HomeMy WebLinkAboutcoa.lu.ec.Epicurean Condominiumization.1981-EC-06(No ML
Epicurean (Condominiumization)
• OASPEN/PITKIN PLANNING OFFICE +
130 South Galena Street
Aspen, Colorado 81611
LAND USE APPLICATION FEES
County
00100 — 63711 09009 — 00000 Subdivision/PUD
63712
Special Review
63713
P&Z Review Only
63714
Detailed Review
63715
Final Plat
63716
Special Approval
63717
Specially Assigned
City
00100— 63721 09009 — 00000
Conceptual Application
63722
Preliminary Application
63723
Final Application
63724
Exemption
63725
Rezoning
63726
Conditional Use
PLANNING OFFICE SALES
00100 — 63061 09009 — 00000
County Land Use Sales
63062
GMP Sales
63063
Almanac Sales
Copy Fees
Other
Name:-70o �f�r� Project: �Li(rrCl J 6�•
Address: lj�j /'rPhone: OX
Check No. Date:
3 3/
3yo
Receipt No. P
No. a�-
CASELOAD SUMMARY SHEET,/
City of Aspen l{
1. DATE SUBMITTED: 3 3 / STAFF: Sack. 5'oh n SovV �Sr�'c9n
2. APPLICANT: ►'� �!�C�YINC';: ►'1�.'
3. REPRESENTATIVE: C�) rz I o
4 c rp"rL 9 0? S- e 7&-0
4. PROJECT NAME:
5. LOCATION:
6. TYPE OF APPLICATION:
Rezoning
P.U.D.
Special Review
Growth Management
HPC
—/—Subdivision
Exception
Exemption
70:30
Residential Bonus
1
- COn
Stream Margin
804.0 Greenline
View Plane
Conditional Use
Other
7. �REFERRALS:
Attorney Sanitation District School District
X Engineering Dept. Fire Marshal/r Rocky Mtn. Nat. Gas
Housing Parks State Highway Dept.
Water Holy Cross Electric Other
City Electric Mountain Bell
Condoms?,un7ii�-o f�'c.r
8. REVIEW REQUIREMENTS:
9. DISPOSITION: 1
P & Z ✓ Approved Denied Date l�ia
May 26, 1981 - City Council tabled this item until June 8 to investigate parking issue.
Council X Approved X Denied Date June 22, 1981
City Council approved as per P & Z above
10. ROUTING:
Attorney Building Engineering Other
0 0 0
• i
Exhibit D
ARTICLES OF INCORPORATION
OF
EPICURE PLAZA CONDOMINIUM ASSOCIATION, INC.
The undersigned, acting as incorporator of a corpora-
tion under the Colorado Non -Profit Corporation Act, signs and
acknowledges the following Articles of Incorporation for such
corporation.
ARTT(•T.F T
NAME
The name of the corporation shall be EPICURE PLAZA
CONDOMINIUM ASSOCIATION, INC., hereinafter called the "Associa-
tion."
ARTICLE II
PURPOSE
1. The purpose for which the Association is organ-
ized is to provide an entity pursuant to Article 33 of Title 38
C.R.S. 1973, et seq., as from time to time it is amended, supple-
mented or succeeder], hereinafter called the Condominium Act, for
the operation of the EPICURE PLAZA (a Condominium), located upon
the property described as follows, to -wit:
Lots
Block _
City and
IF
Townsite of Aspen.
2. The Association shall make no distributions of
income to its members, directors or officers.
ARTICLE III
POWERS
1. The Association shall have all of the common law
and statutory powers of a non-profit corporation which are not
in conflict with the terms of these Articles.
2. The Association shall have all of the powers and
duties set forth in the Condominium Act except as limited by
these Articles and by the Condominium Declaration for the EPICURE
PLAZA (a Condominium), hereinafter called the "Declaration," and
all of the powers and duties reasonably necessary to operate the
Association as set forth in the Declaration and as it may be
amended from time to time, including but not limited to the
following:
a. To make and collect assessments against
members to defray the costs and expenses of the EPICURE PLAZA (a
Condominium).
b. To use the proceeds of assessments in the
exercise of its powers and duties.
C. To maintain, repair, replace, and operate the
condominium property.
d. To purchase insurance upon the condominium
property and to provide protection for the Association and its
members as provided by the Declaration.
e. To reconstruct improvements after casualty
and to further improve the property.
It
f. To make and amend .reasonable rules and regula-
tions respecting the use of the property in the condominium
project; provided, however, that all regulations and amendments
thereto shall be approved by owners of not less than eighty-five
percent (850) of the undivided ownership of the common elements
of the Condominium before they shall become effective, unless
otherwise provided in the Declaration.
g. To enforce by legal means the provisions of
the Condominium Act, the Declaration, these Articles, the By -Laws
of the Association, and the rules and regulations for the use of
the condominium property.
h. To contract for the management of the condomin-
ium property and to delegate to the Managing Agent all powers
and duties of the Association except as are specifically required
by the Declaration to have approval of the Board of Directors or
the membership of the Association.
i. To contract for the management or operation
of portions of the common elements susceptible to separate
management or operation.
j. To employ personnel to perform the services
required for proper operation of the EPICURE PLAZA (a Condominium).
k. To engage in activities which may now or
hereafter be allowed or permitted by law to actively foster,
promote, and advance the common interests of the condominium
unit owners.
3. All funds and the titles of all properties acquired
by the Association and the proceeds thereof shall be held in
trust for the members of the Association in accordance with the
provisions of the Declaration, these Articles, and the By -Laws
of the Association.
4. The powers of the Association shall be subject to
and shall be exercised in accordance with the provisions of the
Declaration and the By -Laws of the Association.
ARTICLE IV
MEMBERS
1. The members of the Association shall consist
solely of all record owners of condominium units of the EPICURE
PLAZA (a Condominium), as such ownership is defined in the
Declaration.
2. Change of membership of the Association shall be
effected and established by the recording in the public records
of Pitkin County, Colorado, of a deed or other instrument estab-
lishing a change in record title to a condominium unit and the
delivery to the Association of a certified or machine copy of
such instrument. The membership of the prior owner shall thereby
be terminated.
3. The share of a member in the funds and assets of
the Association cannot be assigned, hypothecated, or transferred
in any manner except as an appurtenance to that member's condo-
minium unit.
4. The members of the Association shall be entitled
to vote for each condominium unit owned by them. The exact
number of votes to be cast by owners of a condominium unit and
the manner of exercising voters' rights shall be determined by
the By -Laws of the Association and the Declaration.
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ARTICLE V
BOARD OF DIRECTORS
1. The affairs of the Association will be managed by
a Board consisting of three directors as shall be determined
by the Declaration and By -Laws.
2. Directors of the Association shall be elected at
the annual meeting of the members in the manner determined by
the By -Laws. Directors may be removed and vacancies on the
Board of Directors shall be filled in the manner provided by the
By -Laws.
3. The first election of Directors shall be held
during the month of December 1982. The Directors herein named
shall serve until the first election of Directors and any vacan-
cies in their number occurring before the first election shall
be filled by the remaining Directors.
4. The names and addresses of the members of the
first Board of Directors who shall hold office until their
successors are elected and have qualified, or until removed, are
as follows:
J. Michael Solheim P.O. Box 9112
Aspen, Colorado 81612
John L. Wilbur P.O. Box 9112
Aspen, Colorado 81612
ARTICLE VI
The affairs of. the Association shall be administered
by officers elected by the Board of Directors at its first
meeting following the annual meeting of the members of the
Association, which officers shall serve at the pleasure of the
Board of Directors.
ARTICLE VII
REGISTERED OFFICE
The registered office of the Association shall be 100
South Mill Street, Aspen, Colorado 81611, and the Registered
Agent of the Association at that address shall be J. Michael Solheim.
ARTICLE VIII
INDEMNIFICATION
Every director and every officer of the Association
shall be indemnified by the Association against all liabilities
including counsel fees, reasonably incurred or imposed upon such
person in connection with any proceedings, or any settlement
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thereof, to which such person may be a party, or in which such
person may become involved, by reason of such person's being or
having been a Director or officer of the Association, whether or
not such person is a Director or officer at the time such expenses
are incurred, except in such cases wherein the Director or
officer is adjudged guilty of willful misfeasance or malfeasance
in the performance of duties; provided that in the event of a
settlement the indemnification herein shall apply only when the
Board of Directors approves such settlement and reimbursement as
being for the best interests of the Association. The foregoing
right of indemnification shall he in addition to and not exclusive
of all other rights to which such Director or officer may be
otherwise entitled by law, under the Declaration and By -Laws of
the Association.
ARTICLE IX
BY -LAPIS
The first Ry-Laws of the Association shall be adopted
by the Board of Directors and may be altered, amended or revised
in the manner provided by the By -Laws.
ARTTrT.R X
AMENDMENTS
Amendments to these Articles of Incorporation shall be
proposed and adopted in the following manner:
1. Any member of the Association or any director may
propose an amendment for the consideration of the membership by
delivery of the text thereof to the Secretary of the Association,
together with a written request that such proposed amendment be
included in the agenda of the next meeting of the membership
scheduled not less than thirty days following the receipt of
such written request by the Secretary of the Association.
2. notice of the subject matter of a proposed amend-
ment shall be included by the Secretary of the Association in
the notice of any meeting at which a proposed amendment is
considered.
3. A resolution approving a proposed amendment may
be proposed by either the Board of Directors or by any member of
the Association.
4. Approval of an amendment must be by vote as
provided in the Declaration and each such amendment must be
approved by owners of not less than eighty-five percent (85%) of
the undivided ownership of the common elements of the Condominium.
5. Except as provided in the Declaration no amend-
ments shall make any changes in the qualifications for mem-
bership nor the voting rights of members without approval in
writing by all members.
6. A copy of each amendment shall he filed with and
certified by the Secretary of State and recorded in the records
of Pitkin County, Colorado.
ARTICLE XI
TERM
The term of the Association shall be perpetual, unless
the Association is terminated sooner by the unanimous action of
its members, PROVIDED, HOWEVER, the Association shall be term-
inated by the termination of the condominium in accordance with
the provisions of the Declaration.
ME
ARTICLE XII
The name and address of the incorporator of these
Articles of Incorporation is J. Michael Solheim, 100 South Mill
Street, Aspen, Colorado 81611.
IN WITNESS WHEREOF,
affixed his signature on this
1981.
STATE OF COLORADO)
) ss.
COUNTY OF PITKIN )
the Incorporator has hereunto
day of ,
J. MICHAEL SOLHEIM
I, the undersigned, a Notary Public in and for said
County, in the State aforesaid, do hereby certify that J. Michael
Solheim, whose name is subscribed and annexed to the foregoing
Articles of Incorporation, appeared before me this day in person
and acknowledged that he signed, sealed, and delivered the said
instrument in writing as his free and voluntary act, for the uses
and purposes therein set forth.
(SEAL)
GIVEN under my hand and notarial seal this day of
1981.
My Commission Expires:
Notary Public
507C
CONDOMINIUM DECLARATION
FOR
EPICURE PLAZA
(A Condominium)
THIS DECLARATION is made and entered into by THE
EPICUREAN PARTNERSHIP, a Colorado limited partnership, herein-
after referred to as "Declarant."
VI I T N E S S E T H:
WHEREAS, the Declarant is the owner of certain
real property situate in the City of Aspen, County of Pitkin,
State of Colorado, described as follows:
Lots B & C, Block 87,
City and Townsite of Aspen;
and,
WHEREAS, the Declarant has improved and is improv-
ing the above -described real property with a condominium
project in the form of a four level building to be known as
the "Eoicure Plaza" which shall he a condominium project
consisting of various individual condominium units, all of
which units will be treated as integral parts of a single
condominium ownership project; 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 harmo-
nious, beneficial, and proper use and conduct of the pro-
perty and all air space units; and,
WHEREAS, the Declarant desires and intends that
the several unit owners, mortgagees, and trust deed holders,
occupants, and other persons hereafter acquiring any interest
in the property shall at all times enjoy the benefits of,
and shall hold their interest 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 purpose of enhancing
and perfecting the value, desirability, and attractiveness
of the property.
NOW, THEREFORE, as provided and permitted by the
Condominium Ownership Act of the State of Colorado, Declarant
does hereby publish and declare that the following terms,
covenants, conditions, easements, restrictions, uses, limita-
tions, and obligations shall be deemed to run with the land
above described, and shall be a burden and a benefit to
Declarant, its successors and assigns, and any persons
acquiring or owning an interest in the subject property and
improvements, their grantees, mortgagees, successors, heirs,
executors, administrators, devisees or assigns.
1. Definitions. Unless the context clearly
indicates a different meaning therefor:
(a) "Declaration" means this instrument by
which the Epicure Plaza (a condominium project) is established.
(b) "Unit" means one of the individual air
space units, consisting of an enclosed room (or rooms to be
enclosed by "proposed walls" or accessed by "proposed doors")
occupying part of or all of the garden, first, second and/or
third floors which are bounded by the interior unfinished surfaces
of the perimeter walls, floors, ceilings, windows and doors
thereof, as shown on the Map, together with all fixtures and
improvements therein contained, but not including the struc-
tural components of the building, if any, within such Unit.
Each Unit includes its respective undivided interest in the
General Common Elements as set forth in Exhibit A, and any
Limited Common Elements made appurtenant to such Unit. Said
units may be used and occupied for any lawful purpose,
subject to use and occupancy restrictions contained in
paragraph 12 hereof.
(c) "Owner" means any person, firm, corpora-
tion, partnership, association or other legal entity, or any
combination thereof, at any time owning a fee interest in a
Unit; the term "Owner" shall not refer to anv Mortgagee or
Trust Deed beneficiary as herein defined, unless such Mort-
gagee or Trust Deed beneficiary has acquired legal. and
beneficial title pursuant to foreclosure or any proceeding
in lieu of foreclosure or otherwise.
(d) "mortgage" means any mortgage, deed of
trust, or other security instrument by which a Unit or any
part thereof is encumbered.
(e) "Mortgagee" means any persons named as
the mortgagee or beneficiary under any Mortgage or Deed of
Trust under which the interest of any Owner in or to a Unit
is encumbered.
(f) "Occupant" means any person or persons,
other than the Owner, in possession of a Unit.
(g) "Entire Premises" or "Property" or
"Condominium Project" means the hereinabove described real
property, all improvements and structures constructed thereon
or contained therein, and all easements, rights, and appur-
tenances belonging thereto, and all fixtures and property
intended for the mutual use, benefit or enjoyment of the
Unit Owners.
(h) "Building" means the four level building,
and any other building improvements comprising a part of the
Property and containing the Units.
(i) "Majority" or "Majority of the Unit
Owners" means the owners of more than 50% in the aggregate
in interest 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 purposes of voting and for all purposes and whenever
provided in the Declaration, shall mean such percentage in
the aggregate in interest of the entire undivided ownership
of the general common elements.
(j) "General Common Elements" means and
includes all portions of the property except the Units,
including, but not limited to, the following:
(i) The foundations, columns, girders,
beams, supports, main perimeter and supporting walls, roofs,
and those entrances, stairs, stairways, balconies, landings,
access corridors, fire escapes and halls necessary to the
safety, maintenance, or common use or access;
(ii) The exterior loading, storage,
walkways, yard and garden areas;
(iii) Any installations consisting of
equipment and materials making up any power, light, gas,
electrical, air handling or conditioning, heating tanks,
motors, ducts, vents, chases, compressors and similar appa-
ratus composing the central utility systems;
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(iv) In general, all other apparatus and
installations existing for common use;
(v) All pipes, wires, ducts, flues,
chutes, conduits, public utility lines (to the outlets) and
structural components including beams and sheer walls running
through a Unit or serving, or extending into, the general
common elements, or any part thereof;
(vi) Toilet and washroom areas designated
on the Map as "General Common Element Restrooms" shall be
common elements, but their use may be restricted from time
to time (as in the case of Limited Common Elements) to the
exclusive use by owners, occupants and invitees of units
located on the same floor without impairing their character
as General Common Elements for all other purposes. "General
Common Element Mechanical" spaces designated on the Map
between ceiling surfaces of each floor or level and floor
surfaces on the next higher floor or level, and similarly
designated vertical spaces within the main walls of the
building and wall interspaces within walls or proposed walls
shown on the Map as dividing units expressly so designated
or other spaces within the Building are General Common
Elements for the exclusive purpose of installation, use,
repair, maintenance of or connection to mechanical, electrical,
plumbing, sprinkling, telephone, telegraph, wiring and
similar apparatus as may be reasonably required either for
the convenient use of occupation of a unit, or for the
convenient use and occupation of the common elements, insofar
as the same may be accomplished without damage to or unau-
thorized encroachment upon the air space within a Unit;
(vii) All other parts of the property and
improvements necessary or convenient to its existence,
maintenance, and safety, or normally in common use.
(k) "Limited Common Element" and "Future
Limited Common Element Easements" mean those parts of the
General Common Elements which are reserved in accordance
with the terms hereof for the exclusive use of the owner(s)
of one or more, but less than all, units and which are or
may hereafter be designated on the Map.
(1) "Future Limited Common Element Easements"
means the following easements, which shall be Limited Common
Elements, when and if they come into being in the future,
upon the happening of specified "Conditions of Installation"
as hereinafter defined by the installation of proposed
walls, doors and apertures defining the area thereof. Until
the occurrence of conditions of installation and the instal-
lation thereof, such Future Limited Common Element Easements
may be used for any permitted purpose by owners of Units
adjacent thereto. Without limiting the generality of the
foregoing, said Future Limited Common Element Easements
means and includes the following:
(i) "Access Hall 2a-Second Floor" the
exclusive use and enjoyment of which shall be limited to
Units ;
(ii) "Access Hall 2b-Second Floor" the
exclusive use and enjoyment of which shall be limited to
Units
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(m) "Proposed Wall," "Proposed Door," "Pro-
posed Aperture" means walls, doors in walls or proposed
walls and apertures in walls or proposed walls which were
not initially installed, although the installation of which
is hereby allowed, authorized and required upon, and subject
to the "conditions of installation," as hereinafter defined.
Such proposed walls are depicted on the Map by a double
dashed line indicating the course of the proposed wall.
Proposed walls defining the boundaries of the proposed
Access Fialls A -Second Floor, B-Second Floor and C-Second
Floor are depicted on the Map by a single dashed line indi-
cating the centerline of the proposed walls. Where the
boundaries of an air space Unit or general common element or
limited common element or easement are defined by proposed
walls, such air space shall be defined by the proposed
interior surface of the proposed wall according to said
dimensional notes. Proposed doors and apertures shall be
installed when the proposed walls containing such doors and
apertures are constructed.
(n) "Conditions of Installation" means the
conditions under which proposed walls, doors and apertures
shall be constructed for the purpose of enclosing air space
not initially enclosed but designated to be subsequently
enclosed, to define Units, or common elements or to cause a
Limited Common Element Easement (Future Limited Common
Element Easement) to arise and come into being and posses-
sion to be carved out of, over, across and within Units as
initially enclosed, such conditions of installation being as
follows:
(i) The right to install proposed
walls, doors and apertures, so as to cause the present use,
occupation or enjoyment of a Future Limited Common Element
Easement to arise, vest and come into possession of the
owners and Units to which it is appurtenant shall not extend
or run heyond the period specified in Paragraph 32(e).
(ii) Installation shall comply with the
provisions of Paragraphs 12(j) and 12(k).
(iii) Upon installation, the definitions
contained in this declaration shall apply to such improvements.
(iv) The Association shall have the
right and duty to construct the proposed installation upon
occurrence of the conditions authorizing the same where the
Board of Directors deems appropriate to assure compatibility
thereof with aesthetic considerations, or where Unit Owners
specified as beneficiaries of easements to be created thereby
are unable to agree as to any matter necessary for the said
owners to assume and complete construction of the same
expeditiously. In such event, the Association shall speci-
fically assess the costs of construction to the Units named
as beneficiaries of easements to be created thereby in the
ratio of the respective interest of each in the undivided
ownership of the General Common Elements.
(v) Second Floor Proposed Mall A shall
be installed on the demand of all owners of Units ;
(vi) Second Floor Proposed Wall B shall
be installed on the demand of all owners of Units ,
(o) "Common Expenses" means and includes:
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(i) Expenses declared common expenses
by provisions of this Declaration and the By -Laws of the
Association;
(ii) Expenses of administration, opera-
tion, and management, maintenance, repair, replacement or
improvement of the General Common Elements;
(iii) All sums properly assessed against
the General Common Elements by the Association; and,
(iv) Expenses agreed upon as common
expenses by the members of the Association in accordance
with the terms and provisions hereof.
(p) "Association" means a non-profit 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 shall be all of the owners of the Units. The name of
such corporation shall be the Epicure Plaza Condominium
Association, Inc., or a similar name.
(q) "Board" means the Board of Directors of
the Association.
(r) "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 buildings with
respect to the boundaries of the property, together with a
diagrammatic floor plan of the building showing the 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 Map, and any necessary supplements
thereto, shall he filed for record in the Pitkin County,
Colorado, real property records.
2. Division of Property Into Condominium Units.
The real property hereinabove described is hereby divided
into the following fee simple estates: twenty-one (21)
separately designated condominium units and the undivided
interest in and to the General Common Elements appurtenant
to each such unit, as is set forth in Exhibit A attached
hereto.
3. Combination of Units. Declarant hereby reserves
the right for itself, its successors and assigns, to physically
combine the area or space of a unit with the area or space
of one or more adjoining units, and the aggregate of the
undivided interests in and to the General Common Elements
appurtenant to such combined units shall be appurtenant to
one enlarged unit which shall result from such combination.
Any such combined units may subsequently be separated into
units in conformance with the Map, provided that all expenses
of combining or separating any adjoining units shall be
borne only by the owners of said units and such construction
work shall be accomplished in compliance with the provisions
of Subparagraphs (j) and (k) of Paragraph 12 hereof.
4. Limited Common Elements. Areas designated on
the Map as Limited Common Elements for the benefit of a Unit
shall be reserved exclusively for the benefit of the owners
of such unit, and their officers, directors, agents, employees,
members, guests, invitees, and licensees, as provided herein,
to the exclusion of all other unit owners, except by invita-
tion, and the same need not adjoin the said unit for the
benefit of which it exists.
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5. Inseparability of a Condominium Unit. except
as provided in Paragraph 3 hereof respecting the modifica-
tion of percentage interests by virtue of combination and
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
owner shall own such undivided interest in the General
Common Elements as a tenant in common with al.l the other
owners of the property. The percentages of ownership in the
General Common Elements as set forth in Exhibit A shall,
except as otherwise provided in the case of combination and
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 and mortgages. Fach unit and the undivided interest
in the General Common Elements appurtenant thereto shall
together comprise one unit which shall be inseparable and
nonpartitionable, and may be conveyed, leased, devised or
encumbered only as a complete unit and subject to the terms,
conditions, and obligations hereof. Every gift, devise,
bequest, transfer, encumbrance, or conveyance of a unit
shall include only the entire unit, together with all appur-
tenant rights created by law or by this Declaration.
6. Non-Partitionability of General Common Elements.
of the owners of the units and shall remain undivided, and
no owner may bring any action for partition or division of
the General Common Elements.
7. Description of Condominium Unit. Every deed,
lease, mortgage, trust deed, will or other instrument purport-
ing to convey an interest therein may legally describe a
unit by its identifying unit number and symbol followed by
the words "Epicure Plaza" with further reference to the Map
thereof filed for record and the recorded Declaration.
Every such description shall be deemed good and sufficient
for all purposes, and shall be deemed to convey, transfer,
encumber or otherwise affect not only the unit but also the
General Common Elements and the Limited Common Elements
appurtenant thereto. Each such description shall be con-
strued to include, subject to all of the terms and provisions
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.
8. Encroachments and Easements.
(a) In the event that by reason of the con-
struction, reconstruction, settlement, or shifting of the
building, or the design or construction of any unit, proposed
wall, door or aperture, and any part of the General Common
Elements encroaches or shall hereafter encroach upon any
part of any such unit, proposed wall, door or aperture when
installed, or any part of any thereof encroaches or shall
hereafter encroach upon any part of the General Common
Elements, or any portion of any thereof encroaches upon any
part of any other unit, valid easements for such encroachment
and the maintenance thereof are hereby established and shall
exist for the benefit of such unit, wall, door or aperture
and the General Common Elements so encroaching so long as
all or any part of the building shall remain standing;
provided, however, that in no event shall a valid easement
for any encroachment be created in favor of the owner of any
such unit, wall, door, aperture or in favor of the owners of
the General Common Elements if such encroachment occurred
due to the willful conduct of said owner or owners. Such
encroachments and easements shall not be considered or
determined to be encumbrances either on the General Common
Elements or the units.
(b) Easements are hereby declared and granted
for utility purposes, including the right to install, lay,
maintain, repair, and replace water mains and pipes, sewer
lines, gas mains, television cables and antennae, telephone
wires and equipment, and electrical 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 to and running with the
land, and shall inure to the benefit of and be binding on
the undersigned, its successors and assigns, and any owner,
purchaser, morgagee, and other person having an interest in
said land, or any part or portion thereof.
(d) Reference in the respective deeds of
conveyance, or in any mortgage or trust deed or other evidence
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 were recited fully and set
forth in their entirety in such documents; provided, however,
that each such deed, mortgage, trust deed or other evidence
of obligation shall be deemed to create and reserve such
easements and rights as aforesaid notwithstanding the absence
therein of any reference thereto.
9. Separate Assessment and Taxation --Notice
to Assessor. Declarant shall give written notice to the
Assessor of the County of Pitkin, Colorado, of the creation
of condominium subdivision of the property 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 appurtenant thereto shall be separately assessed
thereafter for all taxes, assessments, and other charges of
the State of Colorado or of any political subdivision or of
any special improvement district or of any other taxing or
assessing authority. In the event that for any period of
time, any taxes, assessments or other charges of any taxing
or assessing 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 accordance with that owner's respective percentage 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. Use of General and Limited Common Elements.
Each owner shall be entitled to exclusive ownership and
possession of that owner's unit. Each owner may use the
General and Limited Common Elements subject to the terms and
provisions of this Declaration in accordance with the pur-
pose for which they are intended, without hindering or
encroaching upon the lawful rights of the other owners.
12. Use and Occupancy.
(a) Each unit may be used and occupied for
such business and professional purpose or purposes as may be
lawful and allowable under applicable laws, ordinances or
the rules of any lawful public authority including conditions
imposed upon the project by the City of Aspen at the time of
governmental approval thereof, provided, however, that no
unit may be used for any of the following purposes: dry
cleaning shop, laundromat, shoe repair shop, paint store,
hardware store, food market, butcher shop, fish market,
pet shop, or theater.
(b) No "For Sale" or "For Rent" signs,
advertising or other displays shall be maintained or permit-
-7-
ted on any part of the property except at such location and
in such form as shall be approved in writing by the Board or
the Managing Agent. The right is reserved by the Declarant,
or its agent or agents, to place "For Sale" or "For Rent"
signs on any unsold or unoccupied units owned by it, and on
any part of the General Common Elements with respect to the
availability of such units 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 necessary in connection with
the construction or sale of the building or any unit. The
Declarant shall have the right to use any unsold unit or
units as a model or for sales or display purposes.
(c) Each business establishment operated in
a unit or any part thereof shall be entitled to place one
sign of reasonable size and in a dignified manner containing
the business name of such establishment upon the entrance
door of such establishment, or at such other place as shall
be permitted by the Board of Directors or Managing Agent.
Additional signs may be placed only as permitted by the
Board of Directors which permission may be granted or with-
held in the sole discretion of the Board of Directors.
(d) There shall be no obstruction of the
General Common Elements nor shall anything be stored in the
General Common Elements without the prior consent of the
Board of Directors except as herein expressly provided. For
purposes of maintenance, repair, alteration, and remodeling
an owner of a unit shall be deemed to own the interior
non -supporting walls and the materials therein (such as, but
not limited to, plaster, drywall, paneling, wallpaper,
paint, wall and floor tile).
(e) Each unit owner shall be obligated to
maintain and keep that owner's own unit, its windows and
doors, including exterior and interior surfaces thereof_, and
the Limited Common Element or Elements 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 subject to the rules and regulations
of the Board of Directors.
(f) Nothing shall be done or kept in any
unit or in or upon the General Common Elements which will
increase the rate of insurance on the building, or contents
thereof without the prior written consent of the Board of
Directors. Any permitted increase in the rate of insurance
shall be borne and paid solely by the owner of the unit
which caused said increase. No owner shall permit anything
to be done or kept in that owner's unit or in or upon the
General Common Elements which will result in the cancellation
of or increase premiums of insurance on the building, or
contents thereof, or which would be in violation of any
law. No waste shall be committed in the General Common
Elements.
(g) owners shall not cause or permit anything
to be hung or displayed on the outside of windows or placed
on the outside walls of the building and no sign or lettering,
awning, canopy, or radio or television antenna shall be
affixed to or placed upon the windows, exterior walls or
roof or any part thereof, without the prior written consent
of the Board of Directors.
(h) No household pets, animals, livestock or
fowl of any kind shall be raised, bred, or regularly kept in
any unit or in the General Common Elements, unless the Board
of Directors, by rule or regulations, provides otherwise.
(i) No noxious or offensive activity shall
be carried on in any unit or in the General Common Elements,
nor shall anything be done therein, either willfully or
negligently, which may be or become an annoyance or nuisance
to the other owners or occupants.
(j) Nothing shall he done in any unit or in,
on or to the General Common Elements which will impair the
structural integrity of the building or which would struc-
turally change the building, except as otherwise provided
herein, nor shall anything be altered or constructed in or
be removed from the General Common Elements except as other-
wise herein provided or otherwise permitted in writing by
the Board of Directors.
(k) The owner of any unit shall be permitted
to construct, improve, change, or alter such unit (and any
portion of the General Common Elements contiguous to, and
serving exclusively, such unit, if the same is not visible
on the exterior of the building) in any manner, provided
that:
(i) The structural integrity of the
building will not thereby be impaired;
(ii) The common assessments payable by
the other unit owners hereunder are not increased directly
or indirectly as the result of such construction, improvement,
change or alteration;
(iii) Such work will be done at the sole
cost and expense of owners benefitting and in full compliance
with all applicable laws, ordinances and regulations and the
provisions of the Declaration; provided that in the event of
a dispute with regard thereto, such work shall be done by
the Association, and the costs thereof specially assessed in
an equitable manner (in proportion to the benefits bestowed)
to the units benefitting therefrom.
(iv) The boundaries of such unit, as
shown on the Condominium Map, will not thereby be changed or
altered; and,
(v) Such owner shall indemnify all
other owners of units from any and all claims, liens, liabil-
ities, suits or demands whatsoever relating to or arising
out of such work (except insofar as any claim is waived and
released as provided in Subparagraph (n) of of this Paragraph
12.
(1) No clothes, sheets, blankets, laundry of
any kind or other articles or merchandise 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.
(m) There shall be no lounging furniture,
bicycles, wagons, vehicles, benches, chairs, skis or sporting
equipment, tethered dogs or cats, or other personal property
on any part of the General Common Elements except in spaces
expressly provided therefor without the prior consent of,
and subject to the regulations of, the Board of Directors.
(n) Each owner hereby waives and releases
any and all claims which that owner may have against any
other owner, the Association, the officers, and members of
the Board of Directors, the Declarant, the Managing Agent,
and their respective officers, employees, and agents, without
limiting the generality of Subparagraph (g) of paragraph 14
below, for damages to the General Common Elements, the
units, or to any personal property located in the units or
General Common Elements, caused by fire or other form of
casualty which is fully covered by insurance.
ME
•
(o) If, due to the act or neglect of an
owner, or of a member of an owner's family or of a quest,
tenant, licensee or invitee, or other authorized occupant or
visitor of such owner, damage shall be caused to the General
Common Elements or to a unit or units owned by others,
including but not limited to any furnace or utility room,
heating equipment, pipes, ducts, apparatus or other equipment,
or maintenance, repairs or replacements shall be required
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
Directors to the extent not covered by insurance. Neither
the failure of the Board of Directors to require such payment,
nor any disagreement regarding the extent of payment required
pursuant to the Board's determination hereunder, shall give
rise to any claim or cause of action against the Board or
its members by any person, provided that nothing contained
in this Subparagraph (o) shall prohibit a unit owner from
exercising any rights or remedies provided by law as against
any person causing any damage to his unit.
(p) No owner shall overload the electric
wiring in the building, or unreasonably contribute to such
overload, or operate any machines, appliances, accessories
or equipment in such manner as to cause, in the judgment of
the Board of Directors a hazard to the safety of owners and
occupants of and invitees upon the Condominium Project.
13. Temination of Mechanic's Lien Rights and
Indemnification. Susequent to the completing of the
improvements described on the Condominium Map, no labor
performed or materials 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 filing of a lien against the unit of
any other owner not expressly consenting to or requesting
the same, or against the General Common Elements. Each
owner shall indemnify and hold harmless each of the other
owners from and against all claims and liability arising
from the claim of any lien against the unit of any other
owner or against the General Common Plements 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
Directors as are set forth in Paragraph 15.
14. Administration and management.
(a) The administration and management of
this condominium property shall be governed by the Articles
of Incorporation and By -Laws of the Association. Each unit
owner shall be a member of such Association, which membership
shall terminate upon the sale or other disposition by such
member of the fee interest in that member's unit, at which
time the new unit owner shall automatically become a member
hereof.
(b) The Articles of Incorporation and By -Laws
of the Association shall not contain any terms or provisions
inconsistent with this Declaration and any such terms or
provisions which may be inconsistent with this Declaration
shall be null and void and of no force and effect.
(c) The Association shall be governed by a
Board of Directors as is provided in the By -Taws of the
Association. The Association shall have the power to engage
the services of a manager or managing agent, herein referred
to as the "Managing Agent," who may be any person, firm or
corporation selected by the Board of Directors upon such
terms and compensation as the Board of Directors deems fit,
and to delegate to such manager or managing agent any of its
duties, powers, and functions.
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•
(d) The Board of nirectors shall consist of
five persons who shall be elected in the manner provided in
the By -Laws of the Association.
(e) If any unit is owned by more than one
person, the voting rights with respect to such unit shall
not be divided, but shall be exercised as if the unit owners
consisted of only one person in accordance with the proxy or
other designation made'by the persons constituting each unit
owner.
(f) The Hoard of Directors may, from time to
time, adopt or amend such reasonable rules and regulations
governing the operation, maintenance, beautification and use
of the General Common Elements and the units, not inconsistent
with the terms of this Declaration, as it seems fit, and the
owners shall conform to, and abide by, such reasonable rules
and regulations. Written notice of such rules and regulations
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 Directors
and the officers and employees of the Association shall not
be liable to the owners for any mistake of judgment, or anv
acts or omissions made in good faith as such members, officers
or employees. The owners shall indemnify and hold harmless
each of such persons against all contractual liability to
others arising out of contracts made by such person on
behalf of the owners unless any such contract shall have
been made in bad faith or contrary to the express provisions
of this Declaration. The liability of any owner arising out
of any contract made by such persons or out of the aforesaid
indemnity shall be limited to such proportion of the total
liability thereunder as that owner's percentage interest in
the General Common Elements. Each agreement for which
indemnity is provided hereunder made by such persons shall
have been executed by such persons expressly as agents for
the Association.
(h) In the event of any dispute or disagree-
ment between any owners relating to the property, or any
question of interpretation or application of the provisions
of this Declaration or any other agreement affecting the
project or the Association including the extent and exercise
of voting rights by a unit owner or owners, the determination
thereof by the Board of Directors shall be final and binding
on each and all of such owners. The foregoing shall not
apply in cases where arbitration is expressly designated as
the procedure for resolution of the dispute.
15. Reservation for Access - Maintenance, Repair
and Emergencies. The owners shall have the irrevocable
right, to be exercised by the Managing Agent or Board of
Directors to have access to each unit from time to time
during such reasonable hours as may be necessary for the
inspection, painting, maintenance, repair, reconstruction,
or replacement of any of the General Common Elements therein
or accessible therefrom, or at any time for making emergency
repairs therein necessary to prevent damage to the General
Common Elements or to another unit or units, or to investigate
any indication that such repairs may be necessary or desir-
able, or when such access is reasonably calculated to protect
the health, safety or property of any owner or occupant.
Damages to the interior or any part of a unit
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 within another unit at the instance of the Associa-
tion shall be a common expense of all of the owners, subject,
however, to the provisions of Subparagraph (o) of Paragraph
-11-
12 hereof_. Restoration of the damaged improvements shall be
substantially the same as the condition of such improvements
prior to the damage.
Subject to the provisions of Subparagraph (o)
of Paragraph 12 hereof, and except as herein otherwise
specifically provided, all maintenance, repairs, reconstruc-
tion and replacements 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 Declarant, by
the acceptance of a deed of conveyance, accepts the same
subject to all terms, provisions, easements, restrictions,
conditions, covenants, reservations, liens and charges, and
the jurisdiction, rights, and powers created or reserved by
this Declaration and the Articles of Incorporation and
By -haws of the Association, and the provisions of the Colorado
Condominium 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
impositions 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 manner as though the provisions of this Declaration
were recited and stipulated at length in each and every deed
of conveyance.
17. Insurance.
(a) The Board of Directors or the Managing
Agent on behalf of the Board, shall obtain and maintain at
all times the following insurance coverage provided by
companies duly authorized to do business in Colorado:
(i) Insurance for the property against
loss or damage by fire and such other hazards as are covered
under standard extended coverage, vandalism and malicious
mischief endorsements for the full insurable replacement
cost of the common elements and the units and such other
casualty insurance as the Board of Directors deems advisable
for the protection of the General Common Elements and the
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 percentages established in
Exhibit "A" hereto. Each owner, other than the Declarant,
shall notify the Managing Aaent or the Board of Directors in
writing of any additions, alterations, or improvements to
that owner's unit and that owner shall be responsible for
any deficiency in any insurance loss recovery resulting from
that owner's failure so to notify the Managing Agent or the
Board of Directors. The Board of Directors or the Managing
Agent shall use reasonable efforts to obtain insurance on
any such additions, alterations or improvements if such
owner requests it to do so and if such owner shall make
arrangement satisfactory to the Managing Agent or the Board
of Directors for reimbursement by such owner for any additional
premiums attributable thereto; and in the absence of insurance
on such additions, alterations or improvements, the Board of
Directors shall not be obligated to apply any insurance
proceeds to restore the affected unit to a condition better
than the condition existing prior to the making of such
additions, alterations or improvements. All such policies
of insurance shall insure additions, alterations or improve-
ments made by the Declarant. All such policies of insurance
shall contain standard mortgage clause endorsement in favor
of the mortgagee or trust deed holder of each unit and that
such policy shall not be terminated, cancelled or substan-
tially modified without at least twenty (20) days' prior
written notice to the mortgagee of each unit and to each
owner.
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(ii) Comprehensive ,public liability and
property damage insurance in such limits as the Board of
Directors shall deem desirable insuring the Association, the
members of the Board of Directors, the Managing Agent, and
their respective officers, agents and employees, and the
owners from any liability in connection with any act or
omission performed by any such person directly or indirectly
pursuant to the provisions of this Declaration and with the
General Common Elements.
(iii) Workmen's compensation insurance
and employer's liability insurance as may be necessary to
comply with applicable laws, and such other forms of insur-
ance as the Board of Directors shall elect to effect.
(b) Except as otherwise provided in this
Declaration, premiums for all insurance obtained or main-
tained by the Board of Directors shall be common expenses.
(c) The Board of Directors may (but shall
not be required to), in its sole discretion, secure insurance
policies that will provide for one or more of the following:
(i) With respect to the insurance
provided for in (a)(ii) of this Subparagraph, for coverage
of cross liability claims of one insured against another;
(ii) With respect to the insurance
provided for in (a)(i) of this Subparagraph, a waiver of
subrogation by the insurer as to any claims against the
Association, the Managing Agent, the owners and their respec-
tive agents, officers, employees, licensees, and invitees;
(iii) With respect to the insurance
provided for in (a)(i) of this Subparagraph, that the policy
cannot be cancelled, invalidated or suspended on account of
the conduct of any one or more individual owners, or on
account of the conduct of any officer or employee of the
Association or Managing Agent without, in the latter case, a
prior demand in writing that the Association or Managing
Agent cure the defect;
(iv) with respect to the insurance
provided for in (a)(i) of this Subparagraph, that the insurer
shall not have the option to restore the premises, if the
property is sold as provided in paragraph 23(c) hereof;
(v) With respect to the insurance
provided for in (a)(i) of this Subparagraph, that any "no
other insurance" clause in such policy exclude policies of
insurance maintained by any oHmer or his mortgagee from
consideration and that no such insurance policy coverage
under (a)(i) of this Subparagraph be brought into contri-
bution 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
Subparagraph) is furnished;
(ii) No such insurance may be maintained
which would adversely affect or invalidate any insurance (or
any recovery thereunder) carried by the Board of Directors
or decrease the amount which the Board of Directors would
realize under any insurance policy the Board of Directors is
maintaining; and
(iii) Such insurance policy shall contain
a waiver of subrogation as to claims against the Association,
-13-
the Managing Agent, the owners and their respective agents,
officers, employees, licensees and invitees.
(e) The Board of Directors 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 Directors for the purpose of receiving and
disbursing the insurance proceeds under any policy provided
for in (a)(i) of this paragraph and resulting from any loss,
upon such terms as the Board of Directors shall determine
consistent 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 Directors shall
engage an institutional trustee as aforesaid upon the written
demand of the mortgagee or owner of any unit so destroyed.
The fees of such institutional trustee shall be common
expenses.
(f) Insurance coverage 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 individual unit shall be the responsibility of the
owner thereof.
18. Repairs, Maintenance, Replacements, Additions
Alterations, and Improvements of the Common Elements. There
shall be no alterations, additions to, or improvements on,
the Limited or General Common Elements (other than for
purposes of replacing or restoring portions thereof) requiring
an expenditure in excess of Five Thousand Dollars ($5,000.00)
without the prior approval by affirmative vote of seventy-five
percent (75%) of the entire undivided ownership of the
General Common Elements. There shall be no such required
approval of or limitation upon expenditures required for the
repair, maintenance and replacement of such General Common
Elements.
19. Assessment for Common Expenses.
(a) Declarant, for each unit owned by it,
and .for and as the owner of the property and every part
thereof, hereby covenants, and each owner of any unit by the
acceptance of a deed therefor, whether or not.it he 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 made by the Association
for the purposes provided in this Declaration, and special
assessments for capital improvements and other matters as
provided in this Declaration. Such assessments shall be
fixed, established, and collected from time to time in the
manner provided in this Article, and by the Articles of
Incorporation and By -Laws of the Association.
(b) The total quarterly assessments against
all units shall he based upon advance estimates of cash
requirements by the Association to provide for the payment
of all estimated expenses growing out of or connected with
the maintenance and operation of the General Common Elements
or furnishing such utility services as shall not be separately
furnished and metered to the units, which estimates may
include, among other things: taxes and special assessments,
until the units are separately assessed as provided herein;
premiums for all insurance which the Association is required
or permitted to maintain pursuant hereto, except such premiums
as are paid for by the Association for which direct reimburse-
ment is made by a unit owner or owners; common lighting and
heating and common water charges; trash collection; sewer
service charges; repairs and maintenance; wages for Associa-
tion employees; legal and accounting fees; any deficit
remaining from a previous period; the creation of a reasonable
contingency reserve, surplus and/or sinking fund; and any
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0 •
other expenses and liabilities which may he incurred by the
Association for the benefit of the owners under or by reason
of this Declaration.
(c) At least once each year, the Board of
Directors 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 Directors 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 with reasonable itemization thereof. Said annual
budget shall be assessed to the unit 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 the provisions of this Declara-
tion. On or before January 1st of the ensuing year, and on
or before the 1st days of April, July, and October of said
year, each owner shall be obligated to pay to the Board of
Directors or to the Managing Agent, 1/4th of the assessment
made pursuant to this paragraph. On or before the 1st day
of March of each calendar year commencing 1982, the Board of
Directors or Managing Agent shall supply to all unit owners
an itemized accounting of the common expenses for the preceding
calendar year actually incurred and paid together with a
tabulation of the amounts collected pursuant to the estimates
provided, and showing the net amount over or short of the
actual expenditures plus reserves. Any amount accumulated
in excess of the amount required for actual expenses and
reserves shall be credited according to each owner's percen-
tage of ownership in the General Common Elements to the next
quarterly installments due from owners under the current
year's estimate, until exhausted, and any net shortage shall
be added according to each unit owner's percentage of owner-
ship in the General Common Elements to the next two install-
ments due after rendering of the accounting. The Board of
Directors shall build up and maintain a reasonable reserve
for contingencies and replacements. Extraordinary expendi-
tures not originally included in the annual budget which may
become necessary during the year shall be charged first
against such reserve. If said annual budget provides inade-
quate for any reason, including non-payment of any owner's
regular or special assessment, the Board of Directors may at
any time levy a further assessment, which shall be assessed
to the unit owners according to each unit owner's percentage
of ownership in the General Common Elements. The Hoard of
Directors or Managing Agent shall serve notice of such
further assessment on all unit owners by a statement in
writing giving the amount and reasons therefor, and such
further assessment Shall become effective with the next
quarterly payment which is due more than ten 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 of the Board of Directors to
prepare or serve the annual or adjusted budget on the owners
shall not constitute a waiver or release in any manner of
the owner's obligation to pay the maintenance and other
costs and necessary .reserves, as herein provided, whenever
the same shall be determined, and in the absence of any
annual budget or adjusted budget, the owners shall continue
to pay the quarterly assessment charges at the then existing
quarterly rate established for the previous period until the
next quarterly assessment payment which is due more than ten
days after such new annual or adjusted budget shall have
been mailed or delivered.
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• 0
The Board of Director (or the ianaging
Agent acting for and on behalf of the Board of Directors)
shall deliver copies of the budget, and accurate books and
records of receipt, expenditures, assets, and liabilities of
the Association, and the obligations 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 special
assessments as may be levied hereunder against less than all
the unit owners and for such adjustments 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
hereunder.
(e) Until such time as the Board of Directors
shall have provided its first annual budget to the owners,
or for such other period as the Board of Directors determines,
the Board of Directors shall have the right to assess the
common expenses, as hereinabove provided, on a quarterly
basis and all owners shall pay such quarterly assessments as
advised by the Board or Managing Agent.
(f) The following expenses or charges incur-
red by the Board of Directors (and/or unit owners) shall be
specially assessed to the individual owner to which such
expense or charge is applicable (in addition to any other
costs, charges or expenses which by law or the terms of this
Declaration are payable by an individual owner):
(i) The amount by which any premium for
insurance maintained by the Hoard of Directors and/or unit
owner is increased as a result of any busines's or other
activity or act of such owner., or of any guest, invitee,
licensee or tenant of such owner, or the amount of any
premium on new insurance which is purchased by the Board of
Directors solely as a result of any business or other acti-
vity or act of such owner, or of any quest, invitee, licen-
see or tenant of such owner. The written statement of the
insurance carrier to the effect that a specific increase is
attributable to such business or other activity shall be
conclusive as to such increase and the amount thereof. If
such increased premium or new insurance premium is necessi-
tated by the usual and customary business activity carried
on in accordance with the terms of this Declaration in any
commercial or professional unit, then, upon the payment of
such amount by the owner of such commercial or professional
unit, such owner shall not be deemed in violation of the
terms or provisions of this Declaration.
(ii) The monthly or other fee or compen-
sation and any other cost or sum which the Board of Directors
or Association is obligated to pay to the Managing Agent
with respect to a unit under the terms of any agreement with
such Managing Agent.
(g) In addition to the remedies or liens
provided by law, or by this Declaration, if an owner is in
default in the quarterly payment of any aforesaid charge or
assessment for twenty days, the Board of Directors may bring
suit for and on behalf of the Association and as representa-
tive of all owners, to enfore collection thereof or to
foreclose the lien therefor as provided by law or by this
Declaration; and there shall be added to the amount due the
collection costs of said suit, including all court costs,
together with interest at the rate of 18% per annum from the
due date thereof, plus a late charge of $50.00 and reasonable
attorney's fees. No owner may waive or otherwise escape
OCAM
liability for the assessments or other charges provided for
hereby by non-use of the General Common 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.
20. Lien for tlon-Payment of Common Expenses and
Other Obligations. All sums assessed but unpaid for the
share of common expenses chargeable to any unit and all sums
specially assessed hereunder to any unit, but unpaid, and
any and all other sums due to the Association and unpaid by
a unit owner under the terms of this Declaration, shall
constitute a lien on such unit superior to all other liens
and encumbrances, except only for:
(a) Tax and special assessment liens on the
unit in favor of any lawful governmental assessing authority,
and,
(b) All sums unpaid on any first mortgage or
first deed of trust of record in Pitkin County, Colorado,
including all unpaid obligatory advances to be made pursuant
to such encumbrances. All other or junior lienors acquiring
liens on any unit after this Declaration shall have been
recorded in said records shall be deemed to consent that
such liens shall be inferior to future liens for assessments,
as provided herein, whether or not such consent be specifically
set forth in the instruments creating such liens.
To evidence such lien, the Board of Directors
or Managing Agent shall prepare a written notice setting
forth the amount of such unpaid indebtedness, the general
nature of the indebtedness, the name of the owner of the
unit and a description of the unit. Such a notice shall be
signed by a member of the Board of Directors or by the
Managing Agent and shall be recorded in the real property
records in the office of the Clerk and Recorder of Pitkin
County, Colorado. Such lien shall attach from the date of
the failure of payment. Such lien may be enforced by fore-
closure of the defaulting owner's unit by the Association in
like manner as a mortgage or deed of trust on real property
upon the recording of a notice or claim thereof. In any
such foreclosure proceedings, the owner shall be required to
pay the costs and expenses of such proceedings, the costs
and expenses for filing the notice or claim of lien and all
reasonable attorney's fees. The owner shall also be required
to pa_y to the Association the quarterly assessment(s) for
the condominium unit during the period of foreclosure, and
the Association shall he entitled to a Receiver to collect
the same. The Association shall have the power to participate
as a bidder at such foreclosure or other legal sale and to
acquire and hold, lease, mortgage, and convey the same, or
otherwise deal therewith.
Any encumbrancer holding a lien on a unit may
pay, but shall not be required to pay, any unpaid common
expenses or other assessments or charges payable with respect
to such unit, and upon such payment such encumbrancer shall
have a lien on such unit for the amounts paid of the same
rank as the lien which that encumbrancer would have had but
for such Association lien for unpaid common expenses and
assessments.
The Association shall report to any encumbrancer
of a unit any unpaid assessments remaining unpaid for longer
than sixty days after the same shall have become due; provided,
however, that such encumbrancer first shall have furnished
to the Association written notice of such encumbrance and a
current address for the delivery by mail of such notice.
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All sums assessed for common expenses which
remain unpaid for thirty days from and after the clue
date thereof shall bear interest at the rate of eighteen
percent (18%) per annum from and after such due date.
21. Liability for Common Expense and Other Chancres
Upon Transfer of a Unit is .joint. Upon payment of a reasonable
fee not to exceed $25.00, and upon the written request of
any owner or any encumbrancer or prospective encumbrancer of
a unit, the Association, by its Managing Agent or if there
is none, then by the.f_inancial officer of the Association,
shall issue a written statement setting forth the amount of
the unpaid special assessments and common expenses, and
other charges due hereunder, if any, with respect to the
subject unit, the amount of the current quarterly assessments
and the date that such assessment becomes due, and credit
for any advanced payments of common assessments, which
statement shall be conclusive upon the Association in favor
of all persons who rely thereon in good faith. Unless such
request for a statement of indebtedness shall be complied
with within ten days after receipt thereof, all unpaid
common expenses and other charges due hereunder which become
due prior to the date of making such request shall be subor-
dinate to the lien, if any, of the person or entity request-
ing such statement.
The grantee of a unit shall he jointly and
severally liable with the grantor for all unpaid assessments
against the latter for that unit's proportionate share of
the common expenses and .for the special assessments and
other charges due hereunder up to the time of the grant or
conveyance, without prejudice to the grantee's right to
recover from the grantor the amounts paid by the grantee
therefor; provided, however, that upon payment of a reasonble
fee not to exceed $25.00, and upon written request, any such
prospective grantee shall be entitled to a statement from
the Managing Agent or, if there is none, then by the finan-
cial officer of the Association setting forth the amount of
the unpaid quarterly and special assessments, and any other
charges due hereunder, if any, with respect to the subject
unit, the amount of the current quarterly assessment, the
date that such assessment becomes due, and credits for any
advanced payments, which statement shall be conclusive upon
the Association. Unless such request for such a statement
shall be complied with within ten 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 subject unit, but nothing herein shall serve to
relieve the grantor of personal responsibility therefor.
The provisions contained in this paragraph shall not apply
to the initial sales and conveyances of the units by Declar-
ant, and such sales shall be free from any liens for common
or special assessments to the date of conveyance thereof by
Declarant.
22. Mortgaging a Condominium Unit - Priority.
Any owner shall have the right from time to time to mortgage
or encumber that owner's interest by deed of trust, mortgage
or other security instrument. A first mortgage or deed of
trust shall be one which has first and paramount priority
under applicable law. The owner of a unit may create junior
encumbrances on the following conditions: (1) that any such
junior encumbrance shall always be subordinate to all of the
terms, conditions, covenants, restrictions, uses, limitations,
obligations, liens for common expenses, and other obligations
created by this Declaration, the Articles of Incorporation,
and the By -Laws of the Association; (2) that the mortgagee
under any junior mortgage shall .release, for the purpose of
restoration of any improvements upon the mortgaged premises,
all of that mortgagee's right, title, and interest in and to
the proceeds under all insurance policies upon said pre -
Elm
u
•
mises, which insurance policies were effected and placed
upon the mortgaged premises by the Association. Such release
shall be furnished forthwith by a junior mortgagee upon
written request of one or more of the members of the Board
of Directors of the Association.
23. Association as Attorney -in -Pact, Damage,
Destruction, Obsolescence and Sale. This Declaration does
hereby make mandatory the irrevocable appointment of an
attorney -in -fact to deal with the property upon its destruc-
tion or obsolescence. 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 provided. All of the owners irrevo-
cably constitute and appoint the Association their true and
lawful attorney in their name, place, and stead for the
purpose of dealing with the property upon its destruction or
obsolescence as is hereinafter provided. As attorney -in -fact,
the Association, by its president and secretary, shall have
full and complete authorization, right, and power to make,
execute, and deliver any contract, deed or any other instrument
with respect to the interest of an owner which may be necessary
and appropriate to exercise the powers herein granted.
Repair and reconstruction of the improvements as used in the
succeeding subparagraphs means restoring the same to substan-
tially the same condition in which it existed prior to the
damage, with each unit and the General and Limited Common
Elements having substantially the same vertical and horizontal
boundaries as before. The term "improvements" means any
improvements forming a part of the property, or any portion
thereof, including any unit. The proceeds of any insurance
collected shall be available to the Association for the
purpose of repair, restoration or replacements unless the
owners and all first mortgagees agree not to rebuild in
accordance with the provisions set forth hereinafter.
(a) In the event of damage or destruction
due to fire or other disaster, the insurance proceeds, if
sufficient to reconstruct the improvements, shall be applied
by the Association, as attorney -in -fact, to such reconstruc-
tion, and the improvements shall be promptly repaired and
reconstructed. The Association shall have full authority,
right, and power, as attorney -in -fact, to cause the repair
and restoration of the improvements.
(b) If the insurance proceeds are insufficient
to repair and reconstruct the improvements, or if for any
reason such proceeds are not payable, and if such damage
substantially affects not more than fifty percent (50%) of
the square foot area of the building, such damage or destruc-
tion shall be promptly repaired and reconstructed by the
Association, as attorney -in -fact, using the proceeds of
insurance, if any, and the proceeds of an assessment to be
made against all of the owners and their units. Such defi-
ciency assessment shall be a common expense and made pro
rata according to each owner's percentage interest in the
General Common Elements and shall be due and payable within
sixty days after written notice thereof. The Association
shall have full authority, right, and power, as attorney -in -fact,
to cause the repair or restoration of the improvements using
all of the insurance proceeds for such purpose notwithstanding
the failure of an owner to pay the assessment. The assessment
provided for herein shall be a debt of each owner and a lien
on each owner's unit and may be enforced and collected as is
provided in Paragraph 20. In addition, thereto, the Associa-
tion, 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 assessment within the time provided, and
if not so paid, the Association by and through its Board of
Directors shall cause to be recorded a written statement
that the unit of the delinquent owner shall be sold by the
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•
Association. The proceeds derived from the sale of such
unit shall he used and disbursed by the Association, as
attorney -in -fact, in the following order:
(1) For payment of taxes and special
assessments liens in favor of any assessing entity and
customary expenses of sale;
(2)' For payment of the balance of the
lien of any first mortgage;
(3) For payment of unpaid charges
including attorney's fees and costs of collection due here-
under and common expenses, including all sums due under the
terms of this Paragraph 23 .
(4) For payment of junior liens and
encumbrances in the order of and to the extent of their
priority; and,
(5) The balance remaining, if any,
shall be paid to the unit owner whose unit is sold.
(c) (i) If more than fifty percent (50%) of
the square foot area of the building is destroyed or substan-
tially damaged, and if the owners representing an aggregate
ownership interest of seventy-five percent (75%), or more,
of the General Common Elements, do not voluntarily, within
one hundred and eighty days thereafter, make provisions for
reconstruction in accordance with a written plan, which plan
must have the unanimous written approval or consent of every
first mortgaqee, the Association shall forthwith record a
notice setting forth such fact or facts, and upon the recording
of such notice by the Association's president and secretary,
the entire remaining premises shall be sold by the Association,
as attorney -in -fact for all of the owners, free and clear of
the provisions contained in this Declaration, the Condominium
Map, the Certificate of Incorporation, and the Ry-Laws. The
insurance settlement proceeds, if any, shall be collected by
the Association, and such proceeds shall he divided by the
Association 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 name of
the Association, and shall be further identified by the unit
designation and the name of the owner. Thereafter, each
such account shall be supplemented by the apportioned amount
of the proceeds derived from the sale of the entire 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 one account to
another, for the same purposes and in the same order as is
provided in Subparagraphs (b) (1) through (5) of this para-
graph. The provisions contained in this subparagraph shall
not hinder the protection given to the first mortgagee or
first deed of trust holder under a mortgage or deed of trust
endorsement.
(ii) If the owners representing an
aggregate ownership interest of seventy-five percent (75%),
or more, of the General Common Elements adopt a written plan
for reconstruction, which plan has the unanimous written
approval or consent of all first mortgagees, 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 he a common expense and shall be made pro rata accord-
ing to each owner's percentage interest in the general
common elements and shall be due and payable as provided by
the terms of such plan, but not sooner than sixty days
after written demand thereof. The Association shall have
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full authority, right, and power, as attorney -in -fact, to
cause the repair or restoration of the improvements using
all of the insurance proceeds, if any, for such purpose
notwithstanding the failure of an owner to pay the assess-
ment. The assessment provided for herein shall be a debt of
each owner and a lien on that owner's unit and may be enforced
and collected as is provided in paragraph 20. 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 assessment within the time
provided, and if not so paid, the Association shall cause to
be recorded a notice that the unit of the delinquent owner
shall be sold by the Association. The proceeds derived from
the sale of such unit shall. be used and disbursed by the
Association, as attorney -in -fact, for the same purposes and
in the same order as is provided in subparagraphs (b) (1)
through (5) of this paragraph.
(d) The owners representinn an aggregate
ownership interest of eighty-five percent (85%), or more, of
the General Common Elements may agree that the units are
obsolete and adopt a plan for the renewal and reconstruction
thereof, which plan must have the unanimous approval of all
first mortgagees. If a plan for the renewal and reconstruc-
tion is adopted, then the expense thereof shall be payable
by all of the owners as common expenses; provided, however,
that an owner not a party to (if not approving) such plan
for renewal and reconstruction may give written notice to
the Association within thirty days of adoption of such plan
that such unit shall be purchased by the Association for the
fair market value thereof. The Association shall then have
the option for fifteen days after the expiration of thirty
days from the adoption of such plan to cancel such plan. If
such plan is not cancelled, (by adoption of an appropriate
resolution by the Board of Directors) then the unit shall be
purchased according to the following procedures. If such
owner and the Association can timely agree on the fair
market value thereof, then such sale shall be consummated
within thirty days after the expiration of forty-five days
from the adoption of the plan. If the parties are unable to
agree, the date when either party notifies the other that
he, she or it is unable to agree with the other shall be the
"commencing date" from which all periods of time mentioned
herein shall be measured. Within ten days following the
commencing date, each party shall. nominate in writing (and
give notice of such nomination to the other_ party) a separate
appraiser who shall he a licensed Colorado real estate
broker and regular member of the Aspen Board of Realtors or
similar local organization. If either party fails to make
such a timely nomination, the appraiser nominated shall,
within five day.: after such failure to the other party,
appoint and associate with such appraiser another appraiser
(to be a regular member of the Aspen Board of Realtors or
similar .local organization). If the two appraisers desig-
nated by the parties, or selected pursuant hereto in the
event of the failure of one party to nominate an appraiser,
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 or similar local organization)
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 persons
(each of whom shall be a regular member of the Aspen Board
of Realtors or similar local organization), and from the
names of the four persons so nominated one shall be drawn by
lot by any judge of any court of record in Pitkin County,
Colorado, and the name so drawn shall be such umpire. The
nominations from whom the umpire is to be drawn by lot shall
be submitted within ten days of the failure of the two
appraisers to agree, which, in any event, shall not be later
than twenty days following the appointment of the second
appraiser. The decision of the appraisers as to the fair
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market value, or in the case of their disagreement, then
such decision of the umpire, shall be final and binding.
The expenses and fees of such appraisers shall be borne
equally by the Association and the owner. The sale shall be
consummated within fifteen days after the determination of
the fair market value, and the Association, as attorney -in -fact,
shall disburse such proceeds as is provided in ,Subparagraphs
(b) (1) through (5) of.this paragraph.
(e) The owners .representing an aggregate
ownership interest of ninety percent (90%) 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 approval of every first mortgagee. In
such instance, the Association by and through its Board of
Directors shall forthwith record a statement setting .forth
such fact or facts, and upon the recording 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 owners, free and clear of the provisions
contained in this Declaration, the Condominium Map and the
Certificate of Incorporation, and By -Laws. The sales proceeds
shall be apportioned between the owners on the basis of each
owner's percentage interest in the General Common Elements,
and such apportioned proceeds shall be paid into separate
accounts, each such account representing one unit. Each
such account shall be in the name of the Association, and
shall be further identified by the unit designaton and the
name of the owner. From each separate account, the Associa-
tion, as attorney -in -fact, shall use and disburse the total
amount of each of such accounts without contribution from
one account to another, for the same purposes and in the
same order as is provided in subparagraphs (b) (1) through
(5) of this paragraph.
24. Acquisition of Property for Common Use. The
Association may acquire and hold for the use and benefit of
all of the owners, real, tangible and intangible personal
property and may dispose of the same by sale or otherwise,
and the beneficial interest in any such property shall be
owned by the owners in the same proportion as their respec-
tive interests in the General Common Elements and shall not
be transferable except with a transfer of a unit. A transfer
of a unit shall transfer to the transferee ownership of the
transferor's beneficial interest in such property without
any reference thereto. Each owner may use such property in
accordance with the purpose for which it is intended, without
hindering or encroaching upon the .lawful rights of the other
owners. The transfer of title to a unit under foreclosure
shall entitle the successor in title to the beneficial
interest in such property associated with the foreclosed
unit.
25. Registration by Owner of Mailing Address.
Each owner shall register that owner's mailing address with
the 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,
demands or other writings intended to be served upon the
Board of Directors of the Association or the Association or.
the Managing Agent shall be sent by certified mail, postage
prepaid, return receipt requested, to P.O. Box 9112, Aspen,
Colorado 81612, until such address is changed by a notice
of address change duly recorded in the office of the Clerk
and Recorder, Pitkin County, Colorado and mailed to each
owner. All notices, demands or other instruments intended
to be served upon the Declarant shall. be sent to it in the
same manner at P.C. Box 9112, Aspen, Colorado 81612, until
such address is changed by recorded notice. All notices
so mailed shall. be deemed to be given and received when
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deposited in the United States mails as aforesaid.
26. Period of Condominium ownership. The separate
condominium estates created by this Declaration and the
Condominium Map shall continue until this Declaration is
revoked in the manner as is provided in Paragraph 27 of this
Declaration or until terminated in the manner and as is
provided in this Declaration.
27. Revocation. This Declaration shall not he
revoked unless all. of the owners and all of the holders of
all recorded mortqages and/or deeds of trust covering or
affecting all of the units unanimously consent or agree in
writing to such revocation by instrument(s) duly recorded.
28. Compliance with Provisions of Declaration,
Articles of Incorporation, and By -Laws of the Association.
Each owner shall comply strictly with the provisions of this
Declaration, the Articles of Incorporation, and By -Laws of
the Association, and the reasonable rules and regulations of
the Association, all as the same may be lawfully amended
from time to time.
The violation of any restriction or condition
or regulation adopted by the Board of Directors or the
breach of any covenant or provision herein contained, shall
give the Board of Directors (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 enter upon
the unit, or any portion of the property upon which, or as
to which, such violation or breach exists and to summarily
abate and remove, at the expense of the defaulting owner,
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 breach; or (c) to
recover sums due for damages. Such remedies shall be cumula-
tive and not exclusive of one another and shall be in addition
to any other remedies available to the Board of Directors 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, condi-
tions, covenants, and obligations of this Declaration or the
regulations adopted by the Board of Directors and such
violation shall not be cured within thirty days after notice
in writing from the Board of Directors or shall re -occur
more than once thereafter, then the Board of Directors shall
have the power to issue to the defaulting unit owner a ten
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 Directors against the
owner and/or occupants, or in the alternative a decree
declaring the termination of the defaulting owner on account
of the breach 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 shall
establish, except that the court shall enjoin and restrain
the defaulting owner from re -acquiring the defaulting owner's
interest or any part thereof at such judicial sale or by
virtue of the exercise of any right of redemption which may
be established. All written notices provided for in this par-
agraph pertaining to any unit shall also be mailed to each
mortgagee, trust deed beneficiary, or other lienor with an
interest in such unit as then reflected in the real Property
records of Pitkin County, Colorado, and the same notice period
shall be applicable to each such mortgagee, trust deed bene-
-23-
ficiary or lienor as is applicable to the owner of such
unit. Each such notice shall be, sent by either registered
or certified mail, postage prepaid, addressed to the mailing
address of such mortgagee, trust deed beneficiary or lienor
as set forth in the recorded instrument evidencing such
encumbrance. The proceeds of any such judicial sale shall
first be paid to discharge court costs, court reporter
charges, reasonable attorney's fees, and all other expenses
of the proceeding and sale, and all such items shall be
taxed against the defaulting owner in said decree. Any
balance of proceeds after satisfaction of such charges shall
be applied and paid in the same order as is provided in
Subparagraphs (b) (1) through (5) of Paragraph 23. 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 the Board of Directors as provided herein, to
immediate possession of the unit sold and may apply to the
court for an appropriate writ of assistance for the purpose
of acquiring such possession, and it shall be a condition of
any such sale, and the decree shall so provide that the
purchaser shall take the interest in the property sold
subject to the terms, conditions, and obligations of this
Declaration, including obligations then accrued and unpaid,
if any.
29. Failure to Enforce. No terms, obligations,
covenants, conditions, restrictions or provisions imposed
hereby or contained herein shall be abrogated or waived by
any failure to enforce the same, no matter how many viola-
tions or breaches thereof may occur.
30. Amendments. 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 members of the Board of Directors
at least eighty-five percent (85%) of the owners and by all
mortgagees having bona fide liens of record against any
units. Any amendment, change or modification shall be
effective upon recordation thereof. No change, modification
or amendment which affects the rights, privileges or obliga-
tions of the Declarants shall be effective without their
written consent. No change, modification or amendment which
is in derogation of conditions imposed upon the improvement,
use and occupancy of 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.
31. Condemnation.
(a) This Declaration does hereby make manda-
tory the irrevocable appointment of an attorney -in -fact to
deal with the property upon its complete or partial condemna-
tion. 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 provided. All of the owners irrevocably constitute
and appoint the Association their true and lawful attorney
in their name, place and stead for the purpose of dealing
with the property upon its condemnation as is hereafter
provided. As attorney -in -fact, the Association, by its
president and secretary, shall have full and complete author-
ization, right, and power to make, execute and deliver any
contract, deed or any other instrument with respect to the
interest of any owner which may be necessary and appropriate
to exercise the powers herein granted.
(h) In the event that all or any part of the
Condominium Project shall be taken or condemned by any
public authority or sold or otherwise disposed of in lieu of
or in avoidance thereof, all compensation, damages or other
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•
•
proceeds therefrom, the sum of which is hereinafter called
the "Condemnation Award" shall be payable to the Association
as attorney -in -fact, and the following provisions shall
apply.
(i) Complete Taking. In the event that
the entire Condominium Project is taken or condemned, or
sold or otherwise disposed of in lieu of or in avoidance
thereof, the Condominium Ownership hereunder shall terminate.
The Condemnation Award shall be apportioned between the
owners on the basis of each owner's percentage interest in
the General Common Elements, provided that if a standard
different from the value of the property as a whole is
employed to measure the Condemnation Award in the negotiation,
judicial decree, or otherwise, then in determining such
shares the same standard shall be employed to the extent it
is relevant and applicable. Such apportioned proceeds shall
be paid into separate accounts, each such account representing
one unit. Each such account shall be in the name of the
Association, and shall be further identified by the unit
designation and the name of the owner. From each separate
account, the Association, as attorney -in -fact, shall use and
disburse the total amount of each of such accounts without
contribution from one account to another, for the same
purposes and in the same order as is provided in subparagraphs
(b)(1) through (5) of Paragraph 23.
(ii) Partial Taking. In the event that
less than the entire Condominium Project is taken or condemned,
or sold or otherwise disposed of in lieu of or in avoidance
thereof, the Condominium Ownership hereunder shall not
terminate. Each owner shall be entitled to a share of the
Condemnation Award to be determined in the following manner:
as soon as is practicable, the Association shall, reasonably
and in good faith, allocate the Condemnation Award between
compensation, damages or other proceeds, and shall apportion
the amounts so allocated among the owners, as follows: (a)
the total amount allocated to taking of or injury to the
General Common Elements, (b) the total amount allocated to
sewerage damages shall be apportioned to those Condominium
Units which were not taken or condemned, (c) the respective
amounts allocated to the taking of or injury to a particular
Unit and/or improvements an Owner had made within his own
Unit shall be apportioned to the particular Unit involved,
and (d) the total amount allocated to consequential damages
and any other takings of injuries shall be apportioned as
the Association determines to be equitable in the circum-
stances. If an allocation of the Condemnation Award is
already established in negotiation, judicial decree or
otherwise, then in allocating the Condemnation Award the
Association shall employ such allocation to the extent it is
relevant and applicable. Such apportioned proceeds shall be
paid into separate accounts, each such account representing
one unit. Each such account shall be in the name of the
Association; and shall be further identified by the unit
designation and the name of the owner. From each separate
account, the Association as attorney -in -fact, shall use and
disburse the total amount of each of such accounts without
contribution from one account to another, for the same pur-
poses and in the same order as is provided in subparagraphs
(b)(1) through (5) of Paragraph 23.
(iii) Reorganization. In the event a
partial taking results in the taking of a complete unit, the
owner thereof automatically shall cease to be an owner under
this declaration.
(iv) Reconstruction and Repair. Any
reconstruction and repair necessitated by condemnation shall
be governed by the procedures specified in Paragraph 23
hereof.
-25-
32. General.
(a) If any of the provisions of this Declar-
ation or any paragraph, 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, phrase or word in any other
circumstances shall not be affected thereby. All of the
terms hereof are hereby declared to be severable.
(b) The provisions of this Declaration shall
be in addition and supplemental to the Condominium Ownership
Act of the State of Colorado and to all other provisions of
law.
(c) Whenever used herein, unless the context
shall otherwise provide, the singular number shall include
the plural, the plural the singular, and the use of any
gender shall include all genders.
(d) The provisions of this Declaration shall
be liberally construed to effectuate its purpose of creating
a uniform and equitable plan for the development and operation
of a first-class professional office condominium project.
(e) If any of the options, privileges,
covenants or rights created by this Declaration shall be
unlawful or void for violation of. (a) the rule against
perpetuities or some analagous statutory provision, (b) the
rule restricting restraints on alienation, or (c) any other
statutory or common law rules imposing time limits, then
such provision shall continue only for the period of the
lives of John L. Wilbur of Honolulu, Hawaii, and J. Michael
Solheim of Aspen, Colorado, their now living descendants,
and the survivor of them, plus twenty-one years.
IN WITNESS WHEREOF, the Declarant has duly executed
this Declaration this day of , 1981.
STATE OF COLORADO
ss.
COUNTY OF PITI:IN
THE EPICUREAN PARTNERSHIP,
a Colorado limited partnership
By
General Partner
The foregoing instrument was acknowledged before
me this day of , 1981, by ,
as General Partner of The Epicurean Partnership, a Colorado
limited partnership.
Witness my hand and official seal.
My commission expires:
Notary Public
-26-
EXHIBIT A
(Attached to Condominium Declaration
for Epicure Plaza)
The undivided interest in the General Common Elements appur-
tenant to units in the Epicure Plaza (a condominium) are as
follows:
Unit Numbers Percentage Interest
B-1
101
102
103
104
105
106
107
108
201
202
203
204
205
206
207
208
209
301
302
303
TOTAL 100.00%
MINE
•
•
EXHIBIT A
(Attached to Condominium Declaration
for Epicure Plaza)
The undivided interest in the General Common Elements appur-
tenant to units in the Epicure Plaza (a condominium) are as
follows:
Unit Numbers
R-1
101
102
103
104
105
106
107
108
201
202
203
204
205
206
207
208
209
301
302
303
Percentage Interest
TOTAL 100.00%
-27-
MEMORANDUM
TO: Aspen City Council
FROM: Jack Johnson, Planning Office
RE: Epicurean Subdivision Exception (Condominiumization)
DATE: May 26, 1981 APPROVED AS TO FORM:
Location: The open patio space located between the Wh le of a Wash
and the Epicure Restaurant in the 400 bloc) of east Main
Street (Lots B and C, Block 87, City and Townsite of
Aspen, Colorado).
Zoning: CC - Commercial Core (H.P. Overlay)
Background: The Epicure Plaza, subject of this application, was
granted a commercial GMP allotment for 10,041 square
feet by City Council on November 26, 1979. The owner/
applicant has not yet sought a building permit and must
"submit plans sufficient for building permit issuance"
before September 1, 1981, or this allotment will auto-
matically expire.
Applicant's
Request: This is an application by the Epicurean Partnership
requesting subdivision exception for the purposes of
condominiumizing the proposed Epicure Plaza Building
into 21 spaces.
City Attorney: Compliance with applicable provisions of Section 20-22
required.
Engineering
Department: The improvement survey submitted with the application is
not an adequate Condominium Plat and should be revised
and resubmitted to this office for signatures and re-
cording following construction. The revised plat shall
indicate:
a) Adjacent streets and alleys, sidewalks, curb and
gutter.
b) Cross sections indicating elevations of floors
and ceilings.
The Growth Management Plan application states that permission
had been obtained from this office to dispose of storm
drainage from the site via a forty -eight -inch (48") storm
sewer in Mill Street. It is not the policy of this Depart-
ment to allow private developments to route site runoff to
the City's storm sewers but rather to encourage retention
of the flow on site. Unless the applicant can produce
written consent from this office granted prior to the 1979
GMP review, we will not permit a tap to the storm sewer.
Any water tap to the six-inch (6") main in Main Street shall
be undertaken during the off-season (i.e., mid -April to
mid -May or anytime in September after Labor Day). Pavement
shall be saw -cut and backfill shall be 3/4-inch-road base
place and compacted i.n eighteen -inch (18") lifts.
Planning The Epicure Plaza was granted a total of 12,000 square feet
Office: of building space on the 6,000 square foot site, The
12,000 square feet include 10,041 square feet of commercial
and office space and approximately 1,959 square feet of
employee housing. The FAR for this site is 2.0 (1.5 by
•
E
MEMO: Epicurean Subdivision Exception (Condominii.nnization)
May 26, 1981
Page Two
ployee housing. The FAR for this site is 2.0 (1.5 by
right in the CC zone and .5 granted by Special Review).
Retail and restaurant uses are proposed on the ground level
with support space in the basement, office space on the
second level and employee housing on the third level„
Many Code requirements of Section 20-22 are not applicable
as this application involves unbuilt commercial space
rather than conversion of an existing residential structure.
However, the three employee housing units a part of this
application, are to be deed restricted as per rental price
guidelines at the middle income level. These three residen-
tial units are to be restricted to six (6) month minimum
leases with no more than two (2) shorter tenancies per
year. Condominiumization of this future space becomes void
and nullified if valid building plans have not been re-
ceived by the Building Department by September 1st of this
year.
Planning Office
Recommendation: Approval of the application for subdivision exception for
the purposes of condominiumizing the Epicure Plaza Building
subject to the following conditions:
to Compliance with the Engineering Department comments,
20 Deed restrictions of the three employee units at
the middle income price guidelines.
3. Restrictions to six (6) month minimum leases with
no more than two (2) shorter tenancies per year on
the three (3) employee housing units.
NOTE: Condominiumization of the Epicure Plaza Building becomes null
and void if valid building plans have not been received by the Building
Department by September 1, 1981.
P & Z Action: On May 5, 1981, the Planning and Zoning Commission granted
the applicant a waiver to conceptual plan approval before
City Council and Preliminary Plat approval before P & Z
(short subdivision procedure). The P & Z also recommended
approval of the request for subdivision exception for the
purposes of condominiumizing the Epicure Plaza Building
subject to the three conditions enumerated under Planning
Office recommendation.
Council Action: If City Council concurs with the recommendations of the
Planning Office and the Planning and Zoning Commission,
the proper motion would be:
"I move approval of the application for subidivision
exception for the purposes of condominiumizing the Epicure
Plaza Building subject to the following conditions:
1, Compliance with the Engineering Department comments,
2. Deed restrictions of the three employee units at
the middle income price guidelines,
3. Restrictions to six (6) month minimum leases with no
more than two (2) shorter tenancies per year on
the three (3) employee housing units,"
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v
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APPLICATION FOR EXCEPTION
FROM SUBDIVISION REGULATIONS
Request is hereby made on behalf of The'Epicurean
Partnership (hereinafter referred to as "applicant"), under
Section 20-19(a) of the Aspen, Colorado, Subdivision Regulations,
for an exception from the definition of the term "subdivision"
with respect to the real property to be known as the Epicure
Plaza and which is more particularly described as:
Lots B & C,
Biock 87,
City and Townsite of Aspen,
Pitkin County, Colorado
It is submitted that the requested exception is appropriate
for the condominiumization of a commercial and office building
which is to be constructed on the above -described property.
If the requested exception is granted, the owners of the
property will have a common interest in the land and there
will be a condominium declaration and maintenance agreement
applicable to the property. An exception in this case will
not conflict with the intents and purposes of the subdivision
regulations of the City of Aspen which are directed to
assist the orderly, efficient and integrated development of
the city, to insure the proper distribution of population,
to coordinate the need for public services, and to encourage
well -planned subdivision.
The above -described property is zoned "CC" as Commercial
Core property, and such zoning permits the proposed uses to
be included in the building such as restaurants, retail
commercial establishments, offices, and employee residential
dwelling units.
Plans and details of the entire development project for.
Epicure Plaza were submitted by the applicant in 1979 for
review under the Aspen Growth Management Plan, and the
project was approved by resolution of the Aspen City Council
on November 26, 1979. Accordingly, the granting of this
application for exception complies with the Aspen Growth
Management Plan and wi_11 not conflict with the Aspen Subdivision
Regulations.
The applicant intends to file a condominium plat for
the property which will include approximately twenty-one
condominium units. The basement and main floor will constitute
nine condominium units for restaurant and commercial uses.
Nine condominium units for offices will be located on the
second floor, and three employee residential condominium
units will be located on the third floor. The building will
be occupied, however, by less 'than twenty-one owners and
tenants due to the fact that some of the contiguous office
and commercial condominium units will be combined for occupancy
of multiple units by one or more of the businesses in the
building.
The three residential condominium units to be located
on the third floor will be restricted for rental as middle
income housing pursuant to the applicable housing price
guidelines established by the City of Aspen. To assist in
meeting the employee housing needs of the community it is
intended that the employee housing units will be offered on
a preferential basis to the employees of businesses located
in the building.
In support of this application, the following documents
are submitted herewith:
(a) Proof of ownership as indicated by title insurance
policy attached hereto as Exhibit A.
(b) Improvement survey and site inventory for the
property as indicated in the condominium plat map attached
hereto as Exhibit B.
(c) Draft of proposed Condominium Declaration attached
hereto as Exhibit C, draft of Articles of Incorporation of
the condominium association attached hereto as Exhibit D,
and draft of By-laws of the condominium association attached
hereto as Exhibit E.
(d) Employee Housing Covenants in recordable form
attached hereto as Exhibit F.
Any additional documentation or information with respect
to this application will be promptly submitted upon request.
The prompt.consideration of this -ipplication will be sincerely
r
appreciated.
Dated: March �C) 1981.
SACHS, KLEIN & SEIGLE
Attorneys fo The pi rean Partnership
By: n�
of ray H.- "Sac s
prth Pill Street
t10
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p n, Colorado 81611
(303) 925-8700
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EXISTING UTILITIES
SCALE: V 50'-0* 1A"-"()''`'THOMAS WELLS &
ASPEN
MEMORANDUM
TO: City Attorney
City Engineer
Housing Director
FROM: Jack Johnson, Planning Office
RE: Epicurean Subdivision Exception - Condominiumization
DATE: April 1, 1981
The attached application, submitted by Epicurean Partnership, requests
subdivision exception for the purpose of condominiumization of a commercial
and office building which is to be constructed. The plans of this develop-
ment project were approved in 1979 under the Aspen Growth Management Plan.
The property is located on Lots B and C, Block 87, in Aspen. Please review
this application and return any comments you may have to me by Monday,
April 20, 1981; this item is scheduled to go to the P & Z on May 5, 1981,
Thank you.
MEMORA14DUM
TO: Aspen City Council
FROM: Jack Johnson, Planning Office
RE: Epicurean Subdivision Exception (Condominiumizati7'a,
'
DATE: June 8, 1981 APPROVED AS TO FORM:
7
G
This application was continued from May 26, 1981 to June 8, 1981 for additional
research. It is recommended that City Council continue this item indefinitely
so that it may return to City Council companion with an application requesting
subdivision exception for the employee housing units and a special review deter-
mining the need for parking. It is expected that the applicant's attorney will
be submitting these applications in the near future.
lul[�1:7��i1OK
TO: Jack Johnson, Planning Office
FROM: Jay Hammond, Engineering Department'1�k
DATE: April 30, 1981
RE: Epicurean Subdivision Exception, Lots B and C, Block 87,
O.A.T.
Having reviewed the above application and made a site inspection,
the Engineering Department has the following comments:
1. The improvement survey submitted with the application is not
an adequate Condominium Plat and should be revised and re-
submitted to this office for signatures and recording
following construction. The revised plat shall indicate:
a) Adjacent streets and alleys, sidewalks, curb and
gutter.
b) Cross sections indicating elevations of floors
and ceilings.
2. The Growth Management Plan application states that permission
had been obtained from this office to dispose of storm
drainage from the site via a forty -eight -inch (48") storm
sewer in Mill Street. It is not the policy of this depart-
ment to allow private developments to route site runoff to
the City's storm sewers but rather to encourage retention
of the flow on site. Unless the applicant can produce
written consent from this office granted prior to the 1979
GMP review, we will not permit a tap to the storm sewer.
3. Any water tap to the six-inch (6") main in Main Street shall
be undertaken during the off-season (i.e. mid -April to mid -
May or anytime in September after Labor Day). Pavement
shall be saw -cut and backfill shall be 3/4-inch road base
placed and compacted in eighteen -inch (18") lifts.
4W
Of
Recorded at 4:43 P.'i. All" K), 1919 Loretta ;.aiuirr Recut -der Receptirni flu: ,� , ,� .9
rr••
CERTIFICATE OF LIMITED PARTNERSHIP
WHEREAS, the undersigned, upon being desirous of forming
a Limited Partnership and pursuant to the statutes of the
State of Colorado, do hereby make and sign the following
Certificate:
1. The name under which the partnership is to be
conducted is The Epicurean.
2. The character of the business is to acquire, develop
and operate the real estate described as Lots A, B s C,
Block 87, City and Townsite of Asper., Colorado.
3. The principal place of business of the partnership
is to be located at 100 South frill Street, Aspen, Colorado.
4. The names of all general and limited partners are:
NAME RESIDENCE.
Michael Solheim, General Partner 24141 E. highway 82
Aspen, Colorado 31611
John Wilbur, General Partner 4338 Kahala Ave.,
Honolulu, Hawaii 96816
Yon Winner, Limited Partner 167 E. 63rd St.
New York, New York
5. The term for which the partnership is to exist is
approximately thirty (30) years, commencing April 10, 1979.
6. The amount of cash and the description of the
agreed value of the property contributed by each limited
partner is as follows:
NAME OF LIMITED CASH DESCRIPTION OF AGREED VALUE OF
PARTNER CONTRIBUTION OTHER PROPERTY OTHER PROPERTY
Yon Winner $55,000.00 None None
7. Additional contributions, if any, agreed to be made
by each limited partner at any times at which events or
happenings at which they will be made are as follows:
NMu: CAI LI!U 11D C1%1;1I C1111PR AjrF.ED VALUE TI14E- OR 1-VrM'
CXY,11i2IBU1'1!2: C '.1'!:I13(rr1Cx1 (7flll:R Mr1'RIBU'1'I0N '10 BE PAID OR 1•:
Yon Wijuier $10,000.00 Bone None Upon 30 days
Notice from
Partnership
$33,333,36 None None All or a portioi
thereof
due and payable
upon 60 days
notice from
Partnership
8. There is no precise time agreed upon for the
contributions of any limited partner to be returned. Upon
the sale of the partnership property or a major refinancing
which generates funds not earmarked for partnership purposes,
a distribution may be made to each limited partner. Otherwise,
the limited partners will wait until the dissolution of the
partnership to receive return of their contributions.
9. A share of profits or other compensation or other
income which each limited partner shall receive by reason
of theircontribution is as follows:
(a) distributions from operations and net income and
net loss are to be divided among the partners according to
the number of partnership units each partner owns, each
partnership unit to participate equally in the distribution
thereof.
(b) funds available for distribution from sale of
partnership property or major refinancing shall be distributed
by first returning the capital paid into the Partnership by
each Partner, then by giving a return to each limited partner
representing a return of twelve percent (12%) on the amount
of money contributed by said partner and not previously
returned, with all other funds distributed equally among
the partnership units.
(c) partnership units owned by the undersigned of this
agreement are as follows:
NAME OF LIMITED PARTNER PARTNERSHIP UNITS
I Yon Winner l
10. Each limited partner may substitute an assignee as
- 2 -
1
a contributer in his place and the terms and conditions of
the substitutions are as follows:
(a) A limited partner may assign his net interest in
the partnership only after he has first offered the unit for
purchase to both the partnership and the limited partners,
the value of the proposed assigned unit to be established by
appraisal. If neither the partnership nor any of the partners
exercise their right to purchase the unit intended for
assignment, said unit can thereby be assigned, said assignment
becoming binding upon the partnership only after proper
notice to the partnership.
(b) A person may become a substitute limited partner
only upon the express approval of the limited partnership.
Said approval to be made in the sole discretion of the
general partner and is subject to limitations requiring the
proposed substitute limited partner to become a signatory to
thq partnership agreement and sign the documents and perform
other necessary activities as the general partner may in his
sole discretion require.
11. The general partners can,admit additional limited
partners to the partnership under the following terms and
conditions;
(a) The general partners may, if necessary to raise
additional funds for the partnership and in the best interest
of the partnership, issue additional limited partnership
units to persons who will then become additional limited
partners.
(b) In order to become an additional limited partner,
the general partner must make the decision to issue a partnership
unit, the additional limited partner must qualify under the
partnership agreement, the additional limited partner must
agree to the agreement, and the additional limited partner
must execute additional documents and perform other activities
as the general partner may in his sole discretion deem
necessary.
- 3 -
f '
12. No limited partners have priority over other
limited partners as to contributions or as to compensation
with income except that alimited partner's right to distribution
shall be determined by the number of units he owns and that
a limited partner's right to receive 12% of return on the
capital he has invested in the partnership shall be, of
course, determined by the amount of capital he has in the
partnership and the time the money has been in the Partnership
when said distribution is made.
13. The remaining general partners shall have the
right to continue the business of the partnership upon the
death, retirement, or insanity of a general partner. The
remaining limited partner shall have the right to continue
Eaf
the business of the partnership upon the death, retirement,
or insanity of all general partners upon the admission of a
new general partner who elects to continue the business
partnership within 120 days.
14. The limited partner shall not have the right to
demand or receive cash or other property in return for his
contribution.
IN WITNESS WHEREOF we have hereunto set our hands and
seals this day of April, 1979.
General Partner
jrri VA)
General Partner
..;
ted' Partner
STATE Or COLORADO ) ss
COUNTY OF PITKIN )
00 On this 10th day of April, 1979, before me, a notary
public for the State of Colorado and the County of Pitkin,
�- appeared before me Michael Solheim, known to me and being
sworn according to law, for himself and as attorney -in -fact
...for the above -listed general and limited partners, acknowledged
to me that he executed the foregoing Certificate of Limited
:.� -:Partnership as a general partner, personally, and as the
attorney -in -fact for the above -signed general and limited
"t''"•partners, and that the facts stated therein are true and
correct.
My Commission Expires: June 19, 1979
Witness my hand and official seal. a
Notary Pub is
MIM
APPLICATION FOR EXCEPTION
FROM SUBDIVISION REGULATIONS
Request is hereby made on behalf of The Epicurean
Partnership (hereinafter referred to as "applicant"), under
Section 20-19(a) of the Aspen, Colorado, Subdivision Regulations,
for an exception from the definition of the term "subdivision"
with respect to the real property to be known as the Epicure
Plaza and which is more particularly described as:
Lots B & C,
Block 87,
City and Townsite of Aspen,
Pitkin County, Colorado
It is submitted that the requested exception is appropriate
for the condominiumization of a commercial and office building
which is to be constructed on the above -described property.
If the requested exception is granted, the owners of the
property will have a common interest in the land and there
will be a condominium declaration and maintenance agreement
applicable to the property. An exception- in this case will
not conflict with the intents and purposes of the subdivision
regulations of the City of Aspen which are directed to
assist: the orderly, efficient and integrated development of
the city, to insure the proper distribution of population,
to coordinate the need for public services, and to encourage
well -planned subdivision.
The above -described property is zoned "CC" as Commercial
Core property, and such zoning permits the proposed uses to
be included in the building such as restaurants, retail
commercial establishments, offices, and employee residential
dwelling units.
Plans and details of the entire development project for
Epicure Plaza were submitted by the applicant in 1979 for
review under the Aspen Growth Management Plan, and the
project was approved by resolution of the Aspen City Council
on November 26, 1979. Accordingly, the granting of this
application for exception complies with the Aspen Growth
Management Plan and will not conflict with the Aspen Subdivision
Regulations.
•
171
The applicant intends to file a condominium plat for
the property which will include approximately twenty-one
condominium units. The basement and main floor will constitute
nine condominium units for restaurant and commercial uses.
Nine condominium units for offices will be located on the
second floor, and three employee residential condominium
units will be located on the third floor. The building will
be occupied, however, by less than twenty-one owners and
tenants due to the fact that some of the contiguous office
and commercial condominium units will be combined for occupancy
- of multiple units by one or more of the businesses in the
building.
The three residential condominium units to be located
on the third floor will be restricted for rental as middle
income housing pursuant to the applicable housing price
guidelines established by the City of Aspen. To assist in
meeting the employee housing needs of the community it is
intended that the employee housing units will be offered on
a preferential basis to the employees of businesses located
in the building.
In support of this application, the following documents
are submitted herewith:
(a) Proof of ownership as indicated by title insurance
policy attached hereto as Exhibit A.
(b) Improvement survey and site inventory for the
property as indicated in the condominium plat map attached
hereto as Exhibit B.
(c) Draft of proposed Condominium Declaration attached
hereto as Exhibit C, draft of Articles of Incorporation of
the condominium association attached hereto as Exhibit D,
and draft of By. -laws of. the condominium association attached
hereto as Exhibit E.
(d) Employee Housing Covenants in recordable form
attached hereto as Exhibit F.
Any additional documentation or information with respect
to this application will be promptly submitted upon request.
-2-
2 •
1� The prompt consideration of this application will be sincerely
appreciated.
Dated: March 30 1981.
SACHS, KLEIN & SEIGLE
Attorneys fob Thepi�Curean/Partnership
B / 14
etf rey "Sachs
2firth Mill Street
ti 201
s-p n, Colorado 81611
(303) 925-8700
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MEMORANDUM
TO: Aspen City Council
FROM: Jack Johnson, Planning Office
RE: Epicurean Subdivision Exception (Condominiumization)�
DATE: June 2.2, 1981 APPROVED AS TO FORM: f v
Location: The open patio space located between the Wh le of a Wash
and the Epicure Restaurant in the 400 bloc of east Main
Street (Lots B and C, Block 87, City and T wnsite of
Aspen, Colorado).
Zoning: CC - Commercial Core (H.P. Overlay)
Background: The Epicure Plaza, subject of this application, was
granted a commercial GMP allotment for 10,041 square
feet by City Council on November 26, 1979. The owner/
applicant has not yet sought a building permit and must
"submit plans sufficient for building permit issuance"
before September 1, 1981, or this allotment will auto-
matically expire.
Applicant's
Request: This is an application by the Epicurean Partnership
requesting subdivision exception for the purposes of
condominiumizing the proposed Epicure Plaza Building
into 21 spaces.
City Attorney: Compliance with applicable provisions of Section 20-22
required.
Engineering
Department: The improvement survey submitted with the application is
not an adequate Condominium Plat and should be revised
and resubmitted to this office for signatures and re-
cording following construction. The revised plat shall
indicate:
a) Adjacent streets and alleys, sidewalks, curb and
gutter.
b) Cross sections indicating elevations of floors
and ceilings,
The Growth Management Plan application states that permission
had been obtained from this office to dispose of storm
drainage from the site via a forty -eight -inch (48") storm
sewer in Mill Street. It is not the policy of this Depart-
ment to allow private developments to route site runoff to
the City's storm sewers but rather to encourage retention
of the flow on site. Unless the applicant can produce
written consent from this office granted prior to the 1979
GMP review, we will not permit a tap to the storm sewer.
Any water tap to the six-inch (6") main in Main Street shall
be undertaken during the off-season (i.e., mid -April to
mid -May or anytime in September after Labor Day). Pavement
shall be saw -cut and backfill shall be 3/4-inch road base
place and compacted in eighteen -inch (18") lifts..
Planning The Epicure Plaza was granted a total of 12,000 square feet
Office: of building space on the 6,000 square foot site. The
12,000 square feet include 10,041 square feet of commercial
and office space and approximately 1,959 square feet of
employee housing. The FAR for this site is 2.0 (1.5 by
MEMO: Epicurean Subdivision Exception (Condominiumization)
June 22, 190"1
Page Two
right in the CC zone and .5 granted by Special Review).
Retail and restaurant uses are proposed on the ground level
with support space in the basement, office space on the
second level and employee housing on the third level.
Many Code requirements of Section 20-22 are not applicable
as this application involves unbuilt commercial space
rather than conversion of an existing residential structure.
However, the three employee housing units a part of this
application, are to be deed restricted as per rental price
guidelines at the middle income level. These three residen-
tial units are to be restricted to six (6) month minimum
leases with no more than two (2) shorter tenancies per
year. Condominiumization of this future space becomes void
and nullified if valid building plans have not been re-
ceived by the Building Department by September 1st of this
year.
Planning Office
Recommendation: Approval of the application for subdivision exception for
the purposes of condominiumizing the Epicure Plaza Building
subject to the following conditions:
1. Compliance with the Engineering Department comments,
2. Deed restrictions of the three employee units at
the middle income price guidelines.
3. Restrictions to six (6) month minimum leases with
no more than two (2) shorter tenancies per year on
the three (3) employee housing units.
NOTE: Condominiumization
of the Epicure Plaza Building becomes null
and void if
valid building plans have not been received by the Building
Department
by September 1, 1981.
P & Z Action:
On May 5, 1981, the Planning and Zoning Commission granted
the applicant a waiver to conceptual plan approval before
City Council and Preliminary Plat approval before P & Z
(short subdivision procedure), The P & Z also recommended
approval of the request for subdivision exception for the
purposes of condominiumizing the Epicure Plaza Building
subject to the three conditions enumerated under Planning
Office recommendation.
Council Action:
If City Council concurs with the recommendations of the
Planning Office and the Planning and Zoning Commission,
the proper motion would be:
"I move approval of the application for subidivision
exception for the purposes of condominiumizing the Epicure
Plaza Building subject to the following conditions:
1. Compliance with the Engineering Department comments,
2. Deed restrictions of the three employee units at
the middle income price guidelines,
3. Restrictions to six (6) month minimum leases with no
more than two (2) shorter tenancies per year on
the three (3) employee housing units."
APPLICATION FOR EXCEPTION
FROM SUBDIVISION REGULATIONS
Request is hereby made on behalf of The Epicurean
Partnership (hereinafter referred to as "applicant"), under
Section 20-19(a) of the Aspen, Colorado, Subdivision Regulations,
for an exception from the definition of the term "subdivision"
with respect to the real property to be known as the Epicure
Plaza and which is more particularly described as:
Lots B & C,
Block 87,
City and Townsite of Aspen,
Pitkin County, Colorado
It is submitted that the requested exception is appropriate
for the condominiumization of a commercial and office building
which is to be constructed on the above -described property.
If the requested exception is granted, the owners of the
property will have a common interest in the land and there
will be a condominium declaration and maintenance agreement
applicable to the property. An exception in this case will
not conflict with the intents and purposes of the subdivision
regulations of the City of Aspen which are directed to
assist the orderly, efficient and integrated development of
the city, to insure the proper distribution of population,
to coordinate the need for public services, and to encourage
well -planned subdivision.
The above -described property is zoned "CC" as Commercial
Core property, and such zoning permits the proposed uses to
be included in the building such as restaurants, retail
commercial establishments, offices, and employee residential
dwelling units.
Plans and details of the entire development project for
Epicure Plaza were submitted by the applicant in 1979 for
review under the Aspen Growth Management Plan, and the
project was approved by resolution of the Aspen City Council
on November 26, 1979. Accordingly, the granting of this
application for exception complies with the Aspen Growth
Management Plan and will not conflict with the Aspen Subdivision
Regulations.
•
w The applicant intends to file a condominium plat for
the property which will include approximately twenty-one
condominium units. The basement and main floor will constitute
nine condominium units for restaurant and commercial uses.
Nine condominium units for offices will be located on the
second floor, and three employee residential condominium
units will be located on the third floor. The building will
be occupied, however, by less than twenty-one owners and
tenants due to the fact that some of the contiguous office
and commercial condominium units will be combined for occupancy
of multiple units by one or more of the businesses in the
building.
The three residential condominium units to be located
on the third floor will be restricted for rental as middle
income housing pursuant to the applicable housing price
guidelines established by the City of Aspen. To assist in
meeting the employee housing needs of the community it is
intended that the employee housing units will be offered on
a preferential basis to the employees of businesses located
in the building.
In support of this application, the following documents
are submitted herewith:
(a) Proof of ownership as indicated by title insurance
policy attached hereto as Exhibit A.
(b) Improvement survey and site inventory for the
property as indicated in the condominium plat map attached
hereto as Exhibit B.
(c) Draft of proposed Condominium Declaration attached
hereto as Exhibit C, draft of Articles of Incorporation of
the condominium association attached hereto as Exhibit D,
and draft of By-laws of the condominium association attached
hereto as Exhibit E.
(d) Employee Housing Covenants in recordable form
attached hereto as Exhibit F.
Any additional documentation or information with respect
to this application will be promptly submitted upon request.
-2-
The prompt consideration of this application will be sincerely
appreciated.
Dated: March (- 1981.
SACHS, KLEIN & SEIGLE
Attorneys fo The rpic reap Partnership
B y :
,Jef r 'Sachs
2,011�irth mill Street
✓�ii 201
SpPln, Colorado 81611
(303) 925-8700
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APPLICATION FOR I.:XCI l"T.T.ON
FROM SM''WIVISION REGULATIO',,it,
Request is hereby inade on behalf of The Epicurean
Partnership (hereinafter referred to as "appl.i.cant"), under
Section 20-1.9(a) of the Aspen, Colorado, Subdivision Regulations,
for an exception from the definition of the terra "subdivision"
with respect to the real property to be }mown as the Epicure
Plaza and which is more particularly described as:
Lots B & C,
Block 87,
City and Townsite of Aspen,
Pitkin County, Colorado
It is submitted that the requested exception is appropriate
for the condominiumization of a commercial and office building
which is to be constructed on the above -described property.
3
If the requested exception is granted, the owners of the
property will have a common interest in the land and there
will be a condominium declaration and maintenance agreement
applicable to the property. An exception in this case. will_
not conflict with the intents and purposes of the subdivision
regulations of the City of. Aspen which are directed to
assist the orderly, efficient and integrated development of
the city, to insure the proper distribution of population,
to coordinate the need for public services, and to encourage
well -planned subdivision.
The above -described property is zoned "CC" as Cormnercial
Core property, and such zoning permits the proposed uses to
be included in the building such as restaurants, retail
commercial establishments, offices, and employee resicienti.al
dwelling units.
Plans and details of the entire development project for
Epicure Plaza were submitted by the applicant in 1979 for
review under the Aspen Growth Managoment Plan, and the
project was approved by resolution of tho Aspen City Council.
on November 26, 1979. According?..y, the granting of this
appl.ica Lion for exception complies wi t-il the Aspen Growth
Management Plan and will not conflict with the Aspen Subdivision
Regulations.
The applicant .i.ntcnds to file a condominium plat for
the property which will include zipproximately twenty -cane
condominium units. The basemont and main floor will constitute
nine condominium units for restaurant and commercial uses.
Nine condominium units for offices will be located on the
second floor, and three employee residential concominium
units will be located on the third floor. The building will
be occupied, however, by less than twenty-one owners and
tenants due to the fact that some of the contiguous office
and commercial condominium units will be combined for occupancy
of multiple units by one or more of the businesses in the
building.
She three resicient:i.ul condominium units to be located
on the third floor will be restricted for rental as middle
income housing pursuant to the applicable housing price
guidelines established by the City of Aspen. To assist in
meeting the employee housing needs of the community it is
intended that the employee housing units will be offered on
a preferential basis to the employees of businesses located
in the building.
In support of this application, the following documents
are submitted herewith:
(a) Proof of ownership as indicated by title insurance
policy attached hereto as Exhibit A.
(b) Improvement survey and site inventory for the
property as indicated in the condominium plat map attached
hereto as Exhibit B.
(c) Draft of proposed Condominium Declarat.ion,attached
hereto as Exhibit C, draft of Articles of Incorporation of
the condominium association attached hereto as Exhibit D,
and draft of By-laws of the condominium association attached
hereto as Exhibit E.
(d) Employee Housing Covenants .in recordable form
attached hereto as Exhibit F.
Any additional documentation or information with respect
to this application will be promptly ::submitted upon request.
-2-
The prompt consideration of th:i s app1 cal t.i ot1 will be sincerely
appreciated -
Dated: March � (7 1981.
SACHS, KLEIN & SSTGLE
Attorneys for The Epicurean Partnership
By:
e ire Ii . ,s�chs
2 Nc� th Pill Street
Oto 201
Aspen, Colorado 81611
(303) 925-8700
3
F wrn No. 1402 (1170) •
ABTA Owner's Policy
Form 0 — 1970
(Amonded 10.17-70)
A\1�.�{�
Cxi1i Dit ri
•
t
POLICY OF TITLE INSURANCE
I';SI'EU B
Firs(/ "I 111cilic all TWO 111811ralrc o comp"-1/1-1-
SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE EXCEPTIONS CONTAINED IN SCHEDULE B
AND THE PROVISIONS OF THE CONDITIONS AND STIPULATIONS HEREOF, FIRST AMERICAN TITLE
INSURANCE COMPANY, a California corporation, herein called the Company, insures, as of Date of Policy shown
in Schedule A, against loss or damage, not exceeding the amount of insurance stated in Schedule A, and costs,
attorneys" fees and expenses which the Company may become obligated to pay hereunder, sustained or incurred by
the insured by reason of:
1. title to the estate or interest described in Schedule A being vested otherwise than as stated therein;
2. any defect in or lien or encumbrance on such title;
3. !ack of a right of access to and from the land; or
4, unmarketability of such title.
IN WITNESS WHEREOF, First American Title Insurance Company has caused this policy to be signed and sealed
by its duly authorized officers as of Date of Policy shown in Schedule A.
First American Title Insurance Company
BY PRESIDENT
ATTEST SECRETARY
� w
ATTEST i/ 1 ;1� �,' �� �j'' �% ASSISTANT
ASPEN TITLE COMPANY
Aspen, Colorado
SECRETARY
SCODULE OF t:XCLUSION;; FROh1 CiII&fZAGE
TH . FOLLOWING MATTERS ARE EXPRESSLY EXCLUOL=D FROM THE COVERAGE OF THIS POLICY:
1. ANY LAW, ORDINANCE OR GOVERNMENTAL REGULATION (INCLUDING BUT NOT LIMITED TO BUILDING AND ZONING ORDINANCES)
RESTRICTING OR REGULATING OR PROHIBITING THL OCCUPANCY, USE OR ENJOYMENT OF THE LAND, Oil REGUL.ATING THE CHAR.
ACTER, DIMENSIONS OR LOCATION OF ANY IMPROVEMENT NOW Oil FiLREAFTER ERECTED ON THE LAND, OR PROHIBITING A
SEPARATION IN OWNERSHIP OR A REDUCTION IN THE DIMENSIONS OR AREA OF THE LAND, OR THE EFFECT OF ANY VIOLATION
OF ANY SUCH LAW, ORDINANCE OR GOVERNMENTAL IIEGULATION.
2. RIGHTS OF EMINENT DOMAIN OR GOVERNMENTAL RIGHTS OF POLICE POWER UNLESS NOTICE OF THE EXERCISE OF SUCH RIGHTS
APPEARS IN THE PUBLIC RECORDS AT DATE OF POLICY.
3. DEFECTS, LIENS, ENCUMBRANCES, ADVERSE CLAIMS, OR OTHER MATTERS (a) CREATED, SUFFERED, ASSUMED OR AGREED TO BY
THE INSURED CLAIMANT; (b) NOT KNOWN TO THE COMPANY AND NOT SHOWN BY THE PUBLIC RECORDS BUT KNOWN TO THE
INSURED CLAIMANT EITHER AT DATE OF POLICY OR AT THE DATE SUCH CLAIMANT ACQUIRED AN ESTATE OR INTEREST
INSURED BY THIS POLICY AND NOT DISCLOSED IN WRITING BY THE INSURED CLAIMANT TO THE COMPANY PRIOR TO THE DATE
SUCH INSURED CLAIMANT BECAME AN INSURED HEREUNDER; (c) RESULTING IN NO LOSS OR DAMAGE TO THE INSURED CLAIMANT;
(d) ATTACHING OR CREATED SUBSEQUENT TO DATE OF POLICY; Oft (e) RESULTING IN LOSS OR DAMAGE WHICH WOULD NOT HAVE
BEEN SUSTAINED IF THE INSURED CLAIMANT HAD PAID VALUE FOR THE ESTATE OR INTEREST INSURED BY THIS POLICY.
DEFINITION OF TERMS
The following terms when used in this
policy mean:
(a) "insured": the insured named in
Schedule A, and, subject to any rights or defenses
the Company may have had against the named in-
sured, those who succeed to the interest of such
insured by operation of law as distinguished from
purchase including, but not limited to, heirs,
distributees, devisees, survivors, personal representa-
tives, next of kin, or corporate or fiduciary
successors.
(b) "insured claimant": an insured
claiming loss or damage hereunder.
(c) "knowledge": actual knowledge,
snot constructive knowledge or notice which may be
imputed to an insured by reason of any public
records.
(d) "land": the land described, speci-
fically or by reference in Schedule C, and improve-
ments affixed thereto which by law constitute real
property; provided, however, the term "land" does
not include any property beyond the lines of the
area specifically described or referred to in Schedule
C, nor any right, title, interest, estate or easement
in abutting streets, roads, avenues, alleys, lanes,
ways or waterways, but nothing herein shall modi-
fy or limit the extent to which a right of access to
and from the land is insured by this policy.
(a) "mortgage": mortgage, deed of
trust, trust deed, or other security instrument.
(f) "public records": those records
which by law impart constructive notice of matters
relating to said land.
2. CONTINUATION OF INSURANCE AFTER
CONVEYANCE OF TITLE
The coverage of this policy shall continue in
force as of Date of Policy in favor of an insured so
long as such insured retains an estate or interest in
the land, or holds an indebtedness secured by a pur-
chase money mortgage given by a purchaser from
such insured, or so long as such insured shall have
liability by reason of covenants of warranty made
by such insured in any transfer or conveyance of
such estate or interest; provided, however, this
policy shall not continue in force in favor of any
purchaser from such insured of either said estate or
interest or the indebtedness secured by a purchase
money mortgage given to such insured.
3. DEFENSE AND PROSECUTION OF AC-
TIONS — NOTICE OF CLAIM TO BE
GIVEN BY AN INSURED CLAIMANT
(a) The Company, at its own cost and with-
out undue delay, shall provide for the defense of an
CONDITIONS AND STIPULATIONS
insured in all litigation consisting of actions or
Proceedings commenced against such insured, or a
defense interposed against an insured in an action
to enforce a contract for a sale of the estate or
interest in said land, to the extent that such liti-
gation is founded upon an alleged defect, lien,
encumbrance, or other matter insured against
by this policy.
(b) The insured shall notify the Company
promptly in writing (i) in case any action or pro-
ceeding is begun or defense is interposed as set
forth in (a) above, 00 in case knowledge shall
come to an insured hereunder of any claim of title
or interest which is adverse to the title to the
estate or interest, as insured, and which might
cause loss or damage for which the Company may
be liable by virtue of this policy, or Nit if title to
the estate or interest, as insured, is rejected as un-
marketable. If such prompt notice shall not be
given to the Company, then as to such insured all
liability of the Company shall cease and terminate
in regard to the matter or matters for which such
prompt notice is required; provided, however, that
failure to notify shall in no case prejudice the
rights of any such insured under this policy unless
the Company shall be prejudiced by such failure
and then only to the extent of such prejudice.
(c) The Company shall have the right at its
own cost to institute and without undue delay
prosecute any action or proceeding or to do any
other act which in its opinion may be necessary or
desirable to establish the title to the estate or in-
terest as insured, and the Company may take any
appropriate action under the terms of this policy,
whether or not it shall be liable thereunder, and
shall not thereby concede liability or waive any
provision of this policy.
(dl Whenever the Company shall have
brought any action or interposed a defense as re-
quired or permitted by the provisions of this policy,
the Company may pursue any such litigation to
final determination by a court of competent juris-
diction and expressly reserves the right, in its sole
discretion, to appeal from any adverse judgment or
order.
(e) In all cases where this policy permits
or requires the Company to prosecute or provide
for the defense of any action or proceeding, the in-
sured hereunder shall secure to the Company the
right to so prosecute or provide defense in such ac-
tion or proceeding, and all appeals therein, and per-
mit the Company to use, at its option, the name of
such insured for such purpose. Whenever requested
by the Company, such insured shall give. the
Company all reasonable aid in any such action or
proceeding, in effecting settlement, securing evi.
dence, obtaining witnesses, or prosecuting or de-
fending such action or proceeding, and the Company
shall reimburse such insured for any expense so
incurred.
4. NOTICE OF LOSS — LIMITATION OF
ACTION
In addition to the notices required under
paragraph 3(b) of these Conditions acid Stipulations,
a statement in writing of any loss or damage for
which it is claimed the Company is hable under
this policy shall be furnished to the Company
within 90 clays after such loss or damage shall have
been determined and no right of action shall accrue
to an insured claimant until 30 days after such
statement shall have been furnished. Failure to
furnish such statement of loss or damage shall
terminate any liability of the Company under this
policy as to such loss or damage.
5. OPTIONS TO PAY OR OTHERWISE SET-
TLE CLAIMS
The Company shalt have the option to pay or
otherwise settle for or in the name of an insured
claimant any claim insured against or to terminate
all liability and obligation• of the Company here-
under by paying or tendering payment of the
amount of insurance under this policy together
with any costs, attorneys' fees and expenses in-
curred up to the time of such payment or lender of
payment, by the insured claimant and authorized
by the Company.
DETERMINATION AND PAYMENT OF
LOSS
(a) The liability of the Company under this
policy shall in no case exceed the least of:
(i) the actual loss of the insured
claimant; or
(i i) the amount of insurance stated in
Schedule A.
(b) The Company will pay, in addition to
any loss insured against by this policy, all costs im-
posed upon an insured in litigation carried on by
the Company for such insured, and all costs,
attorneys' fees and expenses in litigation carried
on by such insured with the written authorization
of the Company.
(c) When liability has been definitely fixed
in accordance with the conditions of this policy,
the loss or damage shall be payable within 30 days
thereafter.
(Continued on inside back cover)
LIMITATION OF LIABILITY
No claim shall arise or be maintainable under
thispolicy (a) if the Company, after having received
notice of an alleged defect, lien or encumbrance in-
sured against hereunder, by litigation or otherwise,
removes such defect, lien or encumbrance or es-
tablishes the title, as insured, within a reasonable
time after receipt of such notice; lb) in the event
of litigation until there has been a final cletermina-
tion by a court of competent jurisdiction, and dis-
position of all appeals therefrom, adverse to the
title, as insured, as provided in paragraph 3 hereof;
or (c) for liability voluntarily assumed by an in-
sured in settling any claim or suit without prior
written consent of the Company.
8. REDUCTION OF LIABILITY
All payments under this policy, except pay-
ments made for costs, attorneys' fees and ex-
penses, shall reduce the arnount of the insurance
pro tanto. No payment shall be made without
producing this policy for endorsement of such
payment unless the policy be lost or destroyed, in
which case proof of such loss or destruction shall
be furnished to the satisfaction of the Company.
9. LIABILITY NONCUMULATIVE
It is expressly understood that the amount of
insurance under this policy shall be reduced by any
amount the Company may pay under any policy
insuring either (a) a mortgage shown or referred to
in Schedule B hereof which is a lien on the estate
or interest covered by this policy, or (b) a mortgage
hereafter executed by an insured which is a charge
or lien on the estate or interest described or re-
ferred to in Schedule A, and the amount so paid
shall be deemed a payment under this policy. The
Company shall have the option to apply to the pay-
ment of any such mortgages any amount that
otherwise would be payable hereunder to the in-
sured owner of the estate or interest covered by
this policy and the amount so paid shall be deemed
a payment under this policy to said insured owner.
CONDITIONS AND STIPULATIONS
(Continued from inside front cover)
10. APPORTIONMENT
If the land described in Schedule C con-
sists of two or more parcels which are not used as
a single site, and a loss is established affecting one
or more of said parcels but not all, the loss shall
he computed and settled on a pro rats basis as if
the amount of insuranc• under this policy was di-
vided pro rats as to the value on Date of Policy of
each separate parcel to the whole, exclusive of any
improvements made subsequent to Date of Policy,
unless a liability or value has otherwise been agreed
upon as to each such parcel by the Company and
the insured at the time of the issuance of this
policy and shown by an express statement herein
or by an endorsement attached hereto.
11. SUBROGATION UPON PAYMENT OR
SETTLEMENT
Whenever the Company shall have settled a
claim under this policy, all right of subrogation
shall vest in the Company unaffected by any act of
the insured claimant. The Company shall be subro-
gated to and be entitled to all rights and remedies
which such insured claimant would have had against
any person or property in respect to such claim
had this policy not been issued, and if requested by
the Company, such insured claimant shall transfer
to the Company all rights and remedies against any
person or property necessary in order to perfect
such right of subrogation and shall permit the
Company to use the name of such insured claimant
in any transaction or litigation involving such rights
or remedies. If the payment does not cover the
IOSS Of Such insured claimant, the Company shall be
subrogated to such rights and remedies in the pro-
portion which said payment bears to the amount of
said loss. If loss should result from any act of such
insured claimant, such act shall not void this policy,
but the Company, in that event, shall be required
to pay only that part of any losses insured against
hereunder which shall exceed the amount, if any,
lost to the Company by reason of the impairment
of the right of subrogation.
12. LIABILITY LIMITED TO THIS POLICY
This instrument together with all endorse-
ments and other instruments, if any, attached
hereto by the Company is the entire policy and
contract between the insured and the Company.
Any claim of loss or darnage, whether or not
based on negligence, and which arises out of the
status of the title to the estate or interest covered
hereby or any action asserting such claim, shall be
restricted to the provisions and conditions and
stipulations of this policy.
No amendment of or endorsement to this
policy can be made except by writing endorsed
hereon or attached hereto signed by either the Presi-
dent, a Vice President, the Secretary, an Assistant
Secretary, or validating officer or authorized signa-
tory of the Company.
13. NOTICES, WHERE SENT
All notices required to be given the Company
and any statement in writing required to be fur-
nished the Company shall be addressed to it at its
main office at 421 North Main Street, Santa Ana,
California, or to the office which issued this policy.
Alin U.vnori Policy
forrn 19 — 19/0
t
SCHEDULE A
s j 1 Total Fee for Title Search, Examination 7 9— 0 2— 7 3
and Title Insurance
Amount of Insurance: $ 9 S 0 , 000 . 00 Policy No. D 193262
Date or Policy: April 11, 1979 at 9:01 A.M.
1. Name of Insured: THE' EPICUREAII, a Colorado limited partnership
2. The estate or interest referred to herein is at Date of Policy vested in:
TILE EPICUREAN, a Colorado limited partnership
3. The estate or interest in the land described in Schedule C and which is covered by this policy is:
Fee Simple
• "Form No 140?-C • •
ALTA Standard P011Cy
Western Raylon 79-02-73
SCHEDULE B
This policy does not insure against loss or damage by reason of the matters shown in parts one and two following:
Part One:
1. Taxes or assessments which are not shown as existing liens by the records of any taxing authority that
levies taxes or assessments on real property or by the public records. The lien of all taxes and
assessments for the year 1979 and thereafter.
2. Any facts, rights, interests, or claims which are not shown by the public records but which could be
ascertained by an inspection of said land or by making inquiry of persons in possession thereof.
3. Easements, claims of easement or encumbrances which are not shown by the public records.
4. Discrepancies, conflicts in boundary lines, shortage in area, encroachments, or any other facts which a
correct survey would disclose, and which are not shown by public records.
5. Unpatented mining claims; reservations or exceptions in patents or in Acts authorizing the issuance
thereof; water rights, claims or title to water.
6. Any lien, or right to a lien, for services, labor or material theretofore or hereafter furnished, imposed by
law and not shown by the public records.
Part Two:
7. Restrictions imposed on subject property by Notice of Histroic Designation recorded
January 13, 1975 in Book 295 at page 515.
8. Any and all leases not of public record.
9. -Any tax, assessments, fees or charges by reason of the inclusion of subject property
in Aspen Fire Protection District, Aspen Street Improvement District, Aspen Sanitation
District and Aspen Valley Hospital District.
10. Deed of Trust from The Epicurean, a Colorado Limited Partnership to the Public
Trustee of Pitkin County, Colorado for the use of Ernst R. Martens and Wilma
.Martens to secure $710,000.00 dated April 10, 1979, recorded April 11, 1979 in
Book 366 at Page 364.
11. Deed of Trust from The Epicurean, a Colorado Limited Partnership to the Public
Trustee of Pitkin County, Colorado for the use of David Stringer to secure $55,000.00
dated April 18, 1979, recorded April 18, 1979 in Book 366 at Page 868.
Form No. 1055.4
All Policy Forms
79-02-73
SCHEDULE C
The land referred to in this policy is situated in the State of C o l o r a d o
County of P i t k i n and is described as follows:
Lots A, B and C
Block 87
CITY AND T014NSITE OF ASPEN
Pitkin County, Colorado
L
MEMORANDUM
TO: Aspen Planning and Zoning Commission
FROM: Jack Johnson, Planning Office
RE: Epicurean Subdivision Exception (Condominiumization)
DATE: May 5, 1981
Location: The open patio space located between the Whale of a Wash
and the Epicure Restaurant in the 400 block of east Main
Street (Lots B and C, Block 87, City and Townsite of
Aspen, Colorado).
Zoning: CC - Commercial Core (H.P. Overlay)
Background: The Epicure Plaza, subject of this application, was
granted a commercial GMP allotment for 10,041 square
feet by City Council on November 26, 1979. The owner/
applicant has not yet sought a building permit and must
"submit plans sufficient for building permit issuance"
before September 1, 1981, or this allotment will auto-
matically expire.
Applicant's
Request: This is an application by the Epicurean Partnership
requesting subdivision exception for the purposes of
condominiumizing the proposed Epicure Plaza Building
into 21 spaces. The applicant is requesting a waiver
to conceptual plan approval before City Council and
Preliminary Plat approval before P & Z.
City Attorney: Compliance with applicable provisions of Section 20-22
required.
Engineering
Department: The improvement survey submitted with the application is
not an adequate Condominium Plat and should be revised
and resubmitted to this office for signatures and re-
cording following construction. The revised plat shall
indicate:
a) Adjacent streets and alleys, sidewalks, curb and
gutter.
b) Cross sections indicating elevations of floors
and ceilings.
The Growth Management Plan application states that permission
had been obtained from this office to dispose of storm
drainage from the site via a forty -eight -inch (48") storm
sewer in Mill Street. It is not the policy of this Depart-
ment to allow private developments to route site runoff to
the Ci.ty's storm sewers but rather to encourage retention
of the flow on site. Unless the applicant can produce
written consent from this office granted prior to the 1979
GMP review, we will not permit a tap to the storm sewer.
Any water tap to the six-inch (6") main in Main Street shall
be undertaken during the off-season (i.e., mid -April to
mid -May or anytime in September after Labor Day). Pavement
�,
0 • •
shall be saw -cut and backfill shall be 3/4-inch road base
place and compacted in eighteen -inch (18") lifts.
Planning
Office: The Epicure Plaza was granted a total of 12,000 square
feet of building space on the 6,000 square foot site.
The 12,000 sq. ft. includes 10,041 sq. ft. of commercial
and office space and approximately 1,959 sq. ft. of em-
ployee housing. The FAR for this site is 2.0 (1.5 by
-- right in the CC zone and .5 granted by Special Review).
Retail and restaurant uses are proposed on the ground level
with support space in the basement, office space on the
second level and employee housing on the third level.
Many Code requirements of Section 20-22 are not applicable
as this application involves unbuilt commercial space
rather than conversion of an existing residential structure.
However, the three employee housing units a part of this
application, are to be deed restricted as per rental price
guidelines at the middle income level. These three residen-
tial units are to be restricted to six (6) month minimum
leases with no more than two (2) shorter tenancies per
year. Condominiumization of this future space becomes void
and nullified if valid building plans have not been re-
ceived by the Building Department by September 1st of this
year.
Planning Office
Recommendation: Approval of the application for subdivision exception for
the purposes of condominiumizing the Epicure Plaza Building
subject to the following conditions:
1. Compliance with the Engineering Department comments,
2. Deed restrictions of the three employee units at
the middle income level rental price guidelines,
3. Restrictions to six (6) month minimum leases with
no more than two (2) shorter tenancies per year on
the three (3) employee housing units.
NOTE: Condominiumization of the Epicure Plaza Building becomes null
and void if valid building plans have not been received by the Building
Department by September 1, 1981.
CONDOMINIUM DECLARATION
FOR
EPICURE PLAZA
(A Condominium)
THIS DECLARATION is made and entered into by THE
EPICUREAN PARTNERSHIP, a Colorado limited partnership, herein-
after referred to as "Declarant."
W I T N E S S E T H:
WHEREAS, the Declarant is the owner of certain
real property situate in the City of Aspen, County of Pitkin,
State of Colorado, described as follows:
Lots B & C, Block 87,
City and Townsite of Aspen;
and,
WHEREAS, the Declarant has improved and is improv-
ing the above -described real property with a condominium
project in the form of a four level building to be known as
the "Epicure Plaza" which shall be a condominium project
consisting of various individual condominium units, all of
which units will be treated as integral parts of a single
condominium ownership project; 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 harmo-
nious, beneficial, and proper use and conduct of the pro-
perty and all air space units; and,
WHEREAS, the Declarant desires and intends that
the several unit owners, mortgagees, and trust deed holders,
occupants, and other persons hereafter acquiring any interest
in the property shall at all times enjoy the benefits of,
and shall hold their interest subject to the rights, easements,
privileges, restrictions, and obliqations 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 purpose of enhancing
and perfecting the value, desirability, and attractiveness
of the property.
NOW, THEREFORE, as provided and permitted by the
Condominium Ownership Act of the State of Colorado, Declarant
does hereby publish and declare that the following terms,
covenants, conditions, easements, restrictions, uses, limita-
tions, and obligations shall be deemed to run with the land
above described, and shall be a burden and a benefit to
Declarant, its successors and assigns, and any persons
acquiring or owning an interest in the subject property and
improvements, their grantees, mortgagees, successors, heirs,
executors, administrators, devisees or assigns.
1. Definitions. Unless the context clearly
indicates a different meaning therefor:
(a) "Declaration" means this instrument by
which the Epicure Plaza (a condominium project) is established.
(b) "Unit" means one of the individual air
space units, consisting of an enclosed room (or rooms to be
enclosed by "proposed walls" or accessed by "proposed doors")
occupying part of or all of the garden, first, second and/or
third floors which are bounded by the interior unfinished surfaces
of the perimeter walls, floors, ceilings, windows and doors
thereof, as shown on the Map, together with all fixtures and
improvements therein contained, but not including the struc-
tural components of the building, if any, within such Unit.
Each Unit includes its respective undivided interest in the
General Common Elements as set forth in Exhibit A, and any
Limited Common Elements made appurtenant to such Unit. Said
units may be used and occupied for any lawful purpose,
subject to use and occupancy restrictions contained in
paragraph 12 hereof.
(c) "Owner" means any person, firm, corpora-
tion, partnership, association or other legal entity, or any
combination thereof, at any time owning a fee interest in a
Unit; the term "Owner" shall not refer tb any Mortgagee or
Trust Deed beneficiary as herein defined, unless such Mort-
gagee or Trust Deed beneficiary has acquired legal. and
beneficial title pursuant to foreclosure or any proceeding
in lieu of foreclosure or otherwise.
(d) "Mortgage" means any mortgage, deed of
trust, or other security instrument by which a Unit or any
part thereof is encumbered.
(e) "Mortgagee" means any persons named as
the mortgagee or beneficiary under any Mortgage or Deed of
Trust under which the interest of any Owner in or to a Unit
is encumbered.
(f) "Occupant" means any person or persons,
other than the Owner, in possession of a Unit.
(g) "Entire Premises" or "Property" or
"Condominium Project" means the hereinabove described real
property, all improvements and structures constructed thereon
or contained therein, and all easements, rights, and appur-
tenances belonging thereto, and all fixtures and property
intended for the mutual use, benefit or enjoyment of the
Unit Owners.
(h) "Building" means the four level building,
and any other building improvements comprising a part of the
Property and containing the Units.
(i) "Majority" or "Majority of the Unit
Owners" means the owners of more than 50% in the aggregate
in interest 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 purposes of voting and for all purposes and whenever
provided in the Declaration, shall mean such percentage in
the aggregate in interest of the entire undivided ownership
of the general common elements.
(j) "General Common Elements" means and
includes all portions of the property except the Units,
including, but not limited to, the following:
(i) The foundations, columns, girders,
beams, supports, main perimeter and supporting walls, roofs,
and those entrances, stairs, stairways, balconies, landings,
access corridors, fire escapes and halls necessary to the
safety, maintenance, or common use or access;
(ii) The exterior loading, storage,
walkways, yard and garden areas;
(iii) Any installations consisting of
equipment and materials making up any power, light, gas,
electrical, air handling or conditioning, heating tanks,
motors, ducts, vents, chases, compressors and similar appa-
ratus composing the central utility systems;
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(iv) In general, all other apparatus and
installations existing for common use;
(v) All pipes, wires, ducts, flues,
chutes, conduits, public utility lines (to the outlets) and
structural components including beams and sheer walls running
through a Unit or serving, or extending into, the general
common elements, or any part thereof;
(vi) Toilet and washroom areas designated
on the Map as "General Common Element Restrooms" shall be
common elements, but their use may be restricted from time
to time (as in the case of Limited Common Elements) to the
exclusive use by owners, occupants and invitees of units
located on the same floor without impairing their character
as General Common Elements for all other purposes. "General
Common Element Mechanical" spaces designated on the Map
between ceiling surfaces of each floor or level and floor
surfaces on the next higher floor or level, and similarly
designated vertical spaces within the main walls of the
building and wall interspaces within walls or proposed walls
shown on the Map as dividing units expressly so designated
or other spaces within the Building are General Common
Elements for the exclusive purpose of installation, use,
repair, maintenance of or connection to mechanical, electrical,
plumbing, sprinkling, telephone, telegraph, wiring and
similar apparatus as may be reasonably required either for
the convenient use of occupation of a unit, or for the
convenient use and occupation of the common elements, insofar
as the same may be accomplished without damage to or unau-
thorized encroachment upon the air space within a Unit;
(vii) All other parts of the property and
improvements necessary or convenient to its existence,
maintenance, and safety, or normally in common use.
(k) "Limited Common Element" and "Future
Limited Common Element Easements" mean those parts of the
General Common Elements which are reserved in accordance
with the terms hereof for the exclusive use of the owner(s)
of one or more, but less than all, units and which are or
may hereafter be designated on the Map.
(1) "Future Limited Common Element Easements"
means the following easements, which shall be Limited Common
Elements, when and if they come into being in the future,
upon the happening of specified "Conditions of Installation"
as hereinafter defined by the installation of proposed
walls, doors and apertures defining the area thereof. Until
the occurrence of conditions of installation and the instal-
lation thereof, such Future Limited Common Element Easements
may be used for any permitted purpose by owners of Units
adjacent thereto. Without limiting the generality of the
foregoing, said Future Limited Common Element Easements
means and includes the following:
exclusive use and
Units
exclusive use and
Units
(i) "Access Hall
enjoyment of which
(ii) "Access Hall
enjoyment of which
2a-Second Floor" the
shall be limited to
2b-Second Floor" the
shall be limited to
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(m) "Proposed Wall," "Proposed Door," "Pro-
posed Aperture" means walls, doors in walls or proposed
walls and apertures in walls or proposed walls which were
not initially installed, althouqh the installation of which
is hereby allowed, authorized and required upon, and subject
to the "conditions of installation," as hereinafter defined.
Such proposed walls are depicted on the Map by a double
dashed line indicating the course of the proposed wall.
Proposed walls defining the boundaries of the proposed
Access Halls A -Second Floor, B-Second Floor and C-Second
Floor are depicted on the Map by a single dashed line indi-
cating the centerline of the proposed walls. Where the
boundaries of an air space Unit or general common element or
limited common element or easement are defined by proposed
walls, such air space shall be defined by the proposed
interior surface of the proposed wall according to said
dimensional notes. Proposed doors and apertures shall be
installed when the proposed walls containing such doors and
apertures are constructed.
(n) "Conditions of Installation" means the
conditions under which proposed walls, doors and apertures
shall be constructed for the purpose of enclosing air space
not initially enclosed but designated to be subsequently
enclosed, to define Units, or common elements or to cause a
Limited Common Element Easement (Future Limited Common
Element Easement) to arise and come into being and posses-
sion to be carved out of, over, across and within Units as
initially enclosed, such conditions of installation being as
follows:
(i) The right to install proposed
walls, doors and apertures, so as to cause the present use,
occupation or enjoyment of a Future Limited Common Element
Easement to arise, vest and come into possession of the
owners and Units to which it is appurtenant shall not extend
or run heyond the period specified in Paragraph 32(e).
(ii) Installation shall comply with the
provisions of Paragraphs 12(j) and 12(k).
(iii) Upon installation, the definitions
contained in this declaration shall apply to such improvements.
(iv) The Association shall have the
right and duty to construct the proposed installation upon
occurrence of the conditions authorizing the same where the
Board of Directors deems appropriate to assure compatibility
thereof with aesthetic considerations, or where Unit Owners
specified as beneficiaries of easements to be created thereby
are unable to agree as to any matter necessary for the said
owners to assume and complete construction of the same
expeditiously. In such event, the Association shall speci-
fically assess the costs of construction to the Units named
as beneficiaries of easements to be created thereby in the
ratio of the respective interest of each in the undivided
ownership of the General Common Elements.
(v) Second Floor Proposed Wall A shall
be installed on the demand of all owners of Units
(vi) Second Floor Proposed Wall B shall
be installed on the demand of all owners of Units
(o) "Common Expenses" means and includes:
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(i) Expenses declared common expenses
by provisions of this Declaration and the By -Laws of the
Association;
(ii) Expenses of administration, opera-
tion, and management, maintenance, repair, replacement or
improvement of the General Common Elements;
(iii) All sums properly assessed against
the General Common Elements by the Association; and,
(iv) Expenses agreed upon as common
expenses by the members of the Association in accordance
with the terms and provisions hereof.
(p) "Association" means a non-profit 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 shall be all of the owners of the Units. The name of
such corporation shall be the Epicure Plaza Condominium
Association, Inc., or a similar name.
(q) "Board" means the Board of Directors of
the Association.
(r) "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 buildings with
respect to the boundaries of the property, together with a
diagrammatic floor plan of the building showing the 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 Map, and any necessary supplements
thereto, shall be filed for record in the Pitkin County,
Colorado, real property records.
2. Division of Property Into Condominium Units.
The real property hereinabove described is hereby divided
into the following fee simple estates: twenty-one (21)
separately designated condominium units and the undivided
interest in and to the General Common Elements appurtenant
to each such unit, as is set forth in Exhibit A attached
hereto.
3. Combination of Units. Declarant hereby reserves
the right for itself, its successors and assigns, to physically
combine the area or space of a unit with the area or space
of one or more adjoining units, and the aggregate of the
undivided interests in and to the General Common Elements
appurtenant to such combined units shall be appurtenant to
one enlarged unit which shall result from such combination.
Any such combined units may subsequently be separated into
units in conformance with the Map, provided that all expenses
of combining or separating any adjoining units shall be
borne only by the owners of said units and such construction
work shall be accomplished in compliance with the provisions
of Subparagraphs (j) and (k) of Paragraph 12 hereof.
4.- Limited Common Elements. Areas designated on
the Map as Limited Common Elements for the benefit of a Unit
shall be reserved exclusively for the benefit of the owners
of such unit, and their officers, directors, agents, employees,
members, guests, invitees, and licensees, as provided herein,
to the exclusion of all other unit owners, except by invita-
tion, and the same need not adjoin the said unit for the
benefit of which it exists.
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5. Inseparability of a Condominium Unit. Except
as provided in Paragraph 3 hereof respecting the modifica-
tion of percentage interests by virtue of combination and
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
owner shall 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 ownership in the
General Common Elements as set forth in Exhibit A shall,
except as otherwise provided in the case of combination and
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 and mortgages. Fach unit and the undivided interest
in the General Common Elements appurtenant thereto shall
together comprise one unit which shall be inseparable and
nonpartitionable, and may be conveyed, leased, devised or
encumbered only as a complete unit and subject to the terms,
conditions, and obligations hereof. F,very gift, devise,
bequest, transfer, encumbrance, or conveyance of a unit
shall include only the entire unit, together with all appur-
tenant rights created by law or by this Declaration.
6. Mon-Partitionability of General Common Elements.
of the owners of the units and shall remain undivided, and
no owner may bring any action for partition or division of
the General Common Elements.
7. Description of Condominium Unit. Every deed,
lease, mortgage, trust deed, will or other instrument purport-
ing to convey an interest therein may legally describe a
unit by its identifying unit number and symbol followed by
the words "Epicure Plaza" with further reference to the Map
thereof filed for record and the recorded Declaration.
Every such description shall be deemed good and sufficient
for all purposes, and shall be deemed to convey, transfer,
encumber or otherwise affect not only the unit but also the
General Common Elements and the Limited Common Elements
appurtenant thereto. Each such description shall be con-
strued to include, subject to all of the terms and provisions
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.
8. Encroachments and Easements.
(a) In the event that by reason of the con-
struction, reconstruction, settlement, or shifting of the
building, or the design or construction of any unit, proposed
wall, door or aperture, and any part of the General Common
Elements encroaches or shall hereafter encroach upon any
part of any such unit, proposed wall, door or aperture when
installed, or any part of any thereof encroaches or shall
hereafter encroach upon any part of the General Common
Elements, or any portion of any thereof encroaches upon any
part of any other unit, valid easements for such encroachment
and the maintenance thereof are hereby established and shall
exist for the benefit of such unit, wall, door or aperture
and the General Common Elements so encroaching so long as
all or any part of the building shall remain standing;
provided, however, that in no event shall a valid easement
for any encroachment be created in favor of the owner of any
such unit, wall, door, aperture or in favor of the owners of
the General Common Elements if such encroachment occurred
due to the willful conduct of said owner or owners. Such
encroachments and easements shall not be considered or
determined to be encumbrances either on the General Common
Elements or the units.
(b) Easements are hereby declared and granted
•
for utility purposes, including the right to install, lay,
maintain, repair, and replace water mains and pipes, sewer
lines, gas mains, television cables and antennae, telephone
wires and equipment, and electrical 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 to and running with the
land, and shall inure to the benefit of and be binding on
the undersigned, its successors and assigns, and any owner,
purchaser, morgagee, and other person having an interest in
said land, or any part or portion thereof.
(d) Reference in the respective deeds of
conveyance, or in any mortgage or trust deed or other evidence
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 were recited fully and set
forth in their entirety in such documents; provided, however,
that each such deed, mortgage, trust deed or other evidence
of obligation shall be deemed to create and reserve such
easements and rights as aforesaid notwithstanding the absence
therein of any reference thereto.
9. Separate Assessment and Taxation --Notice
to Assessor. Declarant shall give written notice to the
Assessor of the County of Pitkin, Colorado, of the creation
of condominium subdivision of the property 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 appurtenant thereto shall be separately assessed
thereafter for all taxes, assessments, and other charges of
the State of Colorado or of any political subdivision or of
any special improvement district or of any other taxing or
assessing authority. In the event that for any period of
time, any taxes, assessments or other charges of any taxing
or assessing 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 accordance with that owner's respective percentage 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. Use of General and Limited Common Elements.
Each owner shall be entitled to exclusive ownership and
possession of that owner's unit. Each owner may use the
General and Limited Common Elements subject to the terms and
provisions of this Declaration in accordance with the pur-
pose for which they are intended, without hindering or
encroaching upon the lawful rights of the other owners.
12. Use and Occupancy.
(a) Each unit may be used and occupied for
such business and professional purpose or purposes as may be
lawful and allowable under applicable laws, ordinances or
the rules of any lawful public authority including conditions
imposed upon the project by the City of Aspen at the time of
governmental approval thereof, provided, however, that no
unit may be used for any of the following purposes: dry
cleaning shop, laundromat, shoe repair shop, paint store,
hardware store, food market, butcher shop, fish market,
pet shop, or theater.
(b) No "For Sale" or "For Rent" signs,
advertising or other displays shall be maintained or permit-
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ted on any part of the property except at such location and
in such form as shall be approved in writing by the Board or
the Managing Agent. The right is reserved by the Declarant,
or its agent or agents, to place "For Sale" or "For Rent"
signs on any unsold or unoccupied units owned by it, and on
any part of the General Common Elements with respect to the
availability of such units 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 necessary in connection with
the construction or sale of the building or any unit. The
Declarant shall have the right to use any unsold unit or
units as a model or for sales or display purposes.
(c) Each business establishment operated in
a unit or any part thereof shall be entitled to place one
sign of reasonable size and in a dignified manner containing
the business name of such establishment upon the entrance
door of such establishment, or at such other place as shall
be permitted by the Board of Directors or Managing Agent.
Additional signs may be placed only as permitted by the
Board of Directors which permission may be granted or with-
held in the sole discretion of the Board of Directors.
(d) There shall be no obstruction of the
General Common Elements nor shall anything be stored in the
General Common Elements without the prior consent of the
Board of Directors except as herein expressly provided. For
purposes of maintenance, repair, alteration, and remodeling
an owner of a unit shall be deemed to own the interior
non -supporting walls and the materials therein (such as, but
not limited to, plaster, drywall, paneling, wallpaper,
paint, wall and floor tile).
(e) Each unit owner shall be obligated to
maintain and keep that owner's own unit, its windows and
doors, including exterior and interior surfaces thereof_, and
the Limited Common Element or Elements 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 subject to the rules and regulations
of the Board of Directors.
(f) Nothing shall be done or kept in any
unit or in or upon the General Common Elements which will
increase the rate of insurance on the building, or contents
thereof without the prior written consent of the Board of
Directors. Any permitted increase in the rate of insurance
shall be borne and paid solely by the owner of the unit
which caused said increase. No owner shall permit anything
to be done or kept in that owner's unit or in or upon the
General Common Elements which will result in the cancellation
of or increase premiums of insurance on the building, or
contents thereof, or which would be in violation of any
law. No waste shall be committed in the General Common
Elements.
(g) Owners shall not cause or permit anything
to be hung or displayed on the outside of windows or placed
on the outside walls of the building and no sign or lettering,
awning, canopy, or radio or television antenna shall be
affixed to or placed upon the windows, exterior walls or
roof or any part thereof, without the prior written consent
of the Board of Directors.
(h) No household pets, animals, livestock or
fowl of any kind shall be raised, bred, or regularly kept in
any unit or in the General Common Elements, unless the Board
of Directors, by rule or regulations, provides otherwise.
me
•
(i) No noxious or offensive activity shall
be carried on in any unit or in the General Common Elements,
nor shall anything be done therein, either willfully or
negligently, which may be or become an annoyance or nuisance
to the other owners or occupants.
(j) Nothing shall he done in any unit or in,
on or to the General Common Elements which will impair the
structural integrity of the building or which would struc-
turally change the building, except as otherwise provided
herein, nor shall anything be altered or constructed in or
be removed from the General Common Elements except as other-
wise herein provided or otherwise permitted in writing by
the Board of Directors.
(k) The owner of any unit shall be permitted
to construct, improve, change, or alter such unit (and any
portion of the General Common Elements contiguous to, and
serving exclusively, such unit, if the same is not visible
on the exterior of the building) in any manner, provided
that:
(i) The structural integrity of the
building will not thereby be impaired;
(ii) The common assessments payable by
the other unit owners hereunder are not increased directly
or indirectly as the result of such construction, improvement,
change or alteration;
(iii) Such work will be done at the sole
cost and expense of owners benefitting and in full compliance
with all applicable laws, ordinances and regulations and the
provisions of the Declaration; provided that in the event of
a dispute with regard thereto, such work shall he done by
the Association, and the costs thereof specially assessed in
an equitable manner (in proportion to the benefits bestowed)
to the units benefitting therefrom.
(iv) The boundaries of such unit, as
shown on the Condominium Map, will not thereby be changed or
altered; and,
(v) Such owner shall indemnify all
other owners of units from any and all claims, liens, liabil-
ities, suits or demands whatsoever relating to or arising
out of such work (except insofar as any claim is waived and
released as provided in Subparagraph (n) of of this Paragraph
12.
(1) No clothes, sheets, blankets, laundry of
any kind or other articles or merchandise 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.
(m) There shall be no lounging furniture,
bicycles, wagons, vehicles, benches, chairs, skis or sporting
equipment, tethered dogs or cats, or other personal property
on any part of the General Common Elements except in spaces
expressly provided therefor without the prior consent of,
and subject to the regulations of, the Board of Directors.
(n) Each owner hereby waives and releases
any and all claims which that owner may have against any
other owner, the Association, the officers, and members of
the Board of Directors, the Declarant, the Managing Agent,
and their respective officers, employees, and agents, without
limiting the generality of Subparagraph (g) of paragraph 14
below, for damages to the General Common Elements, the
units, or to any personal property located in the units or
General Common Elements, caused by fire or other form of
casualty which is fully covered by insurance.
asL
(o) If, due to the act or neglect of an
owner, or of a member of an owner's family or of a truest,
tenant, licensee or invitee, or other authorized occupant or
visitor of such owner, damage shall be caused to the General
Common Elements or to a unit or units owned by others,
including but not limited to any furnace or utility room,
heating equipment, pipes, ducts, apparatus or other equipment,
or maintenance, repairs or replacements shall be required
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
Directors to the extent not covered by insurance. Neither
the failure of the Board of Directors to require such payment,
nor any disagreement regarding the extent of payment required
pursuant to the Board's determination hereunder, shall give
rise to any claim or cause of action against the Board or
its members by any person, provided that nothing contained
in this Subparagraph (o) shall prohibit a unit owner from
exercising any rights or remedies provided by law as against
any person causing any damage to his unit.
(p) No owner shall overload the electric
wiring in the building, or unreasonably contribute to such
overload, or operate any machines, appliances, accessories
or equipment in such manner as to cause, in the judgment of
the Board of Directors a hazard to the safety of owners and
occupants of and invitees upon the Condominium Project.
13. Temination of mechanic's Lien Rights and
Indemnification. Susequent to the completing of the
improvements described on the Condominium Map, no labor
performed or materials 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 .filing of a lien against the unit of
any other owner not expressly consenting to or requesting
the same, or against the General Common Elements. Each
owner shall indemnify and hold harmless each of the other
owners from and against all claims and liability arising
from the claim of any lien against the unit of any other
owner or against the General Common Plements 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
Directors as are set forth in Paragraph 15.
14. Administration and Management.
(a) The administration and management of
this condominium property shall be governed by the Articles
of Incorporation and By -Laws of the Association. Each unit
owner shall be a member of such Association, which membership
shall terminate upon the sale or other disposition by such
member of the fee interest in that member's unit, at which
time the new unit owner shall automatically become a member
hereof.
(b) The Articles of Incorporation and By -Laws
of the Association shall not contain any terms or provisions
inconsistent with this Declaration and any such terms or
provisions which may be inconsistent with this Declaration
shall be null and void and of no force and effect.
(c) The Association shall be _governed by a
Board of Directors as is provided in the By -Laws of the
Association. The Association shall have the power to engage
the services of a manager or managing agent, herein referred
to as the "Hanaging Agent," who may be any person, firm or
corporation selected by the Board of directors upon such
terms and compensation as the Board of Directors deems fit,
and to deleqate to such manager or managinq agent any of its
duties, powers, and functions.
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(d) The Board of Directors shall consist of
five persons who shall be elected in the manner provided in
the By -Laws of the Association.
(e) If any unit is owned by more than one
person, the voting rights with respect to such unit shall
not be divided, but shall he exercised as if the unit owners
consisted of only one person in accordance with the proxy or
other designation made'by the persons constituting each unit
owner.
(f) The Board of Directors may, from time to
time, adopt or amend such reasonable rules and regulations
governing the operation, maintenance, beautification and use
of the General Common Elements and the units, not inconsistent
with the terms of this Declaration, as it seems fit, and the
owners shall conform to, and abide by, such reasonable rules
and regulations. Written notice of such rules and regulations
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 Directors
and the officers and employees of the Association shall not
be liable to the owners for any mistake of judgment, or any
acts or omissions made in good faith as such members, officers
or employees. The owners shall indemnify and hold harmless
each of such persons against all contractual liability to
others arising out of contracts made by such person on
behalf of the owners unless any such contract shall have
been made in bad faith or contrary to the express provisions
of this Declaration. The liability of any owner arising out
of any contract made by such persons or out of the aforesaid
indemnity shall be limited to such proportion of the total
liability thereunder as that owner's percentage interest in
the General Common Elements. Each agreement for which
indemnity is provided hereunder made by such persons shall
have been executed by such persons expressly as agents for
the Association.
(h) In the event of any dispute or disagree-
ment between any owners relating to the property, or any
question of interpretation or application of the provisions
of this Declaration or any other agreement affecting the
project or the Association including the extent and exercise
of voting rights by a unit owner or owners, the determination
thereof by the Board of Directors shall be final and binding
on each and all of such owners. The foregoing shall not
apply in cases where arbitration is expressly designated as
the procedure for resolution of the dispute.
15. Reservation for Access - Maintenance, Repair
and Emergencies. The owners shall have the irrevocable
right, to be exercised by the Managing Agent or Board of
Directors to have access to each unit from time to time
during such reasonable hours as may be necessary for the
inspection, painting, maintenance, repair, reconstruction,
or replacement of any of the General Common Elements therein
or accessible therefrom, or at any time for making emergency
repairs therein necessary to prevent damage to the General
Common Elements or to another unit or units, or to investigate
any indication that such repairs may be necessary or desir-
able, or when such access is reasonably calculated to protect
the health, safety or property of any owner or occupant.
Damages to the interior or any part of a unit
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 within another unit at the instance of. the Associa-
tion shall be a common expense of all of the owners, subject,
however, to the provisions of Subparagraph (o) of Paragraph
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12 hereof. Restoration of the damaged improvements shall be
substantially the same as the condition of such improvements
prior to the damage.
Subject to the provisions of Subparaqraph (o)
of Paragraph 12 hereof, and except as herein otherwise
specifically provided, all maintenance, repairs, reconstruc-
tion and replacements 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 Declarant, by
the acceptance of a deed of conveyance, accepts the same
subject to all terms, provisions, easements, restrictions,
conditions, covenants, reservations, liens and charges, and
the jurisdiction, rights, and powers created or reserved by
this Declaration and the Articles of Incorporation and
By -Laws of the Association, and the provisions of the Colorado
Condominium Ownership Act, as at any time amended, and all
easements, riahts, benefits and privileges of every character
hereby granted, created, reserved or declared, and all
impositions 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 manner as though the provisions of this Declaration
were recited and stipulated at length in each and every deed
of conveyance.
17. Insurance.
(a) The Board of Directors or the Managing
Agent on behalf of the Board, shall obtain and maintain at
all times the following insurance coverage provided by
companies duly authorized to do business in Colorado:
(i) Insurance for the property against
loss or damage by fire and such other hazards as are covered
under standard extended coverage, vandalism and malicious
mischief endorsements for the full insurable replacement
cost of the common elements and the units and such other
casualty insurance as the Board of Directors deems advisable
for the protection of the General Common Elements and the
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 percentages established in
Exhibit "A" hereto. Each owner, other than the Declarant,
shall notify the Managing Agent or the Board of Directors in
writing of any additions, alterations, or improvements to
that owner's unit and that owner shall be responsible for
any deficiency in any insurance loss recovery resulting from
that owner's failure so to notify the Managing Accent or the
Board of Directors. The Board of Directors or the Managing
Agent shall use reasonable efforts to obtain insurance on
any such additions, alterations or improvements if such
owner requests it to do so and if such owner shall make
arrangement satisfactory to the Managing Agent or the Board
of Directors for reimbursement by such owner for any additional
premiums attributable thereto; and in the absence of insurance
on such additions, alterations or improvements, the Board of
Directors shall not be obligated to apply any insurance
proceeds to restore the affected unit to a condition better
than the condition existing prior to the making of such
additions, alterations or improvements. All such policies
of insurance shall insure additions, alterations or improve-
ments made by the Declarant. All such policies of insurance
shall contain standard mortgage clause endorsement in favor
of the mortgagee or trust deed holder of each unit and that
such policy shall not be terminated, cancelled or substan-
tially modified without at least twenty (20) days' prior
written notice to the mortgagee of each unit and to each
owner.
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(ii) Comprehensive public liability and
property damage insurance in such limits as the Board of
Directors shall deem desirable insuring the Association, the
members of the Board of Directors, the Managing Agent, and
their respective officers, agents and employees, and the
owners from any liability in connection with any act or
omission performed by any such person directly or indirectly
pursuant to the provisions of. this Declaration and with the
General Common Elements.
(iii) workmen's compensation insurance
and employer's liability insurance as may be necessary to
comply with applicable laws, and such other forms of insur-
ance as the Board of Directors shall elect to effect.
(b) Except as otherwise provided in this
Declaration, premiums for all insurance obtained or main-
tained by the Board of Directors shall be common expenses.
(c) The Board of Directors may (but shall
not be required to), in its sole discretion, secure insurance
policies that will provide for one or more of the following:
(i) With respect to the insurance
provided for in (a)(ii) of this Subparagraph, for coverage
of cross liability claims of one insured against another;
(ii) with respect to the insurance
provided for in (a)(i) of this Subparagraph, a waiver of
subrogation by the insurer as to any claims against the
Association, the Managing Agent, the owners and their respec-
tive agents, officers, employees, licensees, and invitees;
(iii) With respect to the insurance
provided for in (a)(i) of this Subparagraph, that the policy
cannot be cancelled, invalidated or suspended on account of
the conduct of any one or more individual owners, or on
account of the conduct of any officer or employee of the
Association or Managing Agent without, in the latter case, a
prior demand in writing that the Association or Managing
Agent cure the defect;
(iv) With respect to the insurance
provided for in (a)(i) of this Subparagraph, that the insurer
shall not have the option to restore the premises, if the
property is sold as provided in paragraph 23(c) hereof;
(v) with respect to the insurance
provided for in (a)(i) of this Subparagraph, that any "no
other insurance" clause in such policy exclude policies of
insurance maintained by any owner or his mortgagee from
consideration and that no such insurance policy coverage
under (a)(i) of this Subparagraph be brought into contri-
bution 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
Subparagraph) is furnished;
(ii) No such insurance may be maintained
which would adversely affect or invalidate any insurance (or
any recovery thereunder) carried by the Board of Directors
or decrease the amount which the Board of Directors would
realize under any insurance policy the Board of Directors is
maintaining; and
(iii) Such insurance policy shall contain
a waiver of subrogation as to claims against the Association,
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the Managing Agent, the owners and their respective agents,
officers, employees, licensees and invitees.
(e) The Board of Directors 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 Directors for the purpose of receiving_ and
disbursing the insurance proceeds under any policy provided
for in (a)(i) of this paragraph and resulting from any loss,
upon such terms as the Board of Directors shall determine
consistent 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 Directors shall
engage an institutional trustee as aforesaid upon the written
demand of the mortgagee or owner of any unit so destroyed.
The fees of such institutional trustee shall be common
expenses.
(f) Insurance coverage 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 individual unit shall be the responsibility of the
owner thereof.
18. Repairs, Maintenance, Replacements, Additions
Alterations, and Improvements of the Common Elements. There
shall be no alterations, additions to, or improvements on,
the Limited or General Common Elements (other than for
purposes of replacing or restoring portions thereof) requiring
an expenditure in excess of Five Thousand Dollars ($5,000.00)
without the prior approval by affirmative vote of seventy-five
percent (75%) of the entire undivided ownership of the
General Common Elements. There shall be no such required
approval of or limitation upon expenditures required for the
repair, maintenance and replacement of such General Common
Elements.
19. Assessment for Common Expenses.
(a) Declarant, for each unit owned by it,
and for and as the owner of the property and every part
thereof, hereby covenants, and each owner of any unit by the
acceptance of a deed therefor, whether or not'it he 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 made by the Association
for the purposes provided in this Declaration, and special
assessments for capital improvements and other matters as
Provided in this Declaration. Such assessments shall be
fixed, established, and collected from time to time in the
manner provided in this Article, and by the Articles of
Incorporation and By -Laws of the Association.
(b) The total quarterly assessments against
all units shall he based upon advance estimates of cash
requirements by the Association to provide for the payment
of all estimated expenses growing out of or connected with
the maintenance and operation of the General Common Elements
or furnishing such utility services as shall not be separately
furnished and metered to the units, which estimates may
include, among other things: taxes and special assessments,
until the units are separately assessed as provided herein;
premiums for all insurance which the Association is required
or permitted to maintain pursuant hereto, except such premiums
as are paid for by the Association for which direct reimburse-
ment is made by a unit owner or owners; common lighting and
heating and common water charges; trash collection; sewer
service charges; repairs and maintenance; wages for ASSoCia-
tion employees; legal and accounting fees; any deficit
remaining from a previous period; the creation of a reasonable
contingency reserve, surplus and/or sinking fund.; and any
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other expenses and .liabilities which may he incurred by the
Association for the benefit of the owners under or by reason
of this Declaration.
(c) At least once each year, the Board of
Directors 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 Directors 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 with reasonable itemization thereof. Said annual
budget shall be assessed to the unit owners according to
each unit owner's percentage of ownership in the General
Common Elements as set forth in Fxhibit "A", or as may be
modified in accordance with the provisions of this Declara-
tion. On or before January lst of the ensuing year, and on
or before the 1st days of April, July, and October of said
year, each owner shall be obligated to pay to the Board of
Directors or to the Managing Agent, 1/4th of the assessment
made pursuant to this paragraph. On or before the 1st day
of March of each calendar year commencing 1982, the Board of
Directors or Managing Agent shall supply to all unit owners
an itemized accounting of the common expenses for the preceding
calendar year actually incurred and paid together with a
tabulation of the amounts collected pursuant to the estimates
provided, and showing the net amount over or short of the
actual expenditures plus reserves. Any amount accumulated
in excess of the amount required for actual expenses and
reserves shall be credited according to each owner's percen-
tage of ownership in the General Common Elements to the next
quarterly installments due from owners under the current
year's estimate, until exhausted, and any net shortage shall
be added according to each unit owner's percentage of owner-
ship in the General Common Elements to the next two install-
ments due after rendering of the accounting. The Board of
Directors shall build up and maintain a reasonable reserve
for contingencies and replacements. Extraordinary expendi-
tures not originally included in the annual budget which may
become necessary during the year shall be charged first
against such reserve. If said annual budget provides inade-
quate for any reason, including non-payment of any owner's
regular or special assessment, the Board of Directors may at
any time levy a further assessment, which shall be assessed
to the unit owners according to each unit owner's percentage
of ownership in the General Common Elements. The Board of
Directors or Managing Agent shall serve notice of such
further assessment on all unit owners by a statement in
writing giving the amount and reasons therefor, and such
further assessment shall become effective with the next
quarterly payment which is due more than ten 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 of the Board of Directors to
prepare or serve the annual or adjusted budget on the owners
shall not constitute a waiver or release in any manner of
the owner's obligation to pay the maintenance and other
costs and necessary reserves, as herein provided, whenever
the same shall be determined, and in the absence of any
annual budget or adjusted budget, the owners shall continue
to pay the quarterly assessment charges at the then existing
quarterly rate established for the previous period until the
next quarterly assessment payment which is due more than ten
days after such new annual or adjusted budget shall have
been mailed or delivered.
5_46'fl
''he Board of Director (or the Panaging
Agent acting for and on behalf of the Board of Directors)
shall deliver copies of the budget, and accurate books and
records of receipt, expenditures, assets, and liabilities of
the Association, and the obligations 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 special
assessments as may be levied hereunder against less than all
the unit owners and for such adjustments 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
hereunder.
(e) Until such time as the Board of Directors
shall have provided its first annual budget to the owners,
or for such other period as the Board of Directors determines,
the Board of Directors shall have the right to assess the
common expenses, as hereinabove provided, on a quarterly
basis and all owners shall pay such quarterly assessments as
advised by the Board or Managinq Agent.
(f) The following expenses or charges incur-
red by the Hoard of Directors (and/or unit owners) shall be
specially assessed to the individual owner_ to which such
expense or charge is applicable (in addition to any other
costs, charges or expenses which by law or the terms of this
Declaration are payable by an individual owner):
(i) The amount by which any premium for
insurance maintained by the Board of Directors and/or unit
owner is increased as a result of any business or other
activity or act of such owner, or of any quest, invitee,
licensee or tenant of such owner, or the amount of any
premium on new insurance which is purchased by the Board of
Directors solely as a result of any business or other acti-
vity or act of such owner, or of any quest, invitee, licen-
see or tenant of such owner. The written statement of the
insurance carrier to the effect that a specific increase is
attributable to such business or other activity shall be
conclusive as to such increase and the amount thereof. If
such increased premium or new insurance premium is necessi-
tated by the usual and customary business activity carried
on in accordance with the terms of this Declaration in any
commercial or professional unit, then, upon the payment of
such amount by the owner of such commercial or professional
unit, such owner shall not be deemed in violation of the
terms or provisions of this Declaration.
(ii) The monthly or other fee or compen-
sation and any other cost or sum which the Board of Directors
or Association is obligated to pay to the Hanaging Agent
with respect to a unit under the terms of any agreement with
such Managing Agent.
(g) In addition to the remedies or liens
provided by law, or by this Declaration, if an owner is in
default in the quarterly payment of any aforesaid charge or
assessment for twenty days, the Board of Directors may bring
suit for and on behalf of the Association and as representa-
tive of all owners, to enfore collection thereof or to
foreclose the lien therefor as provided by law or by this
Declaration; and there shall be added to the amount due the
collection costs of said suit, including all court costs,
together with interest at the rate of 18% per annum from the
due date thereof, plus a late charge of $50.00 and reasonable
attorney's fees. No owner may waive or otherwise escape
Ois:S
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liability for the assessments or other charcxes provided for
hereby by non-use of the General Common 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.
20. Lien for Non -Payment of Common Expenses and
Other Obligations. All sums assessed but unpaid for the
share of common expenses chargeable to any unit and all sums
specially assessed hereunder to any unit, but unpaid, and
any and all other sums due to the Association and unpaid by
a unit owner under the terms of this Declaration, shall
constitute a lien on such unit superior to all other liens
and encumbrances, except only for:
(a) Tax and special assessment liens on the
unit in favor of any lawful governmental assessing authority,
and,
(b) All sums unpaid on any first mortgage or
first deed of trust of record in Pitkin County, Colorado,
including all unpaid obligatory advances to be made pursuant
to such encumbrances. All other or junior lienors acquiring
liens on any unit after this Declaration shall have been
recorded in said records shall be deemed to consent that
such liens shall be inferior to future liens for assessments,
as provided herein, whether or not such consent be specifically
set forth in the instruments creating such liens.
To evidence such lien, the Board of Directors
or Managing Agent shall prepare a written notice setting
forth the amount of such unpaid indebtedness, the general
nature of the indebtedness, the name of the owner of the
unit and a description of the unit. Such a notice shall be
signed by a member of the Board of Directors or by the
Managing Agent and shall be recorded in the real property
records in the office of the Clerk and Recorder of Pitkin
County, Colorado. Such lien shall attach from the date of
the failure of payment. Such lien may be enforced by fore-
closure of the defaulting owner's unit by the Association in
like manner as a mortgage or deed of trust on real property
upon the recording of a notice or claim thereof. In any
such foreclosure proceedings, the owner shall be required to
pay the costs and expenses of such proceedings, the costs
and expenses for filing the notice or claim of lien and all
reasonable attorney's fees. The owner shall also be required
to pay to the Association the quarterly assessment(s) for
the condominium unit during the period of foreclosure, and
the Association shall he entitled to a Receiver to collect
the same. The Association shall have the power to participate
as a bidder at such foreclosure or other legal sale and to
acquire and hold, lease, mortgage, and convey the same, or
otherwise deal therewith.
Any encumbrancer holding a lien on a unit may
pay, but shall not be required to pay, any unpaid common
expenses or other assessments or charges payable with respect
to such unit, and upon such payment such encumbrancer shall
have a lien on such unit for the amounts paid of the same
rank as the lien which that encumbrancer would have had but
for such Association lien for unpaid common expenses and
assessments.
The Association shall report to any encumbrancer
of a unit any unpaid assessments remaining unpaid for longer
than sixty days after the same shall have become due; provided,
however, that such encumbrancer first shall have furnished
to the Association written notice of such encumbrance and a
current address for the delivery by mail of such notice.
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All sums
remain unpaid for thirty
date thereof shall bear
percent (18%) per annum
assessed for common expenses which
days from and after the clue
interest at the rate of eighteen
from and after such due date.
21. Liability for Common Expense and Other Charges
Upon Transfer of a Unit is Joint. Upon payment of a reasonable
fee not to exceed 525.00, and upon the written request of
any owner or any encumbrances or prospective 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 a written statement setting forth the amount of
the unpaid special assessments and common expenses, and
other charges due hereunder, if any, with respect to the
subject unit, the amount of the current quarterly assessments
and the date that such assessment becomes due, and credit
for any advanced payments of common assessments, which
statement shall be conclusive upon the Association in favor
of all persons who rely thereon in good faith. Unless such
request for a statement of indebtedness shall he complied
with within ten days after receipt thereof, all unpaid
common expenses and other charges due hereunder which become
due prior to the date of making such request shall be subor-
dinate to the lien, if any, of the person or entity request-
ing such statement.
The grantee of a unit shall he jointly and
severally liable with the grantor for all unpaid assessments
against the latter for that unit's proportionate share of
the common expenses and for the special assessments and
other charges due hereunder up to the time of the grant or
conveyance, without prejudice to the grantee's right to
recover from the grantor the amounts paid by the grantee
therefor; provided, however, that upon payment of a reasonble
fee not to exceed $25.00, and upon written request, any such
prospective grantee shall be entitled to a statement from
the Managing Agent or, if there is none, then by the finan-
cial officer of the Association setting forth the amount of
the unpaid quarterly and special assessments, and any other
charges due hereunder, if any, with respect to the subject
unit, the amount of the current quarterly assessment, the
date that such assessment becomes due, and credits for any
advanced payments, which statement shall be conclusive upon
the Association. Unless such request for such a statement
shall be complied with within ten 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 subject unit, but nothing herein shall serve to
relieve the grantor of personal responsibility therefor.
The provisions contained in this paragraph shall not apply
to the initial sales and conveyances of the units by Declar-
ant, and such sales shall be free from any liens for common
or special assessments to the date of conveyance thereof by
Declarant.
22. Mortgaging a Condominium Unit - Priority.
Any owner shall have the right from time to time to mortgage
or encumber that owner's interest by deed of trust, mortgage
or other security instrument. A first mortgage or deed of
trust shall be one which has first and paramount priority
under applicable law. The owner of a unit may create junior
encumbrances on the following conditions: (1) that any such
junior encumbrance shall always be subordinate to all of the
terms, conditions, covenants, restrictions, uses, limitations,
obligations, liens for common expenses, and other obligations
created by this Declaration, the Articles of Incorporation,
and the By -Laws of the Association; (2) that the mortgagee
under any junior mortgage shall .release, for the purpose of
restoration of any improvements upon the mortgaged premises,
all of that mortgagee's right, title, and interest in and to
the proceeds under all insurance policies upon said pre-
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0
Ll
miser, which insurance policies were effected and placed
upon the mortgaged premises by the Association. Such release
shall be furnished forthwith by a junior mortgagee upon
written request of one or more of the members of the Board
of Directors of the Association.
23. Association as Attorney -in -Fact, namage,
Destruction, Obsolescence and Sale. This Declaration does
hereby make mandatory the irrevocable appointment of an
attorney -in -fact to deal with the property upon its destruc-
tion or obsolescence. 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 provided. All of the owners irrevo-
cably constitute and appoint the Association their true and
lawful attorney in their name, place, and stead for the
purpose of dealing with the property upon its destruction or
obsolescence as is hereinafter provided. As attorney -in -fact,
the Association, by its president and secretary, shall have
full and complete authorization, right, and power to make,
execute, and deliver any contract, deed or any other instrument
with respect to the interest of an owner which may be necessary
and appropriate to exercise the powers herein granted.
Repair and reconstruction of the improvements as used in the
succeeding subparagraphs means restoring the same to substan-
tially the same condition in which it existed prior to the
damage, with each unit and the C;eneral and Limited Common
Elements having substantially the same vertical and horizontal
boundaries as before. The term "improvements" means any
improvements forming a part of the property, or any portion
thereof, including any unit. The proceeds of any insurance
collected shall be available to the Association for the
purpose of repair, restoration or replacements unless the
owners and all first mortgagees agree not to rebuild in
accordance with the provisions set forth hereinafter.
(a) In the event of damage or destruction
due to fire or other disaster, the insurance proceeds, if
sufficient to reconstruct the improvements, shall be applied
by the Association, as attorney -in -fact, to such reconstruc-
tion, and the improvements shall be promptly repaired and
reconstructed. The Association shall have full authority,
right, and power, as attorney -in -fact, to cause the repair
and restoration of the improvements.
(b) If the insurance proceeds are insufficient
to repair and reconstruct the improvements, or if for any
reason such proceeds are not payable, and if such damage
substantially affects not more than fifty percent (50%) of
the square foot area of the building, such damage or destruc-
tion shall be promptly repaired and reconstructed by the
Association, as attorney -in -fact, using the proceeds of
insurance, if any, and the proceeds of an assessment to be
made against all of the owners and their units. Such defi-
ciency assessment shall be a common expense and made pro
rata according to each owner's percentage interest in the
General Common Elements and shall be due and payable within
sixty days after written notice thereof. The Association
shall have full authority, right, and power, as attorney -in -fact,
to cause the repair or restoration of the improvements using
all of the insurance proceeds for such purpose notwithstanding
the failure of an owner to pay the assessment. The assessment
provided for herein shall be a debt of each owner and a lien
on each owner's unit and may be enforced and collected as is
provided in Paragraph 20. In addition, thereto, the Associa-
tion, 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 assessment within the time provided, and
if not so paid, the Association by and through its Board of
Directors shall cause to be recorded a written statement
that the unit of the delinquent owner_ shall be sold by the
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•
Association. The proceeds derived from the sale of such
unit shall he used and disbursed by the Association, as
attorney -in -fact, in the following order:
(1) For payment of taxes and special
assessments liens in favor of any assessing entity and
customary expenses of sale;
(2)' For payment of the balance of the
lien of any first mortgage;
(3) For payment of unpaid charges
including attorney's fees and costs of collection due here-
under and common expenses, including all sums due under the
terms of this Paragraph 23 .
(4) For payment of junior liens and
encumbrances in the order of and to the extent of their
priority; and,
(5) The balance remaining, if any,
shall be paid to the unit owner whose unit is sold.
(c) (i) If more than fifty percent (500) of
the square foot area of the building is destroyed or substan-
tially damaged, and if the owners representing an aggregate
ownership interest of seventy-five percent (750), or more,
of the General Common Elements, do not voluntarily, within
one hundred and eighty days thereafter, make provisions for
reconstruction in accordance with a written plan, which plan
must have the unanimous written approval or consent of every
first mortgagee, the Association shall forthwith record a
notice setting forth such fact or facts, and upon the recording
of such notice by the Association's president and secretary,
the entire remaining premises shall. be sold by the Association,
as attorney -in -fact for all of the owners, free and clear of
the provisions contained in this Declaration, the Condominium
Map, the Certificate of Incorporation, and the By -Laws. The
insurance settlement proceeds, if any, shall be collected by
the Association, and such proceeds shall. be divided by the
Association according to each oviner'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 name of
the Association, and shall be further identified by the unit
designation and the name of the owner. Thereafter, each
such account shall he 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 one account to
another, for the same purposes and in the same order as is
provided in Subparagraphs (b) (1) through (5) of this para-
graph. The provisions contained in this subparagraph shall
not hinder the protection given to the first mortgagee or
first deed of trust holder under a mortgage or deed of trust
endorsement.
(ii) If the owners representing an
aggregate ownership interest of seventy-five percent (75%),
or more, of the General Common Elements adopt a written plan
for reconstruction, which plan has the unanimous written
approval or consent of all first mortaagees, 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 he a common expense and shall be made pro rata accord-
ing to each owner's percentage interest in the general
common elements and shall be due and payable as provided by
the terms of such plan, but not sooner than sixty days
after written demand thereof. The Association shall have
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full authority, right, and power, as attorney -in -fact, to
cause the .repair or restoration of the improvements using
all of the insurance proceeds, if any, for such purpose
notwithstanding the failure of an owner to pay the assess-
ment. The assessment provided for herein shall he a debt of
each owner and a lien on that owner's unit and may be enforced
and collected as is provided in Paragraph 20. 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 assessment within the time
provided, and if not so paid, the Association shall cause to
be recorded a notice that the unit of the delinquent owner
shall be sold by the Association. The proceeds derived from
the sale of such unit shall be used and disbursed by the
Association, as attorney -in -fact, for the same purposes and
in the same order as is provided in subparagraphs (b) (1)
through (5) of this paragraph.
(d) The owners representing an aggregate
ownership interest of eighty-five percent (85%), or more, of
the General Common Elements may agree that the units are
obsolete and adopt a plan for the renewal and reconstruction
thereof, which plan must have the unanimous approval of all
first mortgagees. If a plan for the renewal and reconstruc-
tion is adopted, then the expense thereof shall be payable
by all of the owners as common expenses; provided, however,
that an owner not a party to (if_ not approving) such plan
for renewal and reconstruction may give written notice to
the Association within thirty days of adoption of such plan
that such unit shall he purchased by the Association for the
fair market value thereof. The Association shall then have
the option for fifteen days after the expiration of thirty
days from the adoption of such plan to cancel such plan. If
such plan is not cancelled, (by adoption of an appropriate
resolution by the Hoard of Directors) then the unit shall be
purchased according to the following procedures. If such
owner and the Association can timely agree on the fair
market value thereof, then such sale shall be consummated
within thirty days after the expiration of forty-five days
from the adoption of the plan. If_ the parties are unable to
agree, the date when either party notifies the other that
he, she or it is unable to agree with the other shall be the
"commencing date" from which all periods of time mentioned
herein shall be measured. Within ten days following the
commencing date, each party shall. nominate in writing (and
give notice of such nomination to the other_ party) a separate
appraiser who shall he a licensed Colorado real estate
broker and regular member of the Aspen Board of Realtors or
similar local organization. If either party fails to make
such a timely nomination, the appraiser nominated shall,
within five day.: after such failure to the other party,
appoint and associate with such appraiser another appraiser
(to be a regular member of the Aspen Board of Realtors or
similar .local organization). If the two appraisers desig-
nated by the parties, or selected pursuant hereto in the
event of the failure of one party to nominate an appraiser,
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 or similar local organization)
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 persons
(each of whom shall be a regular member of the Aspen Board
of Realtors or similar local organization), and from the
names of the four persons so nominated one shall be drawn by
lot by any judge of any court of record in Pitkin County,
Colorado, and the name so drawn shall be such umpire. The
nominations from whom the umpire is to be drawn by lot shall
be submitted within ten days of the .failure of the two
appraisers to agree, which, in any event, shall not be later
than twenty days following the appointment of the second
appraiser. The decision of the appraisers as to the fair
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market value, or in the caso of their disagreement, then
such decision of the umpire, shall be final and binding.
The expenses and fees of such appraisers shall be borne
equally by the Association and the owner. The sale shall be
consummated within fifteen days after the determination of
the fair market value, and the Association, as attorney -in -fact,
shall disburse such proceeds as is provided in Subparagraphs
(b) (1) through (5) of.this paragraph.
(e) The owners .representing an aggregate
ownership interest of ninety percent (90%) or more of the
General Common Flements may agree that the units are obsolete
and that the property should be sold. Such agreement must
have the unanimous approval of every first mortgagee. In
such instance, the Association by and through its Board of
Directors shall forthwith record a statement setting forth
such fact or facts, and upon the recording 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 owners, free and clear of the provisions
contained in this Declaration, the Condominium Map and the
Certificate of Incorporation, and By -Laws. The sales proceeds
shall be apportioned between the owners on the basis of each
owner's percentage interest in the General Common Elements,
and such apportioned proceeds shall be paid into separate
accounts, each such account representing one unit. Each
such account shall be in the name of the Association, and
shall be further identified by the unit designaton and the
name of the owner. From each separate account, the Associa-
tion, as attorney -in -fact, shall use and disburse the total
amount of each of such accounts without contribution from
one account to another, for the same purposes and in the
same order as is provided in subparagraphs (b) (1) through
(5) of this paragraph.
24. Acquisition of Property for Common Use. The
Association may acquire and hold for the use and benefit of
all of the owners, real, tangible and intangible personal
property and may dispose of the same by sale or otherwise,
and the beneficial interest in any such property shall be
owned by the owners in the same proportion as their respec-
tive interests in the General Common Elements and shall not
be transferable except with a transfer of a unit. A transfer
of a unit shall transfer to the transferee ownership of the
transferor's beneficial interest in such property without
any reference thereto. Each owner may use such property in
accordance with the purpose for which it is intended, without
hindering or encroaching upon the .lawful rights of the other
owners. The transfer of title to a unit under foreclosure
shall entitle the successor in title to the beneficial
interest in such property associated with the foreclosed
unit.
25. Registration by Owner of Mailinq Address.
Each owner shall register that owner's mailing address with
the 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,
demands or other writings intended to be served upon the
Board of Directors of the Association or the Association or
the Managing Agent shall be sent by certified mail, postage
prepaid, return receipt requested, to P.O. Box 9112, Aspen,
Colorado 81612, until such address is changed by a notice
of address change duly recorded in the office of the Clerk
and Recorder, Pitkin County, Colorado and mailed to each
owner. All notices, demands or other instruments intended
to be served upon the Declarant shall. be sent to it in the
same manner at P.O..Box 9112, Aspen, Colorado 81612, until
such address is changed by recorded notice. All notices
so mailed shall. be deemed to be given and received when
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•
deposited in the United States mails as aforesaid.
26. Period of Condominium Ownership. The separate
condominium estates created by this Declaration and the
Condominium Map shall continue until this Declaration is
revoked in the manner as is provided in Paragraph 27 of this
Declaration or until terminated in the manner and as is
provided in this Declaration.
27. Revocation. This Declaration shall not he
revoked unless all of the owners and all of the holders of
all recorded mortgages and/or deeds of trust covering or
affecting all of the units unanimously consent or agree in
writing to such revocation by instrument(s) duly recorded.
28. Compliance with Provisions of Declaration,
Articles of Incorporation, and By -Laws of the Association.
Each owner shall comply strictly with the provisions of this
Declaration, the Articles of Incorporation, and By -Laws of.
the Association, and the reasonable rules and regulations of
the Association, all as the same may be lawfully amended
from time to time.
The violation of any restriction or condition
or regulation adopted by the Board of Directors or the
breach of any covenant or provision herein contained, shall
give the Board of Directors (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 enter upon
the unit, or any portion of the property upon which, or as
to which, such violation or breach exists and to summarily
abate and remove, at the expense of the defaulting owner,
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 breach; or (c) to
recover sums due for damages. Such remedies shall be cumula-
tive and not exclusive of one another and shall be in addition
to any other remedies available to the Board of Directors 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, condi-
tions, covenants, and obligations of this Declaration or the
regulations adopted by the Board of Directors and such
violation shall not be cured within thirty days after notice
in writing from the Board of Directors or shall re -occur
more than once thereafter, then the Board of Directors shall
have the power to issue to the defaulting unit owner a ten
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 Directors against the
owner and/or occupants, or in the alternative a decree
declaring the termination of the defaulting owner on account
of the breach of covenant and ordering that all the right,
title, and interest of the owner in the property shall he
sold (subject to the lien of any existing mortgage) at a
judicial sale upon such notice and terms as the court shall
establish, except that the court shall enjoin and restrain
the defaulting owner from re -acquiring the defaulting owner's
interest or any part thereof at such judicial sale or by
virtue of the exercise of any right of redemption which may
be established. All written notices provided for in this par-
agraph pertaining to any unit shall also be mailed to each
mortgagee, trust deed beneficiary, or other lienor with an
interest in such unit as then reflected in the real property
records of Pitkin County, Colorado, and the same notice period
shall be applicable to each such mortgagee, trust deed bene-
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ficiary or lienor as is applicable to the owner of such
unit. Each such notice shall be sent by either registered
or certified mail, postage prepaid, addressed to the mailing
address of such mortgagee, trust deed beneficiary or lienor
as set forth in the recorded instrument evidencing such
encumbrance. The proceeds of any such judicial sale shall
first he paid to discharge court costs, court reporter
charges, reasonable attorney's fees, and all other expenses
of the proceeding and sale, and all such items shall be
taxed against the defaulting owner in said decree. Any
balance of proceeds after satisfaction of such charges shall
be applied and paid in the same order as is provided in
Subparagraphs (b) (1) through (5) of Paragraph 23. 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 the Board of Directors as provided herein, to
immediate possession of the unit sold and may apply to the
court for an appropriate writ of assistance for the purpose
of acquiring such possession, and it shall be a condition of
any such sale, and the decree shall so provide that the
purchaser shall take the interest in the property sold
subject to the terms, conditions, and obligations of this
Declaration, including obligations then accrued and unpaid,
if any.
29. Failure to Enforce. No terms, obligations,
covenants, conditions, restrictions or provisions imposed
hereby or contained herein shall he abrogated or waived by
any failure to enforce the same, no matter how many viola-
tions or breaches thereof may occur.
30. Amendments. 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 members of the Board of Directors
at least eighty-five percent (85%) of the owners and by all
mortgagees having bona fide liens of record against any
units. Any amendment, change or modification shall be
effective upon recordation thereof. No change, modification
or amendment which affects the rights, privileges or obliga-
tions of the Declarants shall be effective without their
written consent. No change, modification or amendment which
is in derogation of conditions imposed upon the improvement,
use and occupancy of 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.
31. Condemnation.
(a) This Declaration does hereby make manda-
tory the irrevocable appointment of an attorney -in -fact to
deal with the property upon its complete or partial condemna-
tion. 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 provided. All of the owners irrevocably constitute
and appoint the Association their true and lawful attorney
in their name, place and stead for the purpose of dealing
with the property upon its condemnation as is hereafter
provided. As attorney -in -.fact, the Association, by its
president and secretary, shall have full and complete author-
ization, right, and power to make, execute and deliver any
contract, deed or any other instrument with respect to the
interest of any owner which may be necessary and appropriate
to exercise the powers herein granted.
(h) In the event that all or any part of the
Condominium Project shall be taken or condemned by any
public authority or sold or otherwise disposed of in lieu of
or in avoidance thereof, all compensation, damages or other
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CJ
proceeds therefrom, the sum of which is hereinafter called
the "Condemnation Award" shall be payable to the Association
as attorney -in -fact, and the following provisions shall
apply.
(i) Complete Taking. In the event that
the entire Condominium Project is taken or condemned, or
sold or otherwise disposed of in lieu of or in avoidance
thereof, the Condominium Ownership hereunder shall terminate.
The Condemnation Award shall be apportioned between the
owners on the basis of each owner's percentage interest in
the General Common Elements, provided that if a standard
different from the value of the property as a whole is
employed to measure the Condemnation Award in the negotiation,
judicial decree, or otherwise, then in determining such
shares the same standard shall be employed to the extent it
is relevant and applicable. Such apportioned proceeds shall
be paid into separate accounts, each such account representing
one unit. Each such account shall be in the name of the
Association, and shall be further identified by the unit
designation and the name of the owner. From each separate
account, the Association, as attorney -in -fact, shall use and
disburse the total amount of each of such accounts without
contribution from one account to another, for the same
purposes and in the same order as is provided in subparagraphs
(b)(1) through (5) of Paragraph 23.
(ii) Partial Taking. In the event that
less than the entire Condominium Project is taken or condemned,
or sold or otherwise disposed of in lieu of or in avoidance
thereof, the Condominium Ownership hereunder shall not
terminate. Each owner shall be entitled to a share of the
Condemnation Award to be determined in the following manner:
as soon as is practicable, the Association shall, reasonably
and in good faith, allocate the Condemnation Award between
compensation, damages or other proceeds, and shall apportion
the amounts so allocated among the owners, as follows: (a)
the total amount allocated to taking of or injury to the
General Common Elements, (b) the total amount allocated to
severage damages shall be apportioned to those Condominium
Units which were not taken or condemned, (c) the respective
amounts allocated to the taking of or injury to a particular
Unit and/or improvements an Owner had made within his own
Unit shall be apportioned to the particular Unit involved,
and (d) the total amount allocated to consequential damages
and any other takings of injuries shall be apportioned as
the Association determines to be eQuitable in the circum-
stances. If an allocation of the Condemnation Award is
already established in negotiation, judicial decree or
otherwise, then in allocating the Condemnation Award the
Association shall employ such allocation to the extent it is
relevant and applicable. Such apportioned proceeds shall be
paid into separate accounts, each such account representing
one unit. Each such account shall he in the name of the
Association; and shall be further identified by the unit
designation and the name of the owner. From each separate
account, the Association as attorney -in -fact, shall use and
disburse the total amount of each of such accounts without
contribution from one account to another, for the same pur-
poses and in the same order as is provided in subparagraphs
(b)(1) through (5) of Paragraph 23.
(iii) Reorganization. In the event a
partial taking results in the taking of a complete unit, the
owner thereof automatically shall cease to be an owner under
this declaration.
(iv) Reconstruction and Repair. Any
reconstruction and repair necessitated by condemnation shall
be governed by the procedures specified in Paragraph 23
hereof.
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•
32. General.
(a) If any of the provisions of this Declar-
ation or any paragraph, 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, phrase or word in any other
circumstances shall not be affected thereby. All of the
terms hereof are hereby declared to be severable.
(b) The provisions of this Declaration shall
be in addition and supplemental to the Condominium Ownership
Act of the State of Colorado and to all other provisions of
law.
(c) Whenever used herein, unless the context
shall otherwise provide, the singular number shall include
the plural, the plural the singular, and the use of any
gender shall include all genders.
(d) The provisions of this Declaration shall
be liberally construed to effectuate its purpose of creating
a uniform and equitable plan for the development and operation
of a first-class professional office condominium project.
(e) If any of the options, privileges,
covenants or rights created by this Declaration shall be
unlawful or void for violation of. (a) the rule against
perpetuities or some analagous statutory provision, (b) the
rule restricting restraints on alienation, or (c) any other
statutory or common law rules imposing time limits, then
such provision shall continue only for the period of the
lives of John L. Wilbur of Honolulu, Hawaii, and J. Michael
Solheim of Aspen, Colorado, their now living descendants,
and the survivor of them, plus twenty-one years.
IN WITNESS WHEREOF, the Declarant has duly executed
this Declaration this day of , 1981.
STATE OF COLORADO
ss.
COUNTY OF PITKIN
THE EPICUREAN PARTNERSHIP,
a Colorado limited partnership
By
General Partner
The foregoing instrument was acknowledged before
me this day of , 1981, by ,
as General Partner of The Epicurean Partnership, a Colorado
limited partnership.
Witness my hand and official seal.
My commission expires:
Notary Public
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(Attached to Condominium Declaration
for Epicure Plaza)
The undivided interest in the General Common Elements appur-
tenant to units in the Epicure Plaza (a condominium) are as
follows:
Unit Numbers
D-1
101
102
103
104
105
106
107
108
201
202
203
204
205
206
207
208
209
301
302
303
Percentage Interest
TOTAL 100.00%
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Exhibit D
ARTICLES OF INCORPORATION
OF
EPICURE PLAZA CONDOMINIUM ASSOCIATION, INC.
The undersigned, acting as incorporator of a corpora-
tion under the Colorado Non -Profit Corporation Act, signs and
acknowledges the following Articles of Incorporation for such
corporation.
ARTTrT.R T
NAMR
The name of the corporation shall be EPICURE PLAZA
CONDOMINIUM ASSOCIATION, INC., hereinafter called the "Associa-
tion."
ARTICLE II
PURPOSE
1. The purpose for which the Association is organ-
ized is to provide an entity pursuant to Article 33 of Title 38
C.R.S. 1973, et seq., as from time to time it is amended, supple-
mented or succeeded, hereinafter called the Condominium Act, for
the operation of the EPICURE PLAZA (a Condominium), located upon
the property described as follows, to -wit:
Lots
Block City an_d
Townsite of Aspen.
2. The Association shall make no distributions of
income to its members, directors or officers.
ARTICLE III
POWERS
1. The Association shall have all of the common law
and statutory powers of a non-profit corporation which are not
in conflict with the terms of these Articles.
2. The Association shall have all of the powers and
duties set forth in the Condominium Act except as limited by
these Articles and by the Condominium Declaration for the EPICURE
PLAZA (a Condominium), hereinafter called the "Declaration," and
all of the powers and duties reasonably necessary to operate the
Association as set forth in the Declaration and as it may be
amended from time to time, including but not limited to the
following:
a. To make and collect assessments against
members to defray the costs and expenses of the EPICURE PLAZA (a
Condominium).
b. To use the proceeds of assessments in the
exercise of its powers and duties.
C. To maintain, repair, replace, and operate the
condominium property.
d. To purchase insurance upon the condominium
property and to provide protection for the Association and its
members as provided by the Declaration.
e. To reconstruct improvements after casualty
and to further improve the property.
f. To make and amend reasonable rules and regula-
tions respecting the use of the property in the condominium
project; provided, however, that all regulations and amendments
thereto shall be approved by owners of not less than eighty-five
percent (85%) of the undivided ownership of the common elements
of the Condominium before they shall become effective, unless
otherwise provided in the Declaration.
g. To enforce by legal means the provisions of
the Condominium Act, the Declaration, these Articles, the By -Laws
of the Association, and the rules and regulations for the use of
the condominium property.
h. To contract for the management of the condomin-
ium property and to delegate to the Managing Agent all powers
and duties of the Association except as are specifically required
by the Declaration to have approval of the Board of Directors or
the membership of the Association.
i. To contract for the management or operation
of portions of the common elements susceptible to separate
management or operation.
j. To employ personnel to perform the services
required for proper operation of the EPICURE PLAZA (a Condominium).
k. To engage in activities which may now or
hereafter be allowed or permitted by law to actively foster,
promote, and advance the common interests of the condominium
unit owners.
3. All funds and the titles of all properties acquired
by the Association and the proceeds thereof shall be held in
trust for the members of the Association in accordance with the
provisions of the Declaration, these Articles, and the By -Laws
of the Association.
4. The powers of the Association shall be subject to
and shall be exercised in accordance with the provisions of the
Declaration and the By -Laws of. the Association.
ARTICLE IV
MEMBERS
1. The members of the Association shall consist
solely of all record owners of condominium units of the EPICURE
PLAZA (a Condominium), as such ownership is defined in the
Declaration.
2. Change of membership of the Association shall be
effected and established by the recording in the public records
of Pitkin County, Colorado, of a deed or other instrument estab-
lishing a change in record title to a condominium unit and the
delivery to the Association of a certified or machine copy of
such instrument. The membership of the prior owner shall thereby
be terminated.
3. The share of a member in the funds and assets of
the Association cannot be assigned, hypothecated, or transferred
in any manner except as an appurtenance to that member's condo-
minium unit.
4. The members of the Association shall be entitled
to vote for each condominium unit owned by them. The exact
number of votes to be cast by owners of a condominium unit and
the manner of exercising voters' rights shall be determined by
the By -Laws of the Association and the Declaration.
-2-
ARTICLE V
BOARD OF DIRECTORS
1. The affairs of the Association will be managed by
a Board consisting of three directors as shall be determined
by the Declaration and By -Laws.
2. Directors of the Association shall be elected at
the annual meeting of the members in the manner determined by
the By -Laws. Directors may be removed and vacancies on the
Board of Directors shall be filled in the manner provided by the
By -Laws.
3. The first election of Directors shall be held
during the month of December 1982. The Directors herein named
shall serve until the first election of Directors and any vacan-
cies in their number occurring before the first election shall
be filled by the remaining Directors.
4. The names and addresses of the members of the
first Board of Directors who shall hold office until their
successors are elected and have qualified, or until removed, are
as follows:
J. Michael Solheim
John L. Wilbur
ARTICLE VI
OPP.rrFuc
P.O. Box 9112
Aspen, Colorado 81612
P.O. Box 9112
Aspen, Colorado 81612
The affairs of the Association shall be administered
by officers elected by the Board of Directors at its first
meeting following the annual meeting of the members of the
Association, which officers shall serve at the pleasure of the
Board of Directors.
ARTICLE VII
REGISTERED OFFICE
The registered office of the Association shall be 100
South Mill Street, Aspen, Colorado 81611, and the Registered
Agent of the Association at that address shall be J. Michael Solheim.
ARTICLE VIII
INDEMNIFICATION
Every director and every officer of the Association
shall be indemnified by the Association against all liabilities
including counsel fees, reasonably incurred or imposed upon such
person in connection with any proceedings, or any settlement
Isla
thereof, to which such person may be a party, or in which such
person may become involved, by reason of such person's being or
having been a Director or officer of the Association, whether or
not such person is a Director or officer at the time such expenses
are incurred, except in such cases wherein the Director or
officer is adjudged guilty of willful misfeasance or malfeasance
in the performance of duties; provided that in the event of a
settlement the indemnification herein shall apply only when the
Board of Directors approves such settlement and reimbursement as
being for the best interests of the Association. The foregoing
right of indemnification shall he in addition to and not exclusive
of all other rights to which such Director or officer may be
otherwise entitled by law, under the Declaration and By -Laws of
the Association.
ARTICLE IX
BY-LAWS
The first Ay -Laws of the Association shall be adopted
by the Board of Directors and may be altered, amended or revised
in the manner provided by the By -Laws.
ARTICLE X
AMENDMENTS
Amendments to these Articles of. Incorporation shall be
proposed and adopted in the following manner:
1. Any member of the Association or any director may
propose an amendment for the consideration of the membership by
delivery of the text thereof to the Secretary of the Association,
together with a written request that such proposed amendment be
included in the agenda of the next meeting of the membership
scheduled not less than thirty days following the receipt of
such written request by the Secretary of the Association.
2.
ment shall be
the notice of
considered.
?Notice of the subject matter of a proposed amend -
included by the Secretary of. the Association in
any meeting at which a proposed amendment is
3. A resolution approving a proposed amendment may
be proposed by either the Board of Directors or by any member of
the Association.
4. Approval of an amendment must be by vote as
provided in the Declaration and each such amendment must be
approved by owners of not less than eighty-five percent (85%) of
the undivided ownership of the common elements of the Condominium.
5. Except as provided in the Declaration no amend-
ments shall make any changes in the qualifications for mem-
bership nor the voting rights of members without approval in
writing by all members.
6. A copy of each amendment shall be filed with and
certified by the Secretary of State and recorded in the records
of Pitkin County, Colorado.
ARTICLE YI
TERM
The term of the Association shall be perpetual, unless
the Association is terminated sooner by the unanimous action of
its members, PROVIDED, HOWEVER, the Association shall be term-
inated by the termination of the condominium in accordance with
the provisions of the Declaration.
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ARTICLE XII
The name and address of the incorporator of these
Articles of Incorporation is J. Michael Solheim, 100 South Mill
Street, Aspen, Colorado 81611.
IN WITNESS WHEREOF,
affixed his signature on this
1981.
STATE OF COLORADO)
) ss.
COUNTY OF PITKIN )
the Incorporator has hereunto
day of ,
J. MICHAEL SOLHEIM
I, the undersigned, a Notary Public in and for said
County, in the State aforesaid, do hereby certify that J. Michael
Solheim, whose name is subscribed and annexed to the foregoing
Articles of Incorporation, appeared before me this day in person
and acknowledged that he signed, sealed, and delivered the said
instrument in writing as his free and voluntary act, for the uses
and purposes therein set forth.
(SEAL)
GIVEN under my hand and notarial seal this day of
, 1981.
My Commission Expires:
Notary Public
WE
• EXHIBIT E
BY -LAPIS
OF
EPICURE PLAZA
CONDOMINIUM ASSOCIATION
(A Condominium)
ARTTC'T.P T
OBJECT
(Plan of Ownership)
1. The purpose for which this non-profit Associa-
tion is formed is to govern the condominium property which
has been or will be submitted to the provisions of the Con-
dominium Ownership Act of the State of Colorado by the record-
ing of the Declaration and Supplements thereto and Flaps and
Supplements thereto bearing the name associated with this
Association.
2. All present or future owners and tenants or
any other persons who use in any manner the facilities of
the project located on the property therein described are
subject to the regulations set forth in these By -Laws. The
acquisition or rental of any of the condominium units (here-
inafter referred to as "units") or the mere act of occupancy
of any of said units will signify that these By -Laws are
accepted, ratified and will be complied with.
ARTICLE II
MEMBFRSHIP, VOTING, MAJORITY OF OWNFRS, QUORUM, PROXIES
1. Membership. Except as is otherwise provided in
these By -Laws, ownership of a unit is required in order to
qualify for membership in this Association. Any person on
becoming an owner of a unit shall automatically become a
member of this Association and be subject to these By -Laws.
Such membership shall terminate without any formal Associa-
tion action whenever such person ceases to own a unit, but
such termination shall not relieve or release any such former
owner from any liability or obligation incurred under or in
any way connected with this Association during the period of
such ownership and membership in the Association, or impair
any rights or remedies which the unit owners have, either
through the Board of Directors of the Association or directly,
against such former owner and member arising out of or in
any way connected with ownership and membership and the cov-
enants and obligations incident thereto.
2. Voting. Voting shall be based upon the per-
centage of the undivided interest owned by each unit owner
in all of the general common elements. The aggregate of all
of the percentage interests comprising the entire condominium
project shall be considered one hundred percent for voting
purposes. Cumulative voting is prohibited.
3. Majority of Unit Owners. As used in these
By -Laws the term "majority of unit owners" shall mean those
owners of more than fifty percent (500) of the undivided
ownership of the general common elements.
4. Quorum. Except as otherwise provided in these
By -Laws, the presence in person or by proxy of members holding
sixty-seven percent (67%) of the votes entitled to be cast
shall constitute a quorum. An affirmative vote of a majority
of the unit owners present, either in person or by proxy,
shall be required to transact the business of the meeting.
WO
ARTICLE III
ADMINISTRATION
1. Association Responsibilities. The owners of the
units will constitute the Association of Unit Onwers, hereinafter
referred to as "Association," who will have the responsibility
of administering the project through a Board of Directors herein-
after referred to as the "Board."
2. Place of Meeting. Meetings of the Association
shall be held at such place in Aspen, Colorado, as the Board may
determine.
3. Annual Meeting. The first meeting of the Associa-
tion members shall be held during the month of December, 1982.
Thereafter, the annual meeings of the Association shall be held
during the month of December of each succeeding year. At such
meetings there shall be elected by ballot of the owners a Board
in accordance with the requirements of Section 5 of Article IV
of these By -Laws. The owners may also transact such other
business of the Association as may properly come before them.
"Declarant" as used in these By -Laws refers to the Declarant
named in the Condominium Declaration for the Epicure Plaza.
4. Special Meetings. The President may call a
special meeting of the owners upon his own initiative, or as
directed by resolution of the Board or upon receipt of a petition
signed by at least one-third of the owners. The notice of any
special meeting shall state the time and place of such meeting
and the purpose thereof. No business except as stated in the
notice shall be transacted at a special meeting unless by consent
of two-thirds of the owners present, either in person or by
proxy. Any such meetings shall be held at such place and time
as the President determines within thirty (30) days after receipt
by the President of such resolution or petition.
5. Notice of Meetings. The Secretary shall cause to
be mailed or delivered a notice of each annual or special meeting,
stating the purpose thereof as well as the time and place it is
to be held, to each owner of record, at the registered address
of each owner, at least ten (10), but not more than thirty (30)
days prior to such meeting. The mailing of a notice in the
manner provided in this section or the delivery of such notice
shall be considered notice served, and the Certificate of the
Secretary that notice was duly given shall be prima facia evidence
thereof.
6. Adjourned meetings. If an_v meeting of owners
cannot be organized because a quorum has not attended, the
owners who are present, either in person or by proxy, may adjourn
the meeting, to a time not less than forty-eight hours from the
time the original meeting was called.
7. Order of Business. The order of business at all
meetings of the owners of units shall be as follows:
(a) Roll Call and certifying proxies
(b) Proof of notice of meeting or waiver of
notice
(c)
Reading of
minutes of preceding Meetings
(d)
Reports of
Officers
(e)
Reports of
committees
(f)
Election of
Directors
(g)
Unfinished
business
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(h) New business
(i) Adjournment
8. Performance of Functions by Declarant. The
rights, duties and functions of the Board shall, at the De-
clarant's option, he exercised by the Declarant by and through
those persons named as Directors in the Articles of Incorpor-
ation, until the development of the entire condominium project
has been completed and until condominium units have
been sold and the sale transactions have been closed.
ARTICLE IV
BOARD OF DIRECTORS
1. dumber and Qualification. The Declarant shall
exercise the rights, duties and functions of the Board as provided
hereinabove by and through the persons named in the Articles of
Incorporation as the Directors until the first meeting of the
Members of the Association. At the first meeting there shall be
elected three members of the Association to the Board who shall
thereafter govern the affairs of this Association until their
successors have been duly elected and qualified.
2. Powers and Duties. The Board shall have the
powers and duties necessary for the administration of the affairs
of the Association and for the operation and maintenance of the
condominium project as a first class condominium property. Such
powers and duties of the Board shall include, but shall not be
limited to, the following, all of which shall be done for and in
behalf of the owners of the condominium units:
(a) To administer and enforce the covenants,
conditions, restrictions, easements, uses, limitations, obli-
gations and all other provisions set forth in the Condominium
Declaration submitting the property to the provisions of the
Condominium Ownership Act of the State of Colorado, the Ay -Laws
of the Association and supplements and amendments therein.
(b) To establish, make and enforce compliance
with such rules and regulations as may be necessary for the
operation, rentals, use and occupancy of all of the units with
the right to amend same from time to time. A copy of such rules
and regulations shall be delivered or mailed to each member upon
the adoption thereof.
(c) With the assistance of the Managinq Agent,
to incur such costs and expenses as may be necessary to keep in
good order, condition and repair all of the general and limited
common elements and all items of common personal property.
(d) With the assistance of the Managing Agent,
to insure and keep insured all of the insurable general common
elements and condominium units in an amount equal to the maximum
replacement value. To insure and keep insured all of the common
fixtures, common equipment and common personal property for the
benefit of the owners of the units and their first mortgagees.
Further, to obtain and maintain comprehensive liability insurance
covering the entire premises.
(e) With the assistance of the Managing Agent,
to prepare a budget for the condominium at least annually, in
order to determine the amount of the common assessments payable
by the unit owners to meet the common expenses of the condominium
project, and allocate and assess such common charges among the
unit owners according to their respective common ownership
interests in and to the general common elements, and by majority
vote of the Board to adjust, decrease or increase the amount of
the quarterly or monthly assessments, and remit or return any
excess of assessments over expenses, working capital, sinking
funds, reserve for deferred maintenance and for replacement to
ISM
•
the owners at the end of each operating year. To levy and
collect special assessments whenever in the opinion of the Board
it is necessary to do so in order to meet increased operating or
maintenance expenses or costs, or additional capital expenses,
or because of emergencies.
(f) To collect delinquent assessments by and
through the Managing Agent.by suit or otherwise and to enjoin or
seek damages from an owner as is provided in the Declaration and
these By -Laws. To enforce a late charge and to collect interest
at the rate of eighteen percent (18%) per annum in connection
with assessments remaining unpaid more than twenty (20) days
from due date for payment thereof, plus a late charge of $50.00
and reasonable attorney's fees incurred.
(g) To protect and defend in the name of the
Association any part or all of the condominium project from loss
and damage by suit or otherwise.
(h) To borrow funds in order to pay for any
expenditure or outlay required pursuant to the authority granted
by the provisions of the recorded Declaration and these By -Laws,
and to execute all such instruments evidencing such indebtedness
as the Board may deem necessary and give security therefor.
Such indebtedness shall be the several obligation of all of the
owners in the same proportion as their interest in the general
common elements. The persons who shall be authorized to execute
promissory notes and securing instruments shall be the President
and Secretary or Assistant Secretary.
(i) To enter into contracts to carry out their
duties and powers.
(j) To establish a bank account or accounts for
the common treasury and for all separate funds which are required
or may be deemed advisable.
(k) To make repairs, additions, alterations and
improvements to the general and limited common elements consistent
with managing the condominium project in a first-class manner
and consistent with the best interests of the unit owners. Such
duties may be delegated to the managing Agent.
(1) To keep and maintain full and accurate books
and records showing all of the receipts, expenses, or disburse-
ments and to permit examination thereof at any reasonable time
by each of the owners and each of the owner's mortgagees, and to
cause a complete audit of the books and accounts by a certified
or public accountant, once each year. Such duties may be delegated
to the Managing Agent.
(m) With the assistance of the Managing Agent,
to prepare and deliver annually to each owner a consolidated
statement showing receipts, expenses or disbursements since the
last such statement.
(n) To meet at least annually whereat the Managing
Agent or his employee shall be in attendance.
(o) In general, to carry on the administration
of this Association and to do all of those things necessary and
reasonable in order to carry out the governing and the operation
of this condominium property.
(p) To control and manage the use of all sidewalks,
parking areas, open spaces, common streets and other common
property.
(q) To employ for the Association a Managing
Agent who shall have and exercise those duties and powers granted
to it by the Board but not those powers which the Board, by law,
may not delegate.
-4-
3. No 14aiver of Rights_. The omission or failure
of the Association or any unit owner to enforce the cove-
nants, conditions, restrictions, easements, uses, limitations,
obligations or other provisions of. the Condominium Declara-
tion, the By -Laws, or the Rules and Regulations adopted pur-
suant thereto, shall not constitute or be deemed a waiver,
modification or release thereof_, and the Board or the Mana-
ging Agent shall have the right to enforce the same there-
after.
4. Election and Term of Office. At the expiration
of the initial term of office of each respective Director, his
successor shall be elected to serve a term of one year. Except
as is otherwise provided by these By -Laws, the Directors shall
hold office until their successors have been elected and hold
their first meeting.
5. Vacancies. Vacancies in the Board caused by
any reason other than the removal of a Director by a vote of
the Association shall be filled by vote of the majority of
the remaining Directors even though they may constitute less
than a quorum; and each person so elected shall be a Director
until his successor is elected.
6. Removal of Directors. Subject to the provi-
sions of Article III, Paragraph 8 hereof, at any regular or
special meeting duly called, any one or more of the Directors
may be removed with or without cause by a majority of
the owners, and a successor may then and there he elected
to fill the vacancy thus created. Any Director whose removal
has been proposed by the owners shall be given an opportunity
to be heard at the meeting prior to voting thereon.
7. Organization Mcetincl. The first meeting of
a newly elected Board following each annual meeting of the
unit owners shall be held within ten days thereafter at such
place as shall be fixed by the Directors at the meeting at
which such Directors were elected, and no notice shall be
necessary to the newly elected Directors in order legally
to constitute such meeting, providing a majority of the
whole Board shall be present.
8. Regular Meetings. Regular meetings of the
Board may be held at such time and place as shall be deter-
mined, from time to time, by a majority of the Directors, but
at least one such meeting shall be held during each calendar
year. Notice of regular meetings of the Board shall be given
to each Director, personally or by mail, telephone or tele-
graph, at least seven days prior to the day designated for
such meeting.
9. Special Meetings. Special meetings of the
Board may be called by the President on three days notice to
each Director, given personally or by mail, telephone or
telegraph, which notice shall state the time, place and pur-
pose of the meeting. Special meetings of the Board shall be
called by the President or Secretary in like manner and on
like notice on the written request of two or more Directors.
10. Waiver of Notice. Before or at any meeting of
the Board, any Director may, in writing, waive notice of such
meeting and such waiver shall be deemed equivalent to the
giving of such notice. Attendance by a Director at any meet-
ing of the Board shall be a waiver of notice by him of the
time and place thereof. If all the Directors are present at
any meeting of the Board, no notice shall be required and
any business may be transacted at such meeting.
11. Board of Directors' ;quorum. At all meetings
of the Board, a majority of the Directors shall consitute
a quorum for the transaction of business, and the acts of
the majority of the Directors present at a meeting at which
-5-
a quorum is present shall be the acts of the Board. If,
at any meeting of the Board, there be less than a quorum
present, the majority of those present may adjourn the
meeting from time to time. At any such adjourned meeting,
any business which might have been transacted at the meeting
as originally called may be transacted without further notice.
12. Fidelity Bonds. The Board may require that
all officers and employees of the Association and the Man-
aging Agent who handle or are responsible for Association
funds shall furnish adequate fidelity bonds. The premiums
on such bonds shall be a common expense.
ARTICLE V
FISCAL MANAGEMENIT
The provisions for fiscal nanagement of the units
for and in behalf of all of the unit owners as set forth in
the Condominium Declaration may be supplemented by the follow-
ing provisions:
1. Accounts. The funds and expenditures of the
unit owners by and through the Association shall be credited
and charged to accounts under the following classifications
as shall be appropriate, all of which expenditures shall be
common expenses:
(a) Current expense, which shall include all
funds and expenditures within the year for which the funds are
budgeted, including a reasonable allowance for contingencies
and working funds, except expenditures chargeable to reserves
or to additional improvements.
(b) Reserve for deferred maintenance, which
shall include funds for maintenance items which occur less
frequently than annually.
(c) Reserve for replacement, which shall in-
clude funds for repair or replacement required because of
damage, wear or obsolescence.
ARTICLE VI
OFFICERS
1. Designation. The officers of the Association
shall be a President, a Vice President, a Secretary and a
Treasurer, all of whom shall be elected by the Board, and
such assistant officers as the Board shall, from time to
time elect. Such officers need not be members of the Board,
but each shall be an owner of a unit in this condominium
project, or the Declarant or its representative. The office
of President and Treasurer may be held by the same person,
and the office of Vice President and Secretary may be held
by the same person.
2. Election of Officers. The officers of the
Association shall be elected annually by the Board at the
organization meeting of each new Board and shall hold office
at the pleasure of the Board.
3. Removal of Officers. Upon an affirmative vote
of a majority of the members of the Board, any officer may be
removed, either with or without cause, and his successor
elected. at any regular meeting of the Board, or at any spe-
cial meeting of the Board called for such purpose.
4. President. The President shall be the chief
executive officer of the Association. He shall preside at
all meetings of the Association and of the Board. fie shall
have all of the general powers and duties which are usually
vested in the office of president of an association, includ-
M:�
ing but not limited to the power to appoint committees from
among the owners from time to time as he may in his discretion
decide is appropriate to assist in the conduct of the affairs of
the Association or as may be established by the Board or by the
members of the Association at any regular or special meetings.
5. Vice President. The Vice President shall have
all the powers and authority and perform all the functions and
duties of the President, in the absence of the President, or his
inability for any reason to exercise such powers and functions
or perform such duties.
6. Secretary. The Secretary shall keep all the
minutes of the meetings of the Board and the minutes of all
meetings of the Association; he shall have charge of such books
and papers as the Board may direct; and he shall, in general,
perform all the duties incident to the office of Secretary. The
Secretary shall compile and keep up to date at the principal
office of the Association a complete list of members and their
registered addresses as shown on the records of the Association.
Such list shall also show opposite each member's name the number
or other appropriate designation of the unit owned by such
member and the member's undivided interest in the general common
elements. Such list shall be open to inspection by members and
other persons lawfully entitled to inspect the same at reasonable
times during regular business hours. The records referred to in
this subsection may be maintained by the Managing Agent.
7. Treasurer. The Treasurer shall have the res-
ponsibility for Association funds and shall be responsible for
keeping full and accurate accounts of all receipts and disburse-
ments in books belonging to the Association; provided, however,
that when a Managing Agent has been delegated the responsibility
of collecting and disbursing funds, the Treasurer's responsibility
shall be to review the accounts of the Managing Agent not less
often than semi-annually:
ARTICLE VII
INDEMNIFICATION OF OFFICERS, DIRECTORS AND MANAGING AGENT
1. Indemnification. The Association shall indemnify
every Director, officer, Managing Agent, their respective succes-
sors, personal representatives and heirs, against all loss,
costs and expenses, including counsel fees, reasonably incurred
by him in connection with any action, suit or proceeding to
which he may be made a party by reason of his being or having
been a Director, officer or Managing Agent of the Association,
except as to matters as to which he shall be finally adjudged in
such action, suit or proceeding to be liable for gross negligence
or willful misconduct. In the event of a settlement, indemnifi-
cation shall be provided only in connection with such matters
covered by the settlement as to which the 'Association is advised
by counsel that the person to be indemnified has not been guilty
of gross negligence or willful misconduct in the performance of
his duty as such Director, officer or Managing Agent, in relation
to the matter involved. The foregoing rights shall not be
exclusive of other rights to which such Director, officer or
Managing Agent may be entitled. All liability, loss, damage,
cost and expense incurred or suffered by the Association by
reason or arising out of or in connection with the foregoing
indemnification provisions shall be treated and handled by'the
Association as common expenses; provided, however, that nothing
in this Article VII contained shall be deemed to obligate the
Association to indemnify any member or owner of a unit who is or
has been a Director or officer of the Association with respect
to any duties or obligations assumed or liabilities incurred by
him under and by virtue of the Condominium Declaration.
2. Other. Contracts or other commitments made by
the Board of Directors, officers or the Managing Agent shall be
made as agent for the unit owners, and they shall have no personal
-7-
responsibility on any such contract or commitment except as unit
owners, and the liability of any unit owner on any such contract
or commitment shall be limited to such proportionate share of
the total liability thereof as the common interest of each unit
owner bears to the aggregate common interest of all of the unit
owners, except that any losses incurred because of an inability
to collect such proportionate amount of the total liability
owned by an owner shall be shared proportionately by the owners.
ARTICLE VIII
AMENDMENTS
1. The Articles of Incorporation may be amended in
the manner provided by law.
2. These By -Laws may be amended by vote of owners of
eighty-five percent (85%) of the undivided ownership of the common
elements at a duly constituted meeting of the members for such
purpose, provided, however, that no amendment shall conflict
with or minimize the intended effect of the provisions of the
Articles of Incorporation or the Declaration.
ARTICLE IX
MORTGAGES
1. Notice to Association. An owner who mortgages
his unit shall notify the Association through the Managing
Agent, if any, or the Association Secretary, giving the name and
address of his mortgagee. The Association shall maintain such
information in a book entitled "Mortgagees of Units."
2. Notice of Unpaid Common Assessments. The Associa-
tion, whenever so requested in writing by a mortgagee of a unit,
shall promptly report any then unpaid common assessments due
from, or any other default by, the owner of a mortgaged unit.
3. Notice of Default. When giving notice to a unit
owner of a default in paying common assessments or other default,
the Board shall send a copy of such notice to each holder of a
mortgage covering such unit whose name and address has thereto-
fore been furnished to the Board.
ARTICLE X
EVIDENCE OF OWNERSHIP, REGISTRATION OF MAIhING
ADDRESS AND DESIGNATION OF VOTING REPRESENTATIVE
1. Proof of Ownership. Except for those owners
who initially purchase a unit from Declarant, any person on
becoming an owner of a unit shall furnish to the Managing
Agent or Board of Directors, a photocopy or certified copy
of the recorded instrument vesting that person with an inter-
est or ownership in the unit, which copy shall remain in the
files of the Association.
2. Registration of Mailing Address. The owners
or several owners of an individual unit shall have one and
the same registered mailing address to be used by the Asso-
ciation for mailing of monthly statements, notices, demands
and all other communications, and such registered address
shall be the only mailing address of a person or persons,
firm, corporation, partnership, association or other legal
entity or any combination thereof_ to be used by the Associa-
tion. Such registered address of a unit owner or owners
shall be furnished by such owners to the Managing Agent or
Board of Directors within fifteen days after transfer of
title, or after a change of address, and such registration
shall be in written form and signed by all of the owners of
the unit or by such persons as are authorized by law to
represent the interest of all of the owners thereof.
3. Designation of Voting Representative Proxy. If
a unit is owned by one person, his right to vote shall be esta-
blished by the record title thereto. If title to a unit is held
by more than one person or by a firm, corporation, partnership,
association, or other legal entity, or any combination thereof,
such owners shall execute a proxy appointing and authorizing one
person to attend all annual and special meetings of members and
thereat to cast whatever vote the owner himself might cast if he
were personally present. Such proxy shall be effective and
remain in force unless voluntarily revoked, amended or sooner
terminated by operation of law provided, however_, that within
thirty days after such revocation, amendment or termination, the
owners shall reappoint and authorize one person to attend all
annual and special meetings as provided by this Section 3.
4. The requirements herein contained in this Article
X shall be first met before an owner of a unit shall he deemed
in good standing and entitled to vote at any annual or special
meeting of members.
ARTICLE XI
OBLIGATIONS OF THE OWNERS
1. Assessments. All owners shall he obligated to
pay the monthly or quarterly assessments imposed by the Asso-
ciation to meet the common expenses. The assessments shall be
made pro rata according to percentage interest in and to the
general common elements. Assessments shall be due in advance.
A member shall be deemed to be in good standing and entitled to
vote at any annual or at a special meeting of members, within
the meaning of these By -Laws, if, and only if, he shall have
fully paid all assessments made or levied against him and the
unit owned by him.
2. Notice of Lien or Suit. An owner shall give
notice to the Association of every lien or encumbrance upon his
unit, other than for taxes and special assessments, and notice
of every suit or other proceeding which may affect the title to
his unit, and such notice shall be given in writing within five
days after the owner has knowledge thereof.
3. Mechanic's Lien. Each owner agrees to indemnify
and to hold each of the other owners harmless from any and all
claims or mechanic's lien for labor, materials, services, or
other products incorporated in such indemnifying owner's unit.
In the event such a lien is filed and/or a suit for foreclosure
of mechanic's lien is commenced, then within ten days thereafter
such owner shall be required to deposit with the Association
cash or negotiable securities in a sum equal to (a) 1500 of the
amount of such claim, plus (b) 100 of the amount of such claim
(but not less than $200.00), which latter sum may be used by the
Association for any costs and expenses incurred, including
attorney's fees incurred for legal advice and counsel. Except
as is otherwise provided, such sum or securities shall be held
by the Association pending final adjudication or settlement of
the claim or litigation. Disbursements of such funds or pro-
ceeds shall be made by the Association to insure payment of or
on account of such final judgment or settlement. Any deficiency,
including attorney's fees incurred by the Association, shall be
paid forthwith by the subject owner, and his failure to so pay
shall entitle the Association to make such payment, and the`
amount thereof shall be a debt of the owner and a lien against
his condominium unit which may be foreclosed as is provided in
the Condominium Declaration. All advancements, payments, costs
and expenses, including attorney's fees, incurred by the Associa-
tion shall be forthwith reimbursed to it by such owner, and such
owner shall be liable to the Association for the payment of
interest at the rate of eighteen percent (18%) per annum on all
such sums paid or advanced by the Association.
MM
4. "Maintenance and Repair.
(a) Every owner must perform promptly, at his
own expense, all maintenance and repair work within his own unit
which, if omitted, would affect the appearance of or the aesthetic
integrity of part or all of the condominium project.
(b) All the repairs of internal installations of
the unit such as water, light, gas, power, sewage, telephone,
sanitary installations, doors, windows, electrical fixtures and
all other accessories, equipment and fixtures shall he at the
owner's expense.
(c) An owner shall be obligated to reimburse the
Association promptly upon receipt of its statement for any
expenditures incurred by it in repairing or replacing any general_
or limited common elements damaged by his negligence or by the
negligence of his tenants, agents or guests.
5. General.
(a) Each owner shall comply strictly with the
provisions of the recorded Condominium neclaration and these
By -Laws and amendments thereto.
(b) Each owner shall always endeavor to observe
and promote the cooperative purposes for the accomplishment of
which this condominium project was built.
6. Uses of Units. All units shall be utililized
only for the purposes described in the Condominium Declaration.
7. Use of General Common Elements and Limited Common
Elements. Each owner may use the general common elements, the
limited common elements, sidewalks, pathways, roads and streets
and other common elements located within the entire condominium
project in accordance with the purpose for which they were
intended without hindering or encroaching upon the lawful .nights
of the other owners, and subject to the rules and regulations
contained in these By -Laws and established by the Board as is
provided in Section 9 of this Article.
8. Right of Entry.
(a) An owner shall and does grant the right of
entry to the Managing Agent or to any other person authorized by
the Board in case of any emergency originating in or threatening
his unit, whether the owner is present at the time or not.
(b) An owner shall permit other owners, or their
representatives, to enter his unit for the purpose of performing
installations, alterations or repairs to the mechanical, electrical
or utility services which, if not performed, would affect the
use of other units, provided that requests for entry are made in
advance and that such entry is at a time convenient to the
owner. In case of an emergency, such right of entry shall be
immediate.
9. Rules and Regulations.
(a) The initial rules and regulations, which
shall be effective until amended or supplemented by the Board,
are annexed hereto and made a part hereof as Schedule A.
(b) The Board reserves the power to establish,
make and enforce compliance with such additional rules and
regulations as may be necessary for the operation, use and
occupancy of this condominium project with the right to amend
same from time to time. Copies of such rules and regulations
shall be furnished to each unit owner prior to the date when the
same shall become effective.
-10-
10. Destruction and Obsolescence. Each owner,
upon becoming an owner of a unit, thereby grants his power
of attorney in favor of the Association, irrevocably appoint-
ing the Association his attorney -in -fact to deal with the
owner's unit upon its damage, destruction or obsolescence,
all as is provided in the Condominium Declaration.
ARTICLE XII
ABATEMENT AND ENJOYME14T OF VIOLATIONS BY UNIT OWNERS
1. Abatement and Enjoinment. The violation of any
rule or regulation adopted by the Board, or the breach of
any By -Law, or the breach of any provision of the Declara-
tion, shall give the Board or the Managing Agent the right,
in addition to any other rights set forth therein, to enter
the unit in which, or as to which, such violation or breach
exists and to summarily abate and remove, at the expense of
the defaulting unit owner, any structure, thing or condition
that may exist therein contrary to the intent and meaning of
the provisions thereof, and the Board or managing Agent shall
not be deemed guilty in any manner of trespass and shall have
the right to expel, remove and put out, using such force as
may be necessary in so doing, without being liable to prose-
cution or in damages therefor, and the Board or Managing
Agent shall have the right to enjoin, abate or remedy by
appropriate legal proceedings, either at law or in equity,
the continuance of any such breach.
ARTICLE XIII
ASSOCIATION - NOT FOR PROFIT
1. Association - Not for Profit. This Association
is not orgainized for profit. No member, member of the Board,
officer or person from whom the Association may receive any
property or funds shall receive or shall be lawfully entitled
to receive any pecuniary profit from the operation thereof,
and in no event shall any part of the funds or assets of the
Association be paid as salary or compensation to, or distri-
buted to, or inure to the benefit of any member of the Board,
officer or member; provided, however, always that reasonable
compensation may be paid to any member, Director, or officer
while acting as an agent or employee of the Association, for
services rendered in effecting one or more of the purposes
of the Association, and that any member, Director or officer
may, from time to time, be reimbursed for his actual and
reasonable expenses incurred in connection with the adminis-
tration of the affairs of the Association. The provisions
herein are not applicable to the Managing Agent who shall
perform its manager's duties and functions according to
written agreement for the compensation stated therein.
ARTICLE X.IV
MORTGAGEES AS PROXIES
1. Mortgagees as Proxies. Unit owners shall
have the right to irrevocably constitute and appoint the
beneficiary of a trust deed or mortgagee as their true and
lawful attorney to vote their unit membership in this Asso-
ciation and to vest in such beneficiary or its nominee any
and all rights, privileges and powers that they have as unit
owners under the Certificate of Incorporation and By -Laws of
this Association or by virtue of the recorded Condominium
Declaration. Such proxy shall become effective upon the
filing of a notice by the beneficiary with the Secretary of
the Association at such time or times as the beneficiary
shall deem its security in jeopardy by reason of the failure,
neglect or refusal of the Association, the Managing Agent or
the unit owners to carry out their duties as set forth in
the Condominium Declaration. A release of the beneficiary's
-11-
k
•
C
deed of trust or mortgage shall operate to revoke such
proxy. Noting herein contained shall be construed to relieve
unit owners, as mortgagors, of their duties and obligations
as unit owners or to impose upon the beneficiary of the deed
of trust or mortgage the duties and obligations of a unit
owner.
IN WITNESS WHEREOF, the undersigned initial Board
of Directors have hereunto set their hands this day of
, 1981.
BOARD OF DIRECTORS:
The undersigned Secretary of this Association does
hereby certify that the above and foregoing By -Laws and
rules and regulations were duly adopted by the Directors as
the By -Laws and rules and regulations of said Association
this day of , 1981.
Secretary
-12-
EXHIBIT F
EMPLOYEE HOUSING COVENANTS
In connection with condominiumization proceedings
pertaining to the real property described hereinbelow, The
Epicurean Partnership, a Colorado limited partnership (hereinafter
called "Epicurean"), for itself, and its successors and
assigns, hereby covenants and agrees with the City of Aspen,
Pitkin County, Colorado that:
1. Epicurean is the owner of condominium units 301,
302 and 303, Epicure Plaza, County of Pitkin, State of
Colorado, according to the recorded condominium plat map
thereof (said condominium units hereinafter being referred
to as the "Residential Units").
2. The Residential Units shall be restricted for use as
employee housing under the guidelines of the City of Aspen
and shall be restricted to middle income price guidelines
and middle income occupancy limitations established from
time to time by the Aspen City Council.
3. The covenants contained herein shall run with the
land and shall be binding upon Epicurean and its successors
and assigns for the period of the life of the last surviving
member of the present Aspen City Council plus twenty-one
(21) years, or for a period of fifty (50) years, whichever
period is less, following the date upon which these covenants
are recorded in the real property records of Pitkin County,
Colorado.
4. These covenants may not be amended except by an
instrument in writing signed by the City of Aspen, Colorado
and all of the then record owners of the Residential Units.
IN WITNESS WHEREOF, these covenants have been duly
executed this day of , 1981.
THE EPICUREAN PARTNERSHIP
By:
General Partner
STATE OF COLORADO ) ss.
COUNTY OF PITKIN )
The foregoing instrument was acknowledged before me
this day of , 1981 by ,
as a General Partner of The Epicurean Partnership, a Colorado
limited partnership.
WITNESS my hand and official seal.
My commission expires:
Notary Public
-2-
i
• ExG►� b; f A
Form No. 1402 (1/70)
ALTA Owner's Policy
Form B — 1970
(Amended 10-17-70)
POLICY OF TITLE INSURANCE
,.. ..D Fr
1,1'rst t lnorrcan T111c Invininc e Colnp,,,iI1j,
SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE EXCEPTIONS CONTAINED IN SCHEDULE B
AND THE PROVISIONS OF THE CONDITIONS AND STIPULATIONS HEREOF, FIRST AMERICAN TITLE
INSURANCE COMPANY, a California corporation, herein called the Company, insures, as of Date of Policy shown
in Schedule A, against loss or damage, not exceeding the amount of insurance stated in Schedule A, and costs,
attorneys' fees and expenses which the Company may become obligated to pay hereunder, sustained or incurred by
the insured by reason of:
1. title to the estate or interest described in Schedule A being vested otherwise than as stated therein;
2. any defect in or lien or encumbrance on such title;
3. lack of a right of access to and from the land; or
4. unmarketability of such title.
IN WITNESS WHEREOF, First American Title Insurance Company has caused this policy to be signed and sealed
by its duly authorized officers as of Date of Policy shown in Schedule A.
First American Title Insurance Company
8Y PRESIDENT
ATTEST SECRETARY
ATTEST 'T �•�� �,%'�'"' ASSISTANT
�-
j SECRETARY
ASPEN TITLE COMPANY
Aspen, Colorado
SCWULE OF EXCLUSIONS FROM CCORAGE
THE FAOLLOWING MATTERS ARE EXPRESSLY EXCLUDED FROM THE COVERAGE OF THIS POLICY:
1. ANY LAW, ORDINANCE OR GOVERNMENTAL REGULATION (INCLUDING BUT NOT LIMITED TO BUILDING AND ZONING ORDINANCES)
RESTRICTING OR REGULATING OR PROHIBITING THE OCCUPANCY, USE OR ENJOYMENT OF THE LAND, OR REGULATING THE CHAR-
ACTER, DIMENSIONS OR LOCATION OF ANY IMPROVEMENT NOW OR HEREAFTER ERECTED ON THE LAND, OR PROHIBITING A
SEPARATION IN OWNERSHIP OR A REDUCTION IN THE DIMENSIONS OR AREA OF THE LAND, OR THE EFFECT OF ANY VIOLATION
OF ANY SUCH LAW, ORDINANCE OR GOVERNMENTAL REGULATION.
2. RIGHTS OF EMINENT DOMAIN OR GOVERNMENTAL RIGHTS OF POLICE POWER UNLESS NOTICE OF THE EXERCISE OF SUCH RIGHTS
APPEARS IN THE PUBLIC RECORDS AT DATE OF POLICY.
3. DEFECTS, LIENS, ENCUMBRANCES, ADVERSE CLAIMS, OR OTHER MATTERS (a) CREATED, SUFFERED, ASSUMED OR AGREED TO BY
THE INSURED CLAIMANT; (b) NOT KNOWN TO THE COMPANY AND NOT SHOWN BY THE PUBLIC RECORDS BUT KNOWN TO THE
INSURED CLAIMANT EITHER AT DATE OF POLICY OR AT THE DATE SUCH CLAIMANT ACQUIRED AN ESTATE OR INTEREST
INSURED BY THIS POLICY AND NOT DISCLOSED IN WRITING BY THE INSURED CLAIMANT TO THE COMPANY PRIOR TO THE DATE
SUCH INSURED CLAIMANT BECAME AN INSURED HEREUNDER; (c) RESULTING IN NO LOSS OR DAMAGE TO THE INSURED CLAIMANT;
(d) ATTACHING OR CREATED SUBSEQUENT TO DATE OF POLICY; OR (e) RESULTING IN LOSS OR DAMAGE WHICH WOULD NOT HAVE
BEEN SUSTAINED IF THE INSURED CLAIMANT HAD PAID VALUE FOR THE ESTATE OR INTEREST INSURED BY THIS POLICY.
DEFINITION OF TERMS
The following terms when used in this
policy mean:
(a) "insured": the insured named in
Schedule A, and, subject to any rights or defenses
the Company may have had against the named in-
sured, those who succeed to the interest of such
insured by operation of law as distinguished from
purchase including, but not limited to, heirs,
distributees, devisees, survivors, personal representa-
tives, next of kin, or corporate or fiduciary
successors.
(b) "insured claimant": an insured
claiming loss or damage hereunder.
(c) "knowledge": actual knowledge,
not constructive knowledge or notice which may be
imputed to an insured by reason of any public
records.
(d) "land": the land described, speci-
fically or by reference in Schedule C, and improve-
ments affixed thereto which by law constitute real
property; provided, however, the term "land" does
not include any property beyond the lines of the
area specifically described or referred to in Schedule
C, nor any right, title, interest, estate or easement
in abutting streets, roads, avenues, alleys, lanes,
ways or waterways, but nothing herein shall modi-
fy or limit the extent to which a right of access to
and from the land is insured by this policy.
(e) "mortgage": mortgage, deed of
trust, trust deed, or other security instrument.
(f) "public records": those records
which by law impart constructive notice of matters
relating to said land.
2. CONTINUATION OF INSURANCE AFTER
CONVEYANCE OF TITLE
The coverage of this policy shall continue in
force as of Date of Policy in favor of an insured so
long as such insured retains an estate or interest in
the land, or holds an indebtedness secured by a pur-
chase money mortgage given by a purchaser from
such insured, or so long as such insured shall have
liability by reason of covenants of warranty made
by such insured in any transfer or conveyance of
such estate or interest; provided, however, this
policy shall not continue in force in favor of any
purchaser from such insured of either said estate or
interest or the indebtedness secured by a purchase
money mortgage given to such insured.
3. DEFENSE AND PROSECUTION OF AC-
TIONS — NOTICE OF CLAIM TO BE
GIVEN BY AN INSURED CLAIMANT
(a) The Company, at its own cost and with-
out undue delay, shall provide for the defense of an
CONDITIONS AND STIPULATIONS
insured in all litigation consisting of actions or
proceedings commenced against such insured, or a
defense interposed against an insured in an action
to enforce a contract for a sale of the estate or
interest in said land, to the extent that such liti-
gation is founded upon an alleged defect, lien,
encumbrance, or other matter insured against
by this policy.
(b) The insured shall notify the Company
promptly in writing (i) in case any action or pro-
ceeding is begun or defense is interposed as set
forth in (a) above, 00 in case knowledge shall
come to an insured hereunder of any claim of title
or interest which is adverse to the title to the
estate or interest, as insured, and which might
cause loss or damage for which the Company may
be liable by virtue of this policy, or (iii) if title to
the estate or interest, as insured, is rejected as un-
marketable. If such prompt notice shall not be
given to the Company, then as to such insured all
liability of the Company shall cease and terminate
in regard to the matter or matters for which such
prompt notice is required; provided, however, that
failure to notify shall in no case prejudice the
rights of any such insured under this policy unless
the Company shall be prejudiced by such failure
and then only to the extent of such prejudice.
(c) The Company shall have the right at its
own cost to institute and without undue delay
prosecute any action or proceeding or to do any
other act which in its opinion may be necessary or
desirable to establish the title to the estate or in
terest as insured, and the Company may take any
appropriate action under the terms of this policy,
whether or not it shall be liable thereunder, and
shall not thereby concede liability or waive any
provision of this policy.
(d) Whenever the Company shall have
brought any action or interposed a defense as re-
quired or permitted by the provisions of this policy,
the Company may pursue any such litigation to
final determination by a court of competent juris-
diction and expressly reserves the right, in its sole
discretion, to appeal from any adverse judgment or
order.
(e) In all cases where this policy permits
or requires the Company to prosecute or provide
for the defense of any action or proceeding, the in-
sured hereunder shall secure to the Company the
right to so prosecute or provide defense in such ac-
tion or proceeding, and all appeals therein, and per-
mit the Company to use, at its option, the name of
such insured for such purpose. Whenever requested
by the Company, such insured shall give the
Company all reasonable aid in any such action or
proceeding, in effecting settlement, securing evi-
dence, obtaining witnesses, or prosecuting or de-
fending such action or proceeding, and the Company
shall reimburse such insured for any expense so
incurred.
4. NOTICE OF LOSS — LIMITATION OF
ACTION
In addition to the notices required under
paragraph 3(b) of these Conditions and Stipulations,
a statement in writing of any loss or damage for
which it is claimed the Company is liable under
this policy shall be furnished to the Company
within 90 days after such loss or damage shall have
been determined and no right of action shall accrue
to an insured claimant until 30 days after such
statement shall have been furnished. Failure to
furnish such statement of loss or damage shall
terminate any liability of the Company under this
policy as to such loss or damage.
5. OPTIONS TO PAY OR OTHERWISE SET-
TLE CLAIMS
The Company shall have the option to pay or
otherwise settle for or in the name of an insured
claimant any claim insured against or to terminate
all liability and obligations of the Company here-
under by paying or tendering payment of the
amount of insurance under this policy together
with any costs, attorneys' fees and expenses in-
curred up to the time of such payment or tender of
payment, by the insured claimant and authorized
by the Company.
6. DETERMINATION AND PAYMENT OF
LOSS
(a) The liability of the Company under this
policy shall in no case exceed the least of:
0) the actual loss of the insured
claimant; or
(i0 the amount of insurance stated in
Schedule A.
(b) The Company will pay, in addition to
any loss insured against by this policy, all costs im-
posed upon an insured in litigation carried on by
the Company for such insured, and all costs,
attorneys' fees and expenses in litigation carried
on by such insured with the written authorization
of the Company.
(c) When liability has been definitely fixed
in accordance with the conditions of this policy,
the loss or damage shall be payable within 30 days
thereafter.
(Continued on inside back cover)
7. LIMITATION OF LIABILITY
No claim shall arise or be maintainable under
this policy (a) if the Company, after having received
notice of an alleged defect, lien or encumbrance in-
sured against hereunder, by litigation or otherwise,
removes such defect, lien or encumbrance or es-
tablishes the title, as insured, within a reasonable
time after receipt of such notice; (b) in the event
of litigation until there has been a final determina-
tion by a court of competent jurisdiction, and dis.
position of all appeals therefrom, adverse to the
title, as insured, as provided in paragraph 3 hereof;
or (c) for liability voluntarily assumed by an in-
sured in settling any claim or suit without prior
written consent of the Company.
8. REDUCTION OF LIABILITY
All payments under this policy, except pay-
ments made for costs, attorneys' fees and ex-
penses, shall reduce the amount of the insurance
pro tanto. No payment shall be made without
producing this policy for endorsement of such
payment unless the policy be lost or destroyed, in
which case proof of such loss or destruction shall
be furnished to the satisfaction of the Company.
9. LIABILITY NONCUMULATIVE
It is expressly understood that the amount of
insurance under this policy shall be reduced by any
amount the Company may pay under any policy
insuring either (a) a mortgage shown or referred to
in Schedule B hereof which is a lien on the estate
or interest covered by this policy, or (b) a mortgage
hereafter executed by an insured which is a charge
or lien on the estate or interest described or re-
ferred to in Schedule A, and the amount so paid
shall be deemed a payment under this policy. The
Company shall have the option to apply to the pay-
ment of any such mortgages any amount that
otherwise would be payable hereunder to the in-
sured owner of the estate or interest covered by
this policy and the amount so paid shall be deemed
a payment under this policy to said insured owner.
CONDITIONS AND STIPULATIONS
(Continued from inside front cover)
10. APPORTIONMENT
If the land described in Schedule C con-
sists of two or more parcels which are not used as
a single site, and a loss is established affecting one
or more of said parcels but not all, the loss shall
be computed and settled on a pro rats has;s as if
the amount of insurance under this policy was d,
vided pro rats as to the value on Date o1 Policy of
each separate parcel to the whole, exclusive of any
improvements made subsequent to Date of Policy,
unless a liability or value has otherwise been agreed
upon as to each such parcel by the Company and
the insured at the time of the issuance of this
policy and shown by an express statement herein
or by an endorsement attached hereto.
11. SUBROGATION UPON PAYMENT OR
SETTLEMENT
Whenever the Company shall have settled a
claim under this policy, all right of subrogation
shall vest in the Company unaffected by any act of
the insured claimant. T lie Company shall be subro-
gated to and be entitled to all rights and remedies
which such insured claimant would have had against
any person or property in respect to such claim
had this policy not been issued, and if requested by
the Company, such insured claimant shall transfer
to the Company all rights and remedies against any
person or property necessary in order to perfect
such right of subrogation and shall permit the
Company to use the name of such insured claimant
in any transaction or litigation involving such rights
or remedies. If the payment does not cover the
loss of such insured claimant, the Company shall be
subrogated to such rights and remedies in the pro-
portion which said payment bears to the amount of
said loss. If loss should result from any act o1 such
insured claimant, such act shalt not void this policy,
but the Company, in that event, shall be required
to pay only that part of any losses insured against
hereunder which shall exceed the amount, if any,
lost to the Company by reason of the impairment
of the right of subrogation.
12. LIABILITY LIMITED TO THIS POLICY
This instrument together with all endorse-
ments and other instruments, if any, attached
hereto by the Company is the entire policy and
contract between the insured and the Company.
Any claim of loss or damage, whether or not
based on negligence, and which arises out of the
status of the title to the estate or interest covered
hereby or any action asserting such claim, shall be
restricted to the provisions and conditions and
stipulations of this policy.
No amendment of or endorsement to this
policy can be made except by writing endorsed
hereon or attached hereto signed by either the Presi-
dent, a Vice President, the Secretary, an Assistant
Secretary, or validating officer or authorized signa-
tory of the Company.
13. NOTICES, WHERE SENT
All notices required to be given the Company
and any statement in writing required to be fur-
nishegt the Company shall be addressed to it at its
main office at 421 North Main Street, Santa Ana,
California, or to the office which issued this policy.
Owner's Policy Form •
Form B — 1970
SCHEDULE A
s j l Total Fee for Title Search, Examination 7 9— 0 2— 7 3
and Title Insurance $ 1, 8 2 4. 5 0
Amount of Insurance: $ 9 50 , 000 . 00 Policy No. D 193262
Date of Policy: April 11, 1979 at 9:01 A.M.
1. Name of Insured: TIIE EPICUREAN a Colorado limited partnership
2. The estate or interest referred to herein is at Date of Policy vested in:
THE EPICUREAN, a Colorado limited partnership
3. The estate or interest in the land described in Schedule C and which is covered by this policy is:
Fee Simple
• Form No. 1402-C • .
ALTA standard Policy
Western Region 79-02-73
SCHEDULE B
This policy does not insure against loss or damage by reason of the matters shown in parts one and two following:
Part One:
1. Taxes or assessments which are not shown as existing liens by the records of any taxing authority that
levies taxes or assessments on real property or by the public records. The lien of all taxes and
assessments for the year 1979 and thereafter.
2. Any facts, rights, interests, or claims which are not shown by the public records but which could be
1 ascertained by an inspection of said land or by making inquiry of persons in possession thereof.
3. Easements, claims of easement or encumbrances which are not shown by the public records.
4. Discrepancies, conflicts in boundary lines, shortage in area, encroachments, or any other facts which a
correct survey would disclose, and which are not shown by public records.
5. Unpatented mining claims; reservations or exceptions in patents or in Acts authorizing the issuance
thereof; water rights, claims or title to water.
6. Any lien, or right to a lien, for services, labor or material theretofore or hereafter furnished, imposed by
law and not shown by the public records.
Part Two:
7. Restrictions imposed on subject property by Notice of Histroic Designation recorded
January 13, 1975 in Book 295 at page 515.
8. Any and all leases not of public record.
9. Any tax, assessments, fees or charges by reason of the inclusion of subject property
in Aspen Fire Protection District, Aspen Street Improvement District, Aspen Sanitation
District and Aspen Valley Hospital District.
10. Deed of Trust from The Epicurean, a Colorado Limited Partnership to the Public
Trustee of Pitkin County, Colorado for the use of Ernst R. Martens and Wilma
Martens to secure $710,000.00 dated April 10, 1979, recorded April 11, 1979 in
Book 366 at Page 364.
11. Deed of Trust from The Epicurean, a Colorado Limited Partnership to the Public
Trustee of Pitkin County, Colorado for the use of David Stringer to secure $55,000.00
dated April 18, 1979, recorded April 18, 1979 in Book 366 at Page 868.
Form No. 1056-4
All Policy Forms
79-OZ-73
SCHEDULE C
The land referred to in this policy is situated in the State of C o l o r n d o
County of P 1 t k i n and is described as follows:
Lots A, B and C
Block 87
CITY AND TOWNSITE OF ASPEN
Pitkin County, Colorado
VVTITDTT P
EMPLOYEE HOUSING COVENANTS
In connection with condominiumization proceedings
pertaining to the real property described hereinbelow, The
Epicurean Partnership, a Colorado limited partnership (hereinafter
called "Epicurean"), for itself, and its successors and
assigns, hereby covenants and agrees with the City of Aspen,
Pitkin County, Colorado that:
1. Epicurean is the owner of condominium units 301,
302 and 303, Epicure Plaza, County of Pitkin, State of
Colorado, according to the recorded condominium plat map
thereof (said condominium units hereinafter being referred
to as the "Residential Units").
2. The Residential Units shall be restricted for use as
employee housing under the guidelines of the City of Aspen
and shall be restricted to middle income price guidelines
and middle income occupancy limitations established from
time to time by the Aspen City Council.
3. The covenants contained herein shall run with the
land and shall be binding upon Epicurean and its successors
and assigns for the period of the life of the last surviving
member of the present Aspen City Council plus twenty-one
(21) years, or for a period of fifty (50) years, whichever
period is less, following the date upon which these covenants
are recorded in the real property records of Pitkin County,
Colorado.
4. These covenants may not be amended except by an
instrument in writing signed by the City of Aspen, Colorado
and all of the then record owners of the Residential Units.
IN WITNESS WHEREOF, these covenants have been duly
executed this day of , 1981.
THE EPICUREAN PARTNERSHIP
By.
General Partner
i
STATE OF COLORADO )
COUNTY OF PITKIN ) SS.
The foregoing instrument was acknowledged before me
this day of , 1981 by ,
as a General Partner of The Epicurean Partnership, a Colorado
limited partnership.
WITNESS my hand and official seal.
My commission expires:
Notary Public
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0
MEMORANDUM
TO: Aspen City Council -
Jack Johnson, Planning Office
RE: Epicurean Subdivision Exception (Condominiumization)
DATE: June.22, 1981 APPROVED AS TO FORM: �.
Location: The open patio space located between the Wh le of a Was
and the Epicure Restaurant in the 400 bloc of
Main
Street (Lots B and C, Block 87, City and wnsite of.i
Aspen, Colorado).
Zoning: CC_ Commercial Core (H.P. Overlay)
Background: The Epicure Plaza, subject of this application, was
granted a commercial GMP allotment fo,r 10,041 square
feet by City Council on November 26, 1979. The owner/
applicant has not yet sought a building permit and must
"submit plans sufficient for building permit issuance"
before September 1, 1981, or this allotment will auto-
matically expire.
Applicant's
Request: This is an application by the Epicurean Partnership
requesting subdivision exception for the purposes of
condominiumizing the proposed Epicure Plaza Building
into 21 spaces.
City Attorney: Compliance with applicable provisions of Section 20-22
required.
Engineering
Department: The improvement survey submitted with the application is
not an adequate Condominium Plat and should be revised
and resubmitted to this office for signatures and re-
cording following construction. The revised plat shall
indicate:
a) Adjacent streets and alleys, sidewalks, curb and
gutter.
b) Cross sections indicating elevations of floors
and ceilings,
The Growth Management Plan application states that permission
had been obtained from this office to dispose of storm
drainage from the site via a forty -eight -inch (48") storm
sewer in Mill Street. It is not the policy of this Depart-
ment to allow private developments to route site runoff to
the City's storm sewers but rather to encourage retention
of the flow on site. Unless the applicant can produce
written consent from this office granted prior to the 1979
GMP review, we will not permit a tap to the storm sewer.
Any water tap to the six-inch (6") main in Main Street shall
be undertaken during the off-season (i.e., mid -April to
mid -May or anytime in September after Labor Day). Pavement
shall be saw -cut and backfill shall be 3/4-inch road base
place and compacted in eighteen -inch (18") lifts.
Planning The Epicure Plaza was granted'a total of 12,000 square feet
Office: of building space on the 6,000 square foot site. The
12,000 square feet include 10,041 square feet of commercial
and office space and approximately 1,959 square feet of
employee housing. The FAR for this site is 2.0 (1.5 by
MEMO: Epicurean
Subdivision Exception (Condominiumization)
June 22, 19131
Page Two
right in the CC zone and .5 granted by Special Review).
Retail and restaurant uses are proposed on the ground level
with support space in the basement, office space on the
second level and employee housing on the third level.
Many Code requirements of Section 20-22 are not applicable
as this application involves unbuilt commercial space
rather than conversion of an existing residential structure. '
However, the three employee housing units a part of this
application, are to be deed restricted as per rental price
guidelines at the middle income level. These three residen-
tial units are to be restricted to six (6) month minimum
leases with no more than two (2) shorter tenancies per
year. Condominiumization of this future space becomes void
and nullified if valid building plans have not been re-
ceived by the Building Department by September 1st of this
year,
Planning Office
Recommendation:
Approval of the application for subdivision exception for
the purposes of condominiumizing the Epicure Plaza Building
subject to the following conditions:
1. Compliance with the Engineering Department comments,
2. Deed restrictions of the three employee units at
the middle income price guidelines.
3. Restrictions to six (6) month minimum leases with
no more than two (2) shorter tenancies per year on
the three (3) employee housing units°
NOTE: Condominiumization of the Epicure Plaza Building becomes null
and void if
valid building plans have not been received by the Building
Department by September 1, 1981.
P & Z Action:
On May 5, 1981, the Planning and Zoning Commission granted
the applicant a waiver to conceptual plan approval before
City Council and Preliminary Plat approval before P & Z
(short subdivision procedure). The P & Z also recommended
approval of the request for subdivision exception for the
purposes of condominiumizing the Epicure Plaza Building
subject to the three conditions enumerated under Planning
Office recommendation.
Council Action:
If City Council concurs with the recommendations of the
Planning Office and the Planning and Zoning Commission,
the proper motion would be:
"I move approval of the application for subidivision
exception for the purposes of condominiumizing the Epicure
Plaza Building subject to the following conditions:
1. Compliance with the Engineering Department comments,
2. Deed restrictions of the three employee units at
the middle income price guidelines,
3. Restrictions to six (6) month minimum leases with no
more than two (2) shorter tenancies per year on
the three (3) employee housing units,"
G
I
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EXHIBIT E
BY-LAWS
OF
EPICURE PLAZA
CONDOMINIUM ASSOCIATION
(A Condominium)
ARTICLF. T
OBJECT
(Plan of Ownership)
1. The purpose for which this non-profit Associa-
tion is formed is to govern the condominium property which
has been or will be submitted to the provisions of the Con-
dominium Ownership Act of the State of Colorado by the record-
ing of the Declaration and Supplements thereto and Maps and
Supplements thereto bearing the name associated with this
Association.
2. All present or future owners and tenants or
any other persons who use in any manner the facilities of
the project located on the property therein described are
subject to the requlations set forth in these By -Laws. The
acquisition or rental of any of the condominium units (here-
inafter referred to as "units") or the mere act of occupancy
of any of said units will signify that these By -Laws are
accepted, ratified and will be complied with.
ARTICLF II
MEMBERSHIP, VO=TG, MAJORITY OF OWNFRS, QUORUM, PROXIES
1. Membership. Except as is otherwise provided in
these By -Laws, ownership of a unit is required in order to
qualify for membership in this Association. Any person on
becoming an owner of a unit shall automatically become a
member of this Association and be subject to these By -Laws.
Such membership shall terminate without any formal Associa-
tion action whenever such person ceases to own a unit, but
such termination shall not relieve or release any such former
owner from any liability or obligation incurred under or in
any way connected with this Association during the period of
such ownership and membership in the Association, or impair
any rights or remedies which the unit owners have, either
through the Board of Directors of the Association or directly,
against such former owner and member arising out of or in
any way connected with ownership and membership and the cov-
enants and obligations incident thereto.
2. Voting. Voting shall be based upon the per-
centage of the undivided interest owned by each unit owner
in all of the general common elements. The aggregate of all
of the percentage interests comprising the entire condominium
project shall be considered one hundred percent for voting
purposes. Cumulative voting is prohibited.
3. Majority of Unit Owners. As used in these
By -Laws the term "majority of unit owners" shall mean those
owners of more than fifty percent (500) of the undivided
ownership of the general common elements.
4. Quorum. Except as otherwise provided in these
By -Laws, the presence in person or by proxy of members holding
sixty-seven percent (67%) of the votes entitled to be cast
shall constitute a quorum. An affirmative vote of a majority
of the unit owners present, either in person or by proxy,
shall be required to transact the business of the meeting.
i •
ARTICLE III
ADMINISTRATION
1. Association Responsibilities. The owners of the
units will constitute the Association of Unit Onwers, hereinafter
referred to as "Association," who will have the responsibility
of administering the project through a Board of Directors herein-
after referred to as the "Board."
2. Place of Meeting. Meetings of the Association
shall be held at such place in Aspen, Colorado, as the Board may
determine.
3. Annual Meeting. The first meeting of the Associa-
tion members shall be held during the month of December, 1982.
Thereafter, the annual meeings of the Association shall be held
during the month of December of each succeeding year. At such
meetings there shall be elected by ballot of the owners a Board
in accordance with the requirements of Section 5 of Article IV
of these By -Laws. The owners may also transact such other
business of the Association as may properly come before them.
"Declarant" as used in these By -Laws refers to the Declarant
named in the Condominium Declaration for the Epicure Plaza.
4. Special Meetings. The President may call a
special meeting of the owners upon his own initiative, or as
directed by resolution of the Board or upon receipt of a petition
signed by at least one-third of the owners. The notice of any
special meeting shall state the time and place of such meeting
and the purpose thereof. No business except as stated in the
notice shall be transacted at a special meeting unless by consent
of two-thirds of the owners present, either in person or by
proxy. Any such meetings shall be held at such place and time
as the President determines within thirty (30) days after receipt
by the President of such resolution or petition.
5. Notice of Meetings. The Secretary shall cause to
be mailed or delivered a notice of each annual or special meeting,
stating the purpose thereof as well as the time and place it is
to be held, to each owner of record, at the registered address
of each owner, at least ten (10), but not more than thirty (30)
days prior to such meeting. The mailing of a notice in the
manner provided in this section or the delivery of such notice
shall be considered notice served, and the Certificate of the
Secretary that notice was duly given shall be prima facia evidence
thereof.
6. Adjourned r.1eetings. If any meeting of owners
cannot be organized because a quorum has not attended, the
owners who are present, either in person or by proxy, may adjourn
the meeting, to a time not less than forty-eight hours from the
time the original meeting was called.
7. Order of Business. The order of business at all
meetings of the owners of units shall be as follows:
(a) Roll Call and certifying proxies
(b) Proof of notice of meeting or waiver of
notice
(c)
Reading of
Minutes of preceding Peetings
(d)
Reports of
Officers
(e)
Reports of
committees
(f)
Election of
Directors
(g)
Unfinished
business
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(h) Now business
(i) Adjournment
8. Performance of Functions by Declarant. The
rights, duties and functions of the Board shall, at the De-
clarant's option, he exercised by the Declarant by and through
those persons named as Directors in the Articles of Incorpor-
ation, until the development of the entire condominium project
has been completed and until condominium units have
been sold and the sale transactions have been closed.
ARTICLE. IV
BOARD OF DIRECTORS
1. Number and Qualification. The Declarant shall
exercise the rights, duties and functions of the Board as provided
hereinabove by and through the persons named in the Articles of
Incorporation as the Directors until the first meeting of the
Members of the Association. At the first meeting there shall be
elected three members of the Association to the Board who shall
thereafter govern the affairs of this Association until their
successors have been duly elected and qualified.
2. Powers and Duties. The Board shall have the
powers and duties necessary for the administration of the affairs
of the Association and for the operation and maintenance of the
condominium project as a first class condominium property. Such
powers and duties of the Board shall include, but shall not be
limited to, the following, all of which shall be done for and in
behalf of the owners of the condominium units:
(a) To administer and enforce the covenants,
conditions, restrictions, easements, uses, limitations, obli-
gations and all other provisions set forth in the Condominium
Declaration submitting the property to the provisions of the
Condominium Ownership Act of the State of Colorado, the By -Laws
of the Association and supplements and amendments therein.
(b) To establish, make and enforce compliance
with such rules and regulations as may be necessary for the
operation, rentals, use and occupancy of all of the units with
the right to amend same from time to time. A copy of such rules
and regulations shall be delivered or mailed to each member upon
the adoption thereof.
(c) With the assistance of the Managing Agent,
to incur such costs and expenses as may be necessary to keep in
good order, condition and repair all of the general and limited
common elements and all items of common personal property.
(d) With the assistance of the Managing Agent,
to insure and keep insured all of the insurable general common
elements and condominium units in an amount equal to the maximum
replacement value. To insure and keep insured all of the common
fixtures, common equipment and common personal property for the
benefit of the owners of the units and their first mortgagees.
Further, to obtain and maintain comprehensive liability insurance
covering the entire premises.
(e) With the assistance of the Managing Agent,
to prepare a budget for the condominium at least annually, in
order to determine the amount of the common assessments payable
by the unit owners to meet the common expenses of the condominium
project, and allocate and assess such common charges among the
unit owners according to their respective common ownership
interests in and to the general common elements, and by majority
vote of the Board to adjust, decrease or increase the amount of
the quarterly or monthly assessments, and remit or return any
excess of assessments over expenses, working capital, sinking
funds, reserve for deferred maintenance and for replacement to
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the owners at the end of each operating year. To levy and
collect special assessments whenever in the opinion of the Board
it is necessary to do so in order to meet increased operating or
maintenance expenses or costs, or additional capital expenses,
or because of emergencies.
(f) To collect delinquent assessments by and
through the Managinq Agent.by suit or otherwise and to enjoin or
seek damages from an owner as is provided in the Declaration and
these By -Laws. To enforce a late charge and to collect interest
at the rate of eighteen percent (18%) per annum in connection
with assessments remaining unpaid more than twenty (20) days
from due date for payment thereof, plus a late charge of $50.00
and reasonable attorney's fees incurred.
(g) To protect and defend in the name of the
Association any part or all of the condominium project from loss
and damage by suit or otherwise.
(h) To borrow funds in order to pay for any
expenditure or outlay required pursuant to the authority granted
by the provisions of the recorded Declaration and these By -Laws,
and to execute all such instruments evidencing such indebtedness
as the Board may deem necessary and give security therefor.
Such indebtedness shall be the several obligation of all of the
owners in the same proportion as their interest in the general
common elements. The persons who shall be authorized to execute
promissory notes and securing instruments shall be the President
and Secretary or Assistant Secretary.
(i) To enter into contracts to carry out their
duties and powers.
(j) To establish a bank account or accounts for
the common treasury and for all separate funds which are required
or may be deemed advisable.
(k) To make repairs, additions, alterations and
improvements to the general and limited common elements consistent
with managing the condominium project in a first-class manner
and consistent with the best interests of the unit owners. Such
duties may be delegated to the managing Agent.
(1) To keep and maintain full and accurate books
and records showing all of the receipts, expenses, or disburse-
ments and to permit examination thereof at any reasonable time
by each of the owners and each of the owner's mortgagees, and to
cause a complete audit of the books and accounts by a certified
or public accountant, once each year. Such duties may be delegated
to the Managing Agent.
(m) with the assistance of the Managing Agent,
to prepare and deliver annually to each owner a consolidated
statement showing receipts, expenses or disbursements since the
last such statement.
(n) To meet at least annually whereat the Managing
Agent or his employee shall be in attendance.
(o) In general, to carry on the administration
of this Association and to do all of those things necessary and
reasonable in order to carry out the governing and the operation
of this condominium property.
(p) To control and manage the use of all sidewalks,
parking areas, open spaces, common streets and other common
property.
(q) To employ for
Agent who shall have and exercise
to it by the Board but not those
may not delegate.
the Association a Managing
those duties and powers granted
powers which the Board, by law,
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3. No Waiver of Rights. The omission or failure
of the Association or any unit owner to enforce the cove-
nants, conditions, restrictions, easements, uses, limitations,
obligations or other provisions of the Condominium Declara-
tion, the By -Laws, or the Rules and Regulations adopted pur-
suant thereto, shall not constitute or be deemed a waiver,
modification or release thereof, and the Board or the Mana-
ging Agent shall have the right to enforce the same there-
after.
4. Election and Term of Office. At the expiration
of the initial term of office of each respective Director, his
successor shall be elected to serve a term of one year. Except
as is otherwise provided by these By -Laws, the Directors shall
hold office until their successors have been elected and hold
their first meeting.
5. Vacancies. Vacancies in the Board caused by
any reason other than the removal of a Director by a vote of
the Association shall be filled by vote of the majority of
the remaining Directors even though they may constitute less
than a quorum; and each person so elected shall be a Director
until his successor is elected.
6. Removal of Directors. Subject to the provi-
sions of Article III, Paragraph 8 hereof, at any regular or
special meeting duly called, any one or more of the Directors
may be removed with or without cause by a majority of
the owners, and a successor may then and there be elected
to fill the vacancy thus created. Any Director whose removal
has been proposed by the owners shall be given an opportunity
to be heard at the meeting prior to voting thereon.
7. Organization Meeting. The first meeting of
a newly elected Board following each annual meeting of the
unit owners shall be held within ten days thereafter at such
place as shall be fixed by the Directors at the meeting at
which such Directors were elected, and no notice shall be
necessary to the newly elected Directors in order legally
to constitute such meeting, providing a majority of the
whole Board shall be present.
8. Regular Meetings. Regular meetings of the
Board may be held at such time and place as shall be deter-
mined, from time to time, by a majority of the Directors, but
at least one such meeting shall be held during each calendar
year. Notice of regular meetings of the Board shall be given
to each Director, personally or by mail, telephone or tele-
graph, at least seven days prior to the day designated for
such meeting.
9. Special Meetings. Special meetings of the
Board may be called by the President on three days notice to
each Director, given personally or by mail, telephone or
telegraph, which notice shall state the time, place and pur-
pose of the meeting. Special meetings of the hoard shal]. be
called by the President or Secretary in like manner and on
like notice on the written request of two or more Directors.
10. Waiver of Notice. Before or at any meeting of
the Board, any Director may, in writing, waive notice of such
meeting and such waiver shall be deemed equivalent to the
giving of such notice. Attendance by a Director at any meet-
ing of the Board shall be a waiver of notice by him of the
time and place thereof. If all the Directors are present at
any meeting of the Board, no notice shall be required and
any business may be transacted at such meeting.
11. Board of Directors' ;quorum. At all meetings
of the Board, a majority of the Directors shall consitute
a quorum for the transaction of business, and the acts of
the majority of the Directors present at a meeting at which
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a quorum is present shall be the acts of the Board. If,
at any meeting of the Board, there be less than a quorum
present, the majority of those present may adjourn the
meeting from time to time. At any such adjourned meeting,
any business which might have been transacted at the meeting
as originally called may be transacted without further notice.
12. Fidelity Bonds. The Board may require that
all officers and employees of the Association and the Man-
aging Agent who handle or are responsible for Association
funds shall furnish adequate fidelity bonds. The premiums
on such bonds shall be a common expense.
ARTICLF. V
FISCAL MANAGEMENT
The provisions for fiscal management of the units
for and in behalf of all of the unit owners as set forth in
the Condominium Declaration may be supplemented by the follow-
ing provisions:
1. Accounts. The funds and expenditures of the
unit owners by and through the Association shall be credited
and charged to accounts under the following classifications
as shall be appropriate, all of which expenditures shall be
common expenses:
(a) Current expense, which shall include all
funds and expenditures within the year for which the funds are
budgeted, including a reasonable allowance for contingencies
and working funds, except expenditures chargeable to reserves
or to additional improvements.
(b) Reserve for deferred maintenance, which
shall include funds for maintenance items which occur less
frequently than annually.
(c) Reserve for replacement, which shall in-
clude funds for repair or replacement required because of
damage, wear or obsolescence.
ARTICLE VI
OFFICERS
1. Designation. The officers of the Association
shall be a President, a Vice President, a Secretary and a
Treasurer, all of whom shall be elected by the Board, and
such assistant officers as the Board shall, from time to
time elect. Such officers need not be members of the Board,
but each shall be an owner of a unit in this condominium
project, or the Declarant or its representative. The office
of President and Treasurer may be held by the same person,
and the office of Vice President and Secretary may be held
by the same person.
2. Election of Officers. The officers of the
Association shall be elected annually by the Board at the
organization meeting of each new Board and shall hold office
at the pleasure of the Board.
3. Removal of Officers. Upon an affirmative vote
of a majority of the members of the Board, any officer may be
removed, either with or without cause, and his successor
elected at any regular meeting of the Board, or at any spe-
cial meeting of the Board called for such purpose.
4. President. The President shall be the chief
executive officer of the Association. He shall preside at
all meetings of the Association and of the Board. He shall
have all of the general powers and duties which are usually
vested in the office of president of an association, includ-
Q.
0 •
ing but not limited to the power to appoint committees from
among the owners from time to time as he may in his discretion
decide is appropriate to assist in the conduct of the affairs of
the Association or as may be established by the Board or by the
members of the Association at any regular or special meetings.
5. Vice President. The Vice President shall have
all the powers and authority and perform all the functions and
duties of the President, in the absence of the President, or his
inability for any reason to exercise such powers and functions
or perform such duties.
6. Secretary. The Secretary shall keep all the
minutes of the meetings of the Hoard and the minutes of all
meetings of the Association; he shall have charge of such books
and papers as the Board may direct; and he shall, in general,
perform all the duties incident to the office of Secretary. The
Secretary shall compile and keep up to date at the principal
office of the Association a complete list of members and their
registered addresses as shown on the records of the Association.
Such list shall also show opposite each member's name the number
or other appropriate designation of the unit owned by such
member and the member's undivided interest in the general common
elements. Such list shall be open to inspection by members and
other persons lawfully entitled to inspect the same at reasonable
times during regular business hours. The records referred to in
this subsection may be maintained by the Managing Agent.
7. Treasurer. The Treasurer shall have the res-
ponsibility for Association funds and shall be responsible for
keeping full and accurate accounts of all receipts and disburse-
ments in books belonging to the Association; provided, however,
that when a Managing Agent has been delegated the responsibility
of collecting and disbursing funds, the Treasurer's responsibility
shall be to review the accounts of the Managing Agent not less
often than semi-annually.
ARTICLE VII
INDEMNIFICATION OF OFFICERS, DIRECTORS AND MANAGING AGENT
1. Indemnification. The Association shall indemnify
every Director, officer, Managing Agent, their respective succes-
sors, personal representatives and heirs, against all loss,
costs and expenses, including counsel fees, reasonably incurred
by him in connection with any action, suit or proceeding to
which he may be made a party by reason of his being or having
been a Director, officer or Managing Agent of the Association,
except as to matters as to which he shall be finally adjudged in
such action, suit or proceeding to be liable for gross negligence
or willful misconduct. In the event of a settlement, indemnifi-
cation shall be provided only in connection with such matters
covered by the settlement as to which the ,'association is advised
by counsel that the person to be indemnified has not been guilty
of gross negligence or willful misconduct in the performance of
his duty as such Director, officer or Managing Agent, in relation
to the matter involved. The foregoing rights shall not be
exclusive of other rights to which such Director, officer or
Managing Agent may be entitled. All liability, loss, damage,
cost and expense incurred or suffered by the Association by
reason or arising out of or in connection with the foregoing
indemnification provisions shall be treated and handled by the
Association as common expenses; provided, however, that nothing
in this Article VII contained shall be deemed to obligate the
Association to indemnify any member or owner of a unit who is or
has been a Director or officer of the Association with respect
to any duties or obligations assumed or liabilities incurred by
him under and by virtue of the Condominium Declaration.
2. Other. Contracts or other commitments made by
the Board of Directors, officers or the Managing Agent shall be
made as agent for the unit owners, and they shall have no personal
dC
responsibility on any such contract or commitment except as unit
owners, and the liability of any unit owner on any such contract
or commitment shall be limited to such proportionate share of
the total liability thereof as the common interest of each unit
owner bears to the aggregate common interest of all of the unit
owners, except that any losses incurred because of an inability
to collect such proportionate amount of the total liability
owned by an owner shall be.shared proportionately by the owners.
ARTICLE VIII
AMENDMENTS
1. The Articles of Incorporation may be amended in
the manner provided by law.
2. These By -Laws may be amended by vote of owners of
eighty-five percent (85%) of the undivided ownership of the common
elements at a duly constituted meeting of the members for such
purpose, provided, however, that no amendment shall conflict
with or minimize the intended effect of the provisions of the
Articles of Incorporation or the Declaration.
ARTICLE IX
MORTGAGES
1. Notice to Association. An owner who mortgages
his unit shall notify the Association through the Managing
Agent, if any, or the Association Secretary, giving the name and
address of his mortgagee. The Association shall maintain such
information in a book entitled "Mortgagees of Units."
2. Notice of Unpaid Common Assessments. The Associa-
tion, whenever so requested in writing by a mortgagee of a unit,
shall promptly report any then unpaid common assessments due
from, or any other default by, the owner of a mortgaged unit.
3. Notice of Default. When giving notice to a unit
owner of a default in paying common assessments or other default,
the Board shall send a copy of such notice to each holder of a
mortgage covering such unit whose name and address has thereto-
fore been furnished to the Board.
ARTICLE X
EVIDENCE OF OWNERSHIP, REGISTRATION OF MAILING
ADDRESS AND DESIGNATION OF VOTING REPRESENTATIVE
1. Proof of Ownership. Except for those owners
who initially purchase a unit from Declarant, any person on
becoming an owner of a unit shall furnish to the Managing
Agent or Board of Directors, a photocopy or certified copy
of the recorded instrument vesting that person with an inter-
est or ownership in the unit, which copy shall remain in the
files of the Association.
2. Registration of Mailing Address. The owners
or several owners of an individual unit shall have one and
the same registered mailing address to be used by the Asso-
ciation for mailing of monthly statements, notices, demands
and all other communications, and such registered address
shall be the only mailing address of a person or persons,
firm, corporation, partnership, association or other legal
entity or any combination thereof_ to be used by the Associa-
tion. Such registered address of a unit owner or owners
shall be furnished by such owners to the Managing Agent or
Board of Directors within fifteen days after transfer of
title, or after a change of address, and such registration
shall be in written form and signed by all of the owners of
the unit or by such persons as are authorized by law to
represent the interest of all of the owners thereof.
3. Designation of Voting Representative Proxy. If
a unit is owned by one person, his right to vote shall be esta-
blished by the record title thereto. If title to a unit is held
by more than one person or by a firm, corporation, partnership,
association, or other legal entity, or any combination thereof,
such owners shall execute a proxy appointing and authorizing one
person to attend all annual and special meetings of members and
thereat to cast whatever vote the owner himself might cast if he
were personally present. Such proxy shall be effective and
remain in force unless voluntarily revoked, amended or sooner
terminated by operation of law provided, however, that within
thirty days after such revocation, amendment or termination, the
owners shall reappoint and authorize one person to attend all
annual and special meetings as provided by this Section 3.
4. The requirements herein contained in this Article
X shall be first met before an owner of a unit shall he deemed
in good standing and entitled to vote at any annual or special
meeting of members.
ARTICLE YI
OBLIGATIONS OF THE OWNERS
1. Assessments. All owners shall be obligated to
pay the monthly or quarterly assessments imposed by the Asso-
ciation to meet the common expenses. The assessments shall be
made pro rata according to percentage interest in and to the
general common elements. Assessments shall be due in advance.
A member shall be deemed to be in good standing and entitled to
vote at any annual or at a special meeting of members, within
the meaning of these By -Laws, if, and only if, he shall have
fully paid all assessments made or levied against him and the
unit owned by him.
2. Notice of Lien or Suit. An owner shall give
notice to the Association of every lien or encumbrance upon his
unit, other than for taxes and special assessments, and notice
of every suit or other proceeding which may affect the title to
his unit, and such notice shall be given in writing within five
days after the owner has knowledge thereof.
3. Mechanic's Lien. Each owner agrees to indemnify
and to hold each of the other owners harmless from any and all
claims or mechanic's lien for labor, materials, services, or
other products incorporated in such indemnifying owner's unit.
In the event such a lien is filed and/or a suit for foreclosure
of mechanic's lien is commenced, then within ten days thereafter
such owner shall be required to deposit with the Association
cash or negotiable securities in a sum equal to (a) 1500 of the
amount of such claim, plus (b) 10% of the amount of such claim
(but not less than $200.00), which latter sum may be used by the
Association for any costs and expenses incurred, including
attorney's fees incurred for legal advice and counsel. Except
as is otherwise provided, such sum or securities shall be held
by the Association pending final adjudication or settlement of
the claim or litigation. Disbursements of such funds or pro-
ceeds shall be made by the Association to insure payment of or
on account of such final judgment or settlement. Any deficiency,
including attorney's fees incurred by the Association, shall be
paid forthwith by the subject owner, and his failure to so pay
shall entitle the Association to make such payment, and the`
amount thereof shall be a debt of the owner and a lien against
his condominium unit which may be foreclosed as is provided in
the Condominium Declaration. All advancements, payments, costs
and expenses, including attorney's fees, incurred by the Associa-
tion shall be forthwith reimbursed to it by such owner, and such
owner shall be liable to the Association for the payment of
interest at the rate of eighteen percent (18%) per annum on all
such sums paid or advanced by the Association.
MRM
4. Paintenance and Rel2air.
(a) Every owner must perform promptly, at his
own expense, all maintenance and repair work within his own unit
which, if omitted, would affect the appearance of or the aesthetic
integrity of part or all of the condominium project.
(b) All the repairs of internal installations of
the unit such as water, light, gas, power, sewage, telephone,
sanitary installations, doors, windows, electrical fixtures and
all other accessories, equipment and fixtures shall he at the
owner's expense.
(c) An owner shall be obligated to reimburse the
Association promptly upon receipt of its statement for any
expenditures incurred by it in repairing or replacing any general
or limited common elements damaged by his negligence or by the
negligence of his tenants, agents or guests.
5. General.
(a) Each owner shall comply strictly with the
provisions of the recorded Condominium Declaration and these
By -Laws and amendments thereto.
(b) Each owner shall always endeavor to observe
and promote the cooperative purposes for the accomplishment of
which this condominium project was built.
6. Uses of Units. All units shall be utililized
only for the purposes described in the Condominium Declaration.
7. Use of General Common Elements and Limited Common
Elements. Each owner may use the general common elements, the
limited common elements, sidewalks, pathways, roads and streets
and other common elements located within the entire condominium
project in accordance with the purpose for which they were
intended without hindering or encroaching upon the lawful rights
of the other owners, and subject to the rules and regulations
contained in these By -Laws and established by the Board as is
provided in Section 9 of this Article.
8. Riaht of Fntrv.
(a) An owner shall and does grant the right of
entry to the Managing Agent or to any other person authorized by
the Board in case of any emergency originating in or threatening
his unit, whether the owner is present at the time or not.
(b) An owner shall permit other owners, or their
representatives, to enter his unit for the purpose of performing
installations, alterations or repairs to the mechanical, electrical
or utility services which, if not performed, would affect the
use of other units, provided that requests for entry are made in
advance and that such entry is at a time convenient to the
owner. In case of an emergency, such right of entry shall be
immediate.
9. Rules and Regulations.
(a) The initial rules and regulations, which
shall be effective until amended or supplemented by the Board,
are annexed hereto and made a part hereof as Schedule A.
(b) The hoard reserves the power to establish,
make and enforce compliance with such additional rules and
regulations as may be necessary for the operation, use and
occupancy of this condominium project with the right to amend
same from time to time. Copies of such rules and regulations_
shall be furnished to each unit owner prior to the date when the
same shall become effective.
-10-
10. Destruction and obsolescence. Each owner,
upon becoming an owner of a unit, thereby grants his power
of attorney in favor of the Association, irrevocably appoint-
ing the Association his attorney -in -fact to deal with the
owner's unit upon its damage, destruction or obsolescence,
all as is provided in the Condominium Declaration.
ARTICLE XII
ABATEMENT AND ENJOYME14T OF VIOLATIONS BY UNIT OWNERS
1. Abatement and Enjoinment. The violation of any
rule or regulation adopted by the Board, or the breach of
any By -Law, or the breach of any provision of the Declara-
tion, shall give the Board or the Managing Agent the right,
in addition to any other rights set forth therein, to enter
the unit in which, or as to which, such violation or breach
exists and to summarily abate and remove, at the expense of
the defaulting unit owner, any structure, thing or condition
that may exist therein contrary to the intent and meaning of
the provisions thereof, and the Board or Managing Agent shall
not be deemed guilty in any manner of trespass and shall have
the right to expel, remove and put out, using such force as
may be necessary in so doing, without being liable to prose-
cution or in damages therefor, and the Board or Managing
Agent shall have the right to enjoin, abate or remedy by
appropriate legal proceedings, either at law or in equity,
the continuance of any such breach.
ARTICLE XIII
ASSOCIATION - NOT FOR PROFIT
1. Association - Not for Profit. This Association
is not orgainized for profit. No member, member of the Board,
officer or person from whom the Association may receive any
property or funds shall receive or shall be lawfully entitled
to receive any pecuniary profit from the operation thereof,
and in no event shall any part of the funds or assets of the
Association be paid as salary or compensation to, or distri-
buted to, or inure to the benefit of any member of the Board,
officer or member; provided, however, always that reasonable
compensation may be paid to any member, Director, or officer
while acting as an agent or employee of the Association, for
services rendered in effecting one or more of the purposes
of the Association, and that any member, Director or officer
may, from time to time, be reimbursed for his actual and
reasonable expenses incurred in connection with the adminis-
tration of the affairs of the Association. The provisions
herein are not applicable to the Managing Agent who shall
perform its manager's duties and functions according to
written agreement for the compensation stated therein.
ARTICLE XIV
MORTGAGEES AS PROXIES
1. Mortgagees as Proxies. Unit owners shall
have the right to irrevocably constitute and appoint the
beneficiary of a trust deed or mortgagee as their true and
lawful attorney to vote their unit membership in this Asso-
ciation and to vest in such beneficiary or its nominee any
and all rights, privileges and powers that they have as unit
owners under the Certificate of Incorporation and By -Laws of
this Association or by virtue of the recorded Condominium
Declaration. Such proxy shall become effective upon the
filing of a notice by the beneficiary with the Secretary of
the Association at such time or times as the beneficiary
shall deem its security in jeopardy by reason of the failure,
neglect or refusal of the Association, the Managing Agent or
the unit owners to carry out their duties as set forth in
the Condominium Declaration. A release of the beneficiary's
-11-
deed of trust or mortgage shall operate to revoke such
proxy, rioting herein contained shall be construed to relieve
unit owners, as mortgagors, of their duties and obligations
as unit owners or to impose upon the beneficiary of the deed
of trust or mortgage the duties and obligations of a unit
owner.
IN WITNESS WHEREOF, the undersigned initial Board
of Directors have hereunto set their hands this day of
, 1981.
BOARD OF DIRECTORS:
The undersigned Secretary of this Association does
hereby certify that the above and foregoing By -Laws and
rules and regulations were duly adopted by the Directors as
the By -Laws and rules and regulations of said Association
this day of , 1981.
Secretary
-12-
VVTTTDTT V
EMPLOYEE HOUSING COVENANTS
In connection with condominiumization proceedings
pertaining to the real property described hereinbelow, The
Epicurean Partnership, a Colorado limited partnership (hereinafter
called "Epicurean"), for itself, and its successors and
assigns, hereby covenants and agrees with the City of Aspen,
Pitkin County, Colorado that:
1. Epicurean is the owner of condominium units 301,
302 and 303, Epicure Plaza, County of Pitkin, State of
Colorado, according to the recorded condominium plat map
thereof (said condominium units hereinafter being referred
to as the "Residential Units").
2. The Residential Units shall be restricted for use as
employee housing under the guidelines of the City of Aspen
and shall be restricted to middle income price guidelines
and middle income occupancy limitations established from
time to time by the Aspen City Council.
3. The covenants contained herein shall run with the
land and shall be binding upon Epicurean and its successors
and assigns for the period of the life of the last surviving
member of the present Aspen City Council plus twenty-one
(21) years, or for a period of fifty (50) years, whichever
period is less, following the date upon which these covenants
are recorded in the real property records of Pitkin County,
Colorado.
4. These covenants may not be amended except by an
instrument in writing signed by the City of Aspen, Colorado
and all of the then record owners of the Residential Units.
IN WITNESS WHEREOF, these covenants have been duly
executed this day of , 1981.
THE EPICUREAN PARTNERSHIP
By.
General Partner
STATE OF COLORADO ) ss.
COUNTY OF PITKIN )
The foregoing instrument was acknowledged before me
this day of , 1981 by ,
as a General Partner of The Epicurean Partnership, a Colorado
limited partnership.
WITNESS my hand and official seal.
My commission expires:
Notary Public
-2-
t 1_ t s
Regular Meeting Aspen City Council June 22, 1981
If`SUBDIVISION EXCEPTION - Epicurean
i
i� Jack Johnson, planning office, told Council this is a reques t to condominiumize .21 spaces,
II in the Epicure building. The Epicurean received a commercial GMP allotment for 10,041 it
it square feet in 1979. This allotment will expire in September if the applicant does not
submit plans sufficient for a building permit issuance. The engineering department has
noted this is not an adequate condominiumization plat, and the applicant will need to f
resubmit a plat. Johnson told Council there is additionally 1,959 square feet of employee;]
housing space divided into three units. The applicant is proposing this housing be
restricted to the middle income category.
Johnson told Council the planning office has reviewed this and has recommended that six
month minimum leases apply to the three housing units. The P & Z reviewed this and' I
recommended middle income guidelines. The applicant is requesting that the three parking
spaces that would be required for the employee units be waived per the review criteria on
the basis of the proximity to public transport and the closeness of the downtown core.
The two studios will rent for $412 and the one bedroom for $635. These are 550 square
feet and 850 square feet respectively. Johnson told Council the basement will probably
be used as restaurant space; the second floor will be 8 units; the third floor 9 units and'
the top floor the employee housing.
The is special review required for the waiving of the parking requirements. Johnson told ,
Council the engineering and planning departments are in support of auto di$incentive in the
commercial cial and support this application; however, they would like to bring to the
attention of Council, as the city continues to exempt the residential component of the
commercial core, this is compounding the parking problems in the downtown. Johnson said
as future applications come through, the staff will start looking more critically at 1
parking association with the residential aspects of the downtown. Councilman Parry said
he would like agreement from applicants to join in a parking structure sort of like a
sidewalk district. II
The planning office recommends exemption of the employee units and approval of the no
parking request. The employee units should be restricted to the middle income guidelines
with a six month minimum lease restriction. Mayor Edel again strongly opposed the
middle income guidelines; the city is getting no affordable units if they are all to I
be middle income.
Councilman Parry moved to approve the application for subdivision exception for the
purposes of condominiumizing theEpicure Plaza building subject to the following conditions:
(1) compliance with the engineering department comments, (2) deed restrictions of the
three employee units at the middle income price guidelines, (3) restrictions to six month
minimum leases with no more than two shorter tenancies per year on the three employee
housing units; seconded by Councilman Collins. All in favor, with the exception of Mayor
Edel. Motion carried.
Councilman Parry moved to approve the Epicure Plaza request for exception from GMP for the.,
three employee housing units and approve the request that no parking be required for these';
units subject to the following condition: employee units restricted at the middle income
guidelines with six month minimum leases and no more than two shorter tenancies; seconded
by Councilman Collins. All in favor, with the exception of Mayor Edel. Motion carried. l
I SUBDIVISION EXCEPTION - Brandt II
I
Councilwoman moved to approve the Brandt subdivision exception for purposes of condomini-
umization subject to the following conditions: (1) submission of a condominium plat showing
each units, common elements, parking, etc., to be signed and recorded following construc- I
tion of the second unit; (2) deed restriction on both halves of the duplex to six month
minimum leases with no more than two shorter tenancies per year; seconded by Councilman i
Collins. All in favor, motion carried.
Mayor Edel requested a work session to discuss the issue of the pricing of employee units.
This was scheduled for June 24, 1981, at noon.
EXEMPTION FROM GMP FOR EMPLOYEE HOUSING - Mill Street Shopping Plaza
Colette Penne, planning office, told Council this is a request to use a .5 FAR bonus for
employee housing; exemption from GMP for employee housing , and exemption from the parking!•
requirements for the employee housing. This is located in the CC zone. This project
went through GMP in September 1980 and was alloted 20,500 square feet in addition to the
1 retention of 6500 existing square feet. Three employee apartment are included in the plan;
and are part of the FAR. One of these units will be substandard in size.. Ms. Penne told
I Council the present plan reflects some changes, one is that the existing Mill street
station is being removed. This has been reviewed and approved by HPC. There will be l
three studios, two at 548 square feet and one at 530 square feet. The employee units
are part of the 5:2 NI,R•bonus and:1the applicant did not select to take advantage of the
bonus: for the —mmercial square footage. P & Z rsc:amended approval of the exemption of
the employee units from GMP, conditioned upon them being deed restricted, and voted to
waive the parking requirements. Councilwoman Michael moved to exempt from GMP the employee units in the Mill Street Shop- I
ping Plaza subject to the following conditions: (1) deed restricting the employee hous- 'I
ing units as per Section 20-22 of the Aspen Municipal Code, (2) that these deed restrictions
be for the low income category of the housing authority guidelines, (3) that these deed I
restrictions be recorded prior to the receipt of a building permit; (4) that the parking j
requirements for the employee units be waived; seconded by Councilman Parry. Ij
Councilman Parry pointed out these should be middle income units like the previous applica
tions. Tony Mazza, representing the applicant, agreed he would like to receive what the !
other applicants have gotten. Ms. Penne explained she had taken this application to P & Z'I
with no guidelines recommendations. P & 7, recommended low and said they wanted to recom-
hmend low quidelines from now on. Mayor Edel requested that P & Z attend the study session
q on June 24.
I All in favor, motion carried.
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URGENT
EffICIENCYO LINE N0. 2725 AN AMPAD PRODUCT 60 SHEETS
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GROWTH MANAGEMENT PLAN SUBMISSION
1
1
1
� The Epicure Plaza Building
APPLICANT: The Epicurean Partnership
J. Michael Solheim
John Wilbur
330 East Main Street
Aspen, Colorado 81611
ARCHITECT: Thomas Wells & Associates Architects
P.O. Box 3199
Aspen, Colorado 81611
CONSULTANT: The Donald J. Fleisher Company, Inc.
620 East Hyman
Aspen, Colorado 81611
I
1
1
1
INDEX
Page 1
as
bb
cc
dd
Page 2
ee
fr
gg
hh
PROJECT DESCRIPTION
Water System
Sewage System
Storm Drainage
Development Area
Automobile /Transit /Pedestrian
Proposed Uses
Adjacent Uses
Construction Schedule
QUALITY OF DESIGN
as Architectural Design
Page 3
bb Site Design
cc Energy
Page 4 Energy (continued)
Page 5 if it
Page 6 it it
Page 7
dd
ee
as
bb
cc
Page 8
dd
ee
as
bb
A me ni tie s
Visual Impact
HISTORIC FEATURES
Massing
Exterior Building Materials
Architectural Details
Color
Architecture
COMMUNITY COMMERCIAL USE
Employee Housing
Medical and Service Needs
DRAWINGS
Al
A2
A3
A4
A5
A6
A7
A8
A9
A10
A11
Project Location
Adjacent Zoning
Historic District Overlays
Bus Routes
Existing Parking Lots
Pedestrian Malls
Site Plan
Existing Utilities
Basement Plan
Ground Floor Plan
Second Floor Plan
Third Floor Plan
Employee Housing
Section Looking East
North Elevation
South Elevation
t�
PROJECT DESCRIPTION
The Epicure Plaza Building is submitted for a G. M. P.
1 allotment under Section 24-10. 5, Ordinance No. 48,
for commercial and office development. The proposed
building is located on the two vacant lots between the
Epicure Building and the Whale of a Wash on Main
Street and contains:
Basement Work and storage area
Ground Floor Retail and restaurant space
Second Floor Office space
Third Floor Housing
The two lots in CC zone total 6, 000 square feet which
' permits 12,000 square feet with the .5 F.A.R. Bonus.
Our submittal provides for:
Commercial/Office 10,041
Housing (approximately) 1,959
Total Square Feet 12, 000
This submittal is for 10,041 of commercial/office
space with the employee housing exempted under
Section 24-10.2 (g).
(aa) Water System
The proposed building will be served by a I," line
connected to the existing 6" water main located
on Main Street. The pressure is 100 psi ±. One
restroom is planned for the retail space; two
restrooms for the office level along with baths
and kitchens for the three housing units; a total
of 18 fixtures plus the kitchen requirement for
the ground floor restaurant. Restrooms in the
existing Epicure Building will serve the new
restaurant space with only water required for
kitchen use, The City Water Department has
indicated that the impact of the proposed project
on existing facilities will be negligible and the
supply can be handled satisfactorily by connection
to the existing 6" main.
(bb) Sewage System
The site will be served by a connection to an 8"
sanitary sewer in Mill Street. The impact of
the new building is minimal on the capacity of
the treatment plant and, according to the Aspen
Sanitation District, both the line and the treat-
ment plant can accommodate the anticipated flow.
(cc) Storm Drainage
An existing 48" storm line was placed under Mill
Street in 1977. The City Engineer's office has
given approval to connect to this line through
the alley, subject to final review of working
drawings. The impact from our roof drainage
on the storm drainage line is negligible as there
is adequate capacity both in the line and at the
settling ponds.
(dd) Development Area
Lot size
Proposed commercial
gross area
Proposed employee
housing
Open space and
landscaping
Alley entry court
Lot coverage
6, 000 sq. ft.
10, 041 sq. ft.
1,959 sq. ft. (FAR 0.33)
121000 sq. ft. (FAR 2.0 )
1, 500 sq. ft. (25%)
144 sq. ft. (2%)
4.356 sq. ft. (73%)
6, 000 sq. ft.
T-
(ee) Automobile/Transit/Pedestrian
In accordance with current CC zone requirements,
no on -site parking will be provided (the zone itself
is an automobile disincentive). Main and Mill
Streets have one hour limited parking with'the Rio
Grande free parking lot only one-half block away.
Contract parking is also located one block away
on Hopkins Street. Any increase in traffic on
adjacent streets as a result of this building will
be minimal due to the community oriented nature
of the proposed tenants. (See Community
'
Commercial Uses, Section bb.)
City and County busses serve this location from a
'
bus stop right in front of the Epicure Building
with city service to Snowbunny, Mountain Valley
and the Music Festival (when in session). Across
Main Street at the Mill and Main Building is the
bus stop serving Silverking. Future transportation
considerations include the use of the Galena Street
'
trolley which is less than a block away.
'
Pedestrians have excellent access to the mall and
the commercial core with a two block walk to the
mall with easy entrance from the alley entry court.
'
(ff) Proposed Uses
'
Initial uses for the proposed development are retail
and restaurant uses on the street level, office uses
on the second floor, and employee housing on the
'
third floor. The basement will be used as support
for the commercial uses on the street level.
Apart from the possible use of ground floor space
for office purposes, no change in these uses
is possible without substantial building alterations.
'
(gg) Adjacent Uses
The vicinity of the project is all zoned CC and is
fully developed. The proposed building's uses will
'
be compatible with existing zoning and existing
adjacent uses and will themselves be supportive
1
of the neighborhood.
(hh) Construction Schedule
Assuming no pre -construction delay, construction
will start in the April -May months of 1980, and be
completed in approximately six months. The build-
ing is small by comparison to others and construction
inconveniences will be isolated to the alley and very
little towards Main Street since the building is
placed ten feet back from the property line at
the front.
QUALITY OF DESIGN
(aa) Architectural Design
In addition to accommodating the required functions
of the building, the basic intentions of the design
of the project are to relate to the existing Epicure
Building as well as to the adjoining dining area in
scale, proportion, materials, and exterior detailing.
These goals have been accomplished by stepping the
building back in vertical section keeping the second
floor as the dominant building height. This allows
the existing structure to dominate the composition
of the overall complex. In plan, the building is also
stepped back to accentuate the open space
and the relationship of the new building
as it intersects the old. The garden was con-
sidered as historically important as the Epicure
Building itself, both aesthetically and in the role
it has played in the life of downtown Aspen.
By stepping the open space as indicated, the
existing dining area is retained as well as much
of the existing planting.
Without copying the existing architecture of the
Epicure Building, the form of the new building with
the vertical elements and cut stone copings and
sills becomes a modern interpretation of the
historic structure. The brick facing which will
cover all sides of the building will be in a color and
scale to match that of the existing building.
N
(bb) Site Design
(cc) Energy
Although the project is located on Main Street,
1. Insulation
the major pedestrian orientation and identity will
be for foot traffic existing along Mill Street.
Exterior Wall Construction: The cross -
For this reason one of the main entrances to
sectional construction of brick (outer facing),
restaurant, offices, and residences will be from
concrete block filled with ureaformaldehyde
1 the small landscaped court open to the alleyway
foam insulation, furring and air space, sheet
on the south. The alley, the Mill and Main sidewalks
rock and ulterior finishing yields the following
of the existing Epicure Building, as well as in front
insulating value:
'
of the new building will all be repaved. It is hoped
that this will provide an example for gradual
R-Value
pedestrian use and up -grading of the visual blight
Air film coefficient (outer sur-
now existing in the alleys of the core area. New
face; 15 mph wind) 0.17
Orleans, San Francisco, and many other cities
Brick (3.511) 0.38
have made great strides in re -cycling these
Dead air space (.75" between
spaces, and it is hoped that Aspen in time can
brick and block) 1.01
do the same.
Concrete block (with foam fill) 19.50
Furring and air space 3.12
'
The other major site feature is the existing
Sheet rock and interior finishing 0.45
Epicure dining garden. The shape of the open space
Air film coefficient (innersurface;
on the Main Street frontage was largely determined
still air) 0.68
'
by the size of the outdoor dining area together with
existing planting and trees. Further, since the
Total exterior wall section R-Value 25.31
dining area is on the north side of the building, the
additional setback and stepping of the building masses
This overall R-value of 25.31 well exceeds the
were determined to take maximum advantage of the
Code standard of R-20.
winter sun angle.
'
Below Grade: Exterior walls will be protected
The Main Street courtyard will be heavily landscaped,
from thermal losses to the earth by a two inch
utilizing some of the existing trees as well as new
layer of rigid polystrene insulation, extending
trees and a three foot high hedge around the dining
thirty inches below the surface. This provision
space. The retaining of the dining function within
would apply to the unexcavated perimeter and
' the required open space requires Planning and
more than satisfy the R-11 Code requirement.
Zoning approval. Should this approval not be
granted, the dining function will be eliminated
Roof Construction: All roof sections will
' and the area landscaped in with the remaining
include insulation to bring the overall R value
courtyard space.
to or above R-28, exceeding the code value of
1
R-25.
b
J
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a
i
oW
Z
a
C11)
2. Glass
The glazing details of the Epicure Plaza Building
are a major focus of its energy conservation and
passive solar efficiencies. Doth operable and
fixed window surfaces will optimize solar gain
on the southern face, oriented approximately
thirteen degrees west of true south.
Tight -fitting insulated shutters will be specified,
raising all window cavity R-values to approximately
14 when the insulating shutters are closed. This
design detail furthermore presents an attractive
wood surface to the exterior when closed.
Summer cooling loads are also lessened by the
heat -blocking shutters.
Southern facing windows in the commercial space
on the Epicure Plaza Building's second floor will
be fitted with an operable louver system. This
provision will enhance the solar "direct gain"
of the space while maintaining comfortable levels
of natural lighting and interior temperature.
All window construction will use wood frames to
minimize conductive heat transfer.
Optimal southern glazing will consist of a single
pane with insulating shutters. This construction
results in a significant gain in passive solar
performance over double glazing, and reflects the
recent Colorado Energy Code revisions to encourage
single glazing when coincident provision is made
for nighttime insulation of significant R-value.
In contrast, fixed northern glazing in the Epicure
Plaza Building will be triple paned.
Thermally efficient skylights will be triple glazed.
No wood burning devices are included in the Epicure
Plaza design.
3. Other Passive Solar Considerations: Each of the
studio apartments will have approximately 200 square
feet of southern glazing. Floor construction will
provide a high density concrete topping of two
inches thickness, surfaced with dark tile. This
detail will extend approximately ten feet from
the foot of the southern glazing. Wall and ceiling
surfaces receiving reflected radiation will also be
colored and textured to more efficiently store
solar energy. Natural convective air currents
will be utilized to accelerate the distribution
of solar -heated air with minimal reliance on
ducts or fans.
Recent progress in the manufacture of other
passive solar storage media such as water
walls, phase -change salt "energy rods" and
thin masonry surf acings will also be monitored
during the final design development stages to
further enhance the Epicure Plaza's passive
solar efficiency.
While the Isis Theater and Mill and Hopkins
Building represent significant shading influences
for the collection of winter solar energy low on
the southern wall, the upper wall and roof are
virtually unobstructed. In addition to the
passive solar considerations already mentioned,
provision is made for the rooftop mounting of
domestic hot water collectors. "his collector
bank would be directly plumbed to a storage
tank.
4. ''hermostatic Control Considerations: The
planning of a zone heating system will make
provision for the electronic control of each
area's heating and cooling demands on a precise
schedule. In addition to the specification of
day/night automatic thermostats, control
provision will be made for weekend conservation
in the office spaces and lighting adjustment to
encourage minimum reliance on high wattage
fixtures.
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5. Active Solar Considerations: Solar energy
planning for the Epicure Plaza Building included
a detailed site analysis to determine sunrise and
sunset times, interim shading patterns and
resultant solar energy availability values
throughout the year. Summary results are
presented in the following analysis.
SOLAR PATHFINDER SITE ANALYSIS
PERCENTAGE OF AVERAGE DAILY
APPROXIMATE AVERAGE
EPICURE PLAZA
MONTH
RADIATION AVAILABLE (From (1)
TOTAL DAILY RADIATION
AVAILABLE
Pathfinder Tracing - Attached)
AVAILABLE IN ASPEN
SOLAR ENERGY
(No Shading Obstructions)
(Col 2 x Col 3
EPICURE PLAZA SITE
ft./day)
(Btu/ft2/Day)
(Btu's/sq.
JANUARY
69 %
718
495
FEBRUARY
94 %
1,025
964
MARCH
98 %
1,427
1,398
APRIL
97 %
1,835
1,780
MAY
92 %
2,141
1,970
JUNE
93 %
2,381
2,214
,ULY
92 %
2,263
2,082
AUGUST
95 %
1,979
1,880
SEPTEMBER
98 %
1,679
1,645
OCTOBER
98 %
1,238
1,213
NOVEMBER
77 %
847
652
DECEMBER
60 %
658
395
(1) This entry is the sum of the unshaded one-half hour figures across each month's arc on
the Solar Pathfinder diagram.
(2) Adjusted from Eagle, Colorado United States Weather Bureau Data.
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(dd) Amenities
The most important amenity of the project is
the large usable garden space on the Main Street
frontage. The area is surrounded by the restaurant
and bar spaces, both in the new building, and the
existing Epicure Building. This provides both an
aesthetic and social space as the only such area
on a block where all existing structures are built
to the sidewalk.
The relation of the project to pedestrians and
bicycle ways is another important amenity to
users and employees of the project. With the
entry courts off the alley as well as Main Street,
the building is easily accessible from all directions
by foot or bike.
(ee) Visual Impact
The dominant impact of the building is through
its massing and material relationship to the
existing Epicure Building. Together they form
the only significant public oriented buildings on
the block. By the stepped massing and landscaped
areas both on Main Street and the alley, the
existing Epicure Building is allowed to dominate
the total building complex.
HISTORIC FEATURES
(aa) Massing
The new building has been arranged to provide the
greatest emphasis to the existing Epicure Building
by preserving the existing garden -lining area,
using the open space to (a) preserve the three-
dimensional aspect of the Epicure Building, and (b)
provide a transitional and a linking device between
the new and the old. The stepping back and up of
the new building allows the Epicure facade facing
Main Street to dominate and softens the new
building's mass with respect to the Epicure's
two and one-half story high east wall. This
approach to massing also allows the new building
to be viewed predominantly as a two story
building and allows more light to reach the
existing garden -dining area.
The massing at the alley entrance court allows the
rear of the Epicure Building to turn the corner and
complete itself as a three dimensional form, while
the recess creates a defined entry for the alley
entrance, with much more importance than had it
been brought out to the alley property line.
The roof is flat as is the Epicure and the surrounding
structures.
(bb) Exterior Building Materials
The exterior materials selected for the new building
are brick and stone for copings. Brick was selected
over other materials because we wanted the new
building to be especially quiet with greater emphasis
placed on the outdoor garden dining area and land-
scaping. Brick is also appropriate in expressing
the verticle wall bearing construction and remains
a practical option in light of building costs. The
scale of the new brick will match that of the
Epicure -Building as closely as possible. All windows
and doors will be wood in wood frames which is far
superior to the usual anodized aluminum currently
being used in Aspen.
(cc) Architectural Details
Windows and French doors are designed to have a
vertical appearance picking up the scale of the
vertical fenestration found in the majority of
Aspen buildings. Stone is used as parapet copings
along with certain window lintels, sized in scale
to relate to the Epicure Building, however they
will not be painted, Doors and windows will be
made of wood instead of aluminum which is more
appropriate for Aspen in addition to being a
batter thermal insulator.
The roof line is flat with some interruption of
the parapet with brick capitals which tend to
reduce the horizontal feeling of the building.
Our approach is to retain a contemporary
building with the use of modern details interpreted
from the past.
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(dd) Color
The basic color of the building will be a soft
salmon colored brick, accented by natural buff
stone copings and awnings. Wood windows, French
doors and trim will be painted in neutral colors.
The final brick colors along with samples of the
awning color will be presented to the H. P. C. for
final approval.
(ee) Architecture
The architecture of the project has been carefully
considered, especially as it relates to the existing
Epicure Building. In an attempt to achieve a quiet
complement to the historic character of the
' existing building, a few details have been carried
over to the new structure. These are the cut stone
sills and lintels as well as the brick exterior itself.
' The new brick will be carefully chosen to blend in
with the existing, although it will be a natural
color new brick of a shade to relate to the
' existing painted material. In addition, the vertical
massing of the building with the cut stone copings
to match existing sills and lintels, was utilized to
complement and blend with, but not copy, the existing
historic structure.
This project is one of the most delicate relationships
of a new structure to an existing historic building in
the central core area.
COMMUNITY COMMERCIAL USE
(aa) Employee Housing
The project includes a gross area of 1,959 square
' feet devoted to employee housing. This consists
of two studios and one one -bedroom unit which
comply with the size categories defined by the
' City of Aspen's zoning code. The units will be rented
out under the housing price guidelines established by
the City of Aspen for middle income housing.
The only commercial uses in the project that are
likely to generate a need for additional employee
housing are the retail uses on the street level.
It is anticipated that the office spaces on the
second floor will not generate additional employee
housing demand as the potential tenants and their
employees are likely to be existing residents of
the community. The employee housing units will
be offered on a preferential basis to the employees
of the tenants located in the building.
(bb) Medical and Service Needs
The retail uses on the street level, which repre-
sent 33%, of the total project, will be primarily
community oriented rather than tourist oriented
due to the location on the perimeter of the
commercial core. In addition, office uses in
general serve community needs. Consequently
the office portion of the project, which repre-
sents 35% of the total, will also be community
oriented. Potential office uses will include
architects, accountants, attorneys, doctors,
mortgage bankers, and other professional uses.
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