 32 of this Declaration may be amended, changed or modified by an instrument in writing setting forth such amendment, change or modification, signed and acknowledged by all of the uwners and all mortgagees or holders of any deed of trust having bona fide liens of record against any unitz. Other provisions of this Declaration except Paragraph 24 may be amended, changed or modified by an instrument in writing setting forth such ar.iendment, change or modification, signed and acknowledged by all of the members of the Board of Managers, at least seventy-five (75)- --- percent of the owners and by all mortgagees or holders of any deed of trust having bona fide liens of record against any units. Any amendment, change or modific.,,ion shall Lc' effective upon recordation thereof. No change, modification or amendment which affects the rights, privileges or obligations of the Declarant shall be effective without the prior written consent of the Declarant. No cha::ge, modifi- cation or amendment which is in derogation of conditions -33- .i _. �Q a'�iLa�f :`• in !�Y? >�rr,"4�,1�'��` ;�i''yF r�'p•�_t�. `'.c�'_f` + imposed upon o improvement, use and occupancy the { condominium project by the City of Aspen shall be made without the consent of the said city or governmental authority successor thereto with jurisdiction thereover. 33. General. (a) If any of the provisions of this Declaration or nny parnnrnph, sentence, clause, phrase, or word, or the application thereof in any circumstance be invalidated, such invalidity shall not affect the validity of the remainder of this Declaration, and the application of any such provision, paragraph, sentence, clause, phrazc or ::ord in any other circumstances shall --)t be affected thereby. All of the terms hereof are h^ ff -• declared to be severable. 'I (b) The provisions of this Declaration shall be in addition and supplemental to the Condominium OwnershiD t.ct of the State of Colorado and to all other provisions of .r` law. (c) Whenever used herein, unless the context shall otherwise provide, the ringular number shall inclu3c th^ plural, the plural the singular, and the use of any ge—le r shall include all genders. (di The provisions of this Declaration shall be liberally construed to effectuate its purpose of creating a uniform plan for the development and operation of a first- class residential and commercial condominium development. w r✓. c (e) If any of the options, privileges, covenants or i.ight-. D:"-!aratii,p .: i,n it iu ,lr, i,lwl ul vl void fcr violation of (a) the rule against perpetuities or some r_nalogous statutory provision, (b) the rule restricting restr.-Ai..ts on alienation, or (c) any other statutory or common law rules imposing time limits, then such provision stall continue only for the period of the lives of John C. Ginn and John Lorca Yaw, and th_ir no -a living dcscrn6ants, and the survivor of them, plus twenty-one (21) years. IN WITNESS WHEREOF, the Declarant, BLOCK 106 A-SOCIATES, a Limited Partnership, by a general partner thereof, has duly executed this Declaration this j day of . ��, ,,—, 197e,. BLOCK 106 ASSOCIA"ES By ! �: ( . 7 _ John r. Ginn, General Partner STATE OF COLORADO ) County of Pit;;in ) ES: The foregoing instrument was acknowledged before me this day of r, / , „ a; „ , 1976, by JOHN C. GINN, a general ----- partner -of BLOCK 106 195OCIA7 S.---a- Limited Partnership, as and ,for the act of that Limited Partnership. WITNESS my hand and official seal. My Commission Expires: 17 r Notary ' L. Ld. . . . -_ ..___d A'wd:r..4._ man - 34 - EXHIBIT A TO ! CONDOMINIUM DECLARATION FOR THE DURANT MALL (A CONDOMINIUM) r The undivided interests in aeneral common elements appurtenant to L.. is in THE DURANT MALL (a Condominium) are as follows: West Building Piaza Level Commercial Units Unit Number W-1 W-2 W- 3 Level 2 Commercial Units Percentage Interest 7.60 6.53 4.66 Level 3 Residential Unit R Consisting of 8 ADartment Dlacllings A through H 15.00 East Building Plaza Le%,cl Commercial Units 2.03 3.42 2.69 2.03 Level 2 Commercial Units 2.27 2.99 2.66 3.08 2.21 • M E M O R A N D U M TO: Collette Penne, Aspen Planning Office FROM: Gail Schwartz and Karen Smith Aspen/Pitkin County Housing Authority r�L pitkin county 506 east main street aspen, colorado e1611 DATE: •September 8, 1983 RE: Smuggler Run and Durant Mall Condominiumization Applications We have reviewed the two applications you referred to us and have the following comments. 1. Smuggler Run SPA Amendment As we understand it, the Smuggler Run SPA Amendment is being applied for in order to allow owners of 17 mobile home spaces to expand their mobile homes. The amendment includes language permitting the Smuggler Run Board to approve expansion up to 1,100 s.f. for a 2 bedroom trailer and 1,300 s.f. for a 3 bedroom trailer. The Housing Office has two comments: a. Expansion of 3 bedroom trailers -to 1,300 s.f. is compatible with the 1982 guidelines but would be incompatible with proposed 1983 guidelines which will limit 3 bedroom trailers to 1,200 s.f. To cover this and any future change, we recommend that language under the Improvements paragraph of the architectural standards refer to Employee Housing guidelines adopted by the Aspen/Pitkin Housing Authority (instead of those cited in the Code, which may be out of date) and that specific reference to square foot limitations be deleted. b. Approval should be contingent on amending the deed restric- tion to incorporate a mechanism for calculating the ceiling for resale value of any expanded mobile home. The amended language should reflect that: "For the purpose of calculating a ceiling for the resale value of expanded square footage, the resale value of the &:,llette Penne September 8, 1983t_, Page Two expansion area shall not exceed the current resale value per square foot of the original structure." This is recommended as a reasonable ceiling since the resale value of the original structure includes land value. It should be remembered that the ceiling is not necessarily equivalent to the resale value which is based on documentation of actual cost. 2. Durant Mall Condominiumization Based on the evidence submitted by.the applicant that the eight Durant Mall apartments proposed for condominiumization have not been rented over the last eighteen months within employee price guide- lines, the Housing Office recommends approval contingent on: a. Giving written notice to tenants in accordance with the provisions of Section-20-22(a) of the Aspen Municipal_Code. b. Six months rental restriction according to Section 20-22(b). cc: Housing Authority Members 0 MEMORANDUM TO: Colette Penne, Planning Office FROM: Jay Hammond, City Engineering DATE: September 8, 1983 RE: Durant Mall Condominiumization ---------------------------------------------------------- Having reviewed the above application to resubdivide a unit within the Durant Condominium, the City Engineering Department has the following comment: Approval of the proposed resubdivision of Unit R should be contingent on the recordation of an amended plat indicating the changes and clearly delineating the new units as well as any common elements associated with them. The amended plat should reference the prior platting and have approval certificates for the City Engineer and Council. JH/co f • CIT 13 DATE: September 1, 1983 PEN e e t 611 V MEMORANDUM TO: Colette Penne FROM: Gary Esary&XC4_I RE: Durant Mall Re-Condominiumization 1. I recommend that the application be processed as a 20-19(c) and (d) (see Ordinance 16) "exception from the full subdivision process for the purpose of recondominiumization". This is not a land -use action that should be exempt from the definition of sub- division, but rather an action that should be excepted from redun- dant parts of the process. / 2. I can't find Units I, J and K on the plat. The affidavit refers to 8 units, but lists the rents for 12. 3. The August 3 affidavit states that none of the units was rented within "low or moderate" guidelines. The August 15 affi- davit refers to "low, moderate or middle". The ordinance speci- fies "low, moderate or middle" (Section 20-22(1)). While 20-22(1) provides for a prima facie finding, Section 20-22(c)(1) - (c)(6) provides for a mandatory showing of no reduction and mandatory criteria to be reviewed. The fact that the units have been rented in excess of the guidelines does not automatically result in a recommendation or finding of no reduction. 4. The Building Department should conduct the inspection called for in Section 20-22(ej. 5. The applicant should draft (in a form acceptable to the City Attorney) and record a Statement of Exception memorializing the approval. 6. The applicant should draft (in a form acceptable to to City Attorney) and record a deed restriction to satisfy the require- ments of 20-22(b) (6-month rental restriction), Section 20-22(a) existing tenant provisions), and, if Engineering so recommends, joinder in any special improvement district. Memorandum to Colette Penne September 1, 1983 Page Two 7. In the "Little Victorians" review, the P&Z asked questions regarding the utilities furnished and whether they were furnished in common or separately metered. This information may have an impact on rental within the employee housing guidelines. 8. I recommend a condition that the recondominiumization plat be filed within 180 days of the final Council approval. GSE/mc 5 i 0 PAGE 3 All � a!, rX~ 4lLl Nam=. .00 cw—ftv-m-- elm Moto" • to ap"w I- L e L 0 t, .2ma, wft—baN QM2CLwrmt,A.T 41T wealo--- v ot A N 'T A v v r- 9=6= MW 979TzL4. • 117 • '� IIIlY4 �►QP C►f1C 00iJ QW NCO! �1✓11F� N K� M� .f]IQay 1� iOti1 MH MYm Rom' Hi N G'�YQ O M1�!'1N ROF{Cµ am" A� aw-cm Im'aY ' 1L101: RX� �.i m'Md� 1gr��frK►Y " 6H{M.rlcw f 4*454 Ci m - ,.0 H.c.z.o.o rcw7cw C► wi •- _ v�m .4" nor u m ao wrcwv:. �lS A%IW .. I. a,u �cfi�►ur �— reuv�wor I[s'�o ca�� -- -- ^— •- -'__— n .` 7 J ��iQT1 Ifq'p �IFaV Ilfaji IIs a}�911 1 � I - (RCCL' I1SQL1 llt --' r^un�iai� Rio rRi-4!,-MGM l/fRF, fft'WvT I7IlsiCDVIr6QA i I i ��"���rgOO�a1pWC IGOY Oi. L 1 Ui •'�wNiMJiY O/' M Or M+D i01OiGY QrOc1 rt.7 .LIf MC' 1fu � 1 .. 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ASPEN/PITKIN PLANNING OFFICE • 130 South Galena Street Aspen, Colorado 81611 (303) 925-2020 LAND USE APPLICATION FEES City 00113 - 63721 47331 52100 GMP/CONCEPTUAL 63722 47332 52100 GMP/PRELIMINARY 63723 47333 - 52100 GMP/FINAL 63724 47341 • 52100 SUB/CONCEPTUAL 63725 47342 52100 SUB/PRELIMINARY 63726 47343 52100 SUB/FINAL 63727 47350 52100 EXCEPT/EXEMPTION 63728 47350 52100 REZONING 63729 47360 52100 SPECIAL REVIEW SUB-TOTAL�� County 00113 63711 " 47331 - 52200 GMP/GENERAL 63712 47332 52200 GMP/DETAILED 63713 - 47333 - 52200 GMP/FINAL 63714 47341 52200 SUB/GENERAL 63715 47342 52200 SUB/DETAILED 63716 47343 52200 SUB/FINAL 63717 47350 52200 SPECIAL REVIEW 63718 47350 52200 REZONING 63719 47360 52200 SPECIAL APPROVAL SUB -TOTAL PLANNING OFFICE SALES 00113 63061 09000 52200 COUNTY CODE 63063 09000 52200 ALMANAC 63062 " 09000 00000 GMP 63066 09000 00000 COPY FEES 63069 " 09000 OTHER SUB -TOTAL (.�f�r_el��((U?��J l� ��✓<'�7` U�Ln TOTAL Name: -�116. JZ26 L17 1126 -) Phone: - Address: �. , Y 5L Project: Check No. r �/ y— % Date: Additional Billing: No. of Hours: ASPEN/PITKIN PLANNING OFFICE 130 South Galena Street / Aspen, Colorado 81611 (303) 920-5090 LAND USE APPLICATION FEES City 00113-63250-134 GMP/CONCEPTUAL 00125 00123 00115 County 00113 00125 00123 00113 -63270-136 -63280-137 -63300-139 -63310-140 -63320-141 REFERRAL FEES: -63340-205 -63340-190 -63340-163 -63160-126 -63170-127 -63180-128 -63190-129 -63200-130 -63210-131 -63220-132 -63230-133 -63450-146 REFERRAL FEES: -63340-205 -63340-190 -63360-143 PLANNING OFFICE SALES 00113-63080-122 -63090-123 -63140-124 -69000-145 Name: Address: GMP/FINAL SUB/CONCEPTUAL SUB/FINAL ALL 2-STEP APPLICATIONS ALL 1-STEP APPLICATIONS/ CONSENT AGENDA ITEMS ENVIRONMENTAL HEALTH HOUSING ENGINEERING SUBTOTAL GMP/GENERAL GMP/DETAILED GMP/FINAL SUB/GENERAL SUB/DETAILED SUB/FINAL ALL 2-STEP APPLICATIONS ALL 1-STEP APPLICATIONS/ CONSENT AGENDA ITEMS BOARD OF ADJUSTMENT ENVIRONMENTAL HEALTH HOUSING ENGINEERING CITY/COUNTY CODE COMP. PLAN COPY FEES OTHER SUBTOTAL _ TOTAL Phone: Project: Check # Additional billing: Date: # of Hours: NU f ICE According to Colorado law you must commence any legal actio, based upon any defect in this survey within 3 years after you first discover such defect. In no event may any action based upon any defect in this survey be commenced more than ten years from the date of the certification shown hereon Gf;o55 SEGT(ON Alpine Surveys, Inc. Post Office Box 1730 Aspen, Colorado 81612 303 925 2688 464-'D,. THIRD SUPPLEMENTAL CONDOMINIUM MAP OF THE DURANT MALL CA CONDOMINIUM) CON5EN'1- OF' MORTGAGEE T(-)E UNDER5tGNED FH",ST NATIONAL 15ANK, JZ-NKS, OKLAHOM,',, 13EING TH1= (SENEFICIAIZLI OF THAT CERTAIN DEED OF TMUST IZECOZDED fF-rt)KU^P.1I 9, I`189 IN F� 555 AT 1^&F. fa05 OF THE'. P17KIN COUNTK IZECOtJ)> COVERING RESIDE.NTAL_ CONDOMINIUM UNITS 17, £AND F, THE DURANT MAI-L... (A CONDOMIN(UM), HE-KErt>cl GOtJ5ENT5 IN ALL_ RESPECTS 70 TI-Il i THIRD SUPPLENI£NTAL CONPOMINIUM MAP OF TPF- DURANT MALL (A CONDOMINIUM). 1�/ti-iE D t f3? ITS FIRST NATIONAL r:5At-,K SENKS, c�KLA1-IOMA PLANNING t7 RECTOR, APPfZOVAL.: t\M'I MAR6EtzUM, r�EIN& THE ICJ iNNiNb IZ?)KECTOK OF 714F ASPEN / FITKIN COUNTI Pl-.ANNINC, OFFICE, I-i1=.REV" AUTHOKIZ.ES ANP AFFf?,CVr!`� THIS THIKD SUPPLEMENTAL CONDOMINIUM PAP OF Tt+E DURA,� MALL (A CC�-It2OIVII 1(UM), A> RFPKES✓NTING hN IN.5Uf3yTANTl,4-.- AMENDMI=NF TD`THE, SECOND SVPI'LEME.NTAL CONDOMINIUM MAP OF THE. WKAt'w �/ L- (A CONDOMINIUM), I'UKZSUANT TO THE AU rHCNZITI SET POK71-I 1N -vECTION 7- 804 Cr-) OF THE A`�PEN LANt7 CODE, TPI r7AN Or , 1"1 AM11 MAP�E(ZUt�t PLANNING (71REGTOrZ CITY EIJGI N E F-K/5 APPKOVAL , TP15 PLAT OF -THE T MP C,ONPOMINIUM MM or THE CUKA-)T MfkLL (A CONDOMIN(UM) I,i ✓ IEY PAN APPROVED t5cl THE C(T"f OF THE C(T'f OF Cl--,FEN/ THIS PA"I Ot , (1t `t O. Surveyed 11 14 99 TJ. R . Revisions ( l e - 5O Drafted I I I (P b`I D. fZ. GITK ENCtiINE.F� OWNEIZ'9 CERTIFICATE.: GEF-ALD R. ,bE.Al DF-INCH THE, RECOF-D OWNE-FZ OF KF,51pFNTIAI CONDOMINIUM UNITS D, £ AND F, THL DURANT MALL ( A CONDOMINIUM), ACCORDIF4, TO THE 5£COND 5UPPLEMENTAL CONDOMINIUM MAP KF-coFt71=D -TUNE 14, 1984 IN PLAT P500K I(o A-r PAGE 10, HE-KET" \MENbS ANt2 SECOND 5Vf pLEMENTAL GONC70MIN1UM M^F TU REFLECT THE COMP�INATION OF.ShID CONCJOMINIUM UNITS tJ, I= AND F INTO A SINGLE. UNIT TO DE KNOWN AS R£SlDE1�1T/AL CONt70MINIUM UNIT D, A5 SHOWN AND MOOTED t 4EFZEON, 7HERF-511 ELIMINATING UNITID F- AND F EN`rlr F-LH, IN ALL. OTH1=(K KE5PECTr7, ✓AID 5E.COND SUPPLEMENTAL_ COMOMINIUM MAP SHALL KF-MAIN UNMODIFIED HEdZEr3`I AND rN FULL FOKCF. ANU EFFECT, 12ATED 0-E.RAL17 TZ. 5EA'1 5TAT£ DF COUNT`? OF THE. FOKFE-GOING OWNEKS CEIKTIFICAT£ WA'7 ACKNOWLEPGEP t3EFORF. ME is Ili l7�lH O I'I 13H C�EICALD fz.. SE.A�I, WITNE-,i`2 M`I HAND AND OFFICIAL SEAL, M`7 COMM155ION EXPIf�ES• NOT^K`I rL)r::5LIC f>URVE.10" GE.RTIFICATE,: z, JAWIE5 F, I<E5EK, REGISTERED LAND 5UKVE"IOK, M HEKE13f GERTIF°I THAT ON NOVEM!"5EK 14, 1`I61, A SUKVE`f WA,5 PERFOKMED UNDEfZ M`1 SUPERVISION OF RESIDENTIAL CONDOMINIUM UNIT D ( FOKMEKL.'I IZI✓S1IDENTIAL CONDOMINIUM VNKTS I'J, E AND F ), THE I-URP.NT MALL (A CONVOMINIUM), AND THA7 7HE LOCAMON A1-417 DIMENSIONV 7+EKF-OF AKE ACCUKATELy DEPICTED HEREON, AL-PINF- SUIZV£`15 ItJG. t 1 JAMES F. 1zESEC� PATER= CLERK ANI'D fZECORI--)ER CERTIFICATE: 7H(5 TI-IIRP 5UPPLEMENTAL. CONPOMIN(UM 1 IAP OF THE, DUrzANT V✓ k!-L (A CONDOt-i(NIUM) WfIS ACCEPTED FOK FILING IN -F"tr OFFICE Cam' THE CLLKt<, •-Ir? OF PITKIN C COLORADO AT O'CL.uCK —M. TUIS 17QK OF , I I — ^WP WAS j7UL4 KECCIrDED IN PLAT DOO , AT rAA6E , DECEPTION NO Title CONDOMINIUM Iv1AP PITKj OCUNT°I CL£(ZK AND KF-CC)KrDEfZ , a Job No 75 - 15G, - 5 Client `2EA'f